J-S41011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN DAVIS                                :
                                               :
                       Appellant               :   No. 2373 EDA 2017

             Appeal from the Judgment of Sentence June 16, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004931-2016


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 25, 2018

        Appellant, Brian Davis, appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County following his conviction

on the charges of aggravated assault, possession of an instrument of crime,

simple assault, and recklessly endangering another person.1 After a careful

review, we affirm.

        The relevant facts and procedural history are as follows: Appellant was

arrested, and represented by counsel, he proceeded to a bench trial on April

10, 2017. At trial, Police Officer Matthew Conaway testified that he and his

partner were at the Einstein Hospital on May 4, 2016, to “sit on a prisoner”

when, at approximately 4:30 p.m., a nurse “flagged [them] down and said


____________________________________________


1   18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), and 2705, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41011-18


that there was a stabbing” victim who had just arrived at the hospital. N.T.,

4/10/17, at 14. Officer Conaway approached the male victim, who was lying

on a stretcher, and attempted to get information about the stabbing. Id. at

14-15. The victim, later identified as Ronald Lane, indicated he was stabbed

at 5115 Keyser Street, and Officer Conaway radioed the information to the

police station. Id. at 16.

      Police Officer Joshua Daniels testified that he and his partner were on

patrol on May 4, 2016, when they received information via the police radio

indicating there had been a stabbing at 5115 Keyser Street. Id. at 19. Officer

Daniels and his partner proceeded to 5115 Keyser Street where Velda Jackson

and Remous Lane met them. Id. at 19-20. The individuals reported to Officer

Daniels that Appellant had stabbed their family member, Ronald Lane, who

was at the hospital. Id. at 21. Officer Daniels observed blood on the street,

sidewalk, and up the front steps of the property. Id. After being invited inside

of the residence, Officer Daniels observed a trail of blood going up the stairs

and into the second floor bathroom. Id. at 21-22.

      Officer Daniels received information that Appellant had received an eye

wound during the incident, and thus, he proceeded to check for Appellant at

area hospitals. Id. at 22-23. Officer Daniels discovered Appellant, who was

receiving treatment for an eye injury, at Temple Hospital. Id. at 23. Appellant

informed Officer Daniels “that he had been in an altercation with [Ronald

Lane], [and] that he had been punched in the face several times.” Id. at 24.


                                     -2-
J-S41011-18


While Officer Daniels spoke with Appellant, he noticed blood on Appellant’s

pants and hands. Id.

      After Appellant received medical treatment, Officer Daniels arrested him

and transported him to the police station. Officer Daniels testified that, during

the transport:

      [Appellant] was in the backseat just muttering under his breath,
      and [he] happened to hear him say the words, I’m guilty, some
      other phrases, and then the only other [statement he]
      remember[s] is [Appellant] also saying that I’m responsible[.]

Id. at 26.

      Officer Daniels characterized Appellant’s demeanor as “a deflated state,

kind of down, mopey. . .and just kind of blurted [the statements] out.” Id.

      On cross-examination, Officer Daniels clarified that he and his partner

responded to 5115 Keyser Street because of the information provided by their

fellow officers and there is no indication any citizen called 911 with regard to

the subject incident. Id. at 29. Officer Daniels indicated Appellant did not

resist arrest, and the officer’s search of Appellant’s person incident to the

arrest revealed no contraband. Id. at 32.

      Ronald Lane testified that, on May 4, 2016, he resided in a halfway

house; however, his mother (Velda Jackson), his brother (Remous Lane), and

his mother’s boyfriend (Appellant) resided at 5115 Keyser Street. Id. at 34-

35. Mr. Lane testified as follows regarding his visit with his family at their

residence on May 4, 2016:

      [ADA]: Could you please tell us what happened to you?

                                      -3-
J-S41011-18


     [MR. LANE]: We got into an altercation, and I got stabbed.
     [ADA]: Who did you get into an altercation with?
     [MR. LANE]: [Appellant].
     [ADA]: When you say you got stabbed, who stabbed you?
     [MR. LANE]: [Appellant].
     [ADA]: Can you describe what the altercation was over?       Why
     were you guys fighting?
     [MR. LANE]: Something he said to my mom.
          THE COURT: You have to speak in the mic so we can hear.
           [MR. LANE]: Something that he said to my mother that I did
     not agree with.
     [ADA]: Do you remember what that was?
     [MR. LANE]: Not exactly, no.
     [ADA]: Do you remember where you were when he said—well, I’m
     sorry. Let me rephrase that.
          Where were you when you were stabbed, where in the
     house were you?
     [MR. LANE]: In the hallway upstairs.
     [ADA]: It’s a two-story house?
     [MR. LANE]: Yes.
     [ADA]: And what rooms are upstairs?
     [MR. LANE]: Three bedrooms and a bathroom.
                                   ***
     [ADA]: So when this altercation began, did it begin as a verbal
     argument?
     [MR. LANE]: Yes.
     [ADA]: And where did that verbal argument take place, where in
     the house?
     [MR. LANE]: The bedroom, my mom’s bedroom.
     [ADA]: And that’s upstairs?
     [MR. LANE]: Yes.
     [ADA]: Who was in there when that argument started?
     [MR. LANE]: Just me and him.


                                     -4-
J-S41011-18


     [ADA]: Where had your mom gone?
     [MR. LANE]: Downstairs.
     [ADA]: So he said something to your mom, she goes downstairs,
     and then you argue with him?
     [MR. LANE]: Yes.
     [ADA]: How long did that argument last before it turned physical?
     [MR. LANE]: A minute or two.
     [ADA]: And do you remember what the first thing that happened
     was that made it turn physical?’
     [MR. LANE]: Just the fact of what he said to my mom.
     [ADA]: I guess what I mean is, did somebody punch someone or
     did someone push someone? Do you remember what happened?
     [MR. LANE]: It happened so fast, like….
     [ADA]: Okay. Do you remember getting hit by [Appellant]?
     [MR. LANE]: Hit?
     [ADA]: Sorry?
     [MR. LANE]: You said did I ever get hit by him?
     [ADA]: Yeah. Did he hit you?
     [MR. LANE]: No.
     [ADA]: Did you hit him?
     [MR. LANE]: Yes.
     [ADA]: Do you remember where you hit him?
     [MR. LANE]: Probably in his jaw.
     [ADA]: And do you remember how many times?
     [MR. LANE]: Three, four.
     [ADA]: Was he standing the whole time that you were hitting him?
     [MR. LANE]: No. No. He might have for the first one, though.
     [ADA]: For the first one?
     [MR. LANE]: He was standing, but after that he wasn’t.
     [ADA]: Okay. What happened? Did he fall?
     [MR. LANE]: Yeah.



                                    -5-
J-S41011-18


     [ADA]: And after he fell, you said you punched him a couple more
     times, and then what happened after that?
     [MR. LANE]: My mom and my brother came and broke it up, was
     breaking it up.
     [ADA]: Who was doing what to break it up?
     [MR. LANE]: Well, they went to grab me. You know, like
     separating us like that.
     [ADA]: And when they separated you, how far away were you
     from each other?
     [MR. LANE]: Like three feet.
     [ADA]: Where are you at this point, still in the bedroom?
     [MR. LANE]: I’m still in the bedroom. The door is to my right. I’m
     still in the bedroom. He’s like, by the dresser. I’m by the other
     dresser. They’re like, this far apart.
     [ADA]: Okay. Indicating for the record---
     [MR. LANE]: Four feet.
     [ADA]:--four feet.
     [MR. LANE]: They’re, like, side by side. The door separates them.
     [ADA]: Is anybody holding him back?
     [MR. LANE]: No, not really.
     [ADA]: So nobody is holding anyone back, you’re just separated
     at this point?
     [MR. LANE]: Yeah, my mom is in the middle of us. My brother
     and mom was in the middle of us.
     [ADA]: And what happened after that?
     [MR. LANE]: We go in the hallway, then he comes out in the
     hallway. He told my mom to move out [of] the way and he
     stabbed me.
     [ADA]: And where did he stab you?
     [MR. LANE]: In my lung.
     [ADA]: Do you remember how many times he stabbed you?
     [MR. LANE]: Just once.
     [ADA]: And do you remember what he stabbed you with?
     [MR. LANE]: No, that I don’t know.


                                    -6-
J-S41011-18


     [ADA]: Do you remember what you told the police you were
     stabbed with?
     [MR. LANE]: I didn’t make no police report.
                                ***
     [ADA]: Do you remember going into the bathroom at all?
     [MR. LANE]: Yeah, we was in the bathroom.
     [ADA]: When did you go into the bathroom?
     [MR. LANE]: It happened so quick. I hit him again. That’s how we
     wind [sic] up on the bathroom floor. He swung at me again.
     That’s how he got to my nose.
     [ADA]: He swung at you again?
     [MR. LANE]: Yeah.
     [ADA]: This is in the bathroom?
     [MR. LANE]: Yeah. I was going forward. And then I grabbed his
     hand and I went to go punch him, but I never caught a breath.
     And that’s when I got off him and trying to catch my breath. But
     my lung had collapsed by then.
     [ADA]: You said that he swung at your nose.     Did he cut your
     nose?
     [MR. LANE]: Right here.
     [ADA]: That scar that you have right now on your nose, that’s
     from him cutting you? You have to say yes, sir, for the record.
     [MR. LANE]: Yes.
     [ADA]: So how long after the first time he stabbed you did this
     happen in the bathroom?
     [MR. LANE]: Not even a minute afterwards. Like, everything just,
     like, happened so fast, like….
     [ADA]: But you were in the bathroom first and then he came in
     after you or how did it happen?
     [MR. LANE]: The way it was, I didn’t know I was stabbed first. My
     reaction was just hit him, and he fell in the bathroom. So it was
     all like from the bedroom to the hallway to the bathroom to me
     downstairs and then the hospital, just like that.
                                ***
     [ADA]: Mr. Lane, when [Appellant] stabbed you were you
     punching him?

                                   -7-
J-S41011-18


      [MR. LANE]: No.
      [ADA]: What were you doing?
      [MR. LANE]: I backed up. My mom was in between, so I backed
      up.

Id. at 36-41, 44-45, 60.

      Mr. Lane indicated that, after he was stabbed, he walked outside, where

his cousin was “just pulling up.” Id. at 41-42. His cousin drove him to the

hospital, where he received a chest tube. Id. at 42-43.

      Mr. Lane denied being “high” or “drunk” at the time of the incident, and

he testified that he clearly remembers what occurred. Id. at 46.

      Detective Justin Falcone testified he interviewed Mr. Lane at the hospital

on May 4, 2016. Id. at 64-65. Mr. Lane was “upset, but otherwise, he was

very competent and able to speak.” Id. at 66.      Detective Falcone detected

no evidence that Mr. Lane was “under the influence” of drugs or alcohol at this

time. Id. at 67.

      With regard to the incident, Mr. Lane made the following statement to

Detective Falcone:

             My mother’s boyfriend, [Appellant], was arguing with my
      mother over money. I asked him to calm down and he was
      preparing to do something. He was, like, gesturing back and forth
      like he was going to hit me and we started going at it. And my
      mom and my brother got in between us to break up the fight, and
      this P word stabbed me.

Id. at 70.

      Detective Falcone testified he asked Mr. Lane if he knew the type of item

Appellant used to stab him, and Mr. Lane answered: “Some makeshift thing

                                     -8-
J-S41011-18


he has. I don’t know exactly. I think he stabbed me once or twice. Maybe

like an ice pick or something.” Id. at 71.

      Detective Keary Sellers testified that she executed a search warrant on

the house at issue searching for the weapon used in the stabbing. Id. at 72-

73. She indicated the weapon had been described to her as “some kind of

homemade ice pick or screwdriver with a black handle or tape around the

handle.”   Id. at 73.    She recovered a screwdriver with a black handle;

however, the screwdriver did not have any blood on it. Id.

      The parties stipulated that hospital records revealed Mr. Lane had a stab

wound to his chest, for which he received a chest tube, as well as a laceration

to his face.

      Appellant testified that, on the day in question, he was in the bedroom

arguing with his fiancée, Velda Jackson, about money when Mr. Lane appeared

and told Ms. Jackson to go downstairs. Id. at 94.          Mr. Lane then asked

Appellant, “when you gonna pay my mom?” Id. Appellant indicated that Mr.

Lane “sucker-punched [him],” causing his right eye to bleed; Appellant noted

that he is blind in his left eye. Id. at 95. Appellant testified that he fell down,

and Mr. Lane began “beating on” him to the extent Ms. Jackson and Mr. Lane’s

brother yelled for him to stop. Id. at 96.

      Appellant testified that Ms. Jackson and Mr. Lane’s brother pulled Mr.

Lane into the hallway and the following occurred:

           I said, oh, no, he didn’t. Then I heard him holler, move,
      move, let me go, get off me, get off me. I went, oh, he coming

                                       -9-
J-S41011-18


      back in here. So the only thing I could do, I seen a screwdriver.
      So I went up there, like, what’s up? He’s like, move, and he
      started screaming at me again. So I guess by all of that, I took
      a—I swung and stabbed him one time. And then a couple of them
      grabbed me, tried to grab the screwdriver out of my hand. We all
      fell to the bathroom on the floor. There’s three people on top of
      me. I was on the bottom. And I kept saying, get off me, I can’t
      breathe, because somebody had their knee on me.
            [Mr. Lane] said, as he got off me, they got the thing out of
      my hand, and [Mr. Lane] was like, I can’t breathe. And I’m in
      there bleeding. That’s why the pictures show all of the blood in
      the bathroom.

Id. at 97.

      Appellant testified that he told the police that Mr. Lane hit him first. Id.

at 98. Appellant testified that, after he was released on bail in connection

with the current incident, he went back to the house, where Mr. Lane “cracked

[him] in the head with a piece of wood, gave [him] staples, and stitches on

the side of [his] head, and then punched [him] in [the] mouth in front of the

ambulance dude on the way coming out the door.”           Id. at 99.    Appellant

indicated that he did not “press charges” or call the police. Id.

      At the conclusion of all testimony, the trial court convicted Appellant of

the offenses indicated supra, and on June 16, 2017, Appellant proceeded with

counsel to a sentencing hearing, at which the trial court sentenced Appellant

to an aggregate of three years to six years in prison, to be followed by five

years of probation.

      On June 20, 2017, Appellant filed a counseled post-sentence motion

seeking a judgment of acquittal, a new trial, or modification of his sentence.



                                     - 10 -
J-S41011-18


Specifically, Appellant challenged the sufficiency of the evidence, claimed the

verdict was against the weight of the evidence, and averred his sentence was

unduly harsh. The trial court denied Appellant’s post-sentence motion, and

this timely, counseled appeal followed.        The trial court directed Appellant to

file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied.2 The trial

court did not file a responsive Pa.R.A.P. 1925(a) opinion as the trial judge was

no longer sitting on the bench.

       On appeal, Appellant’s sole claim is that the trial court’s verdict is

contrary to the weight of the evidence such that he is entitled to a new trial.

Specifically, Appellant contends the weight of the credible evidence reveals

Appellant stabbed Mr. Lane in self-defense. Appellant avers that, “[t]o the

extent there is any incongruence between the testimony of [Appellant] and

[Mr.] Lane, the testimony of [Appellant] possesses the greater weight when

one views their testimony in light of all the other evidence presented at trial.”

Appellant’s Brief at 28. For instance, Appellant avers Mr. Lane’s trial testimony

was not credible since he falsely informed the police that he lived at the home

in question, as well as failed to inform the police that he lived at a halfway

house, he was on parole, or he threw the first punch. Id. at 28. Appellant

concludes that, “when viewed in light of the fact that [Mr. Lane] provided false

and intentionally misleading information to police on a prior occasion


____________________________________________


2Appellant raised therein his weight of the evidence claim, which he also raises
on appeal.

                                          - 11 -
J-S41011-18


regarding the incident at issue, it is beyond peradventure that the testimony

of [Appellant] is of greater force.” Id. at 29. Further, Appellant posits Mr.

Lane’s trial testimony should be discredited since he “regularly used

cocaine[,]” “drank approximately eight ounces of vodka two days per week[,]”

and was a convicted felon. Id. at 28-29. Thus, Appellant avers that, to the

extent the trial court relied on Mr. Lane’s unreliable testimony in finding

Appellant guilty, the verdict was against the weight of the evidence.

      Our standard of review is as follows:

             The decision to grant or deny a motion for a new trial based
      upon a claim that the verdict is against the weight of the evidence
      is within the sound discretion of the trial court. Thus, the function
      of an appellate court on appeal is to review the trial court’s
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight of
      the evidence. An appellate court may not overturn the trial court’s
      decision unless the trial court palpably abused its discretion in
      ruling on the weight claim. Further, in reviewing a challenge to
      the weight of the evidence, a verdict will be overturned only if it
      is so contrary to the evidence as to shock one’s sense of justice.
             A trial court’s determination that a verdict was not against
      the interest of justice is one of the least assailable reasons for
      denying a new trial. A verdict is against the weight of the evidence
      where certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. We do not reach the underlying question of whether the
      verdict was, in fact, against the weight of the evidence. . . Instead,
      this Court determines whether the trial court abused its discretion
      in reaching whatever decision it made on the motion.


Commonwealth v. Williams, 176 A.3d 298, 312 (Pa Super. 2017) (internal

citations, quotations, and brackets omitted).       It is well-settled that, as it

relates to the credibility of the witnesses, such is “exclusively for the finder of


                                      - 12 -
J-S41011-18


fact who is free to believe all, part, or none of the evidence.” Commonwealth

v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa.Super.

2014). For that reason, the trial court need not view the evidence in the light

most favorable to the verdict winner, and may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 n.3 (2000).

      Here, in finding Appellant guilty of the offenses beyond a reasonable

doubt, the trial court found the Commonwealth’s witnesses, including Mr.

Lane, to be credible and reconciled any discrepancies in the witnesses’

testimony. Additionally, our review discloses that Mr. Lane was subject to

extensive cross-examination before the trial court regarding where he lived,

his parole status, and his use of cocaine and alcohol, as well as his failure to

inform the police that he threw the first punch. Further, Mr. Lane was subject

to extensive cross-examination regarding the altercation at issue. The trial

court had a full opportunity to observe Mr. Lane, as well as Appellant, and to

assess their credibility regarding the events, which undisputedly led to

Appellant stabbing Mr. Lane. After reviewing all the evidence, the trial court

found that the credible evidence revealed Appellant committed the instant

offenses and the Commonwealth disproved his claim of self-defense.


                                     - 13 -
J-S41011-18


      In forwarding his weight of the evidence claim, Appellant essentially

asks us to reassess the credibility of the witnesses and reweigh the testimony

and evidence presented at trial. We cannot and will not do so. Our review of

the record shows that the evidence is not tenuous, vague, or uncertain, and

the verdict was not so contrary to the evidence as to shock the court’s

conscience. Thus, the trial court properly exercised its discretion in concluding

that the verdict was not against the weight of the evidence, and therefore,

Appellant is not entitled to relief on his weight claim.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/18




                                      - 14 -
