J-S68035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
           Appellee                       :
                                          :
              v.                          :
                                          :
DONTELL JAYVON BROWNER,                   :
                                          :
          Appellant                       :   No. 371 WDA 2016

          Appeal from the Judgment of Sentence October 15, 2015,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division, at No(s): CP-02-CR-0002627-2015

BEFORE:     SHOGAN, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED NOVEMBER 18, 2016

      Dontell Jayvon Browner (Appellant) appeals from the judgment of

sentence entered following his convictions for aggravated assault, terroristic

threats, unlawful restraint, simple assault, recklessly endangering another

person (REAP), false imprisonment, and harassment. We affirm.

      The charges in this matter stem from an incident that occurred from

the evening of January 29, 2015, through the morning of January 30, 2015,

when Appellant restrained, made repeated violent threats toward, and

physically assaulted his child’s mother, Ashley Mosse (Mosse), at the home

they occasionally shared in Natrona Heights, Allegheny County.      Appellant

eventually permitted Mosse to leave the apartment to take the couple’s son

to a doctor’s appointment. Instead, Mosse called the police and provided a




*Retired Senior Judge assigned to the Superior Court.
J-S68035-16


written statement of the incident.      Appellant was arrested on January 30,

2015.

        Appellant was convicted of the aforementioned offenses on July 16,

2015, at the conclusion of a non-jury trial. On October 15, 2015, Appellant

was sentenced to an aggregate term of three to six years’ incarceration to

be followed by five years of consecutive probation. Appellant’s timely-filed

post-sentence motion was denied on November 19, 2015.                This appeal

followed. Both Appellant and the trial court complied with the mandates of

Pa.R.A.P. 1925.

        Appellant raises two issues for our review.

        I. Did the lower court err in restricting the admission of certain
        text messages which evidenced discussions between the victim
        and [Appellant] weeks prior to the incident, which messages
        showed the victim’s bias, hostility, and interest in revenge
        against [Appellant], all of which bear on the witness’s credibility?

        II. Was the evidence presented insufficient to prove the crime of
        aggravated assault where the victim suffered no serious bodily
        injury nor was there evidence that [Appellant] acted with the
        intent to cause serious bodily injury?

Appellant’s Brief at 8 (trial court answers omitted).

        With respect to Appellant’s first issue, our standard of review

concerning a trial court’s admission of evidence is well settled. “Admission of

evidence is within the sound discretion of the trial court and will be reversed

only upon a showing that the trial court clearly abused its discretion.”

Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. 2015)



                                       -2-
J-S68035-16


(citations   omitted).   “Discretion   is   abused   when   the   course   pursued

represents not merely an error of judgment, but where the judgment is

manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will.”

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (citations

and quotation marks omitted).

              The basic requisite for the admissibility of any evidence in
        a criminal case is that it be competent and relevant. Though
        “relevance” has not been precisely or universally defined, the
        courts of this Commonwealth have repeatedly stated that
        evidence is admissible if, and only if, the evidence logically or
        reasonably tends to prove or disprove a material fact in issue,
        tends to make such a fact more or less probable, or affords the
        basis for or supports a reasonable inference or presumption
        regarding the existence of a material fact.

Commonwealth v. McMaster, 666 A.2d 724, 729 (Pa. Super. 1995)

(citations omitted).

        Prior to trial, Appellant’s counsel produced hard copies of text

messages sent between Appellant and Mosse from December 25, 2014, until

the day of Appellant’s arrest on January 30, 2015. N.T., 7/16/2016, at 9-

14. The Commonwealth stipulated to the messages’ authenticity but

objected to the admissibility of any message sent prior to January 30. Id. at

9-10.     The trial court determined that the messages sent prior to the

January 29 incident were irrelevant to the question of whether Appellant was

guilty of the crimes stemming from that incident and prohibited their use,




                                        -3-
J-S68035-16


except for the purpose of impeachment. Id. at 13-14. On appeal, Appellant

contends that the trial court erred in barring substantive use of messages

sent and received before the incident, arguing that the messages were

relevant to Mosse’s “credibility,” “motive to fabricate the story of the

incident,” and her “bias against” Appellant. Appellant’s Brief at 17.

      The trial court addressed Appellant’s claim as follows.

             As an initial matter, the court notes that it agreed with
      [Appellant] that the case hinged on the credibility of the victim,
      and it also agreed that the text messages could be relevant to
      impeach her credibility -- in the appropriate circumstance. That
      is why the court held open the possibility of admission of the
      texts if they became relevant for that purpose.

             The court concluded that a month’s worth of texts
      exchanged between a couple that quite clearly had a hostile
      relationship was irrelevant. The overwhelming majority of the
      texts were completely unrelated to any claims of fabrication and
      instead, merely confirmed the existence of an emotionally
      charged love-hate relationship. As counsel for [Appellant]
      conceded, none of the texts claimed, either directly or indirectly
      that [] Mosse intended to bring false charges against [Appellant]
      or involve the police in any way. The only conceivable “threats”
      at revenge were extremely vague statements such as: “F*ck
      your face ur gonna regret this,” “Go f*uck some b*tch an die
      wish everything bad upon u dumb f*ck,” and “Enjoy my tits you
      f*cking loser you’ll get what’s coming to you karma or the next
      b*tch u date caz ur a f*cking d*ckhead.” [(sic)]. These general
      statements completely lacked any probative value in the instant
      matter.

            Furthermore, the unqualified admission of the month long
      text exchange would have consumed unnecessary time at trial,
      would have unnecessarily shifted the focus on the victim, and
      would have been taken completely out of context. Additionally,
      many of the texts were sexual in nature, and the admission of




                                     -4-
J-S68035-16


      such texts would have resulted in irrelevant, and potentially
      abusive, inquiries into the victim’s sex life.

            It is crucial to note that this case was not resolved through
      a jury trial, and that there was still evidence introduced through
      the victim’s testimony, as well as [Appellant’s], that clearly
      conveyed to this court the turbulent nature of the relationship
      between the victim and [Appellant]. Indeed, [] Mosse was
      immediately forthcoming about her role in assuming the
      [Appellant’s] identity to send a message to one of the
      [Appellant’s] friends through video gaming system, claiming
      responsibility for [that] incident. It was also quite clear to the
      court that [] Mosse was a woman who was insecure[,] jealous,
      and suspicious of [Appellant’s] infidelity, and the court certainly
      considered those personality traits and [] Mosse’s potential bias
      in making its credibility determinations.

Trial Court Opinion, 5/26/2016, at 9-11 (citations to notes of testimony

omitted).

      Based on the foregoing, and our review of the record before us, we

agree with the trial court that the content of the messages sent prior to the

incident was not probative of the ultimate question of whether Appellant

committed the crimes for which he was charged. We further agree that the

messages had limited probative value to impeach Mosse’s credibility.

Accordingly, we find no abuse of discretion by the trial court and we hold

that Appellant is not entitled to relief on this issue.

      Appellant next argues that the evidence was insufficient to sustain

Appellant’s conviction for aggravated assault because the Commonwealth

failed to prove that Appellant acted with malice and that Mosse suffered

serious bodily injury. Appellant’s Brief at 20-23.



                                       -5-
J-S68035-16


     The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying [the above] test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder.    In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.         Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] of fact while passing upon the credibility of witnesses
     and the weight of the evidence produced, is free to believe all,
     part or none of the evidence.

     Further, in viewing the evidence in the light most favorable to
     the Commonwealth as the verdict winner, the court must give
     the prosecution the benefit of all reasonable inferences to be
     drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

     Following our review of the certified record, the parties’ briefs, and the

relevant law, we conclude that pages 13 through 18 of the opinion of the

Honorable Beth A. Lazzara thoroughly and correctly addresses and disposes

of Appellant’s second issue and supporting arguments and evidences no

abuse of discretion or errors of law. Accordingly, we adopt the trial court’s

opinion, filed on May 26, 2016, as our own and hold, based upon the




                                    -6-
J-S68035-16


reasons stated therein, that the trial court committed neither an error of law

nor an abuse of discretion holding that the evidence presented at trial was

sufficient to sustain Appellant’s conviction for aggravated assault.      The

parties shall attach a copy of that portion of the trial court’s May 26, 2016

opinion to this memorandum in the event of future proceedings.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016




                                    -7-
                                                                         Circulated 10/18/2016 01:24 PM




 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


COMMONWEAL TH OF PENNSYLVANIA                   ) CRIMINAL DIVISION
                                                )
                     v.                         )
                                                )
DONTELL JAYVON BROWNER,                         ) CC# 2015-2627
                                                )
                     Defendant.                 )


                                      OPINION


       This is a direct appeal following the judgment of sentence entered on October 15,

2015. Sentence was imposed as a result of the Defendant's convictions on all counts at

the conclusion of a non-jury trial on July 16, 2015. The Defendant was charged with,

and ultimately convicted of, Aggravated Assault (18 Pa. C.S.A. §2702(a)(1) (Count

One); Terroristic Threats (18 Pa. C.S.A. §2706(a)(1 )) (Count Two); Unlawful Restraint

{18 Pa. C.S.A. §2902(a)) (Count Three); Simple Assault (18 Pa. C.S.A. §2701 (a)(3))

(Count Four); Recklessly Endangering Another Person (18 Pa. C.S.A. §2705) (Count

Five); False Imprisonment (18 Pa. C.S.A. §2903) (Count Six); and Harassment (18 Pa.

C.S.A. §2709) (Count Seven). Sentencing was deferred until October 15, 2015 in order

for a Presentence Investigation Report to be prepared.




       On October 15, 2015, following consideration of the Presentence Investigation

Report, testimony presented and the arguments of counsel, the Defendant was

sentenced to three (3) to six (6) years of incarceration at Count One, to be followed by a

consecutive five (5) year term of probation at Count Two. The Defendant also received

                                            l
a five (5) year term of probation at Count Three, to be served concurrently with the

probationary sentence imposed at Count Two. No further penalty was imposed at the

remaining counts of conviction. The Defendant was awarded 258 days of time credit

towards his sentence, and he was ordered to have no contact with the victim, Ashley

Mosse. Court costs were also imposed. On October 26, 2015, the Defendant filed a

post-sentence motion, which was heard on November 19, 2015, and subsequently

denied. This timely appeal followed.



       On April 5, 2016, the Defendant filed a timely Concise Statement of Matters

Complained of on Appeal ("Concise Statement"), setting forth the following three (3)

issues for review:

      "a. The trial court erred when it restricted the admission of the victim's text
          messages to Mr. Browner in that it would have impeached the victim by
          showing bias, interest in revenge and hostility. These qualities obviously
          have a bearing on the credibility of the witness' testimony.

        b. There was insufficient evidence to establish beyond a reasonable doubt to
           support a conviction for aggravated assault where the victim suffered no
           serious bodily injury nor was there evidence that Mr. Browner acted with
           intent to cause serious bodily injury to the victim.


       c. The verdict was against the weight of the evidence when considered as a
          whole, the testimony of the victim was unreliable, that she had a reason to
          fabricate her story, and when her testimony was not supported by other
          facts, the verdict was based on mere surmise and conjecture and shack's
          one's sense of justice."

      (Concise Statement, 4/5/16, pp. 3-4).




                                           2
        The allegations of error raised by the Defendant are without merit.    For the

reasons set forth below, this court did not commit any evidentiary errors in the

admission or exclusion of proffered evidence.     Additionally, this court did not commit

error in finding the Defendant guilty of the charged offenses as the evidence was more

than sufficient to sustain the Defendant's conviction for Aggravated Assault.

Additionally, the Defendant waived his challenge to the weight of the evidence.

However, should the appellate court conclude that the challenge to the weight of the

evidence is not waived, the claim is entirely without merit as it is nothing more than a

request that the appellate court reconsider credibility determinations   already made by

this court.




 I.     FACTUAL BACKGROUND

        The Defendant and the victim, Ashley Mosse, met in 2013 and began a romantic,

albeit tumultuous, relationship. At the time of the incident, they were still in the

relationship, and they had a three (3) month old son together. (Non-Jury Trial Transcript

("TT"), 7/16/15, pp. 15-18, 30-31). The Defendant did not live with Ms. Mosse, but he

started staying at her apartment after his parents kicked him of the house. (TT, pp. 16-

18). After only two (2) weeks of staying with her, Ms. Mosse had the police remove the

Defendant from her apartment. However, after being away for one (1) week, he

returned there. (TI, p. 16).



       Ms. Mosse was not living at the apartment full-time when the Defendant began

staying there. Ms. Mosse was living at a women's shelter in Cranberry and commuting



                                              3
between the apartment and the shelter. She was staying at the shelter due to a prior

incident between her and the Defendant, and she was afraid of the Defendant.          (TT, pp.

 16-19, 30, 36, 50-51 ). On January 28, 2015, the Defendant returned to Ms. Mosse's

apartment.      She did not stay at the apartment that night, but rather returned to the

shelter.    She returned to the apartment on January 29, 2015, the date on which the

incident occurred. (TT, pp. 18, 33).




           During the evening of January 29, 2015, Ms. Masse was watching television in

bed with the Defendant and their infant son. (TT, p. 18). Ms. Masse noticed that the

Defendant was texting a female, with whom she suspected he had previously had an

affair. (TT, pp. 18, 31 ). Ms. Masse questioned the Defendant about the texts, and an

argument ensued, with the Defendant becoming angry and making demeaning

comments to Ms. Mosse. (TT, pp. 19, 31-32).        Ms. Masse cried herself to sleep as a

result of the Defendant's treatment of her. (TT, p. 19-20).



       Sometime around midnight, Ms. Masse was awakened by the Defendant when

he "ripped the covers off" of her, stuck his feet in her face, and turned up the volume on

the television. (TT, p. 20). Ms. Masse asked the Defendant to remove his feet from her

face and to turn the volume down so she could go back to sleep, but the Defendant

intentionally continued to irritate her. (TT, pp. 20-21 ). It was clear to Ms. Mosse that the

Defendant was trying to start an argument. (TT, pp. 20-21 ). Ms. Mosse decided to

remove herself from the apartment, and she told the Defendant that she was going to

leave. (TT, pp. 21-22).    She got out of bed, got the baby ready, placed the baby in his



                                               4
 car seat, and headed towards the door. (TI, p. 21). Ms. Mosse was at the door when

the Defendant came running after her and thrust her up against the wall. (TT, p. 21 ).

 Ms. Mosse became extremely frightened because she could tell that the Defendant

"was turning into that psycho person." (TT, p. 21 ). After pinning her against the wall, the

Defendant told Ms. Mosse "you're not going anywhere." (TT, pp. 21-22).               He told her he

was going to kill her, stating "I will kill you." (TI, p. 22).




        The Defendant put his left hand over Ms. Mosse's face and cocked his right hand

back "like he was going to punch" her. (TI, p. 22). As this was occurring, the Defendant

was screaming, repeatedly yelling that he would kill her and that he did not care if he

went back to jail. (T.T, p. 22). The Defendant screamed that he would "slice [her]

throat" while they were "driving at a high rate of speed" so that they "would all die"

together. (TI, p. 22). The Defendant's threats to kill Ms. Mosse were made while he still

had her pushed up against the wall. (TT, p. 22). The Defendant continued screaming

and threatening Ms. Mosse for several minutes, and, with his fist still in her face, he

warned her not to talk "while he was talking."       (TT, pp. 22-23).    Ms. Mosse started

shaking because she was so afraid of the Defendant.              She was afraid for her life and for

the life of her baby. (TT, p. 23).




       During this violent episode, the Defendant had a "crazy face" and was "very

angry." (TT, p. 23). He kept pulling his fist back as if he was going to punch Ms. Masse.

(TI, p. 23).   Although she wanted to leave the apartment so she and her baby would be

safe from the Defendant, she eventually complied with the Defendant's             repeated



                                                 5
demands for her to get back in bed.       She complied because he was screaming that he

would kill her if she did not do so. (TI, pp. 23-24). When the Defendant finally let go of

her and was no longer pinning her against the wall, Ms. Mosse was shaking so much

that she fell over as she was walking to the bed. (TI, p. 24).        Ms. Masse crawled into

bed and was lying down when the Defendant climbed on top of her and continued

screaming "I'll kill you!" (TI, p. 24). She kept telling the Defendant that she was sorry in

an attempt to calm him down, but the Defendant instead became angry that she was

interrupting him. (TT, p. 24). The Defendant grabbed a pillow from the bed and, with

both of his hands, placed the pillow over Ms. Mosse's head and pushed down. (TI, p.

24). With the pillow smothered against her face, the Defendant continued screaming

"I'll kill you. I'll go out with a bang. I'll kill you and kill a bunch of other people and kill

myself." (TI, pp. 24-25).    The Defendant threatened to kill Ms. Mosse over thirty (30)

times throughout the course of the night. (TI, p. 25).



       The Defendant had the pillow smothered over Ms. Mosse's face for

approximately fifty (50) seconds.     Although Ms. Mosse did not lose consciousness,           she

was unable to breathe while the pillow was pushed down over her face. (TI, pp. 24-25).

She eventually managed to slide the pillow off to the side. At that point, the Defendant

demanded her phone so that she could not call for help.          She complied with his

demand. (TT, p. 25). Ms. Mosse regrouped when the Defendant permitted her to go

into the bathroom. (TI, p. 25).     Although she contemplated       sneaking out of the

bathroom window, she chose not to do so because she did not want to leave her son

alone with the Defendant. (TT, p. 26). In an attempt to calm the situation down so that



                                                 6
she could save her life, she changed her approach.     When she exited the bathroom,

she asked the Defendant to cuddle in an attempt to convince the Defendant that

everything was fine. (TT, p. 26). Although she was still afraid of him, Ms. Mosse was

trying to relieve the Defendant's anger so that she could end this violent, frightening

encounter. (TT, p. 26).   She reluctantly laid down in the bed with the Defendant, and

they eventually fell asleep. (TT, p. 26).




       Ms. Mosse woke up early the next morning and was still shaken and upset. (TT,

p. 26). She had a plan to get herself and her baby out of the apartment and away from

the Defendant.   She lied to the Defendant, telling him that the baby had a doctor's

appointment.   (TT, pp. 26-27). At first the Defendant told her that she had to cancel the

appointment,   but she persisted and told him that she had to go because something was

wrong with the baby, telling him that she would be back in two (2) hours. (TT, p. 27).

The Defendant permitted her to go, telling her "Okay. You better come back." (TT, p.

27). Ms. Mosse left the apartment around 10:30 a.m. and immediately called the police.

(TT, pp. 27-28, 48).



       Ms. Masse met with Officer Justin Bouch in a Wendy's parking lot and explained

the events that had occurred during the early morning hours. (TT, pp. 28, 30, 45-46, 48-

49). Officer Bouch told her that she could either have the Defendant taken out of the

home or have him arrested.    She chose to have him arrested. (TT, pp. 28, 48). She

then went with Officer Bouch to the Harrison Township Police Department and provided

a written statement of the incident. (TT, p. 28). While she was at the station, the



                                             7
Defendant attempted to contact her multiple times by text message, wanting to know

where she was. (TT, pp. 29, 49). Officer Bouch told Ms. Mosse to respond to the

Defendant so that he would not become suspicious.      Ms. Mosse told the Defendant that

the appointment   was taking longer than expected. (TT, pp. 29, 49). Officer Bouch

secured a warrant and arrested the Defendant that same day. (TT, p. 49).



II.    DISCUSSION

       A. The Defendant cannotdemonstratethat this court abused its discretion
          when it restrictedthe admissionof the victim'stext messagesto the
          Defendant. The court's rulingwas not manifestlyunreasonable,
          contraryto law, or a productof bias, ill-will,partiality,or prejudice.


       At trial, the Defendant sought to admit text messages between the victim, Ms.

Mosse, and the Defendant in order to highlight the volatile nature of their relationship

and to suggest that the victim possessed a motive to fabricate her claims against the

Defendant. (TT, p.11 ). The Defendant argued that such evidence was necessary to

demonstrate Ms. Mosse's bias, which purportedly stemmed from her suspicions of him

being unfaithful. The Defendant also alleged that the text messages showed her desire

to seek revenge for his infidelity. (TI, p. 11 ). The text messages that the Defendant

sought to admit were exchanged between Ms. Mosse and the Defendant between

December 24, 2014 and January 29, 2015. (TT, p. 9). After hearing argument from

each party, this court agreed with the Commonwealth's position that the text messages

exchanged prior to the incident were irrelevant to the ultimate question of whether the

Defendant committed the offenses with which he was charged. (TT, pp. 9-14).




                                            8
         The standard of review regarding evidentiary rulings made by the trial court is

well-settled.    Our appellate court have recognized that


         [t]he standard of review for a trial court's evidentiary rulings is narrow. The
         admissibility of evidence is solely within the discretion of the trial court and will be
         reversed only if the trial court has abused its discretion. An abuse of discretion is
         not merely an error of judgment, but is rather the overriding or misapplication of
         the law, or the exercise of judgment that is manifestly unreasonable, or the result
         of bias, prejudice, ill-will or partiality, as shown by the evidence of record.

Commonwealth        v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (quoting
Commonwealth        v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007)).


         The Defendant cannot demonstrate that this court abused its discretion in

restricting the admission of the text messages because he cannot show that the ruling

was manifestly unreasonable,         contrary to law, or the result of bias, prejudice, ill will, or

partiality.   As an initial matter, the court notes that it agreed with the Defendant that the

case hinged on the credibility of the victim, and it also agreed that the text messages

could be relevant to impeach her credibility -- in the appropriate circumstance.           (TI, p.

13).   That is why the court held open the possibility of admission of the texts if they

became relevant for that purpose. (TI, p. 13) (The Court: "Obviously, anything that goes

to credibility will be admissible.    So if [Ms. Mosse] testifies in a way that is inconsistent

with those [prior texts], you can use them. I'm not going to rule on her credibility in

advance ... " but "[i]f there is an issue of credibility, you can certainly use them.        That is

not a problem.").



        The court concluded that a month's worth of texts exchanged between a couple

that quite clearly had a hostile relationship was irrelevant.       The overwhelming      majority of



                                                   9
the texts were completely unrelated to any claims of fabrication and, instead, merely

confirmed the existence of an emotionally charged, love-hate relationship.       As counsel

tor the Defendant conceded, none of the texts claimed, either directly or indirectly, that

Ms. Masse intended to bring false charges against the Defendant or involve the police

in any way. (Post Sentence Motion Hearing Transcript, 11/19/15, p. 6). The only

conceivable "threats" at revenge were extremely vague statements such as: "F*ck your

face ur gonna regret this," "Go f*ck some b*tch an die I wish everything bad upon u

dumb f*ck," and "Enjoy my t*ts you f*cking loser you'll get what's coming to you karma

or the next b*tch u date caz ur a f*cking d*ckhead." (Appendix to Defendant's       Post

Sentence Motion, 10/26/15, pp. 66-67).       These general statements completely lacked

any probative value in the instant matter.



       Furthermore, the unqualified admission of the month long text exchange would

have consumed unnecessary time at trial, would have unnecessarily         shifted the focus

on the victim, and would have been taken completely out of context.       Additionally, many

of the texts were sexual in nature, and the admission of such texts would have resulted

in irrelevant, and potentially abusive, inquiries into the victim's sex life. (Appendix to

Defendant's Post Sentence Motion, 10/26/15).



       It is crucial to note that this case was not resolved through a jury trial, and that

there was still evidence introduced through the victim's testimony, as well as the

Defendant's, that clearly conveyed to this court the turbulent nature of the relationship

between the victim and the Defendant.     Indeed, Ms. Mosse was immediately



                                               IO
forthcoming about her role in assuming the Defendant's identity to send a message to

one of the Defendant's friends through a video gaming system, claiming responsibility

for the incident. (TT, pp. 39-41 ).   It was also quite clear to the court that Ms. Masse was

a woman who was insecure, jealous, and suspicious of the Defendant's          infidelity,   and

the court certainly considered those personality traits and Ms. Mosse's potential bias in

making its credibility determinations.




        In assessing Ms. Mosse's credibility, this court had the opportunity to directly

observe her demeanor, tone and mannerisms during the trial. The court, as it always

does, took copious notes of all of the testimony and reviewed these notes for internal

consistency, cohesiveness       and the ring of truth in the testimony provided. Following the

court's careful consideration    of all of the testimony, as well as observation and scrutiny

of all of the witnesses, the court found Ms. Masse to be credible and trustworthy.          She

was visibly shaken and upset as she was recounting the events that transpired that

night, and this court had "no difficulties whatsoever'' believing her account of the

incident. (TT, p. 81 ).   The court found that Ms. Masse was telling the truth about how

the Defendant utterly terrorized her on the date in question and committed the crimes of

which he was accused.



       The court had valid and legitimate reasons to support its evidentiary ruling, and

the Defendant is unable to show that this court's ruling was, when taken in a way most

favorable to the Defendant, anything more than a mere error in judgment.        The law is

clear that a simple error in judgment does not amount to an abuse of discretion.



                                               11
 Therefore, the Defendant's allegation of error regarding denial of the admission of the

 text messages should be rejected.    Mendez, supra, at 260.




       Assuming for the sake of argument that the text messages should have been

admitted without qualification, any error in this court's evidentiary ruling is purely

harmless as it would not have affected the outcome of the case. "The harmless error

doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a

fair trial, not a perfect trial." Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014).

Our Supreme Court has further explained the concept of harmless error, stating that:



       "Harmless error exists if the record demonstrates either: (1) the error did not
       prejudice the defendant or the prejudice was de minimis; or (2) the erroneously
       admitted evidence was merely cumulative of other untainted evidence which was
       substantially similar to the erroneously admitted evidence; or (3) the properly
       admitted and uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison that the error
       could not have contributed to the verdict."
       kl at 671-72.

       Any error in not allowing the full text exchange to be admitted had, at most, a de

minimis prejudicial effect on the Defendant because, as the court just noted, the

testimony presented at trial more than adequately communicated to the court the nature

of the relationship between Ms. Mosse and the Defendant, as well as her feelings

towards the Defendant. Unlike a situation where it would be difficult to predict how a

jury would have responded to the text evidence, this court can state with complete

confidence and certainty that the admission of the text messages would not have

impacted the verdict in this case at all. The court simply did not believe that Ms.



                                             12
Mosse's testimony was fabricated out of some desire for revenge against the Defendant

for his suspected infidelity.    Moreover, this court reviewed the text messages in their

entirety at the post-sentence     motion phase, and such review only reinforced the court's

conclusion that the texts were vague and irrelevant and failed to support the defense's

claim of fabrication.     Accordingly, the Defendant's first allegation of error should be

rejected.




       8. The evidencewas more than sufficientto sustainthe Defendant's
          AggravatedAssaultconviction,and the Defendant waived his challenge
          to the weight of the evidence.


       It is well-established that a "challenge to the sufficiency of the evidence is entirely

distinct from a challenge to the weight of the evidence." Commonwealth v. Smith, 853

A.2d 1020, 1028 (Pa. Super. 2004). Our appellate courts have explained the critical

distinction as follows:

       A claim challenging the sufficiency of the evidence is a question of law.
       Evidence will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt. Where
       the evidence offered to support the verdict is in contradiction to the
       physical facts, in contravention to human experience and the laws of
       nature, then the evidence is insufficient as a matter of law. When
       reviewing a sufficiency claim the court is required to view the evidence in
       the light most favorable to the verdict winner giving the prosecution the
       benefit of all reasonable inferences to be drawn from the evidence.


      A motion for new trial on the grounds that the verdict is contrary to the
      weight of the evidence, concedes that there is sufficient evidence to
      sustain the verdict. Thus, the trial court is under no obligation to view the
      evidence in the light most favorable to the verdict winner. An allegation
      that the verdict is against the weight of the evidence is addressed to the
      discretion of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same facts

                                                13
       would have arrived at a different conclusion. A trial judge must do more
       than reassess the credibility of the witnesses and allege that he would not
       have assented to the verdict if he were a juror. Trial judges, in reviewing a
       claim that the verdict is against the weight of the evidence do not sit as the
       thirteenth juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, 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.

Smith, supra, at 1028 (quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.
2000) (emphasis added).


                                 Sufficiencyof Evidence

       As set forth above, the evidence presented at trial, viewed in the light most

favorable to the Commonwealth as verdict winner, was sufficient to establish beyond a

reasonable doubt that the Defendant attempted to commit an Aggravated Assault and

that he had the specific intent to cause serious bodily injury to Ashley Mosse.



       A person is guilty of Aggravated Assault under 18 Pa. C.S.A. §2702(a)(1) if he

"attempts to cause serious bodily injury to another, or causes such injury intentionally,

knowingly, or recklessly under circumstances manifesting extreme indifference to the

value of human life." 18 Pa. C.S.A. §2702(a)(1 ). "Serious bodily injury" has been

defined as "[bJodily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ." 18 Pa. C.S.A. §2301.



      Our appellate courts have explained that "[f]or aggravated assault purposes, an

'attempt' is found where an accused who possesses the required specific intent acts in

a manner which constitutes a substantial step towards perpetrating a serious bodily

                                            14
injury upon another."    Commonwealth    v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013)

(quoting Commonwealth       v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (internal

quotations omitted).    To that end, "intent ordinarily must be proven through

circumstantial   evidence and inferred from acts, conduct or attendant circumstances."

Fortune, supra, at 984 (citing Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa. Super.

2013)).



       In Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978), our Supreme Court

devised a "totality of the circumstances test to be used to evaluate whether a defendant

acted with the necessary intent to sustain an aggravated assault conviction." Fortune,

supra, at 984. The "totality of the circumstances" test was reaffirmed by our Supreme

Court in Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006), where the Court

elaborated on the test as follows:

      Alexander created a totality of the circumstances test, to be used on a
      case-by-case basis, to determine whether a defendant possessed the
      intent to inflict serious bodily injury. Alexander provided a list, albeit
      incomplete, of factors that may be considered in determining whether the
      intent to inflict serious bodily injury was present, including evidence of a
      significant different in size or strength between the defendant and the
      victim, any restraint on the defendant preventing him from escalating the
      attack, the defendant's use of a weapon or other implement to aid his
      attack, and his statements before, during, or after the attack which might
      indicate his intent to inflict injury.


Matthew, supra, at 1257 (citing Alexander, supra, at 889).




                                             15
        In cases where the victim does not actually suffer serious bodily injury, our

 Superior Court has explained that "the charge of aggravated assault can be supported

only if the evidence supports a finding of an attempt to cause such injury." Fortune,

 supra, at 985 (quoting Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super.

2012). "An attempt under Subsection 2702(a)(1) requires some act, albeit not one

causing serious bodily injury, accompanied by an intent to inflict serious bodily injury."

Fortune, supra, at 985.



       These principles as applied to the facts of this case -- the facts that must be

viewed in the light most favorable to the Commonwealth -- are more than sufficient to

establish that the Defendant attempted to cause serious bodily injury to Ashley Mosse

and that he took a substantial step to do so. As outlined earlier, the Defendant became

enraged when Ms. Mosse questioned his fidelity to her and when she attempted to

leave the apartment with her son. He pushed her up against a wall and repeatedly

threatened to kill her as he waved his fist in her face. (TI, pp. 18-19, 21-24). He

screamed and threatened her for several minutes until she finally agreed to get back in

bed with him. When she did finally lay down, he grabbed a pillow and pushed it down

against her face with both of his hands for approximately fifty (50) seconds, during

which time she could not breathe. (TT, pp. 22-25). Significantly, the Defendant

continued screaming that he was going to kill her and that he did not care if he went

back to jail as he was trying to suffocate her with the pillow. (TT, p. 24-25). He

threatened to kill her more than thirty (30) times that night, and Ms. Mosse testified that

she was afraid for her life and the life of her infant son. (TI, pp. 21, 23-24). Although



                                             16
she did not lose consciousness,    Ms. Mosse testified unequivocally that she could not

breathe while the Defendant pressed the pillow against her face. (TT, pp. 24-25).




       Contrary to the Defendant's argument, the fact that Ms. Mosse did not lose

consciousness    is not a fact that prevents a finding of Aggravated Assault.   The

Defendant's actions made clear that he was specifically intending to deprive her of

oxygen for an extended period of time. The fact that the Defendant changed his mind

after Ms. Masse managed to slide the pillow to the side also does not preclude a finding

that he specifically intended to cause her serious bodily injury in the moments preceding

his change of heart. Moreover, although no other adult was there to physically

intervene during the attack, there was indeed a third party present in the room who

certainly could have affected the Defendant's decision to discontinue the attack -- his

infant son for whom he would have had to assume sole responsibility if he continued

with his attempt to suffocate Ms. Masse.



       Although Ms. Mosse, thankfully, did not suffer any serious bodily injury as a

result of the attack, the totality of the circumstances demonstrates that the Defendant

specifically intended to cause her serious bodily injury and that he took a substantial

step to do so.   The Defendant's repeated threats to kill Ms. Mosse, combined with his

actions in climbing on top of her and pushing a pillow over her face for a lengthy period

of time, which had the effect of depriving her of oxygen, were sufficient to establish the

Aggravated Assault conviction.    Accordingly, the Defendant's allegation of error that the




                                             17
 verdict is not supported by sufficient evidence is without merit, and his conviction on all

 charges should be upheld.




                                    Weight of the Evidence

        The Defendant's final allegation of error, that the verdict was against the weight

 of the evidence, should be rejected. Initially, this court notes that the Defendant has

failed to preserve his weight claim for appellate review because he did not raise the

weight claim before this court at any time prior to, or after, sentencing. The issue was

 raised for the first time on appeal in the Defendant's 1925(b) Concise Statement.



        It is well-settled that "a weight of the evidence claim must be preserved either in

a post-sentence motion, by a written motion before sentencing, or orally prior to

sentencing." Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citing Pa.

R. Crim. P. 607 and Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011 )).

"Failure to properly preserve the claim will result in waiver, even if the trial court

addresses the issue in its opinion." Griffin, supra, at 938; See also Commonwealth v.

Wilson, 825 A.2d 710 (Pa. Super. 2003) ("A challenge to the weight of the evidence

must first be raised in the trial court in order for it to be the subject of appellate review.").

Raising the weight claim for the first time in the 1925(b) statement does not suffice to

preserve the claim because "[i]t is axiomatic that a party cannot raise an issue for the

first time on appeal." Commonwealth v. Cerritos, 2015 WL 7573506, at *3 (Pa. Super.

2015) (citing Pa. R. A. P. 302(a)). Appellate review of a weight claim cannot take place

without the issue having first been raised with the trial court because "[a]ppellate review



                                              18
 of a weight claim is confined to a "review of the exercise of [the trial court's) discretion,

 not of the underlying question of whether the verdict is against the weight of the

evidence."   Commonwealth        v. Giordano, 121 A.3d 998, 1007 (Pa. Super. 2015).

Accordingly, the Defendant's challenge to the weight of the evidence should be deemed

waived on appeal and, therefore, rejected.




         However, even if the weight claim is not deemed to be waived on appeal, this

claim of error still fails on its merits.   "One of the least assailable reasons for granting or

denying a new trial is the lower court's determination that the verdict was or was not

against the weight of the evidence."        Commonwealth    v. Morales, 91 A.3d 80, 91 (Pa.

2014).    "The weight of the evidence is exclusively for the finder of fact, which is free to

believe all, part, or none of the evidence, and to assess the credibility of the witnesses .

. . . It is not for [the appellate court] to overturn the credibility determinations   of the fact-

finder." Commonwealth        v. Blackham, 909 A.2d 315, 320 (Pa. Super. 2006).



         The Defendant's contention that the verdict was against the weight of the

evidence is nothing more than an invitation to the appellate court to re-weigh the

evidence and second-guess this court's credibility determinations.         Although the

Defendant told a radically different story than the victim's during his testimony at trial,

the court rejected his testimony and found it to be self-serving and not the least credible.

The court paid careful attention to the mannerisms and demeanor of each witness, and

the Defendant's demeanor and attitude did not provide to this court one glint of truth or

trustworthiness. This court did not believe his claim that Ms. Masse fabricated the



                                                 19
entire story in an attempt to send him to prison so that she could seek revenge for his

infidelity in their relationship.   As the court noted earlier, the court was aware that Ms.

Mosse was insecure, angry, and jealous.         However, based on her demeanor and her

consistent, emotional, and unwavering account of what transpired, this court found her

testimony to be very credible.      This court had no trouble believing that the events on

January 30, 2015 did, in fact, take place as Ms. Mosse had testified to them.




       Based on Ms. Mosse's testimony, which this court believed, this court concluded

that the Commonwealth        had proven the elements of all of the charges brouqht against

the Defendant beyond a reasonable doubt. The Defendant committed the crimes of

harassment and simple assault when he pushed Ms. Mosse against the wall and held

her there, and he committed the crime of terroristic threats when he threatened to kill

her over thirty (30) times. His refusal to allow her to leave the apartment supports his

convictions for unlawful restraint and false imprisonment. The Defendant committed

aggravated assault, simple assault and reckless endangerment of Ms. Mosse's life

when he pushed and pressed a pillow against her face while she was lying on the bed,

depriving her of oxygen for a significant length of time. The Defendant's actions and

behaviors here shock the conscience, not this court's verdict. See Morales, supra, at 91

("[A] new trial is warranted only when the jury's verdict is so contrary to the evidence

that it shocks one's sense of justice and the award of a new trial is imperative so that

right may be given another opportunity to prevail.").




                                                20
Ill.   CONCLUSION

       The verdict and sentence imposed in this case should be upheld. This court's

evidentia.ry ruling disallowing the introduction of text messages was not an abuse of

discretion. The evidence was more than sufficient to sustain the Defendant's conviction

for Aggravated Assault and all other charges. The Defendant waived his challenge to

the weight of the evidence, and, even if the allegation of error as to weight was not

waived, this allegation should be rejected as an improper attempt to have the appellate

court re-weigh this court's credibility determinations




                                           BY THE COURT:




                                           B


                                           DATE




                                               21
