J-S61024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TRACY GREEN                                :
                                               :
                       Appellant               :   No. 2873 EDA 2017

            Appeal from the Judgment of Sentence August 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008562-2016


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

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 20, 2019

        Appellant, Tracy Green, appeals from the judgment of sentence entered

on August 18, 2017, following his bench trial convictions for aggravated

assault, simple assault, possession of an instrument of crime, and recklessly

endangering another person.1 We affirm.

        We briefly summarize the facts and procedural history of this case as

follows.    This case involves a domestic dispute between Appellant and his

sister while cleaning out their recently deceased mother’s home in September

2016. Appellant struck his sister multiple times in the face with his fists. The

victim slipped and fell to the floor. Using their mother’s cane, Appellant then

struck the victim twice in the face when the cane broke. Appellant attempted

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702, 2701, 907, and 2705, respectively.
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to stomp on the victim’s head with his feet, but his pregnant niece intervened.

When the victim tried to leave the residence, a thrown knife may have grazed

her left arm. Police were called. The victim went to the hospital where she

was treated for a forehead injury, bumps to her cheek and head, an injured

finger, and bruises to her back and elbow.         Police confirmed the victim’s

injuries, took the victim’s statement, and filed a report.

       On May 26, 2017, Appellant waived his right to a jury trial and

proceeded to a bench trial.        After hearing testimony, the trial court found

Appellant guilty of the aforementioned charges.           On August 18, 2017,

Appellant was sentenced to an aggregate term of 11 ½ to 23 months of

incarceration, with a consecutive term of five months of probation. This timely

appeal resulted.2

       On appeal, Appellant presents the following issue3 for our review:



____________________________________________


2   Appellant filed a notice of appeal on September 5, 2017. The trial court
ordered Appellant to file a concise statement of errors complained of on appeal
(“concise statement”) pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely after requesting and receiving an extension to obtain the notes of
testimony from trial. The trial court subsequently issued an opinion pursuant
to Pa.R.A.P. 1925(a) on March 11, 2019.

3  In his concise statement, Appellant also challenged the sufficiency of the
evidence to support each of his four convictions. However, he has abandoned
those issues on appeal and we find them waived. Commonwealth v.
Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (issues raised in Pa.R.A.P.
1925 concise statement that are not developed in appellate brief are
abandoned); see also Commonwealth v. Woodward, 129 A.3d 480, 509
(Pa. 2015) (holding that “where an appellate brief fails to … develop an issue
in any [] meaningful fashion capable of review, that claim is waived.”).

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      Did not the [trial] court improperly shift the burden of proof onto
      [Appellant], where the [trial] court found [Appellant] guilty[,]
      despite inconsistencies in the witness testimony against him[,]
      simply because the court disbelieved [Appellant’s] own testimony?

Appellant’s Brief at 3.

      Appellant claims that the trial court improperly shifted the burden of

proof to him and found him guilty simply because it disbelieved his testimony

at trial.   Id. at 9.     Appellant argues that a trial court cannot convict a

defendant solely upon its disbelief of his testimony.        Id. at 10, citing

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). Appellant points

to alleged inconsistencies between the victim’s trial testimony, her previous

statements to police, and her preliminary hearing testimony. Id. at 10. He

posits that while the victim testified at trial that Appellant struck her twice

with a cane, she told police he struck her three or four times. Id. Moreover,

Appellant claims that the victim neither told police nor testified at the

preliminary hearing that a knife struck her arm during the incident, but

nevertheless she testified at trial that a knife struck her.    Id.   Appellant

suggests that prior to announcing the verdict, the trial court’s statement to

him, “You were better off before you opened your mouth,” indicates that the

trial court was “induced to render a different verdict solely because of its

disbelief [of Appellant’s] testimony, then perforce the court took [Appellant’s]

denial as substantive proof of his guilt.” Id. at 11-12. Appellant maintains

that “[a] criminal trial is not a contest between two witnesses to determine

which is more credible; a verdict must be supported by the credibility of the



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Commonwealth’s evidence irrespective of how credible or incredible the

defense’s evidence might be.” Id. at 12 (emphasis in original).

      An appellate court “must determine whether the evidence admitted at

trial and all reasonable inferences derived therefrom, viewed in the light most

favorable to the Commonwealth as the verdict winner, supports the jury's

finding that every element of the offense was proven beyond a reasonable

doubt.”        Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011)

(citation omitted). Our standard of review is de novo and our scope of review

is plenary.     Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014)

(citation omitted). “The Commonwealth cannot sustain its burden of proof

solely    on    the   [factfinder’s]   disbelief   of   [a   defendant’s]   testimony.”

Commonwealth v. Graham, 596 A.2d 1117, 1118 (Pa. 1991) (emphasis

added). “It has been long accepted that the disbelief of a denial does not,

taken alone, afford affirmative proof that the denied fact existed so as to

satisfy a proponent's burden of proving that fact.”             Id. (emphasis added;

citation omitted).      However, “[a] mere conflict in the testimony of the

witnesses does not render [] evidence insufficient because it is within the

province of the factfinder to determine the weight to be given to the testimony

and to believe all, part, or none of the evidence.”               Commonwealth v.

Rabold, 920 A.2d 857, 859 (Pa. Super. 2007) (citation omitted).                 Finally,

“[w]e may not weigh the evidence and substitute our judgment for the

fact-finder.” Id. (citation omitted).

      Here, the trial court determined:

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      Although [the trial court] understands Appellant was going
      through a rough time in life it does not excuse the behavior
      Appellant exhibited in an emotionally charged rage toward [the
      victim]. After listening to testimony and reviewing all evidence
      presented at trial, [the trial court] found the [victim] more
      credible, therefore, the allegations that [the trial court] found
      Appellant guilty simply because [it] did not believe Appellant’s
      testimony [was] unfounded. Appellant stated during testimony
      [that] he never touched [the victim]. However, medical records
      and photographs indicate [the victim] had blunt force trauma to
      the head. Since [the trial court] found [the victim’s] testimony
      credible the Commonwealth established [its] burden of proof and
      [the burden] was not shifted to Appellant[,] who was found guilty
      of [the aforementioned crimes].

Trial Court Opinion, 3/11/2019, at 8.

      Upon review of the certified record, we agree with the trial court’s

assessment. At trial, the victim testified that Appellant used his fists to punch

her on the right side of her face. N.T., 5/26/2017, at 16. She testified that

she slipped and fell and Appellant struck her twice in the head with their

mother’s cane.    Id. at 16-17.     The Commonwealth entered the victim’s

medical records and photographs of her injuries into the record at trial and

she testified regarding the extent of those injuries.     Id. at 21-27.    Police

interviewed the victim, she also gave them a written statement, and the police

subsequently filed a report. Id. at 34-43. The parties stipulated to entering

the police report into evidence. Id. at 43-44.    The report indicates that the

victim had “a visible bump and laceration” on her forehead. Id. at 55. The

responding police officer testified that he “saw the lump on her forehead with

[] broken skin.” Id. at 62. The responding officer further testified that he did

not recall any bruises or injuries to Appellant. Id.



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      In contrast, Appellant testified that the victim was the aggressor, threw

a book bag at him, and grabbed him around the waist. Id. at 47. Appellant

testified that his niece then began striking him with his mother’s cane. Id. at

47-48. Appellant testified that his niece hit him with the cane seven or eight

times. Id. at 55.        He stated that he was able to usher the victim and his

niece outside and lock the door. Id. at 48. Appellant denied hurting anyone

and claimed he never had a chance to obtain the cane. Id. at 49-50. When

confronted with photographs of the victim’s injuries taken immediately after

the incident, Appellant claimed that, “[s]he made that up.” Id. at 58.

Appellant’s contrary trial testimony was a matter for the factfinder to assess.

Although Appellant’s testimony tended to contradict that offered by the victim,

the trial court, serving as factfinder, was not obligated to credit Appellant’s

version of events over that offered by the victim.

      Based on the foregoing, we reject Appellant’s suggestion that the trial

court’s decision was based solely upon its disbelief of Appellant.          Most

importantly, the Commonwealth presented the testimony of the victim at trial.

Because Appellant and the victim presented diametrically opposed versions of

the incident, the trial court was called upon to determine the credibility of the

witnesses and was free to believe all, part, or none of the evidence. We may

not reweigh that evidence. Moreover, in addition to the victim’s testimony,

the Commonwealth presented other evidence at trial to support the verdicts.

Appellant   fails   to   acknowledge    that   the   Commonwealth     presented

corroborating evidence that supported the victim’s version of events, including

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her medical records, photographs of her injuries, and the testimony of the

responding officer whose observations confirmed those injuries. Accordingly,

the trial court did rely solely upon its disbelief of Appellant or impermissibly

shift the burden of proof to him. As such, Appellant’s sole appellate issue fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/19




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