J-S28038-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                        : IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                          : PENNSYLVANIA
                                           :
                   Appellee                :
                                           :
             v.                            :
                                           :
    CODY LEE CHESTNUT,                     :
                                           :
                   Appellant               : No. 1800 MDA 2018

          Appeal from the Judgment of Sentence Entered June 18, 2018
               in the Court of Common Pleas of Lycoming County
              Criminal Division at No(s):CP-41-CR-0000994-2017

BEFORE: BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:              FILED: AUGUST 19, 2019

         Cody Lee Chestnut (Appellant) appeals from his judgment of sentence

of 5 to 12 years of incarceration imposed after a jury convicted him of

aggravated assault and simple assault. We affirm.

         The following facts were established at trial.    On March 22, 2017,

Appellant went to the home of Dennis Chestnut, Appellant’s father, to get

high. N.T., 4/10/2018, at 15. The two went to the barn on the property and

took a hit of crack cocaine, which Dennis described as being of “garbage”

quality. Id. at 16. The two then “rode out on [a] skid-steer” to access some

logs.1    They loaded logs into the bucket and returned to the barn.        Both




1   Dennis testified that he was a tree trimmer by trade. N.T., 4/10/2018, at 27.

* Retired Senior Judge assigned to the Superior Court.
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Appellant and Dennis took another hit of the crack cocaine,2 and Appellant

told Dennis that Appellant needed money.3 Id. Dennis called a log buyer, but

that individual was not available to buy logs at that time, and according to

Dennis, Appellant became upset. Id. at 19. At that point, while Dennis had

his back turned to Appellant, Appellant struck Dennis, who “went flying.” Id.

According to Dennis, it was the “[h]ardest punch he ever took.” Id. at 20.

Dennis then “staggered out of the barn door,” and Appellant “drug [sic]

[Dennis] back [inside the barn] by [his] hooded sweatshirt.” Id. at 21. At

that point, Dennis felt injuries to his “face and eye.” Id. at 22. Appellant then

attacked Dennis again and “grabbed [him] by the throat and started choking

[him].” Id. at 23. Dennis recalled being on his hands and knees and feeling

Appellant punch his spine and stomp on his back. Id. at 24.          Eventually,

Appellant permitted Dennis to call his girlfriend, Patti, for help. Dennis also

“agreed to lie” to both Patti and police about what happened to help Appellant

avoid criminal charges. Id.

      Patti arrived at the barn, and while Appellant was helping Dennis into

her vehicle, Appellant requested that Patti “stop at the [MAC] machine and




2 Dennis testified that this was the only crack cocaine he smoked, but
Appellant was taking hits through the entire incident. N.T., 4/10/2018, at 41.

3Dennis also testified that Appellant told Dennis that Dennis owed Appellant
money. N.T., 4/10/2018, at 18.



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get him 300 bucks.”4 Id. at 26. By the time Dennis arrived at a local hospital,

his eye was swollen shut and bleeding, and he had “a lot of pain in [his back]

where [Appellant] broke [his] ribs.” Id. at 28.       Hospital personnel were

concerned that Dennis was “going to lose that eye,” and Dennis was

transferred by ambulance to a larger hospital in Danville, Pennsylvania. Id.

      According to Dr. DiAnne Leonard, a trauma surgeon who treated Dennis

in Danville, Dennis arrived at the hospital with “evidence of traumatic injuries

around the face.” Id. at 111. After some imaging studies, it was revealed

that Dennis had “multiple facial fractures around the left eye,” “nasal bone

fractures,” two rib fractures, a “grade three liver laceration,” and “an intimal

tear in his aorta.” Id. at 112. Dennis was admitted to the hospital for close

monitoring of his internal injuries.

      Trooper Jonathan Thompson of the Pennsylvania State Police made

contact with Dennis the following morning while Dennis was still hospitalized

in the intensive care unit. Trooper Thompson photographed Dennis’s injuries.

Dennis also provided a three-minute video statement to Trooper Thompson

implicating Appellant as his attacker.5      Trooper Thompson also went to

Dennis’s property to process the crime scene.        Then, Trooper Thompson




4Patti testified that she did not stop to get money because Dennis needed to
get to a hospital. N.T., 4/10/2018, at 80.

5 Neither the photographs nor the video was included in the certified record to
this Court.
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procured a warrant for Appellant’s arrest, and Appellant was apprehended at

the home of his girlfriend later that evening.

      Police interviewed Appellant, who admitted that he and Dennis had a

fight the day before. Appellant explained to police that he had seen Dennis

earlier that day, and Dennis “could provide [Appellant] with an opportunity to

make some money to help him out.” Id. at 140.            The two smoked crack

together, then “they got into a fight.” Id. Appellant admitted to hitting Dennis

once, then stated that Dennis hit Appellant, then Appellant hit Dennis two or

three more times. Id. Appellant also told police that he “put [Dennis] in a

guillotine choke.”6 Id. at 141.

       As a result of this incident, Appellant was charged with aggravated

assault, simple assault, strangulation, and unlawful restraint. A jury trial was

held on April 10-11, 2018, where the aforementioned testimony was

developed. The jury convicted Appellant of aggravated assault and simple

assault, and acquitted Appellant of strangulation and unlawful restraint. On

June 18, 2018, the trial court sentenced Appellant to an aggregate term of 5




6 At trial, Appellant testified that he “snapped [his] hand offensively” at Dennis
to push Dennis away after Dennis became combative and agitated after
smoking the crack cocaine. N.T., 4/10/2018, at 176. According to Appellant,
the two began to “tussle” and they “ended up on the ground.” Id. at 177.
Appellant testified that things calmed down until it appeared to Appellant that
Dennis was going to hit Appellant with a brick. At that point, according to
Appellant, Dennis tackled Appellant, and Appellant tried to calm Dennis down
by hitting him in the back and side. Id. at 179.



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to 12 years of incarceration. Appellant filed a post-sentence motion nunc pro

tunc on July 16, 2018,7 in which he claimed there was insufficient evidence to

sustain his convictions.   At argument on the post-sentence motion on




7    The trial court granted Appellant’s motion to file a post-sentence motion
nunc pro tunc. Order, 7/14/2018. As this Court has explained,

     [t]o be entitled to file a post-sentence motion nunc pro tunc, a
     defendant must, within 30 days after the imposition of sentence,
     demonstrate sufficient cause, i.e., reasons that excuse the late
     filing.6 Merely designating a motion as “post-sentence motion
     nunc pro tunc” is not enough. When the defendant has met this
     burden and has shown sufficient cause, the trial court must then
     exercise its discretion in deciding whether to permit the defendant
     to file the post-sentence motion nunc pro tunc. If the trial court
     chooses to permit a defendant to file a post-sentence motion nunc
     pro tunc, the court must do so expressly. … [I]n order for a
     petition to file a post-sentence motion nunc pro tunc to be
     granted, a defendant must, within 30 days after the imposition of
     sentence, demonstrate an extraordinary circumstance which
     excuses the tardiness.
             ______
             6 The trial court’s decision on a request to file a post-

             sentence motion nunc pro tunc must be rendered
             within 30 days of the imposition of sentence. See 42
             Pa.C.S.[] § 5505. …

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc).

       Here, Appellant was sentenced on June 18, 2018. On June 29, 2018,
Appellant’s privately-retained counsel sought permission to withdraw. The
trial court held a hearing on July 9, 2018, following which the court granted
counsel’s motion to withdraw, appointed the Lycoming County Public
Defender’s office to represent Appellant, granted Appellant’s motion to file a
post-sentence motion nunc pro tunc, and directed said motion to be filed no
later than July 17, 2018. Order, 7/14/2018. Both Appellant and the trial court
acted within 30 days of the imposition of sentence. See Dreves, supra;
Commonwealth v. Batty, 169 A.3d 70, 72 n.4 (Pa. Super. 2017) (same).

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September 20, 2018, Appellant moved to amend his post-sentence motion to

include a claim that the verdict was against the weight of the evidence, and

the trial court heard argument on both the sufficiency and weight claims. N.T.,

9/20/2018, at 6-18. The trial court denied Appellant’s motion by opinion and

order filed October 16, 2018.

        This timely-filed appeal followed. Appellant and the trial court complied

with Pa.R.A.P. 1925.8 On appeal, Appellant challenges the aggravated assault

conviction based on both the sufficiency and weight of the evidence. 9 See

Appellant’s Brief at 5.

        Challenges to the sufficiency of the evidence and the weight of the

evidence are two distinct issues. See Commonwealth v. Widmer, 744 A.2d

745, 751-52 (Pa. 2000). Evidence is sufficient to support a verdict when it

establishes each material element of the crime charged and commission of

the crime by the accused beyond a reasonable doubt. Id. The remedy for a

successful challenge to the sufficiency of evidence is a judgment of acquittal.

Id. A challenge to the weight of the evidence, on the other hand, concedes

there is sufficient evidence to sustain the verdict.    Id.   The remedy for a

successful challenge to the weight of the evidence is a new trial. Id.




8The trial court directs us to its October 16, 2018 opinion and order denying
Appellant’s post-sentence motion. 1925(a) Opinion, 12/24/2018, at 1.

9   The Commonwealth has elected not to file a brief on appeal.
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      Appellant first argues that the evidence was insufficient to sustain his

aggravated assault conviction because the Commonwealth failed to prove

beyond a reasonable doubt that all of Dennis’s injuries were the result of the

attack by Appellant. Appellant’s Brief at 13. In addition, Appellant argues that

even though Appellant conceded that he indeed punched Dennis, the

Commonwealth failed to prove either that Dennis sustained serious bodily

injury or that Appellant intended to cause serious bodily injury. Id.

      To address a challenge to the sufficiency of the evidence, we must

determine

      whether, viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) (citation

omitted).

      To    prove   that   Appellant   committed   aggravated     assault,   the

Commonwealth had to establish that Appellant “attempt[ed] to cause serious

bodily injury to another, or cause[d] such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the value

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of human life.” 18 Pa.C.S § 2702(a)(1). Serious bodily injury is defined as

“[b]odily 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. § 2301.

      Instantly, Appellant admitted to having punched Dennis in the fact

causing his nose to bleed. N.T., 4/10/2018, at 176 (Appellant testifying that

he struck Dennis in the face), id. at 177 (Appellant testifying Dennis’s nose

was bleeding). There is no question that at least one punch from Appellant

caused facial injuries to Dennis. See N.T., 4/10/2018, at 115 (Dr. Leonard

testifying that within a reasonable degree of medical certainty, Dennis’s facial

injuries “were consistent with a physical assault”). Dennis testified that he

had to have surgery to reconstruct his “eye socket to secure [his] eye.” Id. at

30. Prior to that surgery, but after the attack, Dennis suffered from double

vision, aversion to bright light, and the inability to read because he could not

hold his eye still enough to read. Shortly after trial, Dennis was scheduled to

have another eye surgery because his eyelid was unable to close fully. Id. In

addition, Dennis was still suffering from vision issues, and because he was not

able to work, he was no longer in business. Id. at 31. Based on the foregoing,

we conclude that Dennis suffered “protracted loss or impairment of the




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function of” his eye.10 18 Pa.C.S. § 2301. In other words, Dennis sustained a

serious bodily injury as a result of Appellant’s punch or punches.

      On appeal, Appellant focuses on the fact that Appellant did not intend

to cause Dennis serious bodily injury. Appellant’s Brief at 13.        However,

“[w]hen a victim actually sustains serious bodily injury, the Commonwealth

can, but does not necessarily have to, establish specific intent to cause such

harm.” Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010) (en

banc) (holding a single blow to the victim’s head, which caused brain trauma

and fractures, constituted serious bodily injury to sustain an aggravated

assault conviction regardless of Burton’s intent). “Additionally, evidence that

the defendant punched the victim one time is sufficient to support an

aggravated assault conviction … where the victim sustains serious bodily

injury.” Interest of N.A.D., 205 A.3d 1237, 1240 (Pa. Super. 2019).

      Here,   because    Dennis   suffered   a   serious   bodily    injury,   the

Commonwealth did not have to prove that Appellant intended to cause that

injury. Nevertheless, the evidence, when viewed in the light most favorable

to the Commonwealth, demonstrates that Appellant intended to cause serious

bodily injury to Dennis by attacking him several times, even after Dennis tried


10 Appellant argues that the injuries to Dennis’s ribs and internal organs were
caused by a motorcycle incident the day prior. Appellant’s Brief at 14-15;
N.T., 4/10/2018, at 60-67 (Dennis testifying on cross-examination about
getting stuck in a snow drift while on his motorcycle a day or two prior to this
incident). Even if that were true and Dennis was injured as a result of the
motorcycle incident, Appellant still admitted to punching Dennis in the face,
and the damage to Dennis’s eye is a serious bodily injury.
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to get away from Appellant. Based on the foregoing, we hold the evidence

was sufficient to sustain Appellant’s aggravated assault conviction.

      We now turn to Appellant’s claim that the verdict was against the weight

of the evidence. The following standard is applicable.

      A motion for a new trial based on a claim 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
      would have arrived at a different conclusion. 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.
      It has often been stated that a new trial should be awarded when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.

Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017) (citation

omitted).

      Here, Appellant argues that Dennis’s testimony lacked “any shred of

credibility.” Appellant’s Brief at 17.   In support of his argument, Appellant

points out, inter alia, inconsistences in Dennis’s testimony, the fact that

Dennis was high at the time of the assault, that Dennis intended to lie about

the cause of the injuries, and that Dennis was the aggressor.

      The trial court offered the following analysis of Appellant’s weight

challenge.

      The jury chose to believe [Dennis’s] narrative with respect to the
      assault charges. While [Appellant] highlights evidence that may
      support his own narrative, the jury observed [Dennis] and other
      witnesses who testified and rejected [Appellant’s] self-defense
      claim with respect to the assault charges. In light of the other

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      evidence in this case, including the medical testimony regarding
      the nature and extent of [Dennis’s] injuries and [Appellant’s] own
      testimony admitting that he “snapped” and hit [Dennis] in the face
      several times, the jury’s decision to find [Appellant] guilty of the
      assault charges did not shock the conscience of this court.

Trial Court Opinion, 10/16/2018, at 8.

      “Because the trial judge has had the opportunity to hear and see the

evidence presented, an appellate court will give the gravest consideration to

the findings and reasons advanced by the trial judge when reviewing a trial

court’s determination[.]”   Widmer, 744 A.2d at 753.         Here, the injuries

suffered by Dennis were documented and severe and Appellant admitted to

punching Dennis. Based on the foregoing, we discern no abuse of discretion

in the trial court’s conclusion that the verdict was not against the weight of

the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2019




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