J-S17009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DAVID P. DILIBERTO,

                         Appellant                  No. 2477 EDA 2017


       Appeal from the Judgment of Sentence Entered June 19, 2017
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0005503-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 1, 2018

     Appellant, David P. Diliberto, appeals from the judgment of sentence of

one year of probation, imposed after he was convicted of simple assault.

Appellant solely challenges the sufficiency of the evidence to sustain his

conviction for that offense. We affirm.

     The trial court summarized the facts of this case, as follows:

           This criminal matter arises from a verbal and physical
     altercation [that] occurred between [Appellant] and Shelby
     Krasausky on July 15, 2016. [Appellant] and the victim are a
     married couple with one (1) minor child. At the time of this
     incident, [Appellant] and Shelby Krasausky resided with
     [Appellant’s] parents at a house in Lansdale.

            Shelby Krasausky arrived home at the Diliberto house on
     the evening of July 15, 2016[,] and thereafter[,] a verbal
     argument with her husband ensued. The evidence produced at
     [t]rial indicated that the argument escalated into a physical
     altercation. Ms. Krasausky admitted that she at one point bit
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     down on [Appellant’s] hand. The credible evidence indicated that
     [Appellant] then physically struck the victim above the right eye.

            At [t]rial, the Commonwealth produced … photographs
     identified as Exhibits C2 through C5. The photographs clearly
     evidenced injury to Ms. Krasausky’s forehead. Her forehead was
     swollen. According to the victim, she was struck in the head by a
     phone.

           After the physical altercation, [Appellant] requested that his
     wife leave the premises. She was put out onto the street in the
     middle of the night without a cell phone and without any house or
     car keys. Shelby Krasausky eventually walked to the Lansdale
     Borough Police Department, which was located just a few blocks
     away.

Trial Court Opinion (TCO), 9/11/17, at 1-2.

     Appellant was subsequently arrested and charged with simple assault,

graded as a misdemeanor of the second degree, as well as the summary

offense of harassment. He proceeded to a non-jury trial on June 19, 2017, at

the close of which he was convicted of simple assault, but acquitted of

harassment. The court sentenced him that same day to a one-year term of

probation with domestic violence counseling.     The court also ordered that

Appellant have no “offensive contact with the victim.” Id. at 1.

     Appellant filed a timely post-sentence motion, which the court denied.

He then filed a timely notice of appeal, and he also complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court issued a Rule 1925(a) opinion on

September 11, 2017. Herein, Appellant raises one issue for our review:

     Whether the evidence presented at trial was insufficient as a
     matter of law to establish beyond a reasonable doubt that []
     Appellant committed the crime of [s]imple [a]ssault, where the
     [t]rial [c]ourt completed [sic] ignored the [c]haracter [e]vidence

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      presented by Appellant, and the trial court committed an error of
      law and abuse of discretion in finding [Appellant] guilty of the
      crime charged.

Appellant’s Brief at 4.

      Appellant purports to challenge the sufficiency of the evidence to sustain

his simple assault conviction. His sole argument in support is that “the trial

court completely disregarded the [c]haracter [e]vidence presented by []

Appellant.” Id. at 7. More specifically, Appellant complains that in its opinion,

the trial court states that he did not present any character evidence, but at

trial, the parties stipulated that Appellant’s father would testify that he “knows

people in the community who know [Appellant,]” and “among those people,

[Appellant] has a good reputation for being a peaceful, honest, law-abiding

person.”   N.T. Trial, 6/18/17, at 73-74.     Appellant contends that the trial

court’s ignoring this character evidence warrants either a new trial, or a

judgment of acquittal. See Appellant’s Brief at 11.

      Appellant’s argument is not a challenge to the sufficiency of the

evidence. Notably, he does not identify any element of the offense of simple

assault that the Commonwealth failed to prove. Instead, he contends that the

court failed to properly weigh (or weigh at all) the evidence of his good

character. This argument clearly constitutes a challenge to the weight of the

evidence, not its sufficiency. Our review of the record reveals that Appellant

failed to present a weight-of-the-evidence claim in his post-sentence motion,

and he does not point to where in the record he orally raised such a claim with

the trial court before his sentence was imposed. See Pa.R.Crim.P. 607(A) (“A


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claim that the verdict was against the weight of the evidence shall be raised

with the trial judge in a motion for a new trial: (1) orally, on the record, at

any time before sentencing; (2) by written motion at any time before

sentencing; or (3) in a post-sentence motion.”). Consequently, Appellant’s

argument is waived for our review. See Commonwealth v. Gillard, 850

A.2d 1273, 1277 (Pa. Super. 2004) (holding that the failure to raise a weight-

of-the-evidence claim as Rule 607 dictates “compels this Court to find the

issue waived, even if it was ultimately addressed by the trial court in its Rule

1925(a) opinion.”) (citation omitted).

      Nevertheless, even if preserved, we would deem Appellant’s weight

claim meritless. We recognize that,

      [a] claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the verdict
      was against the weight of the evidence. It is well settled that the
      jury is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses, and a new trial based
      on a weight of the evidence claim is only warranted where the
      jury’s verdict is so contrary to the evidence that it shocks one’s
      sense of justice. In determining whether this standard has been
      met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable abuse
      of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).




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      Here, Appellant’s entire argument that the court ignored his character

evidence is premised on a mere misstatement by the trial court in its Rule

1925(a) opinion.     See TCO at 4 (declaring that “the defense produced no

character evidence at [t]rial”).    The fact that the court made an incorrect

statement in its opinion - drafted two months after Appellant’s trial - does not

necessarily demonstrate that, in reaching its verdict, the court failed to

consider the stipulation that Appellant’s father would have testified as to his

reputation for peacefulness, honesty, and law-abidingness. Indeed, at trial,

the court accepted the stipulation, id. at 74, and defense counsel reiterated

several times during his closing argument that the character evidence cast a

reasonable doubt on Appellant’s guilt, id. at 74, 76, 78. Nothing in the record

prior to, or at the time of, the court’s verdict indicates that the court ignored

the character evidence.

      Moreover, even if the court did disregard this evidence, it was entitled

to do so. The court, sitting as the fact-finder in this case, was “free to believe

all, part, or none of the evidence and to determine the credibility of the

witnesses….” Commonwealth v. Houser, 18 A.3d 1128, 1136 (Pa. 2011).

As the trial court explains in its opinion, it

      found that the testimony of Shelby Krasausky was credible, and
      that the testimony produced by [Appellant] … was not credible.
      Although Ms. Krasausky was a reluctant witness at [t]rial, her
      testimony was consistent with statements she made to the police
      on the night of the incident. Her testimony was also consistent
      with the physical injuries depicted in the photographs taken on
      the night of the incident. Conversely, [Appellant’s] testimony was
      not believable. [Appellant] attempted to imply that his wife’s
      physical injuries were self-inflicted.

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            The Commonwealth also produced the testimony of Officer
      Daniel Gallagher from the Lansdale Borough Police Department.
      Officer Gallagher’s testimony further supported Ms. Krasausky’s
      version of events. His investigation report confirmed the injury of
      swelling above the victim’s right eye.

TCO at 2. Additionally, later in its opinion, the trial court reiterated that,

      [t]he photographs … clearly depict an injury on the forehead of
      Shelby Krasausky just above her right eye. The location of the
      swollen forehead is consistent with the description of the incident
      relayed by Ms. Krasausky to the local police. The incident was
      promptly reported to the Lansdale Borough Police Department
      who then contemporaneously memorialized the statements of the
      interested parties.

            The [t]rial [c]ourt ultimately found that the version of
      events relayed by Shelby Krasausky was more credible than the
      version of events espoused by [Appellant]. Accordingly, the
      [l]ower [c]ourt record establishes beyond a reasonable doubt that
      [Appellant] was guilty of the crime of [s]imple [a]ssault.

Id. at 3-4.

      Clearly, the trial court found Appellant’s version of events not credible,

despite that he presented evidence of his good character. The court instead

believed Shelby Krasausky’s testimony because it was supported by

photographic evidence and statements she made to police on the night of the

incident.   As the record supports the court’s credibility determinations, we

would find Appellant’s weight-of-the-evidence challenge meritless, even had

he preserved it for our review.

      Judgment of sentence affirmed.

      Judge Kunselman joins this memorandum.

      Judge Lazarus files a concurring memorandum in which Judge

Kunselman joins.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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