Com. v. Wilson, A.

Opinion

J-S36021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALFONZO ANTONIO WILSON : : Appellant : No. 1007 EDA 2017

Appeal from the Judgment of Sentence February 16, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005018-2016

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 26, 2018

Appellant, Alfonzo Antonio Wilson, appeals from the February 16, 2017

Judgment of Sentence entered in the Montgomery County Court of Common

Pleas following his conviction of Propelling a Missile into an Occupied Vehicle,

Recklessly Endangering Another Person, Criminal Mischief, and Disorderly

Conduct.1 After careful review, we affirm.

We briefly summarize the facts as gleaned from the Notes of Testimony

and the trial court’s November 20, 2017 Opinion as follows. On May 5, 2016,

at approximately 11:20 PM, the Plymouth Township Police Department

dispatched Officer Andrew Monaghan to 1200 Ridge Pike in Conshohocken,

Montgomery County, in response to a 911 call reporting a disturbance. Upon

his arrival, Officer Monaghan observed Appellant walking westbound on Ridge ____________________________________________

118 Pa.C.S. § 2707(a); 18 Pa.C.S. § 2705; 18 Pa.C.S. § 3304(a)(5); and 18 Pa.C.S. 5503(a)(4), respectively. J-S36021-18

Pike, with Damita Wilson (“Victim”) following a short distance behind him in a

car.

Officer Monaghan approached Appellant and the Victim. The Victim

appeared disheveled, with ripped clothing and red marks and fingernail

depressions around her neck. She also appeared to be in shock.

Officer Monaghan observed a large hole in the vehicle’s rear passenger-

side window, shattered glass strewn throughout the interior, and a rock

resting in the vehicle’s front passenger-side seat.

Shortly after Officer Monaghan’s arrival, Appellant began aggressively

yelling at him, resulting in Officer Monaghan restraining Appellant. Appellant

did not appear disheveled or injured. Appellant explained to Officer Monaghan

that he and the Victim had met in a parking lot that night to discuss issues

concerning the custody of their child. Appellant and the Victim sat in the

Victim’s car for the discussion. He further explained that their discussion

escalated to an argument, whereupon the Victim drove with Appellant in her

car for a few blocks before asking Appellant to exit the vehicle. Appellant

claimed that the Victim then attempted to strike him with her car and he threw

a rock through the car’s rear window in self-defense.

The Victim presented a different version of the incident. She confirmed

to Officer Monaghan that she and Appellant had met to discuss custody

matters, but she indicated that their disagreement had escalated to a physical

altercation. She reported that Appellant had choked her and ripped her shirt

before exiting her vehicle of his own accord. The Victim then called 911 to

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report the incident. While she was on the phone with the dispatcher, Appellant

threw a rock into the Victim’s car. The rock smashed her rear passenger-side

window, hit the dashboard, and came to rest on the front passenger seat.

The Victim proceeded to follow Appellant for several blocks with her car to

ensure police apprehended him.

Appellant proceeded to a non-jury trial on February 16, 2017. The

Commonwealth presented the testimony of the Victim and Officer Monaghan.

The court also admitted into evidence surveillance video showing the Victim

driving her vehicle away from Appellant, and not toward Appellant in an

attempt to hit him as he claimed. The surveillance video also captured images

of Appellant foregoing several opportunities to evade the Victim. In fact, it

showed Appellant arming himself with a rock, running out after the Victim’s

car, and proceeding to smash its rear passenger-side window by throwing the

rock at it.

Appellant testified on his own behalf, maintaining that he acted in self-

defense. He did not present any additional witnesses. Appellant and the

Victim offered largely inconsistent testimony. The Commonwealth stipulated

to Appellant’s reputation for being truthful, law-abiding, and peaceful. The

trial court was unpersuaded, however, by Appellant’s self-defense claim and

convicted Appellant of the above charges.2 That same day, the court

sentenced Appellant to time-served. ____________________________________________

2The court found Appellant not guilty of Simple Assault. See 18 Pa.C.S. § 2701(a)(1).

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Appellant filed a Post-Sentence Motion, which the trial court denied by

Order docketed on March 3, 2017. This timely appeal followed. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant has raised the following two issues on appeal:

1. Did the trial court abuse its discretion in determining that Appellant’s conviction was not contrary to the weight of the evidence, where it was manifestly unreasonable for the trial court to base Appellant’s conviction upon the contradictory, self-serving, biased testimony of an unstable, dangerous witness?

2. Did the trial court erroneously exclude evidence that the complainant stalked, threatened, harassed, and attacked Appellant on dates after the incident in question, where evidence of specific instances of the complainant’s conduct was admissible to prove her propensity for violence and aggressiveness and to prove that she was the aggressor during the instant confrontation?

Appellant’s Brief at 5.

In his first issue, Appellant challenges the trial court’s denial of his

weight of the evidence claim. In particular, Appellant complains that the court

erred in crediting the Victim’s testimony over his. Specifically, Appellant

claims that the court erred by, on the one hand, acknowledging that he

credibly testified about years of threats and harassment he suffered at the

hand of the Victim while, on the other hand, disbelieving his testimony that

he was acting in self-defense on the night of this incident. Id. at 18-19.

Appellant cites the trial court’s explanation for not imposing upon him a

probationary sentence to support his claim that the trial court should not have

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credited the Victim’s testimony.3 Id. at 19. He further avers that, where the

Victim’s testimony at trial was inconsistent with her statement to Officer

Monaghan immediately following the incident, the court should have relied on

Officer Monaghan’s testimony regarding the Victim’s statements immediately

following the incident and disregarding the Victim’s in-court testimony.4 Id.

at 19-22.

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the ____________________________________________

3 In explaining its imposition of a “no further penalty” sentence, the trial court observed: “I don’t trust the dynamics of [the Victim] to give her the power over you and supervision to just risking – calling the police . . . caus[ing] you to be incarcerated.” N.T., 2/16/17, at 7.

4 Appellant’s counsel elicited testimony from the Victim on cross-examination in which she admitted that her trial testimony differed from the statement she initially made to Officer Monaghan. N.T., 2/16/17, at 43. Likewise, Officer Monaghan testified that surveillance video did not corroborate the statement the Victim made to him at the scene. Id. at 63.

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post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“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 that the verdict is [or is not] against the weight of the

evidence.” Id. at 546. “One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict was or was

not against the weight of the evidence and that a new trial should be granted

in the interest of justice.” Id.

Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations and emphasis omitted).

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

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

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

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

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

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

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

In her Rule 1925(a) Opinion, The Honorable Gail A. Weilheimer

acknowledged the tumultuousness of Appellant’s relationship with Victim and

that Appellant “credibly testified as to numerous violent past transgressions

of Victim against him and his family.” Trial Ct. Op., 11/20/17, at 7.

Nevertheless, it found that the Commonwealth met its burden of disproving

Appellant’s claim that he was acting in self-defense at the time of the instant

incident. Id. at 7-8. Our review indicates that the trial court carefully

evaluated the record and the evidence in reviewing Appellant’s weight claim.

See id. at 9-11 (observing that Officer Monaghan’s testimony and the

Commonwealth’s video evidence corroborated the majority of the Victim’s

version of events, and concluding that, when viewed in toto, the evidence

weighed heavily in favor of the Commonwealth).

Appellant essentially asks us to reassess the credibility of Officer

Monaghan, Appellant, and the Victim, and reweigh the testimony and evidence

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

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

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

Accordingly, we discern no abuse of discretion in the trial court’s denial of

Appellant’s weight claim.

In his second issue, Appellant claims that the trial court erred in

excluding evidence that the Victim acted violently towards him after the

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incident that gave rise to the instant charges. Appellant’s Brief at 23.

Appellant argues that he sought to introduce this evidence “to prove the

[Victim’s] allegedly violent propensities,” not to bolster his self-defense claim

per se. Id., citing Commonwealth v. Amos, 284 A.2d 748, 751 (Pa. 1971).5

He emphasizes that he did not seek the introduction of this evidence to

“explain why he felt fear, earlier, on the date in question” but rather simply

as “additional objective evidence that [the Victim] was a violent person.” Id.

at 24-25.

The “[a]dmission 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. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (citation and quotation omitted). “[A]n 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 or

the record.” Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super.

2001) (citation and quotation omitted).

Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “In a criminal case,

[] evidence is admissible only if the probative value of the evidence outweighs ____________________________________________

5Amos concerns, inter alia, the introduction of evidence of a murder victim’s prior convictions in support of the defendant’s self-defense claim. It does not address the introduction of evidence of a victim’s post-incident conduct as evidence of the victim’s propensity for violent behavior.

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its potential for unfair prejudice.” Pa.R.E. 404(b)(2). See also Daniel J.

Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 404.11 et. seq.

(2017 ed. LexisNexis Matthew Bender). Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.

Pa.R.E. 401; Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).

“Evidence that is not relevant is not admissible”. Pa.R.E. 402.

Appellant’s argument is unavailing. The Victim’s post-incident conduct

was not relevant to the crimes for which Appellant stood trial. Because it was

not relevant, it was inadmissible. We conclude, therefore, that the trial court

did not abuse its discretion in excluding Appellant’s proffered testimony of the

Victim’s post-incident conduct.

Further, Appellant has not supported his claim that such evidence shows

the victim’s propensity for violence with citation to any authority. Accordingly,

even if this claim had merit, Appellant would have waived it. See

Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (reiterating that, to

the extent that an appellant’s brief fails to contain citation to supporting

authorities, his unsupported claims are waived)

Finding no merit to either of Appellant’s issues, we affirm his Judgment

of Sentence. The parties are instructed to attach a copy of the trial court’s

November 20, 2017 Opinion to all future filings.

Judgment of Sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/18

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