Com. v. Davenport, K., Jr. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KEVIN C. DAVENPORT, JR.
Appellant No. 296 MDA 2018
Appeal from the Judgment of Sentence imposed January 2, 2018
In the Court of Common Pleas of Cumberland County
Criminal Division at No: CP-21-CR-0001715-2017
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 07, 2019
Appellant, Kevin C. Davenport, Jr., appeals from the judgment of
sentence imposed on January 2, 2018 in the Court of Common Pleas of
Cumberland County following his conviction of simple assault,
18 Pa.C.S.A. § 2701(a)(1). Appellant contends the evidence was insufficient
to support his conviction and the verdict was against the weight of the
evidence. Upon review, we affirm.
In its Rule 1925(a) opinion, the trial court summarized the facts of this
case as follows:
On May 13, 2017, expectant mother, Akeya Brock, entered the
Carlisle Borough Police Department to report that she had been
assaulted by [Appellant], her boyfriend. She told Patrolman
Mayer that [Appellant] held her to the floor face -down after she
fell in the midst of a heated argument. She stated that while
[Appellant] held her on the ground, he squeezed her face so hard
with his hand that her cheeks were gashed inside and out by her
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teeth and his nails. He also punched her several times. Patrolman
Mayer took photographs of her injuries, which were later shown
to the jury. Ms. Brock provided him with a sworn, written
statement of the events before leaving the police department.
[Appellant] was charged with simple assault.
At trial, the Commonwealth called Ms. Brock as a witness.
Contrary to her sworn, written statement, she testified that
[Appellant] had merely helped her up after she fell during an
argument. She explained that the injuries to her face occurred
when she resisted his help. She stated that she had blacked out
when she fell. She could not recall anything until the point where
his finger was in her mouth and she was biting him. She stated
that [Appellant] left right after they got up. She then went to her
grandmother's house. She and her grandmother then went to
the police department together where she gave her statement to
Patrolman Mayer.
In light of Ms. Brock's testimony at trial, the Commonwealth asked
her to read aloud her sworn statement of May [13], 2017. She
read from the Commonwealth's Exhibit 1 as follows:
I came home around 5:30 to our bedroom being trashed.
Clothes, bed, everything on the-everything on the room
[sic]. I walked into the living room to ask why he did that.
He told me to leave him alone. I kept asking why. He
started to get his coat and walked away, asking where his
bottle was-where his bottle is, so I followed him into the
living room continuing to ask why he is acting like he is. He
slapped me and told me-told me to leave alone-told me
to leave him alone. He went into the bedroom, and I
followed him, where I fell. He got on top of me-got on top
of me on my back and squeezed my cheeks together so hard
my teeth and his nails-my teeth and his nails cut my cheek.
He got up, and so did I. I went into the kids' room to ask
my stepson to get dressed and to not be like his dad. That's
when [Appellant] came into the bedroom, the kids' room
and continued to hit me, telling [my stepson] this is how
you be. He punched me about three times and then left the
apartment.
After the trial, the jury deliberated and returned a verdict of guilty
on the charge of simple assault.
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Trial Court Rule 1925(a) Opinion, 5/10/18, at 1-3 (footnotes, including
footnotes with references to notes of testimony, omitted).
On January 2, 2018, the trial court sentenced Appellant to a term of not
less than six months nor more than twenty-three months in the Cumberland
County Prison, with credit for two days previously served. The court
authorized immediate work release and determined Appellant was eligible for
a reentry plan. After the trial court denied Appellant's post -sentence motion,
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
In this appeal, Appellant asks us to consider two issues:
I. Was the evidence presented at trial sufficient to sustain a
conviction for simple assault when the Commonwealth failed
to present evidence that [Appellant] intentionally,
knowingly, or recklessly caused bodily injury to Ms. Brock?
II. Was the jury's verdict against the weight of the evidence so
as to shock one's sense of justice when Ms. Brock testified
that she was not assaulted by [Appellant]?
Appellant's Brief at 5.
In his first issue, Appellant argues the evidence was insufficient to
support his conviction of simple assault. Our Supreme Court has explained:
[T]he critical inquiry on review of the sufficiency of the evidence
to support a criminal conviction . does not require a court to
. .
ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, it must
determine simply whether the evidence believed by the fact -finder
was sufficient to support the verdict.
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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) (emphasis
in original) (citations and quotation marks omitted). "When reviewing the
sufficiency of the evidence, an appellate court must determine whether the
evidence, and all reasonable inferences deducible from that, viewed in the
light most favorable to the Commonwealth as verdict winner, are sufficient to
establish all of the elements of the offense beyond a reasonable doubt." Id.
at 1237 (citation omitted).
By definition, a person is guilty of simple assault if he "attempts to cause
or intentionally, knowingly or recklessly causes bodily injury to another."
18 Pa.C.S.A. § 2701(a)(1). The gist of Appellant's sufficiency argument is
that the evidence did not support a finding that Ms. Brock sustained "bodily
injury" as that term is defined in 18 Pa.C.S.A. § 2301, i.e., "impairment of
physical condition or substantial pain."
Appellant fails to appreciate that simple assault does not require actual
bodily injury. "It is well -settled that '[t]he Commonwealth need not establish
that the victim actually suffered bodily injury; rather, it is sufficient to support
a conviction if the Commonwealth establishes an attempt to inflict bodily
injury.' Commonwealth v. Duck, 171 A.3d 830, 835 n.4 (Pa. Super. 2017)
(quoting Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.
1994) (citations omitted)).
The trial court properly charged the jury on the elements of simple
assault, instructing:
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There are two possible ways of committing a simple assault. One
is to attempt to cause bodily injury and one is actually causing
bodily injury. So, either one of those, if you find that he did either
one of those beyond a reasonable doubt, then you may find him
guilty. If you do not find that either one was proven beyond a
reasonable doubt, then you must find him not guilty.
Notes of Testimony, Trial, 10/31/17, at 38.
The trial court determined that the jury could "reasonably infer from the
victim's statement that [Appellant's] actions toward her amounted to an
intentional attempt to cause bodily injury." Trial Court Rule 1925(a) Opinion,
5/10/18, at 4. Viewing the evidence in the light most favorable to the
Commonwealth, we find the evidence was sufficient for the jury, as fact finder,
to reach that conclusion.
In support of his position, Appellant relies on Commonwealth v.
Kirkwood, 520 A.2d 451 (Pa. Super. 1987), in which this Court determined
that the evidence was insufficient to support a simple assault conviction. In
Kirkwood, the victim claimed she was injured by Kirkwood's aggressive
dancing. We determined that the victim's bruises and slight cuts on her arms
and knees did not constitute sufficient bodily injury to sustain a simple assault
conviction because "temporary aches and pains brought about by strenuous,
even violent, dancing are an inadequate basis for imposing criminal liability
upon a dance partner for assault." Id. at 454.
We find the facts of the case before us dissimilar to those in Kirkwood
and more like those in Duck, where a verbal argument also turned into a
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physical altercation. There, the victim sustained lacerations to his head and
arm. In Duck, we determined:
Viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, the victim in the instant case
did not suffer a "temporary hurt" resulting from a "trivial contact"
as occurred in Kirkwood. Rather, the victim suffered a visible
injury to his head as a result of being pushed "really hard" or
"slammed to the floor" during a verbal argument. It cannot be
viewed in any sense as "trivial" social contact as was the, albeit
aggressive, dancing in Kirkwood.
Duck, 171 A.3d at 837.
Finding the evidence sufficient to support Appellant's conviction, the trial
court observed:
In the instant case, the Commonwealth's exhibits, including the
victim's sworn statement and photographs, were sufficient to
sustain the conviction. The jury could reasonably infer that the
injuries shown in the pictures caused the victim substantial pain.
It could also reasonably infer from the victim's statement that
[Appellant's] actions toward her amounted to an intentional
attempt to cause bodily injury.
Trial Court Rule 1925(a) Opinion, 5/10/18, at 3-4.
Whether based on the attempt to cause bodily injury or on the actual
infliction of bodily injury, we conclude, as did the trial court, the evidence was
sufficient to support the simple assault conviction. Appellant's first issue fails.
Appellant next argues that the verdict was against the weight of the
evidence. Our Supreme Court has explained:
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. Commonwealth v. Widmer, 560 Pa. 308,319,744
A.2d 745,751-52 (2000); Commonwealth v. Brown, 538 Pa.
410,435,648 A.2d 1177,1189 (1994). A new trial should not be
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granted because of a mere conflict in the testimony or because
the judge on the same facts would have arrived at a different
conclusion. Widmer, 560 Pa. at 319-20, 744 A.2d at 752.
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.' Id. at 320, 744 A.2d at 752 (citation
omitted). 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." Brown, 538 Pa. at 435, 648 A.2d at 1189.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Brown, 648
A.2d at 1189. 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
against the weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 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.
Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term "discretion" imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
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to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where 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.
Widmer, 560 at 322, 744 A.2d at 753 (quoting Coker v. S.M.
Pa.
Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
(1993)).
Commonwealth v. Clay, 64 A/3d 1049, 1054-55 (Pa. 2013).
In rejecting Appellant's weight of the evidence claim, the trial court
explained:
When passing on the credibility of the witnesses in this case, the
jury was free to accept all, some, or none of the testimony
presented. Concerning Ms. Brock, she gave two versions of the
events. The jury was free to choose between the sworn statement
Ms. Brock made to the police on the day of the offense and her
statements made at trial. Clearly, the jury chose to believe that
Ms. Brock was truthful in her sworn statement to Patrolman
Mayer. In the same vein, it chose not to believe her statements
at trial that she was hurt accidentally.
The fact that the jury chose to believe the sworn statements of
Ms. Brock at trial does not require a finding that the conviction
was against the weight of the evidence. [Appellant's] conviction,
based on the evidence at trial, did not shock our sense of justice.
Trial Court Rule 1925(a) Opinion, 5/10/18, at 5.1
1 We note that Ms. Brock's written statement was properly considered by the
jury. As our Supreme Court has recognized, a prior inconsistent statement
may be used as substantive evidence if the statement had been reduced to a
writing signed and adopted by the witness. See Commonwealth v. Brown,
52 A.3d 1139, 1154 (Pa. 2012) (citing Commonwealth v. Lively, 610 A.2d
7, 10 (Pa. 1992)).
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We find no abuse of discretion in the trial court's determination.
Appellant is not entitled to relief on his weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 1/7/2019
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