Com. v. Wilson, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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