Com. v. Schmidt, G. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GEORGE SCHMIDT :
:
Appellant : No. 260 WDA 2022
Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001090-2020
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: November 15, 2022
Appellant, George Schmidt, appeals from the judgment of sentence1
entered in the Washington County Court of Common Pleas, following his jury
trial conviction for simple assault.2 We affirm.
The relevant facts and procedural history of this case are as follows. On
May 3, 2020, Appellant had an argument with James Brett. The two men did
not know each other well prior to this incident; however, they lived in the
same apartment building and Mr. Brett had once complained to the landlord
about noise from Appellant’s apartment. On the day of the incident, Mr. Brett
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1 The trial court originally imposed the judgment of sentence on October 6,
2021; however, it issued an amended sentence on October 20, 2021,
correcting the subsection of simple assault under which Appellant was
sentenced. We have amended the caption accordingly.
2 18 Pa.C.S.A. § 2701(a)(1).
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was seated outside the building drinking beer with Wayne Reedy. As Appellant
walked by the men on the way up the stairs to his apartment, Mr. Brett said
something to him. When he reached the top of the stairs, Appellant called Mr.
Brett a “fucking cocksucker and a faggot.” (N.T. Trial, 7/13/21, at 60). Mr.
Brett then followed Appellant up the stairs. When Mr. Brett reached the top
of the stairs, Appellant kicked him in the chest, sending Mr. Brett falling down
the stairs where he landed headfirst at the bottom. Mr. Reedy called 911, and
Mr. Brett was transported to the hospital, where he was treated for fractures
to several vertebrae.
The Commonwealth charged Appellant with both aggravated and simple
assault. Appellant’s trial took place on July 13–14, 2021, after which the jury
found him not guilty of aggravated assault, but guilty of simple assault. On
October 6, 2021, the court sentenced Appellant to one to two years of
imprisonment. Appellant timely filed post-sentence motions on Monday,
October 18, 2021, challenging the weight and sufficiency of the evidence. The
court denied the post-sentence motions on January 31, 2022.3 Appellant filed
a timely notice of appeal on February 25, 2022. Pursuant to the court’s order,
Appellant filed a timely concise statement of errors complained of on appeal
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3 As previously mentioned, on October 20, 2021, the trial court issued an
amended sentencing order. Because this amendment did not affect the
sentence from which Appellant filed his post-sentence motion, the post-
sentence motion tolled the appeal period and Appellant’s notice of appeal was
timely filed. Commonwealth v. Wenzel, 248 A.3d 540, 545 (Pa.Super.
2021), appeal denied, ___ Pa. ___, 264 A.3d 753 (2021).
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per Pa.R.A.P. 1925(b) on March 18, 2022.
Appellant raises the following issues on appeal:
1. Whether the trial court erred in denying Appellant’s Post-
Sentence Motions for Vacating the Verdict and Motion for
New Trial.
2. Whether the Commonwealth presented sufficient
evidence, as a matter of law, to support the following
counts:
a. Count 2: Simple Assault (Misdemeanor of the
Second Degree).
3. Does the Weight of the evidence require that the verdicts
on said counts be reversed and stricken?
(Appellant’s Brief at 5).
Preliminarily, we observe several deficiencies with Appellant’s brief that
have impacted our review. In his statement of questions presented, Appellant
appears to challenge both the weight and the sufficiency of the evidence to
support his conviction; however, his brief sets forth only the standard of
review for a challenge to the sufficiency of the evidence. (Id. at 4). See also
Pa.R.A.P. 2111(3). Furthermore, Appellant does not separate his argument
into different sections for each issue raised, but rather combines his weight
and sufficiency arguments, citing only one boilerplate case in support, and
making no references to the certified record. (Appellant’s Brief at 7-10). See
also Pa.R.A.P. 2119 (a)-(c); Commonwealth v. Garland, 63 A.3d 339, 344
(Pa.Super. 2013) (holding sufficiency claim was waived where appellant failed
to specify which elements of crime he was challenging); Commonwealth v.
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Birdseye, 637 A.2d 1036, 1039-40 (Pa.Super. 1994), cert. denied, 518 U.S.
1019, 116 S.Ct. 2552, 135 L.Ed.2d 1071 (1996) (holding that appellants
“failed to distinguish between their sufficiency and weight of the evidence
claims and presented no argument regarding the weight of the evidence, [and]
we deem their weight of the evidence issue waived.”). Based on these defects
in Appellant’s brief, we are compelled to conclude that Appellant has waived
his claims on appeal.
Moreover, even if Appellant had not waived his claims, he would not be
entitled to relief. In his brief, Appellant argues that because the jury found
him not guilty of aggravated assault, the jury must have found the victim, Mr.
Brett, incredible, such that there was insufficient evidence to support his guilt
of simple assault. (Appellant’s Brief at 7-10). We disagree.
“The standard we apply in reviewing sufficiency of the evidence is
whether in viewing all the evidence admitted at trial in light most favorable to
the verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.” Garland, supra at
344 (citation omitted). “The trier of fact while passing upon credibility of
witnesses...is free to believe all, part or none of the evidence.” Id. at 345
(citation omitted).
Here, the jury convicted Appellant of simple assault—causing bodily
injury, which is defined as attempting to cause or intentionally, knowingly or
recklessly causing bodily injury to another. 18 Pa.C.S.A. § 2701(a)(1). At
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trial, the Commonwealth introduced evidence that Appellant and Mr. Brett had
a verbal altercation, after which Appellant kicked Mr. Brett in the chest,
causing him to fall down a flight of stairs and break several vertebrae in his
neck. Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, the evidence at trial was sufficient to establish that
Appellant intentionally, knowingly or recklessly caused bodily injury to Mr.
Brett. Garland, supra. Therefore, the evidence supports Appellant’s simple
assault conviction, and his challenge to the sufficiency of the evidence would
not merit relief.
In addition, Appellant’s challenge to the weight of the evidence would
also not merit relief.4 When examining a challenge to the weight of the
evidence, our standard of review is as follows:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the...verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
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4 As discussed above in our waiver analysis, Appellant does not present a
separate argument with respect to his weight of the evidence claim. (See
Appellant’s Brief at 7-10).
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Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). A “trial court’s denial of a motion for a new trial
based on a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225 (2009),
cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191 (2010).
Here, the trial court observed:
Appellant’s primary contention is essentially that the
testimony of the victim was the sole basis for conviction.
However, at trial, there was more than just testimony by
the victim himself from which one could conclude that the
crime took place, and the jury was entitled to make a
credibility assessment of each witness. There was
testimony by eyewitnesses and medical personnel about the
nature and extent of the victim’s injuries, which served to
corroborate the victim’s own testimony about the incident.
The victim did not accidentally fall down the stairs, nor was
it a mere coincidence that the victim was injured after he
attempted to confront Appellant. Thus, the [c]ourt in its
discretion determined that the verdict was not against the
weight of the evidence. The verdict does not shock the
conscience or one’s sense of justice.
(Trial Court Opinion, 4/11/22, at 7-8) (record citation omitted). We see no
reason to disrupt the court’s analysis. See Champney, supra. Thus, even
if Appellant had not waived his weight claim, it would have merited no relief.
Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2022
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