J

- A09034

- 20

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ,

Appellee

v. EMMANUEL HERNANDEZ ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 750 W DA 2019
Appeal from the Judgment of Sentence Ente red April 3 , 2019 i n the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP

- 02

- CR

- 0010638

- 2018 BE FORE: SHOGAN J., MURRAY , J. and STRASSBURGER , J. * MEMORANDUM BY S TRASSBURGER, J.: FILED JUNE 09, 2020 Emmanuel Hernandez (Appellant) appeals from the judgment of
sentence entered on April 3, 2019, after he was found guilty of simple assault. We affirm. The conviction in this matter stems from an incident that occurr ed on the morning of August 16, 2018, when Appellant physically assaulted his wife, Kimberly Morrissey ( Victim ), who is legally blind, at the ir home

. Appellant and Victim offered d ifferent versions of the events at a non - jury trial on April 3, 2019.
Acco rding to Victim , at approximately 9:00 a.m. , she was sitting alone on the front porch talking to her friend on the phone

. Appellant , who was

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

- A09034

- 20

- 2

-

drunk “from drinking all night long[,]” suddenly came out of the front door and loudly called her “ a stupid fuckin g bitch.” N.T., 4/3/2019, at 17 , 52

. Victim pushed Appellant into the home and attempted to close the front door to get him away from her because she was “so embarrassed.” Id. at 52

- 53, 56. S imultaneously, Victim pulled and unintentionally broke the head phones Appellant was weari ng on his ears. In response, Appellant struck Victim in the middle of her forehead with an object that she believed was a piece of App ellant’s broken headphones. Due to the blow, Victim sustained a three

centimeter laceration on her head. Victim ended the call with her friend and immediately called the p olice. Officer Matt Schwartzmiller of the City of Pittsburgh Police Department provided testimony about his response to the call. Upon his arrival at the home, Offi c er Schwartz miller observe d Victim sitting on the front porch and Appellant kneeling next to her apologizing

. Officer Schwartzmiller detained Appellant after noticing fresh blood coming from a welt on Victim’ s forehead. Thereafter, Appellant said repeatedly “I’m gui lty” to Officer Schwartzmiller. Id. at 61. Paramedics transported Victim to UPMC Mercy Hospital to provide
Victim medi cal attention for her injuries. Victim ’s laceration was treated with five dissolvable sutures. The medical professional noted gaping wh en pressure was applied to the laceration. A t the time of the trial, a “slight line”J

- A09034

- 20

- 3

-

remained on Victim’s forehead and the injury may leave a permanent scar. Id. at 55. Conversely, Appellant assailed Victim and Officer Schwartzmiller’s
tes timony, contend ing that Victim pushed Appellant several times and intentionally cut herself with his headphones after she pulled them off of his ears. In sup port of t h is contention, Appellant asserted that Victim “suffers from emotional problems” and this incident is “n ot the first time she trie[d] to harm herself.” Id. at 66

- 67. Further, Appellant argued that he never said he was guilty and was not apologizing to his wife, but r ather was pleading with her to stop with the call to police because he would be blamed. Las tly, Appellant asserted that Victim cut him with the headphones, and he attempted to make a report at the scene with an officer different from Officer Schwartzmiller and the responding paramedics , but was ignored. Id. at 68, 72. Appellant did not present any evidence to substantiate this claim. Following the non - jury trial, App ellant was found guilty of simple assault

. He was sentenced on the same day to two years of probation, and ordered to have no contact with Victim, complete a batterer’s interventio n program , and pay all applicable fees and court costs.J

- A09034

- 20

- 4

-

Appellant timely filed a post

- sentence motion, which was denied. This timely

- filed appeal followed. 1 On appeal, Appellant challenges the weight of the evidence to sustain his simple assault convict ion. Appellant’s Brief at 4

. We use the following standard to assess whether a trial court abused its discretion in denying a challenge to the weight of the evidence. 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. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arri ved at a different conclusion. Rather, the role of the trial j udge 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. It has often been stated that a new trial should be awarded whe n 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. Commonwealth v. Izurieta , 171 A.3d 803, 809 (Pa. Super. 2017) (cit ation omitted). 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. Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013)

. To support his challenge, Appellant essentially posits that his testimony is more credible than that of the Commonwealth’s witnesses. Appellant’s Brief at 9

- 12. First, Appellant argues that Victim’s testimony is

_________________ __________ ______ ____ _______ 1 Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.J

- A09034

- 20

- 5

-

not credible based on her physical and mental state. Id. at 10

- 11. Specifically, Appellant argues that Victim’s testimony is “unreliable” because she is legally blind and therefore c ould not definitively identify the object that hit her in the face at trial

. Id. at 11. He also emphasizes her

“ Alzheimer’s/demen tia diagnosis, ” and claims she “ has suffered from recurrent major depression.” Id. Next, Appellant attempts to negate Officer Schwartzmiller’s testimony of the events by arguing that Appellant testified

more credibly to the events in the opposite. Id. Th e trial court rejected Appellant’s weight c laim, offering the following. [T]his court, who sat as the fact

- finder in this case, did not find [Appellant’s] self

- serving testimony to be credible. His testimony was inconsistent with, and unsupported by, othe r credible evidence in the record. [Appellant’s] challenge to the weight of the evidence is, at its core, an invitation for the appellate court to reweigh the evidence and second

- guess the credibility determinations made by the court in this case. Trial Court Opinion, 8/30/2019, at 11. In reviewing Appellant’s post

- sentence motion challenging the weight of the evidence, the trial court found that “[t]here were no facts in this case that were ‘ so clearly of greater weight that to ignore them or to give t hem equal weight with all the facts is to deny justice .’ To the contrary, [the trial court found that] the weight of the evidence was squarely against [Appellant.]” Id. at 12 (citations omitted)

. We agree wit h the trial court’s assessment. “C redibility of witnesses and the weight of the evidence produced is within the province of the trier of fact, who is free to believe all,J

- A09034

- 20

- 6

-

part, or none of the evidence.” Commonwealth v. Kitchen , 162 A.3d 1140, 1144 (Pa. Super. 2017). The trial court heard the evidenc e first

- hand during the non

- jury trial, determined Victim and Officer Schwartzmiller were more credible than Appellant, and entered a verdict reflecting this credibility determination. Assessing all of the evidence according to the governing principles ci ted above, we conclude that the trial court did not abuse its discretion when it denied Appellant’s weight claim, and therefore Appellant is not entitled to relief. See Commonwealth v. Widmer , 744 A.2d 745, 753 (“Because the trial judge has had the opportu nity 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 tr ial court’s determination[.]”). Judgment of sentence affirmed.

Judgment Entere d.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/9/2020