### J - S1902 6 - 18

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

v.
GORDEN LAMOND SUBER

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

PENNSYLVANIA

No. 2227 EDA 2017 Appeal from the Judgment of Sentence April 5, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP
- 46 - CR - 0001439 - 2016 BEFORE: SHOGAN, J., NICHOLS, J., and PLATT , J. * 

### MEMORANDUM BY NICHOLS, J.: FILED MAY 15, 2018 Appellant Gorden Lamond Suber appeal s from the judgment of sentence entered after a jury trial and convictions for simple assault, 1 

### recklessly endangering another person (REAP) , 2 

### harassment, and possession of a small amount of ma rijuana. 3 

### Appellant contends that the trial court erred by sustaining the Commonwealth ’s objection to his testimony about what the

_________________ ____________________ _______

* 

### Retired Senior Judge assigned to the Superior Court. 1 

### 18 Pa.C.S. § 2701(a)(1). 2 

### 18 Pa.C.S. § 2705. 3 

### 18 Pa.C.S. § 2709(a)( 1), and 35 P.S. § 780 - 113(a)(31), respectively. The trial court, and not the jury, found Appellant guilty of these two summary offenses.

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victim said to him. He also challenges the weight of the evidence for all of his convictions. We affirm. We incorporate th e facts and procedural history set forth by the trial court. See Trial Ct. Op., 10/20/17, at 1
- 4. We add that at trial, the following exchange transpired during the Commonwealth ’s direct examination of Vilma Ubiles, the victim : [Commonwealth]. And what h appened when you got to the motel [ room with Appellant around 9:30 p.m.]? A. As soon as we got to the room, [Appellant] put a line on the table of cocaine. I then pushed the line off the table, and he immediately got violent with me, grabbed my hand, because I had the rest of his drugs in my hand. He grabbed my hand, started tussling all over the room. He ’s a lot bigger than me, so I was mostly on the floor. He was dragging me back and forth to try to get the drugs from my hand. Q. Now, as he was d ragging you, were you saying anything to him? A. I really can ’t remember word for word what I was saying. Probably why this was going on. I really couldn ’t say exactly what words were coming out of my mouth at that point. I don ’t remember that. Q. Let me just ask you a different way. Were you trying to break free from him? What were you doing? A. Yeah, I was trying
— well, I was asking him to let me go, of course. And I was trying to break free. We were
— I was on the floor, we were tangled up somehow . He finally got his drugs out of my hand, and I was pulling on his hand. I remember biting him to try to get free. He then finally
— as I said, finally got away. . . .

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N.T. Trial, 1/17/17, at 73
- 74. We note that the victim ’s testimony was focused on th e events that occurred shortly after she and Appellant arrived at the motel. Id. The victim continued to testify on direct examination about the events that evening, including her pouring Appellant ’s liquor out in the bathroom, which preceded her leavin g the motel room: [Commonwealth]. Do you remember where [Appellant] was pointing [the gun] at? A. Just at me. Q. And how long did he hold it there? A. He just asked me, am I leaving or not. And I said I ’ ll leave. I grabbed my stuff. I grabbed my stuff and I left. Went to the lobby and that ’s when I used the phone to call my son, but the lady at that lobby called the police instead. Id. at 80. Following a cross and re
- direct examination, Appellant ’s counsel elicited the following during re
- cross examination of the vi c tim: [Appellant ’s counsel]. So when you left the room, you ’ re telling us you hadn ’t told [Appellant] about calling the police? A. No. He asked me, are you going to call the police or not? And I said, I don ’t have to, look at me. A s soon as I walk downstairs, they ’ ll call the police. N.T. Trial, 1/18/17, at 35
- 36. Appellant ’s counsel highlighted that the victim did not testify about “look at me” during the Commonwealth ’s initial direct examination of her , as quoted above . Id. at 36.

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Subsequently, Appellant testified on his own behalf about the victim ’s departure from the motel room : [Appellant ’s counsel]. What were you doing when the liquor was being poured down the tub? [Appellant]. I was sitting on the bed with my hands o n my head, like in this position (indicating). [The victim is] yelling, she ’s screaming, she ’s mad. I just wanted her to leave. I didn ’t want her to trash that room, because I was responsible for it because it was in my name, I think. Q. When did she e ventually leave the room? A. When I threatened to call the cops. Q. Did you call the police? A. No. I didn ’t want her to get in trouble. I didn ’t want her to lose her kids and the whole grabbing the gun thing, Protective Services would have got involved and all. Q. As she was leaving, did she say anything else? A. It just resonated now what she said, but
— [Commonwealth]: Objection, Your Honor, to hearsay. [Appellant ’s counsel]: Your Honor, the door has been opened. [Appellant]: No, I ’ m — she a sked me
— The court: Hold on, sir. [Appellant]: I ’ m sorry. The court: I ’ m sorry, you were going to respond? [Appellant ’s counsel]: I was, Your Honor. Just to the fact the door has been opened, [the victim] agreed with me, during my questioning on cross , that as she was leaving the room she said various things in court about what she was going to do and what

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happened that night. I ’ m asking [Appellant] if he has the same recollection of those comments. The court: I ’ ll sustain the objection. Id. at 120 - 21. As set forth above, on January 18, 2017, a jury convicted Appellant of simple assault and REAP. Following a pre
- sentence investigation, on April 5, 2017, the court sentenced Appellant to one to twenty
- three months ’ imprisonment for simple assault, followed by a consecutive sentence of two years ’ probation for REAP. 4 

### Appellant filed a timely post
- sentence motion challenging, among other things, the weight of the evidence . The court denied Appellant ’s post - sentence motion, and Appellant timely appealed. Appellant timely filed a court
- ordered Pa.R.A.P. 1925(b) statement contending, in pertinent part: The trial court erroneously sustained the prosecutor ’s objection to [Appellant ’s] testimony about what the [victim] sai d to him during their physical confrontation. [Appellant and the victim] each accused the other of initiating and continuing the confrontation. Where the [victim] testified concerning things that Appellant allegedly said, it was clearly improper for the trial court to preclude Appellant for giving his version of what was said. As a result of the trial court ’s ruling, the jury was only allowed to hear one version of what the [victim and Appellant] said to each other during that struggle. Appellant ’s Pa.R.A.P. 1925(b) S tatement, 7/26/17, at 1
- 2.

_________________ ____________________ _______ 4 

### The court imposed no penalty for Appellant ’s convictions for harassment and possession of marijuana.

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The trial court filed a Rule 1925(a) opinion, asserting that Appellant ’s issue , as quoted above, was so overly broad and vague, he waived it. Trial Ct. Op. at 8. The court faulted Appellant for failing to id entify where in the record the court made the disputed ruling. Id. The trial court ultimately located the testimony in question, which we quoted above, and concluded that Appellant ’s claim lacked merit. Id. at 9. The trial court explained that Appellan t ’s counsel ’ s reasoning — that “the door has been opened”
— “failed to present the requisite legal basis for the [c]ourt to overrule the Commonwealth ’s hearsay objection [and] was also insufficient to preserve any claim on appeal.” Id. On appeal, Appellant raises the following issues in his brief: 1. Did the trial court erroneously sustain the prosecutor ’s objection to [Appellant ’s] testimony about what the complainant said to him during their physical confrontation, consequently allowing the jury to hear onl y one version of what the complainant and [Appellant] said to each other during their struggle? 2. Did the trial court abuse its discretion when it determined that Appellant ’s conviction was not contrary to the weight of the evidence, where it was manifestly unreasonable for the factfinder to base Appellant ’s conviction upon the contradictory and self
serving testimony of the Commonwealth witnesses? Appellant ’s Brief at 9 (issues reordered to facilitate disposition). For his first issue, Appellant contends the court erred by preventing him from testifying about what the victim said to him during the fight. Id. at 2 1 . He explains that the victim, during the Commonwealth ’s direct examination, initially testified “she could not recall specifically wh at she had said.” Id. at

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20 (citing N.T. Trial, 11/17/17, at 73). But, according to Appellant, after the Commonwealth ’s follow
- up question, the victim was able to testify about what each party said. Id. at 20 - 21. Appellant argues that although the vic tim was permitted to testify about what he allegedly said, the court barred him “from testifying about a statement she made to him prior to leaving the room” based on hearsay. Id. at 21. In doing so, Appellant argues, the court improperly permitted the j ury to “hear only one side of the story,” particularly regarding the end of the fight. Id. 5 

### Appellant cites caselaw for the proposition that the proposed testimony was appropriate rebuttal evidence. Id. at 20. But Appellant cites no caselaw for the pro position that “opening the door” is a valid exception to the Commonwealth ’s hearsay objection , particularly when Appellant is rebutting testimony he elicited himself. See, e.g. , N.T. Trial, 1/18/17, at 35
- 36 . Further, Appellant does not provide any proffer of what he would have testified to had he been permitted to answer counsel ’s question about the victim ’s statements as she was leaving the room. Our standard of review regarding admissibility of evidence is well
settled:

_________________ ____________________ _______ 5 

### Because the trial court identified the source of Appellant ’s evidentiary argument and addressed it in its Rule 1925(a) decision, we decline to find waiver based on a vague Rule 1925(b) stat ement. We acknowledge and appreciate the trial court ’s efforts to identify Appellant ’s issue.

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Questions regarding the adm ission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, w ill not disturb the trial court ’s rulings regarding the admissibility of evidence absent an abuse of that discretion. An abuse of discretion is not mer ely an error of judgment; rat her, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill
- will, as shown by the evidence or the record. Commo nwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014) (citations and quotation marks omitted). Briefly, “ ‘ [h] earsay ’ means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evid ence to prove the truth of the matter asserted in the statement.” Pa.R.E. 8 01(c). Pennsylvania Rule of Evidence 103(a) provides that a “ party may claim error in a ruling to admit or exclude evidence only . . . if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. ” Pa.R.E. 103(a). In Commonwealth v. Newman , 555 A.2d 151 (Pa. Super. 1989), this Court explained that the party making an offer of proof waives any g rounds other than those actually presented for the trial court ’s consideration: An offer of proof must be sufficient to alert the trial judge to the purpose for which the evidence is b eing offered, and a trial court ’s exclusion of evidence must be evaluat ed on appeal by a review of the contents of the offer at the time it was made. The party specifying the purpose for which the testimony is admissible cannot argue on appeal that the evidence was admissible for a purpose other than that offered at trial. Appellant is deemed to have waived any grounds, other than those offered at trial, for the admission of the evidence at trial.

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Id. at 156 (citations omitted). 6 

### In Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996), 7 

### the Pennsylvania Supreme Court held that a failure to make an offer of proof results in waiver, because if an appellate court does not “ know the substance of [the] statements, [it] cannot determine if the lower court erred in excluding the disputed testim ony. ” Id. at 143 (citation omitted). Here, Appellant failed to make an offer of proof as to what he would have testified to had he been permitted to respond. Initially, Appellant was asked if the victim said anything else as she was leaving the motel r oom . N.T. Trial, 1/18/17, at 120. Rather than present an offer of proof and an explanation that Appellant ’s proposed response would not be hearsay or would fall within a hearsay exceptio n, Appellant construed the question of “did she say anything else?” as an inquiry into whether he had the same recollection of the victim ’s comments. Id. at 121. Without knowing the substance of Appellant ’s anticipated response, we cannot ascertain whether the trial court correctly sustained the Commonwealth ’s hearsay objection. See Fisher, 681

_________________ ____________________ _______ 6 

### We may rely on caselaw predating the enactment of the Pennsylvania Rules of Evidence to the extent the caselaw does not contradict the rules. Commonwealth v. Aikens , 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010) . 7 

### According to the Pennsylvania Supreme Court in Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008), the law in effect at the time of the Fisher decision precluded victim
- impact testimony in a capital case
— a holding that was superseded by a statutory amendment. Tedford, 960 A.2d at 40 n.28.

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A.2d at 143; Newman , 555 A.2d at 156. 8 

### In any event , we add that Appellant himself “opened the door” by questioning the victim about what she said shortly before she left that evening. See, e.g. , N.T. Trial, 1/18/17, at 35
- 36. Thus, because Appellant failed to make an appropriate offer of proof, we cannot discern whether the trial court abused its discretion , and we therefore affirm. See Trinidad, 96 A.3d at 1036. In support of his second issue, Appellant contends that the Comm onwealth ’s evidence was not credible for three reasons. First, he maintains that the evidence does not support the victim ’s assertion that their argument started when he used cocaine. Appellant ’s Brief at 16. Appellant notes he is subject to randomized drug tests at his job and the police never recovered cocaine from the motel room. Id. He claims he had insufficient time to hide the cocaine before the police arrived given that the police, upon searching his person, found marijuana. Id. at 16 - 17. Sec ond, Appellant asserts that the victim ’s testimony about her seizure, see Trial Ct. Op. at 2, supports his version of events. Specifically, that the

_________________ ____________________ _______ 8 

### We acknowledge that counsel ’s question does not necessarily call for a hearsay response, but Appellant
— instead of responding yes or no
— seemingly began to expound on what the victim asked him before the court stopped him. N.T. Trial, 1/ 18/17, at 120
- 21. Indeed, Appellant’s counsel subsequently clarified that he wanted to know if Appellant recalled the victim’s comments. Id. at 121. Regardless, Appellant has not articulated how the contents of his unpreserved response would have establ ished reversible error by the trial court.

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victim became enraged after learning of his infidelity, began physically assaulting him, and, as a result, suffered a seizure. Appellant ’s Brief at 17
- 18. In other words, the victim
— not Appellant
— started the fight. Id. at 18. Third, Appellant maintains that the photographic evidence of the motel room does not “depict a room in which a violent struggle” occurred. Id. at 18 - 19. Appellant concludes by arguing that his testimony contained less contradictions than the victim ’s tes timony, and given his lack of a criminal history and cooperation with the police, the convictions were against the weight of the evidence. Id. at 19. The standard of review for a challenge to the weight of the evidence is well
- settled: A claim alleging th e verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court ’s discretion; it does not answer for itself whether the verdict was against the weight of the evidenc e. It is well settled that the fact
- finder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence cla im is only warranted where the fa ctfinder ’s verdict is so contrary to the evidence that it shocks one ’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge ’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion . . . . [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 arrived at a different concl usion. Rather, the role of the trial court is to determine that notwithstanding all the evidence, 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. A motion for a new trial on the grounds that the verdict is contrary to the

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weight of the evidence concedes that there is sufficient evidence to sustain the verdict; thus the trial court is under no obligation to view the evidence in the light most favorable to the verdict w inner. Commonwealth v. Landis , 89 A.3d 694, 699 (Pa. Super. 2014) (citation s and original brackets omitted). After careful consideration of the parties ’ briefs, the record, and the decision by the Honorable Thomas C. Branca, we discern no abuse of discre tion. See Trial Ct. Op. at 6
- 7 (summarizing conflicting testimony and concluding jury found the testimony of the victim and police more credible than Appellant ’s testimony). We decline to reweigh the testimony and evidence presented at trial, and hold th e trial court did not abuse its discretion by concluding that the verdict was not so contrary to the evidenc e as to shock the court ’s conscience. See Landis , 89 A.3d at 699. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/15/18Circulated 04/18/2018 12:08 PM

IN 

### THE COURT OF COMMON PLEAS OF 

### MONTGOMERY COUNTY, PENNSYLVANIA 

### CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA NO. 1439-16 2227 

### EDA 2017 v. 

### GORDON SUBER 

### OPINION Branca, J. October 20, 20 I. 

### INTRODUCTION co Gordon Suber ("Defendant") appeals to the Superior Court from this 

### Court's judgment 

### of sentence imposed on April 5, 2017, by virtue 

### of the 

### jury's verdict 

### of Guilty rendered on January 18, 2017, and denial 

### of his Post -Sentence Motion on June 16, 2017. For the reasons that follow, 

### Defendant's appeal is 

### without merit. 

### IL 

### STATEMENT OF 

### THE CASE A. 

### Factual History On the evening 

### of February 6, 2016, Defendant and Ms. Ubiles met at the train station, as the two had agreed to do earlier that day, and 

### took a cab to the Motel 6 to discuss the status 

### of their relationship.' By way 

### of background, the two had been friends for nearly twenty years, and had been 

### romantically involved for the previous two years until weeks earlier when, according to Ms. Ubiles, she caught Defendant in a car doing cocaine 

### with another woman. After arriving at the Motel 6, at approximately 9:30pm, the two went to Room 327, previously reserved by Defendant, and soon became embroiled in an argument which ultimately culminated in 

### Defendant's assault 

### of Ms. Ubiles. At trial, she recounted the assault as follows:

' The Motel 6 is located at 8l5 West DeKalb Pike, in Montgomery County.Ms. Ubiles: As soon as we got to the room, he put a line 

### [of cocaine] on the table. I then pushed the line 

### off the table, and he 

### immediately got violent with me, grabbed my hand, because I had the 

### rest 

### of his drugs in my hand. 

### He grabbed my hand, started tussling all over the room. 

### He's a lot bigger 

### than me, so I was mostly on the floor. He was dragging me back and forth to 

### try to get the drugs from my hand. Commonwealth: Now, as he was dragging you, were you saying anything to him? Ms. Ubiles: I really 

### can't remember word for word 

### what I was saying. 

### Probably why this was going on. I 

### really 

### couldn't say exactly what words were coming out 

### of my mouth at the point. I 

### don't remember that. Commonwealth: Let me ask you a different way. Were you trying to break free from him? What were you doing? Ms. Ubiles: Yeah, I was 

### trying -- well, I was asking him to let me go, 

### of course. And I was trying to break free. We were -- I was on the floor, we were tangled up somehow. He finally got his drugs out 

### of my hand, and I was pulling on his hand. I remember biting him to try to get free. He then finally - - as I said, finally got away. And as he was pulling away, he faced [sic] me with his foot, because I was on the floor and I was trying to hold his foot. [N.T. 1/17/17, at 73-74]. Ms. Ubiles testified further that she and Defendant continued arguing over 

### Defendant's cheating, until he pushed Ms. Ubiles up against the wall and she hit her head on the wall - mounted tv, at which time she was overcome by dizziness and collapsed in a seizure. When she recovered, Ms. Ubiles and Defendant continued arguing. Eventually, Defendant hit Ms. Ubiles in the face causing her to collapse again. Ms. Ubiles claimed Defendant then drew his gun, (for which he had a license to carry,) pointed it at her, and ordered her to leave. Once Ms. Ubiles got out 

### of the room she 

### went to the lobby and called her son, while motel 

### staff contacted the 

### police
to report the 

### assault.` Patrol Officer Brian Manion and Corporal Drew Miller 

### of the Upper Merion Township Police 

### Department testified that they responded separately, 

### but within minutes, 

### of the underlying

2 [N.T. 1/1.7117, at 69-102, Exs. C-1 C-2].10:21pm call for a domestic dispute at the Motel 6. Upon arrival, the officers encountered Ms. Ubiles, who was standing out front 

### ofthe Motel 6, crying. The right side 

### of her face was swollen. She immediately relayed to them 

### what had transpired and directed them to Room 327
to investigate. After apprehending Defendant, the officers retrieved his 

### loaded Glock 30, .45 

### caliber semiautomatic handgun, from its 

### holster on 

### Defendant's right side 

### without incident. While searching 

### Defendant's person for knives he admitted possessing, Officer Miller located a clear bag containing marijuana in 

### Defendant's front left pocket, along with black folding knives in each 

### of his front pockets. During their investigation the officers also 

### located one 

### of Ms. 

### Ubiles's acrylic fingernails, which Ms. Ubiles testified had been torn 

### off during her altercation with Defendant, as well as a piece 

### of one 

### of her earrings on the floor 

### of the bathroom in 

### Room 3272 And while both officers observed injuries to Ms. 

### Ubiles's face, which they photographed within an hour 

### of the assault as 

### part 

### of their investigation, each denied seeing any injuries or evidence 

### of defensive injuries on Defendant (to corroborate his allegation 

### that Ms. Ubiles tried to grab his gun and he fended her 

### off in self-defense),` In addition to testimony 

### of the victim and officers, the Commonwealth introduced and the Court admitted photographs reflecting bruising and scratches on Ms. 

### Ubiles's arms, legs and hands, as well as a black eye suffered in the assault. Ms. Ubiles not only provided a statement at the 

### police station the night 

### of the assault, but less than two days later, on 

### February 8, 2016, at 7:18am, Ms. Ubiles sought medical attention and received treatment for the underlying assault at 

### Einstein Medical 

### Center in Montgomery 

### County.' As demonstrated below, the Emergency Department Triage Note further corroborated Ms. 

### Ubiles's claim that Defendant assaulted her:

3 [N.T. 1/17/17, at 73-75, Ex. C-20 (photo of fingernail)].
4 [N.T. 1/17/17, at 18, 86, 92, 96, 98, Exs. C-1, C-2 (photographs, medical records, hospital discharge papers)].

5 [N.T. 1/17/17, at 90].

3Arrives to ED with 

### do ex -boyfriend allegedly assaulted her Saturday. States she was kicked, head slammed into wall and was punched. C/o head 

### pain temporal area, nausea, left -sided neck pain

. . . .6

B. 

### Procedural History Ultimately, the Commonwealth charged Defendant with the following on Bill 

### of Information 1439-2016: Count 

### One-Terroristic Threats7; Count 

### Two-Simple Assaults; Count 

### Three-Simple Assault9; Count 

## Four- Recklessly Endangering Another Person ("REAP" )10; Count 

## Five- Possession 

### of Small 

### Amount 

### of Marijuana;" and Count 

## Six- Harrassment/Strike, Shove, Kick, Etc.'2 The case proceeded to two-day 

### jury trial before the undersigned, resulting in the 

### jury's verdict finding Defendant guilty on Count Two Simple Assault, Count Four REAP, Count 

## Five- Possession 

### of Small Amount 

### of Marijuana; and Count S 

# xHarrassment/Strike, and not guilty on the remaining two counts. On April 5, 2017, the 

### undersigned sentenced Defendant to undergo 

### imprisonment for not less 

### than one (1) month, nor

more than 

### twenty-three (23) months on Count Two, followed by two (2) years 

### of probation on Count Four to run consecutive to 

### Defendant's parole on Count Two.13 On April 17, 2017, Defendant filed a Post -Sentence Motion, which the Court subsequently denied after argument by Order dated June 16, 2017.14 On July 

### 13,2017, Defendant filed a timely Notice 

### of Appeal from his 

### judgment 

### of sentence and the 

### Court's denial

6 [NJ. 1/17/17, at 99-100, Ex. C -I ("Medical Records")].
7 18 Pa. C.S. § 2706(a)(1).
8 18 Pa. C.S. § 2701(a)(1). 918 Pa. C.S. § 2701(a)(3). I9 18 Pa. C.S. § 2705.

11 35 Pa. C.S. § 780-113(a)(31); [N.T. 4/5/17, at 3; N.T. 1/17/17, at 22] The Commonwealth amended the original bills on January 17, 2017, to charge Count Five as above -described.
17 18 Pa. C.S. § 27909(a)(1).

17 [N.T. 4/5/17, at 15-16]. The. Court imposed no further penalty on Counts Five and Six.

14 [Def.'s Application for Parole, 6/15/17]. Defendant's Application for Parole was granted on June 15, 2017, and his release was ordered for June 16, 2017.

4Co 

### of his Post -Sentence Motion. On July 26, 2017, in response to the 

### Court's directive, and pursuant to Pa. R.A.P. 1925(b), Defendant filed a timely Statement 

### of Matters Complained on Appeal ("1925(b) Statement,") as delineated below. 

### III. ISSUES 

### PRESENTED Defendant's 1925(b) Statement sets forth the following issues for review: 1.) The trial court abused its discretion when it determined that 

### Appellant's conviction was not contrary to the weight 

### of the evidence, where it was manifestly unreasonable for the factfinder to base 

### Appellant's conviction upon the contradictory and self-serving testimony 

### of the Commonwealth witnesses. 2.) The trial court erroneously sustained the 

### prosecutor's objection to the 

### Defendant's testimony about what the complainant said to him during their physical confrontation. The defendant and the complainant each accused the other 

### of initiating and continuing the confrontation. Where the 

### complainant testified concerning things that Appellant allegedly said, it was clearly improper for the trial court to preclude Appellant for [sic] giving his version 

### of what was said. As a result 

### of the trial 

### court's ruling, the 

### jury was only allowed to hear one version 

### of what the complainant and the Defendant said to each other during that struggle. 

### [Def.'s 1925(b) Statement, (7/26/17)]. IV. 

### DISCUSSION The standard 

### of review applied to claims raised on appeal is limited to determining whether the trial court abused its discretion or 

### committed an error 

### of law. See Commonwealth v West, 937 A.2d 516, 521 (Pa. Super. Ct. 2007); Pa. R. Crim, P. 720. In evaluating a trial 

### court's decision, an "abuse 

### of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result 

### of manifest unreasonableness, or partiality, prejudice, bias, or or such lack 

### of support so as to be clearly 

### erroneous." Commonwealth

v. Greer, 951 A.2d 346, 355 (Pa. 2008) (internal quotation omitted). A. 

### The 

### Court Properly Determined 

### That The Weight of The Evidence 

### Supported Defendant's Convictions.On appeal, Defendant preserved two issues at most, both 

### of which are meritless. First, 

### Defendant's weight 

### of the evidence claim, 

### preserved by virtue 

### of his 

### Post -Sentence Motion, affords no 

### relief as the 

### jury's verdict in this case was wholly appropriate in light 

### of the ample, credible evidence put forth by the Commonwealth.15 An allegation 

### that the verdict is against the weight 

### of the evidence is addressed to the discretion 

### of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. Ct. 2005) (internal citations omitted). To grant a new trial on the basis that the 

### verdict is against the weight 

### of the evidence, the evidence must be "so tenuous, vague and uncertain that the verdict shocks the conscience 

### of the court." Commonwealth v. Sullivan, 820 A.2d 795, 806 (internal citation omitted). Finally, it is well - settled that an appellate court cannot substitute its 

### judgment for that 

### of the trier 

### of fact, which is free to believe all, none, or part 

### of the testimony presented at trial, including the testimony put forth by the Commonwealth. See Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. Ct. 2008); see also, Commonwealth v. Griseavage, 517 A.2d 1256 (Pa. 1986).

In this case, the Commonwealth presented credible evidence upon which the 

### jury ultimately determined Defendant was guilty 

### of Count 

### Two-Simple Assault, Count 

## Four- REAP, Count 

## FivePossession 

### of Small Amount 

### of Marijuana; and Count 

## Six- Harrassment/Strike. More specifically, the victim testified that Defendant attacked her and then, despite her pleas for him to let her go, he wrestled her violently to the ground and threw her against the wall where she struck her head on a wall -mounted tv. Even after 

### Defendant's assault triggered Ms. 

### Ubiles's seizure disorder, which Defendant admits witnessing, he continued his assault 

### of her, ultimately striking her in the face, and drawing and pointing his gun at her. The evidence further established that Defendant was larger than Ms. Ubiles and therefore, capable 

### of overpowering her physically; especially in light 

### of Ms. 

### Ubiles's numerous

15 See Pa. R. Crim. P. 607(A)(3).tri underlying medical conditions including MS (multiple sclerosis,) lupus, and her seizure disorder.I6 Both Officers Manion and Miller testified credibly not only as to the injuries they observed about Ms. 

### Ubiles's face and hands supporting her rendition 

### of the 

### evening's events, but also as to the lack 

### of any injuries on Defendant and the marijuana they located on 

### Defendant's person while conducting their investigation. As such, the record here belies 

### Defendant's bald characterization 

### of the 

### Commonwealth's witnesses as contradictory and self-serving, and the evidence was more than sufficient to support the 

### jury finding Defendant guilty 

### of Count 

### Two-Simple Assault, Count 

## Four- REAP, Count 

## FivePossession 

### of Small Amount 

### of Marijuana; and Count 

## Six- Harrassment/Strike.
While Defendant contends he proffered credible evidence to establish that he was merely defending 

### himself from Ms. 

### Ubiles's attack, the 

### jury obviously rejected his claim and acted well within its province in weighing the evidence 

### of both parties and concluding that Defendant had assaulted Ms. Ubiles. See Holley, 945 A.2d at 246 (Jury free to believe all, none, or part 

### of testimony presented.) Any inconsistencies as alleged by Defendant in Ms. 

### Ubiles's recollection 

### ofthe manner in which the assault unfolded and continued are easily attributed to the physically and emotionally 

### traumatizing nature 

### of the 

### assault- a finding well 

### within their prerogative as fact finders. Given the 

### jury's acquittal 

### of Defendant on Count 

### One-Terroristic Threats" and Count 

### Three-Simple AssaultI8 the record reflects their 

### thorough analysis and diligent weighing 

### of all 

### of the testimony presented to them. Certainly the verdict does 

### not shock the conscience 

### of the Court.

'6 Ms. Ubiles testified that she is 5'7" and 189 lbs; and that Defendant is "about six feet tall," and 250-260 lbs. [NJ. 1/17/17, at 82].
17 18 Pa. C.S. § 2706(a)(1).
18 18 Pa. C.S. § 2701(a)(3).In light 

### of the ample, credible evidence supporting 

### Defendant's guilt, the 

### Court's denial 

### of Defendant's Post-Sentence Motion on this ground was proper.

B. 

### The 

### Court Properly Sustained The 

### Commonwealth's Objection. Next, 

### Defendant asserts 

### that the Court erred 

### in sustaining "the 

### prosecutor's objection to the 

### Defendant's testimony, about what the complainant said to him during their physical 

### confrontation," thus precluding him from "giving his 

### version 

### of what was said."19 This assertion is overly broad and vague, and Defendant has failed to direct the Court to the location in the record 

### of the specific evidentiary ruling at issue. Thus, in the first instance, 

### Defendant's second claim on appeal is waived.29 Moreover, 

### Defendant's concomitant articulated basis for his second claim 

### of 

## error- that the 

### Court's ruling effectively precluded him from 

### presenting his version 

### of 

### events-in no way clarifies his issue 

### on appeal. 

### Defendant's assertion is simply not borne out by the record. To the contrary, the entirety 

### of Defendant's testimony focused on his version 

### of events. Furthermore, his assertion that the 

### Court's ruling precluded him 

### from testifying as to 

### 'things' Ms. Ubiles said is also contradicted by the record. More specifically, during defense 

### counsel's direct examination 

### of his client, Defendant referenced 

### 'what' Ms. 

### Ubiles said 

### on more than ten (10) occasions.21 Given the numerous instances in which Defendant referenced Ms. 

### Ubiles's statements, along with 

### Defendant's complete failure to identify where in the record the objectionable preclusive ruling occurred, this 

### Court's ability to analyze 

### Defendant's second contention 

### of error is 

### further constrained.

19 [See Def.'s 1925(6) Statement, at ¶ 2, (7/26/17]. (Emphasis added). 2° See Pa. R.A.P. 1925(b)(4)(ii) (Statements to vague too decipher are waived.)

22 [N.T. 1/18/17, at 106, 109-10, 112-14,.117, 119-201.And while this Court need not and should not be obligated to do so, it nonetheless reviewed the entire record in an attempt to locate and decipher 

### Defendant's precise claim on appeal. The record contains only two instances in which the Court sustained 

### Commonwealth's objections during 

### Defendant's direct examination. Only the following exchange not as to what Ms. Ubiles said during the confrontation but as she fled the room 

### might be construed to fall within the ambit 

### of Defendant's vague claim. Defense Counsel: As she was leaving, did she say anything else? Defendant: It 

### just resonated now what she said, but 

# - The Commonwealth: Objection, Your Honor, to hearsay. Defense Counsel: Your Honor, the door has been opened. Defendant: No, 

### I'm 

# - she asked me 

# - The Court: Hold on, sir Defendant: 

### I'm sorry. The Court: 

### I'm sorry, you were going to respond? Defense Counsel: I was, Your Honor. Just to the fact the door has been opened, Ms. Ubiles agreed with me, during my questioning on cross, that as she was leaving the room she said various 

### things,in court about what she was going to do and what happened that night. 

### I'm asking Mr. Suber 

### if he has the same recollection 

### of those comments. The Court: 

### I'll sustain the objection.22 Defense 

### counsel's articulated response, that 

### 'the door' had already 

### been opened, not only failed to present the 

### requisite legal basis for the Court to overrule the 

### Commonwealth's hearsay objection, but was also insufficient to preserve any claim on appeal. See Pa. R.E. 103(a).23 Here,

22 [N.T. 1/17/17, at 120- ]. 23 See Pa. R.E. 103(a)(2) ("A party may claim error in a ruling to admit or exclude evidence only: (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.")

9rather than positing an applicable hearsay exception, or developing or requesting leave to make an offer 

### of proof as to what testimony he intended to elicit from Defendant, and whether or not that testimony was being offered for the truth 

### of the matter or for some admissible purpose, defense counsel incorrectly claimed that the door had been opened by Ms. Ubiles during his re -cross examination 

### of her 

### presumably during the following exchange: Defense Counsel: 

### Ma'am, you 

### just suggested that Gorden [sic] was alone in the room for 20 to 25 minute before the police were called; right? 

### That's just what you got finished saying to the jury; right? Ms. Ubiles: No, I 

### didn't say before the police were called. I 

### said before the police got up there to his room. Defense Counsel: 

### That's right. Because what 

### you're telling this 

### jury really happened was that you 

### just left the room with no intention 

### of calling the police; right? Ms. Ubiles: I 

### didn't. I called my son. Defense Counsel: So when you left the room, 

### you're telling us you 

### hadn't told Gorden [sic] about call the police? Ms. Ubiles: No. He asked me, are you going to call the police or not? And I said, I 

### don't have to, look at me. As soon as I walk downstairs, 

### they'll call the police. Defense Counsel: Well, 

### that a new detail you 

### didn't include on your direct examination 

## - Ms. Ubiles: You 

### didn't ask me. 

### Defense Counsel: So now 

### you're adding this new detail 

# - Ms. Ubiles: 

### Now you asked me. Defense Counsel: -- before your left the room. Ms. Ubiles: 

### Now you asked me and now I tell you. You did not ask me. Defense Counsel: Well, 

### ma'am, now is not the time for argument back and forth. 

### Now is the time for me to ask questions and you to give me answers; right?

10Ms. Ubiles: I gave you the answer. Defense Counsel: 

### You're telling me now that the last 

### thing you said before leaving the room was, 

### I'm not going to ask to call the police, Gorden [sic,] 

### just look at me; right? Ms. Ubiles: 

### Just look at me. [N.T. 1/18/17, at 35-36] (emphasis added). The rationale permitting a party to introduce otherwise inadmissible evidence "because the door has been opened" is based on fairness and 

### premised on the concept that the opponent by introduction 

### of certain evidence implicitly waived any objection to otherwise inadmissible responsive evidence. Such a rationale is not supported in this case as the above -referenced exchange to which Defendant was seeking
to respond was introduced by defense counsel. It was Defendant who "opened the door." See e.g. Pa. R.E. 607 (A party cannot open the door through which it seeks to enter.); see also, Commonwealth v. Hood, 872 A.2d 175, 185 (Pa. Super. Ct, 2005) (Party may impeach 

### opposition's credibility here opposition opened the door.). Thus, having failed to adequately develop and preserve his evidentiary claim, 

### Defendant's second claim on appeal is waived. Challenges to the admissibility 

### of evidence lie within the sound discretion 

### of the trial court, and a reviewing court will not reverse the trial 

### court's decision absent a clear abuse 

### of discretion. See Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. Ct. 2010). Here, defense counsel when asked by the Court, failed to articulate either the evidence sought to be admitted, and a basis upon which the Court could make an analysis as to admissibility. As such, the Court acted well within its discretion in sustaining the 

### Commonwealth's objection.V. 

### CONCLUSION Accordingly, the trial court requests that the 

### judgment 

### of sentence imposed on Defendant, Gordon Suber on April 5, 2017, be AFFIRMED. BY THE COURT:

THOMAS C. BRANCA, J.

Copies of the above Opinion Mailed on: 1(10+ 17 By Interoffice Mail: Paul M. George, 

### Esq.- Montgomery County Public Defender's Office Montgomery County District Attorney - Appellate Division Deputy Court Administrator -Criminal CVM-12ms - Secretary

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