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

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MICHAEL TYMAN

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

PENNSYLVANIA

No. 309 WDA 2020 Appeal from the Judgment of Sentence Entered February 13, 2020

In the Court o f Common Pleas of McKean County Criminal Division at No(s): CP

- 42

- CR

- 0000637

- 2015

BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 03, 2021
Appellant, Michael Tyman , appeals from the judgment of sentence

entered in the McKean County Court of Common Pleas , following his jury trial

convictions for two counts of disord erly conduct and one count each of simple

assault and harassment. 1 We affirm.

In i ts opinion, the trial court set forth the relevant facts of this case as

follows:
[Appellant’ s] then girlfriend, [Victim], testified that she and

[Appellant] were residing together at the Hotel Holly in Bradf ord, PA, on November 28, 2015. [Victim] testified that [Appellant] had been drinking at home and then went to a bar. When [Appellant] came home later in the evening he was very upset and angry.

A. Like I said, [App ellant] was angry about something he had heard and he just decided to attack

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 5503(a)(1), (a)(2); 2701(a)(1); 2709(a)(1), respectively.J

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- me.
Q. Okay. And when you said “He attacked you” do you remember how he attacked you?

A. Well he threw the glass down and then he picked up a wine bottle that I have that I fill ed with water because the water was shut off in the building so I saved some. Then [Appellant] just started hitting me over the head with it so I crouched down and I blocked myself.
[Victim] testified that she had an open wound from being hit in the head with the wine bottle and she was bleeding.

* * *
[W]itness Gerald Devitt testified that he lived in an apartment next to [Appellant] and [V]ictim’s apartment. He heard a f ight going on inside [Appellant’s] apartment. Later he heard [Appellant] say [he] was going to get a shotgun and shoot the victim; and, he observed him strike her.
Q. Okay. And leading up to that incident how did that come about what was going on?

A. There was a fight going on next door.
Q. Okay. And how did you know there was a fight going on next door?

A. We could hear it from my room and then [Appellant] ca me over to my room and asked me to go to his room.
Q. Okay. Now when yo u said you could h ear it what

— I mean I know it’s hard when you’re listening through another wall but can you tell us like what sort of sounds you heard?

A. Just loud [thumping] and [banging] like stuff was being tossed around or broke

.
* * *J

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- Q. Okay. And when you got into the room what did you notice?

A. The room was trashed. lt was a mess. There was a table that was knocked over, there was stuff all over the floor and it was a mess.
Q. Okay. And at that time did you see the victim in this case... ?

A. Yes.
Q. And what was she doing?

A. She was crouching sit ting down with her feet up
on
— I don’t know what was behind her but she had her hands like this (indicating).
Q. Okay.

A. Sitting on the floor.
Q. Okay. So she looked

— so
— a fter you saw her like that w hat happened at that point?

A. I asked [ Appellant] what happened, what

— you know what’s going on and he didn’t really say anything to me he kind of leaned over to her mentioned something about getting my shotgun and was [going to] kill her and called her s ome really bad names then kind of popped her.
Q. Okay.

A. He leaned over smacked her or hit her.
Q. Okay. Now do you know if that was closed fist or open fist?

A. No sir, I couldn’t tell and at that time I grabbed ahold of him and threw him out into the hallway.
Q. Okay. And at that point you said you hadJ

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- observed [Victim]?

A. Yes.
Q. Could you see any visible injuries on her or anything like that?

A. Her hair was messed up and she had blood on her forehead.
Q. Okay. So there was some blood there?

A. Yeah.
Q. Did she look like she had just been in some sort of physical altercation?

A. Yeah.
( Trial Court Opinion, filed May 6 , 20 20 , at 3

- 5 ) (internal record citations
omitted)

. Procedurally, a jury convicted Appellant of the above

- mentione d

offenses on May 23, 2016. On June 16, 2016, the court issued a bench
warrant after Appellant absconded and failed to appear for sentencing. On
February 7, 2020, Appellant was apprehended, and the court scheduled a new
sentencing date. The co urt senten ced Appellant on February 13, 2020 , to an

aggregate sixty (60 ) days to twenty

- three and one half (231⁄2 ) months’
imprisonment. Appellant did not file post

- sentence motions

. Appellant filed

a timely notice of appeal on February 26, 2020. On February 28, 20 20, t he
court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
compla ined of on appeal , and Appellant timely complied.
Appellant raises the following issues for our review:J

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- Whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to support all of the elements of the offense at count 1[, simple assault].

Whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to support all of the elements of the offense at count 2[, disorderly con duct

— engage in fighting].

Whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to support all of the elements of the offense a t count 3[, disorderly conduct

— unreasonable noise].
Whether the trial court abused its discretion upon review of the record when reviewing the weight of the evidence for counts 1, 2, and 3.
(Appellant’s Brief at 5).
In his first issue, Appellant alleges that Victim’s testimony was

inconsistent and not credi ble. Appellant contends Victim’ s trial testimony

contradicted her preliminary hearing testimony. Further, Appellant avers that
the jury should have credited his testimony instead of Victim’s a ccount
regarding the manner in which she sustained her injuries. Appellant concludes
the Commonwealth presented insufficient evidence to sustain his conviction
for simple assault under Section 2701(a)(1). We disagree.
Initially, a n argument that the fi nder of fact sh ould have credited one

witness’ testimony over that of another witness goes to the weight of the
evidence, not the sufficiency of the evidence. Commonwealth v. W.H.M. ,J

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932 A.2d 155, 160 (Pa.Super. 2007) ( explaining claim that jury should ha ve
believed appellant’ s version of event s rather than that of victim goes to
weight, not sufficiency of evidence); Commonwealth v. Wilson , 825 A.2d
710, 713

– 14 (Pa.Super. 2003) ( concluding sufficiency of evidence does not

include assessment of credibility of testimony; such claim goes to weight of
evidence); Commonwealth v. Gaskins , 692 A.2d 224, 227 (Pa.Super. 1997)
( stating credibility determinations are made by finder of fact and challenges
to those determinations go to weight, not sufficiency of evidenc e).
Instantly, Appellant’ s contention that Victim’s testimony was
inconsistent, and that th e jury should have credited his testimony rather than

her testimony , is not a proper challenge to the sufficiency of the evidence;
rather, this claim implicates the weight of the evidence. See W.H.M. , supra ;

Wilson , supra ; Gaskins , supra . Because Appellant did not preserve a
challenge to the weight of the evidence before the trial court, however, that
claim is waived on appeal. See Pa.R.Crim.P . 607(A) (explaining claim that
verdict is against weight of evidence shall be raised with trial judge in motion
for new trial orally before sentencing, by written motion before sentencing, or
in post

- sentence motion); Wilson, supra (explaining challenge t o weight of
evidence is waived if not raised before trial court).
Further, even if we could construe Appellant’s first issue as a challenge
to the sufficiency of the evidence, it would not merit relief. When examining
a challenge to the sufficiency of ev idence, our standard of review is as follows:J

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- The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enabl e the fact

- finder to find every element of the cr ime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact

- finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant ’ s guilt may be resolved by the fact

- finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Jackson , 215 A.3d 972, 980 (Pa.Super. 2019) (quoting
Commonwealth v. Hansley , 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied , 613 Pa. 642, 32 A.3d 1275 (2011)).
The Pennsylvania Crimes Code defines simple assault , in relevant part ,
as follows:

§ 2701. Simple assault
(a) Offense defined

. — E xcept as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

* * *

18 Pa.C.S.A § 2701(a)(1). “Bodily injury” is defined as the “ [i]mpairment ofJ

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physical condition or substantial pain.” 18 Pa.C.S. A. § 2301.

Here , Appellant ’s act of striking Victim repeatedly in the head with a

wine bottle resulted in her sustaining “bodi ly injury

. ” See id. Victim sustained
an open wound that bled, and caused her pain the following day. ( N.T. Trial,
5/23/16, at 69). Viewed in the light most favorable to the Commonwealth as

verdict

- winner , the Commonwealth presented sufficient evide nce to sustain
Appellant’ s conviction for simple assault under Section 2701(a)(1). See 18
Pa.C.S.A § 2701(a)(1); Jackson, supra

. Thus, Appellant’s first issue on
appeal merits no relief.

In his second and third issue s , Appellant argues that he did not engage
in fighting or threatening, or in a violent or tumultuous behavior. Appellant

also asserts that this incident occurred within his apartment, and not in a
public location. Appellant concludes the Commonwealth presented insufficient

evid ence to sustain his convictions for disorderly conduct under Sections
5503(a)(1) and (a)(2). We disagree.
The Pennsylvania Crimes Code defines disorderly conduct , in relevant

part , as follows:

§ 5503. Disorderly conduct
(a) Offense defined

. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;J

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- (2) makes unreasonable noise;

* * *
18 Pa.C.S.A. § 5503 (a)(1), (2). The definition section of the statute defines
“public” as follows:

As used in this section, the word “public” means affecting or likely to affect persons in a place to which the public or a substantial group h as access; among the places included are highways, transport facilities, schools, prisons, apartment houses , places of business or amusement, any neighborhood, or any premises which are open to the public.
18 Pa.C.S.A. § 5503(c) (emphasis added).
Instantly, the evidence shows Appellant struck Victim i n the head with

a wine bottle . Appellant also yelled at Victim “I’m [going to] kill you,” and he

mentioned that h e intended to g et [ his ] shotgun. ( See N.T. Trial at 80

- 8 1).
Appellant’s actions satisfy both the fighting and threatening behavior s as
required under Sec tion 5503(a)(1). See 18 Pa.C.S.A. § 5503(a)(1).
Additionally, Appellant’s assault on Victim involved “loud thumping ” and

the “banging” of objects being thrown a nd broken in his apartment. ( See N.T.

Trial at 78, 83). Appellant’s next

- door neighbor heard those loud noises
through his wall. ( Id

. at 78, 83). Thus, Appellant’s conduct caused a “public
inconvenience” that affected his neighbor. Further, Appellant’ s apartment
constitutes a “public” place. See 18 Pa.C.S.A. § 5503(c). Therefore, the
Commonwealth presented sufficient evidence to sustain Appellant’s

convictions under Section 5503. See Jackson, supra

. In his fourth issue, Appellant concedes he has not properly preserved aJ

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challenge to the weight of the evidence, and essentially abandons this claim.
( See Appellant’s Brief at 13

- 14). We agree that Appellant’s weight claim is
waived for failure to preserve it in the trial court. See Pa.R.Crim.P. 607(A);
Wilson, supra . Accordingly, we affirm.
Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/3/2021