J-S43043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

MICHAEL TYMAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 309 WDA 2020

Appeal from the Judgment of Sentence Entered February 13, 2020

In the Court of 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 disorderly conduct and one count each of simple 

assault and harassment.1 We affirm. 

In its 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 

Bradford, 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, [Appellant] was angry about 

something he had heard and he just decided to attack 

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1 18 Pa.C.S.A. §§ 5503(a)(1), (a)(2); 2701(a)(1); 2709(a)(1), respectively.
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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 filled 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 fight 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] came over to my room and asked me to 

go to his room.

Q. Okay. Now when you said you could hear 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.

* * *
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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 sitting 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—after you saw her 

like that what 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 some 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 had 
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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, 2020, at 3-5) (internal record citations 

omitted). 

Procedurally, a jury convicted Appellant of the above-mentioned 

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 court sentenced 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, 2020, the 

court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal, and Appellant timely complied.

Appellant raises the following issues for our review: 
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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 conduct—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 at 

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 credible. 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 account 

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, an argument that the finder of fact should 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., 
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932 A.2d 155, 160 (Pa.Super. 2007) (explaining claim that jury should have 

believed appellant’s version of events 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 evidence). 

Instantly, Appellant’s contention that Victim’s testimony was 

inconsistent, and that the 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 to 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 evidence, our standard of review is as follows: 
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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 enable the fact-finder to find every 

element of the crime 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.—Except 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 of 
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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 “bodily 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 evidence 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 issues, 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 

evidence 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;
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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 has 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 in the head with 

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

mentioned that he intended to get [his] shotgun. (See N.T. Trial at 80-81). 

Appellant’s actions satisfy both the fighting and threatening behaviors as 

required under Section 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 and 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 a 
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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