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

v.

JESSAMYN JAMES MORROW

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

PENNSYLVANIA

No. 829 MDA 2019
Appeal from the Judgment of Sentence Entered July 3, 2018 , i n the Court of Common Pleas of York County , Criminal Division at No(s): CP

- 67

- CR

- 0005964

- 2017

.
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY KUNSELMAN, J.: FILED: AP RIL 20, 2020 Jessamyn James Morrow appeals from the judgment of sentence imposed after he was found guilty of aggravated assault, simple assault, harassment, and assault by prisoner

. 1 Upon review, we affirm. Morrow’s convicti o ns ar o se from a physical altercation involving Morrow and Jacob Lee Ruth while both were both inmates at the York County Prison

. During lunch, the two began arguing after Ruth g ave his unwanted food to another inmate instead of Morrow

. After lunch, "count" was called , requiring the prisoners to return to their cells

. As Ruth was walking back to his cell on the bottom tier, Morrow jumped the railing from the top tier and attacked him

. Ruth was unable to fight back.

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. §§ 2702(a)( 1), 2701(a)(1), 2709(a)(1), and 2703 (a).J

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Following the incident, Ruth was in substantial pain and had difficulty b reathing. Ruth was taken to the hospital where he was admitted

. Ruth suffered two broken ribs . He also had red marks resembling knuckle s on his back and scratches on his elbows. Morrow sustained no injuries. Morrow was criminally charged for his actions

. Following trial, a jury found Morrow guilty of the aforementioned crimes ; the trial court also found him guilty of summary harassment. The trial court sentenced Morrow to an aggregate term of five to ten yea rs’ incarceration. Morrow filed a post

sentence motion , which the trial court denied as untimely

. Thereafter, Morrow filed a Post Conviction Relief Act p etition requesting reinstatement of his direct appeal rights, including the right to file a post

sente nce motion, based upon counsel’s ineffectiveness. The Commonwealth agreed , and the PCRA court granted that relief. Instead of filing a post
- sentence motion, however, Morrow filed a timely direct appeal. Both the trial court and Morrow complied with Pennsylvania Rule of Appellate Procedure 1925. On appeal, Morrow raises the following two issue s : I. Whether the [ t ] rial [ c ] ourt improperly found there was sufficient evidence to support the conviction for [ a ] ggravated [ a ] ssault, [ s ] imple [ a ] ssault, and [ a ] ssault by [ p ] risoner given [Morrow’s] evidence of self

- defense? II. Whether the jury's verdict of guilty of [ a ] ggravated [ a ] ssault, [ s ] imple [ a ] ssault, and [ a ] ssault by [ p ] risoner was against the weight of the evidence given [Morrow’s] evidence of self

- defense?
Morrow’s Brief at 8.J

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Morrow’s first issue challenges the sufficiency of the evidence . W hen analyzing whether the evidence was sufficient to support a conviction, this Court must “ view the evidence in the light most favorable to the Commonwealth as the verdict winner in order to determine whether the jury could have found every element of the crime beyond a reasonable doubt. ” Commonwealth v. Thomas , 215 A.3d 36, 40 (Pa. 2019)

. “The evidence established at trial need not preclud e every possibility of innocence and the fact

- finder is free to believe all, part, or none of the evidence presented.” Commonwealth v. Brown , 52 A.3d 320, 323 (Pa. Super. 2012). “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.” Commonwealth v. Vargas , 108 A.3d 858, 867 (Pa. Super. 2014) ( en banc ). Additionally, this Court cannot “re

- weig h the evidence and substitute our judgment for that of the fact

- finder.” Id . A challenge to the sufficiency of the evidence presents a pure question of law and, as such, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Jacoby , 1 7 0 A.3d 1065, 1076 (Pa. 2017). Morrow argues that the evidence was insufficient to sustain his conviction s for aggravated assault , simple assault, and assault by prison er . 2

_________________ __________ ______ ____ _______ 2 We note that, although Morrow claims that he is challenging the sufficiency of evidence to sustain his simple assault conviction, he does not address it inJ

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Specifically, Morrow contends that the Commonwealth failed to show that he intentionally, knowingly or recklessly attempted to cause serious bodily injury to another by his actions, or acted in a way that was likely to produce a serious injury. Morrow’s B rief at 18. A person is guilty of aggravated assault if he: “ attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifferen ce to the value of human life. ” 18 Pa.C.S.A. § 2702(a)(1). Similarly, a person is guilty of a ssault by p risoner if that person is “confined in or committed to any ... county detention facility ... located in this Commonwealth ... [and] if he, while so confined ... intentionally or knowingly, commits an assault upon another ... by any means or force likely to produce serious bodily injury.” 18 Pa. C.S.A. § 2703(a). Based upon our review of the record, we con cl u d e that the Commonwealth presented sufficient evidence to demonstrate that Morrow intentionally, knowingly or recklessly attempted to cause serious bodily injury to another by his actions, or acted in a way that was likely to produce a serious injury to establish both offenses

. Contrary to Morrow’s contention , the evidence demonstrated he intended to seriously injure Ruth. At the time of the incident, Ruth was going through deto x . He had lost a lot of weight and

_________________ __________ ______ ____ _______ his brief. As such, Morrow waived it. Commonwealth v. A.W. Robl Transport. , 747 A.2d 400, 405 (Pa. Super. 2000). We therefore do not address it.J

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was weak. Morrow , on the other hand , was substantially larger than Ruth and a skilled boxer. After lunch, as t he inmates returned to their cells, Morrow in itiated an attack on Ruth by suddenly jump ing from the top tier of cells to the bottom tier , a six

- foot drop, where Ruth was walking. Morrow landed on Ruth’s back , and both fell to the ground. Morrow punched Ruth multiple times in the back, chest and head and kicked him. Because of Ruth ’s condition, he was helpless to fight back and did not hit Morrow

. See Trial Court Opinion, 9/24/19 , at 6

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. T he evidence also demonstrated that Ruth actually suffered serious injuries

. Morrow attacked Ruth with such force that he broke two of Ruth’s ribs. Ruth was in a lot of pain and unable to breathe. These injuries required Ruth to be hospitalized. Trial Court Opinion, 7/ 24/19, at 5

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. A lthough Morrow claimed that after the attack, Ruth said “I’m good” , suggesting Ruth

was un injured , Ruth explained that he only said that to stop Morrow from hitting him. T he jury credited Ruth’s explanation . As the finder of fact , the ju ry wa s free to determine which testimony to believe. See Commonwealth v. Tate , 4 01 A.2d 353, 354 (Pa. 1979). Additionally, Morrow argues that the Commonwealth failed to present sufficient evidence to overcome his claim of self

- defense. At trial, Morrow testified that during their lunchtime confrontation , Ruth threatened to stab him with pencils he had in his cell. According to Morrow, he was justified in attacking Ruth because he had to prevent Ruth from getting the pencils

. Mor row’s B rief at 18

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Generally, an individual is justified in using force upon another person “when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” 18 Pa.C.S.A. § 505 (a). “If the defendant properly raises self

- defense under Section 505 of the Pennsylvania Crimes Code, the burden is then on the Commonwealth to prove beyond a reasonable doubt that the defendant's act was not justi fiable self

- defense.” Commonwealth v. Smith , 97 A.3d 782, 787 (Pa. Super. 2014) (internal quotations and citations omitted). We first note that, given the facts of this case , the jury could have found that Morrow’s claim of self

- defense was not credible. While “the Commonwealth is required to disprove a claim of self

- defense . . . , a jury is not required to believe the testimony of the defendant who raises the claim.” Commo nwealth v. Bullock , 948 A.2d 818, 824 (Pa. Super. 2008 ). However,
t he Commonwealth cannot sustain its burden of proof solely on the fact finder’s disbelief of the defendant’s testimony. Commonwealth v. Ward , 188 A. 3d 1301, 1304 (Pa. Super. 2018) appeal d enied , 199 A.3d 341 (Pa. 2018) (emphasis added). Nonetheless, based upon our review of the record, we conclude t hat the Commonwealth presented ample evidence to disprove Morrow’s claim of self

defense. First, Ruth testified that he was returning to his c ell only because “count” was going to take place; he never threatened Morrow. Second,

a lthough Morrow claimed that Ruth screamed in the hall that he was going toJ

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stab Morrow, the trooper investigating the incident could not find anyone to corroborate Morr ow’s claim. Third, a fellow inmate testified that Morrow told him that he initiated the attack because of the disagreement over the food ; Morrow never indicated to t his fellow inmate that Ruth threatened him in any
way. Finally, during Morrow’s disciplin ary hearing, a prison official testified that Morrow admitted he initiated the attack on Ruth and he was guilty of the assault on him ; Morrow never indicate d to the prison official that Ruth had threatened him. Moreover , th e evidence d id not demonstrate th at Morrow’s use of force was immediately necessary for his own protection against the unlawful use of force by the other person

. “ [F] orce may be met with force so long as it is only force enough to repel the attack.” Commonwealth v. Pollino , 467 A.2d 1298, 1300 (Pa. 1983). Here, Ruth did not attack Morrow; instead , M orrow initiated the attack by jumping over a railing and landing on Ruth’s back

. Under these circumstances, the Commonwealth showed that Morrow’s use of force was not justified

. Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, we conclude that the Commonwealth presented sufficient evidence to prove the elements of aggravated assault and assault by prisoner and to disprove that Morrow acted in self

- defense. Accordingly, Morrow’s first issue entitles him to no relief. In his second issue, Morrow claims that the verdict was against the weight of the evidence. Specifically, Morrow claims that his and Ruth’sJ

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testimony was the only direct evidence of the incident. According to Morrow, the jury gave his testimony inadequate weight, and instead, credited Ruth’s testimony , which was full of inconsistencies and raised serious issues of credibility

. Morrow’s Brief at 20

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. Initially, we obser ve that in order to properly preserve a challenge to the weight of the evidence, an appellant must raise that claim before the trial
court. See Pa.R.Crim.P. 607(A) . A defendant may raise it with the trial court orally or in a written motion prior to sentencing, or in a post

- sentence motion

. Id. Here, although the PCRA court reinstated Morrow’s right to file a post

sentence motion, he did not do so. He also failed to indicate where in the record he preserved this claim prior to sentencing. See Pa.R. A.P. 2119(e) ( requiring an appellant to s et forth in his brief where in the record he preserved the issue before the trial court). Consequently, this issue is waived

. See Commonwealth v. Griffin , 65 A.3d 932, 938 (Pa. Super. 2013) (finding

a weight

- of

- th e - evidence claim waived where the appellant failed to raise it in
a pre - sentence motion, did not address the issue orally prior to sentencing, and did not raise it in a post

- sentence motion). We therefore cannot address the merits of this issue. Judgme nt of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 4/20/2020