J-S68035-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DONTELL JAYVON BROWNER,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 371 WDA 2016

Appeal from the Judgment of Sentence October 15, 2015, 

in the Court of Common Pleas of Allegheny County, 

Criminal Division, at No(s): CP-02-CR-0002627-2015

BEFORE: SHOGAN, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 18, 2016

Dontell Jayvon Browner (Appellant) appeals from the judgment of 

sentence entered following his convictions for aggravated assault, terroristic 

threats, unlawful restraint, simple assault, recklessly endangering another 

person (REAP), false imprisonment, and harassment. We affirm.

The charges in this matter stem from an incident that occurred from 

the evening of January 29, 2015, through the morning of January 30, 2015, 

when Appellant restrained, made repeated violent threats toward, and 

physically assaulted his child’s mother, Ashley Mosse (Mosse), at the home 

they occasionally shared in Natrona Heights, Allegheny County. Appellant 

eventually permitted Mosse to leave the apartment to take the couple’s son 

to a doctor’s appointment. Instead, Mosse called the police and provided a 
J-S68035-16

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written statement of the incident. Appellant was arrested on January 30, 

2015.

Appellant was convicted of the aforementioned offenses on July 16, 

2015, at the conclusion of a non-jury trial. On October 15, 2015, Appellant 

was sentenced to an aggregate term of three to six years’ incarceration to 

be followed by five years of consecutive probation. Appellant’s timely-filed 

post-sentence motion was denied on November 19, 2015. This appeal 

followed. Both Appellant and the trial court complied with the mandates of 

Pa.R.A.P. 1925.

Appellant raises two issues for our review.

I. Did the lower court err in restricting the admission of certain 

text messages which evidenced discussions between the victim 

and [Appellant] weeks prior to the incident, which messages 

showed the victim’s bias, hostility, and interest in revenge 

against [Appellant], all of which bear on the witness’s credibility?

II. Was the evidence presented insufficient to prove the crime of 

aggravated assault where the victim suffered no serious bodily 

injury nor was there evidence that [Appellant] acted with the 

intent to cause serious bodily injury?

Appellant’s Brief at 8 (trial court answers omitted).

With respect to Appellant’s first issue, our standard of review 

concerning a trial court’s admission of evidence is well settled. “Admission of 

evidence is within the sound discretion of the trial court and will be reversed 

only upon a showing that the trial court clearly abused its discretion.”

Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. 2015) 
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(citations omitted). “Discretion is abused when the course pursued 

represents not merely an error of judgment, but where the judgment is 

manifestly unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill will.” 

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (citations 

and quotation marks omitted).

The basic requisite for the admissibility of any evidence in 

a criminal case is that it be competent and relevant. Though 

“relevance” has not been precisely or universally defined, the 

courts of this Commonwealth have repeatedly stated that 

evidence is admissible if, and only if, the evidence logically or 

reasonably tends to prove or disprove a material fact in issue, 

tends to make such a fact more or less probable, or affords the 

basis for or supports a reasonable inference or presumption 

regarding the existence of a material fact.

Commonwealth v. McMaster, 666 A.2d 724, 729 (Pa. Super. 1995) 

(citations omitted).

Prior to trial, Appellant’s counsel produced hard copies of text 

messages sent between Appellant and Mosse from December 25, 2014, until 

the day of Appellant’s arrest on January 30, 2015. N.T., 7/16/2016, at 9-

14. The Commonwealth stipulated to the messages’ authenticity but 

objected to the admissibility of any message sent prior to January 30. Id. at 

9-10. The trial court determined that the messages sent prior to the 

January 29 incident were irrelevant to the question of whether Appellant was 

guilty of the crimes stemming from that incident and prohibited their use, 
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except for the purpose of impeachment. Id. at 13-14. On appeal, Appellant 

contends that the trial court erred in barring substantive use of messages 

sent and received before the incident, arguing that the messages were 

relevant to Mosse’s “credibility,” “motive to fabricate the story of the 

incident,” and her “bias against” Appellant. Appellant’s Brief at 17.

The trial court addressed Appellant’s claim as follows.

As an initial matter, the court notes that it agreed with 

[Appellant] that the case hinged on the credibility of the victim, 

and it also agreed that the text messages could be relevant to 

impeach her credibility -- in the appropriate circumstance. That 

is why the court held open the possibility of admission of the 

texts if they became relevant for that purpose. 

The court concluded that a month’s worth of texts 

exchanged between a couple that quite clearly had a hostile 

relationship was irrelevant. The overwhelming majority of the 

texts were completely unrelated to any claims of fabrication and 

instead, merely confirmed the existence of an emotionally 

charged love-hate relationship. As counsel for [Appellant] 

conceded, none of the texts claimed, either directly or indirectly 

that [] Mosse intended to bring false charges against [Appellant] 

or involve the police in any way. The only conceivable “threats” 

at revenge were extremely vague statements such as: “F*ck 

your face ur gonna regret this,” “Go f*uck some b*tch an die 

wish everything bad upon u dumb f*ck,” and “Enjoy my tits you 

f*cking loser you’ll get what’s coming to you karma or the next 

b*tch u date caz ur a f*cking d*ckhead.” [(sic)]. These general 

statements completely lacked any probative value in the instant 

matter.

Furthermore, the unqualified admission of the month long 

text exchange would have consumed unnecessary time at trial, 

would have unnecessarily shifted the focus on the victim, and 

would have been taken completely out of context. Additionally, 

many of the texts were sexual in nature, and the admission of 
J-S68035-16

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such texts would have resulted in irrelevant, and potentially 

abusive, inquiries into the victim’s sex life. 

It is crucial to note that this case was not resolved through 

a jury trial, and that there was still evidence introduced through 

the victim’s testimony, as well as [Appellant’s], that clearly 

conveyed to this court the turbulent nature of the relationship 

between the victim and [Appellant]. Indeed, [] Mosse was 

immediately forthcoming about her role in assuming the 

[Appellant’s] identity to send a message to one of the 

[Appellant’s] friends through video gaming system, claiming 

responsibility for [that] incident. It was also quite clear to the 

court that [] Mosse was a woman who was insecure[,] jealous, 

and suspicious of [Appellant’s] infidelity, and the court certainly 

considered those personality traits and [] Mosse’s potential bias 

in making its credibility determinations.

Trial Court Opinion, 5/26/2016, at 9-11 (citations to notes of testimony 

omitted).

Based on the foregoing, and our review of the record before us, we 

agree with the trial court that the content of the messages sent prior to the 

incident was not probative of the ultimate question of whether Appellant 

committed the crimes for which he was charged. We further agree that the 

messages had limited probative value to impeach Mosse’s credibility. 

Accordingly, we find no abuse of discretion by the trial court and we hold 

that Appellant is not entitled to relief on this issue.

Appellant next argues that the evidence was insufficient to sustain 

Appellant’s conviction for aggravated assault because the Commonwealth 

failed to prove that Appellant acted with malice and that Mosse suffered 

serious bodily injury. Appellant’s Brief at 20-23.
J-S68035-16

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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 

[finder] 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.

Further, in viewing the evidence in the light most favorable to 

the Commonwealth as the verdict winner, the court must give 

the prosecution the benefit of all reasonable inferences to be 

drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal 

quotation marks and citations omitted).

Following our review of the certified record, the parties’ briefs, and the 

relevant law, we conclude that pages 13 through 18 of the opinion of the 

Honorable Beth A. Lazzara thoroughly and correctly addresses and disposes 

of Appellant’s second issue and supporting arguments and evidences no 

abuse of discretion or errors of law. Accordingly, we adopt the trial court’s 

opinion, filed on May 26, 2016, as our own and hold, based upon the 
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reasons stated therein, that the trial court committed neither an error of law 

nor an abuse of discretion holding that the evidence presented at trial was 

sufficient to sustain Appellant’s conviction for aggravated assault. The 

parties shall attach a copy of that portion of the trial court’s May 26, 2016 

opinion to this memorandum in the event of future proceedings.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016
l 

consecutive five (5) year term of probation at Count Two. The Defendant also received 

sentenced to three (3) to six (6) years of incarceration at Count One, to be followed by a 

Report, testimony presented and the arguments of counsel, the Defendant was 

On October 15, 2015, following consideration of the Presentence Investigation 

for a Presentence Investigation Report to be prepared. 

C.S.A. §2709) (Count Seven). Sentencing was deferred until October 15, 2015 in order 

Five); False Imprisonment (18 Pa. C.S.A. §2903) (Count Six); and Harassment (18 Pa. 

(Count Four); Recklessly Endangering Another Person (18 Pa. C.S.A. §2705) (Count 

{18 Pa. C.S.A. §2902(a)) (Count Three); Simple Assault (18 Pa. C.S.A. §2701 (a)(3)) 

One); Terroristic Threats (18 Pa. C.S.A. §2706(a)(1 )) (Count Two); Unlawful Restraint 

and ultimately convicted of, Aggravated Assault (18 Pa. C.S.A. §2702(a)(1) (Count 

the conclusion of a non-jury trial on July 16, 2015. The Defendant was charged with, 

2015. Sentence was imposed as a result of the Defendant's convictions on all counts at 

This is a direct appeal following the judgment of sentence entered on October 15, 

OPINION 

COMMONWEAL TH OF PENNSYLVANIA ) CRIMINAL DIVISION 

) 

v. ) 

) 

DONTELL JAYVON BROWNER, ) CC# 2015-2627 

) 

Defendant. ) 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

Circulated 10/18/2016 01:24 PM
2 

(Concise Statement, 4/5/16, pp. 3-4). 

c. The verdict was against the weight of the evidence when considered as a 

whole, the testimony of the victim was unreliable, that she had a reason to 

fabricate her story, and when her testimony was not supported by other 

facts, the verdict was based on mere surmise and conjecture and shack's 

one's sense of justice." 

b. There was insufficient evidence to establish beyond a reasonable doubt to 

support a conviction for aggravated assault where the victim suffered no 

serious bodily injury nor was there evidence that Mr. Browner acted with 

intent to cause serious bodily injury to the victim. 

"a. The trial court erred when it restricted the admission of the victim's text 

messages to Mr. Browner in that it would have impeached the victim by 

showing bias, interest in revenge and hostility. These qualities obviously 

have a bearing on the credibility of the witness' testimony. 

issues for review: 

Complained of on Appeal ("Concise Statement"), setting forth the following three (3) 

On April 5, 2016, the Defendant filed a timely Concise Statement of Matters 

denied. This timely appeal followed. 

post-sentence motion, which was heard on November 19, 2015, and subsequently 

Mosse. Court costs were also imposed. On October 26, 2015, the Defendant filed a 

towards his sentence, and he was ordered to have no contact with the victim, Ashley 

remaining counts of conviction. The Defendant was awarded 258 days of time credit 

probationary sentence imposed at Count Two. No further penalty was imposed at the 

a five (5) year term of probation at Count Three, to be served concurrently with the 
3 

Ms. Mosse was not living at the apartment full-time when the Defendant began 

staying there. Ms. Mosse was living at a women's shelter in Cranberry and commuting 

I. FACTUAL BACKGROUND 

The Defendant and the victim, Ashley Mosse, met in 2013 and began a romantic, 

albeit tumultuous, relationship. At the time of the incident, they were still in the 

relationship, and they had a three (3) month old son together. (Non-Jury Trial Transcript 

("TT"), 7/16/15, pp. 15-18, 30-31). The Defendant did not live with Ms. Mosse, but he 

started staying at her apartment after his parents kicked him of the house. (TT, pp. 16- 

18). After only two (2) weeks of staying with her, Ms. Mosse had the police remove the 

Defendant from her apartment. However, after being away for one (1) week, he 

returned there. (TI, p. 16). 

The allegations of error raised by the Defendant are without merit. For the 

reasons set forth below, this court did not commit any evidentiary errors in the 

admission or exclusion of proffered evidence. Additionally, this court did not commit 

error in finding the Defendant guilty of the charged offenses as the evidence was more 

than sufficient to sustain the Defendant's conviction for Aggravated Assault. 

Additionally, the Defendant waived his challenge to the weight of the evidence. 

However, should the appellate court conclude that the challenge to the weight of the 

evidence is not waived, the claim is entirely without merit as it is nothing more than a 

request that the appellate court reconsider credibility determinations already made by 

this court. 
4 

Sometime around midnight, Ms. Masse was awakened by the Defendant when 

he "ripped the covers off" of her, stuck his feet in her face, and turned up the volume on 

the television. (TT, p. 20). Ms. Masse asked the Defendant to remove his feet from her 

face and to turn the volume down so she could go back to sleep, but the Defendant 

intentionally continued to irritate her. (TT, pp. 20-21 ). It was clear to Ms. Mosse that the 

Defendant was trying to start an argument. (TT, pp. 20-21 ). Ms. Mosse decided to 

remove herself from the apartment, and she told the Defendant that she was going to 

leave. (TT, pp. 21-22). She got out of bed, got the baby ready, placed the baby in his 

During the evening of January 29, 2015, Ms. Masse was watching television in 

bed with the Defendant and their infant son. (TT, p. 18). Ms. Masse noticed that the 

Defendant was texting a female, with whom she suspected he had previously had an 

affair. (TT, pp. 18, 31 ). Ms. Masse questioned the Defendant about the texts, and an 

argument ensued, with the Defendant becoming angry and making demeaning 

comments to Ms. Mosse. (TT, pp. 19, 31-32). Ms. Masse cried herself to sleep as a 

result of the Defendant's treatment of her. (TT, p. 19-20). 

between the apartment and the shelter. She was staying at the shelter due to a prior 

incident between her and the Defendant, and she was afraid of the Defendant. (TT, pp. 

16-19, 30, 36, 50-51 ). On January 28, 2015, the Defendant returned to Ms. Mosse's 

apartment. She did not stay at the apartment that night, but rather returned to the 

shelter. She returned to the apartment on January 29, 2015, the date on which the 

incident occurred. (TT, pp. 18, 33). 
5 

During this violent episode, the Defendant had a "crazy face" and was "very 

angry." (TT, p. 23). He kept pulling his fist back as if he was going to punch Ms. Masse. 

(TI, p. 23). Although she wanted to leave the apartment so she and her baby would be 

safe from the Defendant, she eventually complied with the Defendant's repeated 

The Defendant put his left hand over Ms. Mosse's face and cocked his right hand 

back "like he was going to punch" her. (TI, p. 22). As this was occurring, the Defendant 

was screaming, repeatedly yelling that he would kill her and that he did not care if he 

went back to jail. (T.T, p. 22). The Defendant screamed that he would "slice [her] 

throat" while they were "driving at a high rate of speed" so that they "would all die" 

together. (TI, p. 22). The Defendant's threats to kill Ms. Mosse were made while he still 

had her pushed up against the wall. (TT, p. 22). The Defendant continued screaming 

and threatening Ms. Mosse for several minutes, and, with his fist still in her face, he 

warned her not to talk "while he was talking." (TT, pp. 22-23). Ms. Mosse started 

shaking because she was so afraid of the Defendant. She was afraid for her life and for 

the life of her baby. (TT, p. 23). 

car seat, and headed towards the door. (TI, p. 21). Ms. Mosse was at the door when 

the Defendant came running after her and thrust her up against the wall. (TT, p. 21 ). 

Ms. Mosse became extremely frightened because she could tell that the Defendant 

"was turning into that psycho person." (TT, p. 21 ). After pinning her against the wall, the 

Defendant told Ms. Mosse "you're not going anywhere." (TT, pp. 21-22). He told her he 

was going to kill her, stating "I will kill you." (TI, p. 22). 
6 

The Defendant had the pillow smothered over Ms. Mosse's face for 

approximately fifty (50) seconds. Although Ms. Mosse did not lose consciousness, she 

was unable to breathe while the pillow was pushed down over her face. (TI, pp. 24-25). 

She eventually managed to slide the pillow off to the side. At that point, the Defendant 

demanded her phone so that she could not call for help. She complied with his 

demand. (TT, p. 25). Ms. Mosse regrouped when the Defendant permitted her to go 

into the bathroom. (TI, p. 25). Although she contemplated sneaking out of the 

bathroom window, she chose not to do so because she did not want to leave her son 

alone with the Defendant. (TT, p. 26). In an attempt to calm the situation down so that 

demands for her to get back in bed. She complied because he was screaming that he 

would kill her if she did not do so. (TI, pp. 23-24). When the Defendant finally let go of 

her and was no longer pinning her against the wall, Ms. Mosse was shaking so much 

that she fell over as she was walking to the bed. (TI, p. 24). Ms. Masse crawled into 

bed and was lying down when the Defendant climbed on top of her and continued 

screaming "I'll kill you!" (TI, p. 24). She kept telling the Defendant that she was sorry in 

an attempt to calm him down, but the Defendant instead became angry that she was 

interrupting him. (TT, p. 24). The Defendant grabbed a pillow from the bed and, with 

both of his hands, placed the pillow over Ms. Mosse's head and pushed down. (TI, p. 

24). With the pillow smothered against her face, the Defendant continued screaming 

"I'll kill you. I'll go out with a bang. I'll kill you and kill a bunch of other people and kill 

myself." (TI, pp. 24-25). The Defendant threatened to kill Ms. Mosse over thirty (30) 

times throughout the course of the night. (TI, p. 25). 
7 

Ms. Masse met with Officer Justin Bouch in a Wendy's parking lot and explained 

the events that had occurred during the early morning hours. (TT, pp. 28, 30, 45-46, 48- 

49). Officer Bouch told her that she could either have the Defendant taken out of the 

home or have him arrested. She chose to have him arrested. (TT, pp. 28, 48). She 

then went with Officer Bouch to the Harrison Township Police Department and provided 

a written statement of the incident. (TT, p. 28). While she was at the station, the 

Ms. Mosse woke up early the next morning and was still shaken and upset. (TT, 

p. 26). She had a plan to get herself and her baby out of the apartment and away from 

the Defendant. She lied to the Defendant, telling him that the baby had a doctor's 

appointment. (TT, pp. 26-27). At first the Defendant told her that she had to cancel the 

appointment, but she persisted and told him that she had to go because something was 

wrong with the baby, telling him that she would be back in two (2) hours. (TT, p. 27). 

The Defendant permitted her to go, telling her "Okay. You better come back." (TT, p. 

27). Ms. Mosse left the apartment around 10:30 a.m. and immediately called the police. 

(TT, pp. 27-28, 48). 

she could save her life, she changed her approach. When she exited the bathroom, 

she asked the Defendant to cuddle in an attempt to convince the Defendant that 

everything was fine. (TT, p. 26). Although she was still afraid of him, Ms. Mosse was 

trying to relieve the Defendant's anger so that she could end this violent, frightening 

encounter. (TT, p. 26). She reluctantly laid down in the bed with the Defendant, and 

they eventually fell asleep. (TT, p. 26). 
8 

Defendant committed the offenses with which he was charged. (TT, pp. 9-14). 

exchanged prior to the incident were irrelevant to the ultimate question of whether the 

each party, this court agreed with the Commonwealth's position that the text messages 

December 24, 2014 and January 29, 2015. (TT, p. 9). After hearing argument from 

sought to admit were exchanged between Ms. Mosse and the Defendant between 

to seek revenge for his infidelity. (TI, p. 11 ). The text messages that the Defendant 

being unfaithful. The Defendant also alleged that the text messages showed her desire 

demonstrate Ms. Mosse's bias, which purportedly stemmed from her suspicions of him 

Defendant. (TT, p.11 ). The Defendant argued that such evidence was necessary to 

and to suggest that the victim possessed a motive to fabricate her claims against the 

Mosse, and the Defendant in order to highlight the volatile nature of their relationship 

At trial, the Defendant sought to admit text messages between the victim, Ms. 

A. The Defendant cannot demonstrate that this court abused its discretion 

when it restricted the admission of the victim's text messages to the 

Defendant. The court's ruling was not manifestly unreasonable, 

contrary to law, or a product of bias, ill-will, partiality, or prejudice. 

II. DISCUSSION 

secured a warrant and arrested the Defendant that same day. (TT, p. 49). 

the appointment was taking longer than expected. (TT, pp. 29, 49). Officer Bouch 

Defendant so that he would not become suspicious. Ms. Mosse told the Defendant that 

where she was. (TT, pp. 29, 49). Officer Bouch told Ms. Mosse to respond to the 

Defendant attempted to contact her multiple times by text message, wanting to know 
9 

that quite clearly had a hostile relationship was irrelevant. The overwhelming majority of 

The court concluded that a month's worth of texts exchanged between a couple 

not a problem."). 

advance ... " but "[i]f there is an issue of credibility, you can certainly use them. That is 

with those [prior texts], you can use them. I'm not going to rule on her credibility in 

to credibility will be admissible. So if [Ms. Mosse] testifies in a way that is inconsistent 

became relevant for that purpose. (TI, p. 13) (The Court: "Obviously, anything that goes 

13). That is why the court held open the possibility of admission of the texts if they 

could be relevant to impeach her credibility -- in the appropriate circumstance. (TI, p. 

case hinged on the credibility of the victim, and it also agreed that the text messages 

partiality. As an initial matter, the court notes that it agreed with the Defendant that the 

was manifestly unreasonable, contrary to law, or the result of bias, prejudice, ill will, or 

restricting the admission of the text messages because he cannot show that the ruling 

The Defendant cannot demonstrate that this court abused its discretion in 

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (quoting 

Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007)). 

[t]he standard of review for a trial court's evidentiary rulings is narrow. The 

admissibility of evidence is solely within the discretion of the trial court and will be 

reversed only if the trial court has abused its discretion. An abuse of discretion is 

not merely an error of judgment, but is rather the overriding or misapplication of 

the law, or the exercise of judgment that is manifestly unreasonable, or the result 

of bias, prejudice, ill-will or partiality, as shown by the evidence of record. 

well-settled. Our appellate court have recognized that 

The standard of review regarding evidentiary rulings made by the trial court is 
IO 

It is crucial to note that this case was not resolved through a jury trial, and that 

there was still evidence introduced through the victim's testimony, as well as the 

Defendant's, that clearly conveyed to this court the turbulent nature of the relationship 

between the victim and the Defendant. Indeed, Ms. Mosse was immediately 

Furthermore, the unqualified admission of the month long text exchange would 

have consumed unnecessary time at trial, would have unnecessarily shifted the focus 

on the victim, and would have been taken completely out of context. Additionally, many 

of the texts were sexual in nature, and the admission of such texts would have resulted 

in irrelevant, and potentially abusive, inquiries into the victim's sex life. (Appendix to 

Defendant's Post Sentence Motion, 10/26/15). 

the texts were completely unrelated to any claims of fabrication and, instead, merely 

confirmed the existence of an emotionally charged, love-hate relationship. As counsel 

tor the Defendant conceded, none of the texts claimed, either directly or indirectly, that 

Ms. Masse intended to bring false charges against the Defendant or involve the police 

in any way. (Post Sentence Motion Hearing Transcript, 11/19/15, p. 6). The only 

conceivable "threats" at revenge were extremely vague statements such as: "F*ck your 

face ur gonna regret this," "Go f*ck some b*tch an die I wish everything bad upon u 

dumb f*ck," and "Enjoy my t*ts you f*cking loser you'll get what's coming to you karma 

or the next b*tch u date caz ur a f*cking d*ckhead." (Appendix to Defendant's Post 

Sentence Motion, 10/26/15, pp. 66-67). These general statements completely lacked 

any probative value in the instant matter. 
11 

The court had valid and legitimate reasons to support its evidentiary ruling, and 

the Defendant is unable to show that this court's ruling was, when taken in a way most 

favorable to the Defendant, anything more than a mere error in judgment. The law is 

clear that a simple error in judgment does not amount to an abuse of discretion. 

In assessing Ms. Mosse's credibility, this court had the opportunity to directly 

observe her demeanor, tone and mannerisms during the trial. The court, as it always 

does, took copious notes of all of the testimony and reviewed these notes for internal 

consistency, cohesiveness and the ring of truth in the testimony provided. Following the 

court's careful consideration of all of the testimony, as well as observation and scrutiny 

of all of the witnesses, the court found Ms. Masse to be credible and trustworthy. She 

was visibly shaken and upset as she was recounting the events that transpired that 

night, and this court had "no difficulties whatsoever'' believing her account of the 

incident. (TT, p. 81 ). The court found that Ms. Masse was telling the truth about how 

the Defendant utterly terrorized her on the date in question and committed the crimes of 

which he was accused. 

forthcoming about her role in assuming the Defendant's identity to send a message to 

one of the Defendant's friends through a video gaming system, claiming responsibility 

for the incident. (TT, pp. 39-41 ). It was also quite clear to the court that Ms. Masse was 

a woman who was insecure, jealous, and suspicious of the Defendant's infidelity, and 

the court certainly considered those personality traits and Ms. Mosse's potential bias in 

making its credibility determinations. 
12 

impacted the verdict in this case at all. The court simply did not believe that Ms. 

confidence and certainty that the admission of the text messages would not have 

jury would have responded to the text evidence, this court can state with complete 

towards the Defendant. Unlike a situation where it would be difficult to predict how a 

of the relationship between Ms. Mosse and the Defendant, as well as her feelings 

testimony presented at trial more than adequately communicated to the court the nature 

minimis prejudicial effect on the Defendant because, as the court just noted, the 

Any error in not allowing the full text exchange to be admitted had, at most, a de 

"Harmless error exists if the record demonstrates either: (1) the error did not 

prejudice the defendant or the prejudice was de minimis; or (2) the erroneously 

admitted evidence was merely cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; or (3) the properly 

admitted and uncontradicted evidence of guilt was so overwhelming and the 

prejudicial effect of the error was so insignificant by comparison that the error 

could not have contributed to the verdict." 

kl at 671-72. 

Our Supreme Court has further explained the concept of harmless error, stating that: 

fair trial, not a perfect trial." Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014). 

doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a 

harmless as it would not have affected the outcome of the case. "The harmless error 

admitted without qualification, any error in this court's evidentiary ruling is purely 

Assuming for the sake of argument that the text messages should have been 

text messages should be rejected. Mendez, supra, at 260. 

Therefore, the Defendant's allegation of error regarding denial of the admission of the 
13 

A motion for new trial on the grounds that the verdict is contrary to the 

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 winner. An allegation 

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 

A claim challenging the sufficiency of the evidence is a question of law. 

Evidence will be deemed sufficient to support the verdict when it 

establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. Where 

the evidence offered to support the verdict is in contradiction to the 

physical facts, in contravention to human experience and the laws of 

nature, then the evidence is insufficient as a matter of law. When 

reviewing a sufficiency claim the court is required to view the evidence in 

the light most favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the evidence. 

distinction as follows: 

A.2d 1020, 1028 (Pa. Super. 2004). Our appellate courts have explained the critical 

distinct from a challenge to the weight of the evidence." Commonwealth v. Smith, 853 

It is well-established that a "challenge to the sufficiency of the evidence is entirely 

8. The evidence was more than sufficient to sustain the Defendant's 

Aggravated Assault conviction, and the Defendant waived his challenge 

to the weight of the evidence. 

rejected. 

claim of fabrication. Accordingly, the Defendant's first allegation of error should be 

conclusion that the texts were vague and irrelevant and failed to support the defense's 

entirety at the post-sentence motion phase, and such review only reinforced the court's 

for his suspected infidelity. Moreover, this court reviewed the text messages in their 

Mosse's testimony was fabricated out of some desire for revenge against the Defendant 
14 

a manner which constitutes a substantial step towards perpetrating a serious bodily 

'attempt' is found where an accused who possesses the required specific intent acts in 

Our appellate courts have explained that "[f]or aggravated assault purposes, an 

any bodily member or organ." 18 Pa. C.S.A. §2301. 

serious, permanent disfigurement, or protracted loss or impairment of the function of 

defined as "[b Jodily injury which creates a substantial risk of death or which causes 

value of human life." 18 Pa. C.S.A. §2702(a)(1 ). "Serious bodily injury" has been 

knowingly, or recklessly under circumstances manifesting extreme indifference to the 

"attempts to cause serious bodily injury to another, or causes such injury intentionally, 

A person is guilty of Aggravated Assault under 18 Pa. C.S.A. §2702(a)(1) if he 

that he had the specific intent to cause serious bodily injury to Ashley Mosse. 

reasonable doubt that the Defendant attempted to commit an Aggravated Assault and 

favorable to the Commonwealth as verdict winner, was sufficient to establish beyond a 

As set forth above, the evidence presented at trial, viewed in the light most 

Sufficiency of Evidence 

Smith, supra, at 1028 (quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 

2000) (emphasis added). 

would have arrived at a different conclusion. A trial judge must do more 

than reassess the credibility of the witnesses and allege that he would not 

have assented to the verdict if he were a juror. Trial judges, in reviewing a 

claim that the verdict is against the weight of the evidence do not sit as the 

thirteenth juror. Rather, the role of the trial judge 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. 
15 

Matthew, supra, at 1257 (citing Alexander, supra, at 889). 

Alexander created a totality of the circumstances test, to be used on a 

case-by-case basis, to determine whether a defendant possessed the 

intent to inflict serious bodily injury. Alexander provided a list, albeit 

incomplete, of factors that may be considered in determining whether the 

intent to inflict serious bodily injury was present, including evidence of a 

significant different in size or strength between the defendant and the 

victim, any restraint on the defendant preventing him from escalating the 

attack, the defendant's use of a weapon or other implement to aid his 

attack, and his statements before, during, or after the attack which might 

indicate his intent to inflict injury. 

elaborated on the test as follows: 

Court in Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006), where the Court 

supra, at 984. The "totality of the circumstances" test was reaffirmed by our Supreme 

acted with the necessary intent to sustain an aggravated assault conviction." Fortune, 

devised a "totality of the circumstances test to be used to evaluate whether a defendant 

In Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978), our Supreme Court 

2013)). 

Fortune, supra, at 984 (citing Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa. Super. 

circumstantial evidence and inferred from acts, conduct or attendant circumstances." 

quotations omitted). To that end, "intent ordinarily must be proven through 

(quoting Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (internal 

injury upon another." Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) 
16 

These principles as applied to the facts of this case -- the facts that must be 

viewed in the light most favorable to the Commonwealth -- are more than sufficient to 

establish that the Defendant attempted to cause serious bodily injury to Ashley Mosse 

and that he took a substantial step to do so. As outlined earlier, the Defendant became 

enraged when Ms. Mosse questioned his fidelity to her and when she attempted to 

leave the apartment with her son. He pushed her up against a wall and repeatedly 

threatened to kill her as he waved his fist in her face. (TI, pp. 18-19, 21-24). He 

screamed and threatened her for several minutes until she finally agreed to get back in 

bed with him. When she did finally lay down, he grabbed a pillow and pushed it down 

against her face with both of his hands for approximately fifty (50) seconds, during 

which time she could not breathe. (TT, pp. 22-25). Significantly, the Defendant 

continued screaming that he was going to kill her and that he did not care if he went 

back to jail as he was trying to suffocate her with the pillow. (TT, p. 24-25). He 

threatened to kill her more than thirty (30) times that night, and Ms. Mosse testified that 

she was afraid for her life and the life of her infant son. (TI, pp. 21, 23-24). Although 

In cases where the victim does not actually suffer serious bodily injury, our 

Superior Court has explained that "the charge of aggravated assault can be supported 

only if the evidence supports a finding of an attempt to cause such injury." Fortune, 

supra, at 985 (quoting Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 

2012). "An attempt under Subsection 2702(a)(1) requires some act, albeit not one 

causing serious bodily injury, accompanied by an intent to inflict serious bodily injury." 

Fortune, supra, at 985. 
17 

Although Ms. Mosse, thankfully, did not suffer any serious bodily injury as a 

result of the attack, the totality of the circumstances demonstrates that the Defendant 

specifically intended to cause her serious bodily injury and that he took a substantial 

step to do so. The Defendant's repeated threats to kill Ms. Mosse, combined with his 

actions in climbing on top of her and pushing a pillow over her face for a lengthy period 

of time, which had the effect of depriving her of oxygen, were sufficient to establish the 

Aggravated Assault conviction. Accordingly, the Defendant's allegation of error that the 

Contrary to the Defendant's argument, the fact that Ms. Mosse did not lose 

consciousness is not a fact that prevents a finding of Aggravated Assault. The 

Defendant's actions made clear that he was specifically intending to deprive her of 

oxygen for an extended period of time. The fact that the Defendant changed his mind 

after Ms. Masse managed to slide the pillow to the side also does not preclude a finding 

that he specifically intended to cause her serious bodily injury in the moments preceding 

his change of heart. Moreover, although no other adult was there to physically 

intervene during the attack, there was indeed a third party present in the room who 

certainly could have affected the Defendant's decision to discontinue the attack -- his 

infant son for whom he would have had to assume sole responsibility if he continued 

with his attempt to suffocate Ms. Masse. 

she did not lose consciousness, Ms. Mosse testified unequivocally that she could not 

breathe while the Defendant pressed the pillow against her face. (TT, pp. 24-25). 
18 

It is well-settled that "a weight of the evidence claim must be preserved either in 

a post-sentence motion, by a written motion before sentencing, or orally prior to 

sentencing." Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citing Pa. 

R. Crim. P. 607 and Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011 )). 

"Failure to properly preserve the claim will result in waiver, even if the trial court 

addresses the issue in its opinion." Griffin, supra, at 938; See also Commonwealth v. 

Wilson, 825 A.2d 710 (Pa. Super. 2003) ("A challenge to the weight of the evidence 

must first be raised in the trial court in order for it to be the subject of appellate review."). 

Raising the weight claim for the first time in the 1925(b) statement does not suffice to 

preserve the claim because "[i]t is axiomatic that a party cannot raise an issue for the 

first time on appeal." Commonwealth v. Cerritos, 2015 WL 7573506, at *3 (Pa. Super. 

2015) (citing Pa. R. A. P. 302(a)). Appellate review of a weight claim cannot take place 

without the issue having first been raised with the trial court because "[a]ppellate review 

Weight of the Evidence 

The Defendant's final allegation of error, that the verdict was against the weight 

of the evidence, should be rejected. Initially, this court notes that the Defendant has 

failed to preserve his weight claim for appellate review because he did not raise the 

weight claim before this court at any time prior to, or after, sentencing. The issue was 

raised for the first time on appeal in the Defendant's 1925(b) Concise Statement. 

verdict is not supported by sufficient evidence is without merit, and his conviction on all 

charges should be upheld. 
19 

The Defendant's contention that the verdict was against the weight of the 

evidence is nothing more than an invitation to the appellate court to re-weigh the 

evidence and second-guess this court's credibility determinations. Although the 

Defendant told a radically different story than the victim's during his testimony at trial, 

the court rejected his testimony and found it to be self-serving and not the least credible. 

The court paid careful attention to the mannerisms and demeanor of each witness, and 

the Defendant's demeanor and attitude did not provide to this court one glint of truth or 

trustworthiness. This court did not believe his claim that Ms. Masse fabricated the 

However, even if the weight claim is not deemed to be waived on appeal, this 

claim of error still fails on its merits. "One of the least assailable reasons for granting or 

denying a new trial is the lower court's determination that the verdict was or was not 

against the weight of the evidence." Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 

2014). "The weight of the evidence is exclusively for the finder of fact, which is free to 

believe all, part, or none of the evidence, and to assess the credibility of the witnesses . 

. . . It is not for [the appellate court] to overturn the credibility determinations of the factfinder." Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa. Super. 2006). 

of a weight claim is confined to a "review of the exercise of [the trial court's) discretion, 

not of the underlying question of whether the verdict is against the weight of the 

evidence." Commonwealth v. Giordano, 121 A.3d 998, 1007 (Pa. Super. 2015). 

Accordingly, the Defendant's challenge to the weight of the evidence should be deemed 

waived on appeal and, therefore, rejected. 
20 

Based on Ms. Mosse's testimony, which this court believed, this court concluded 

that the Commonwealth had proven the elements of all of the charges brouqht against 

the Defendant beyond a reasonable doubt. The Defendant committed the crimes of 

harassment and simple assault when he pushed Ms. Mosse against the wall and held 

her there, and he committed the crime of terroristic threats when he threatened to kill 

her over thirty (30) times. His refusal to allow her to leave the apartment supports his 

convictions for unlawful restraint and false imprisonment. The Defendant committed 

aggravated assault, simple assault and reckless endangerment of Ms. Mosse's life 

when he pushed and pressed a pillow against her face while she was lying on the bed, 

depriving her of oxygen for a significant length of time. The Defendant's actions and 

behaviors here shock the conscience, not this court's verdict. See Morales, supra, at 91 

("[A] new trial is warranted only when the jury's verdict is so contrary to the evidence 

that it shocks one's sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail."). 

entire story in an attempt to send him to prison so that she could seek revenge for his 

infidelity in their relationship. As the court noted earlier, the court was aware that Ms. 

Mosse was insecure, angry, and jealous. However, based on her demeanor and her 

consistent, emotional, and unwavering account of what transpired, this court found her 

testimony to be very credible. This court had no trouble believing that the events on 

January 30, 2015 did, in fact, take place as Ms. Mosse had testified to them. 
21 

DATE 

B 

BY THE COURT: 

Ill. CONCLUSION 

The verdict and sentence imposed in this case should be upheld. This court's 

evidentia.ry ruling disallowing the introduction of text messages was not an abuse of 

discretion. The evidence was more than sufficient to sustain the Defendant's conviction 

for Aggravated Assault and all other charges. The Defendant waived his challenge to 

the weight of the evidence, and, even if the allegation of error as to weight was not 

waived, this allegation should be rejected as an improper attempt to have the appellate 

court re-weigh this court's credibility determinations