J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NYDESHA BROWN

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

PENNSYLVANIA

No. 1452 EDA 2022
Appeal from the Judgment of Sentence Entered April 26, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at CP

- 51

- CR

- 0007622

- 2019

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J. *

MEMORANDUM BY MURRAY, J.: FILED MARCH 29, 2023

Nydesha Brown (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted h er of aggravated assault, simple

assault , recklessly endangering another person ( REAP) , and possessin g an
instrument of crime (PIC)

. 1 W e affirm.

The trial court recount ed the facts presented at trial as follows :
On the evening of September 15, 2019, Complainant Saliyma Jenkins (hereinafter [ the Victim] ) drove to pick up her daughter from Appellant’s home on Ruby Street in West Philadelphia. Appellant is the paternal aunt of [the Victim’s] daughter. When [the Vic tim] arrived at the house , [ the Victim remained in her car , waiting for her daughter.] Appellant came to [ where the Victim was waiting . Appellant was acting] “disturbed”, and a confrontation began between the two. At some point during the argument, Appe llant retrieved a “car club”

... an object

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), 270 1(a)(1) , 2705 , and 907(a)

.J

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typically used to lock a parked car’s steering wheel. [The Victim] testified that the car club was very hard and made of metal. Appellant took the car club and struck [the Victim] twice, first on her hands and the n on the side of her head. Appellant repeatedly screamed at [the Victim] that she would call the police on her, while at the same time pinning [the Victim’s] hand to the steering wheel. Appellant also threw bleach on [the Victim] and her daughter. The injur i es [the Victim] sustained from the car club included pain and swelling in her hands and a bloody gash on the side of her head. From the bleach, she suffered red bu rn marks on her skin and discolored clothing.

On cross exami nation, Appellant’s [c] ounsel sought to impeach [the Victim] by asking her to confirm she was on probation “for retail theft and assault [.] ” The Commonwealth objected to the relevance of the assault conviction and the [ trial] court sustained [the objectio n]

. Appellant’s [c] ounsel also attempted to ask whether [the Victim’s] daughter was with her at the time of her arrest for retail theft. Again, the Commonwealth’s objection was sustained.

Trial Court Opinion, 8/10/22, at 2

- 3 (citations to notes of tes timony omitted).

The Commonwealth charged Appellant with the above crimes , and the

trial court rendered its verdicts following a bench trial. 2 On April 26, 2022,

the trial court sentenced Appellant to an aggregate 111⁄2

- 23 months of house

arrest, followed by 2 years of reporting probation. Appellant timely appeal ed

. 3

Appellant presents two issue s for review:

1. Whether the trial court erred in not granting [Appellant’s] [m]otion for [ j ] udgment of [a]cquittal, whe re the evidence was insufficient to prove the crimes charged?

_________________ __________ ______ ____ _______

2 The trial cou rt also convicted Appellant , at docket CP

- 51

- CR

- 0007623

- 2019, of committing the same crimes against the Victim’s minor daughter. Appellant did not appeal those convictions

.

3 Appellant and the trial court have complied with Pa.R.A.P. 1925.J

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2. Whether the [trial] court erred in ruling that the defense could not introduce evidence re garding the circumstances of the prior convictions of [the Victim] for making false reports and for retail theft?

Appellant’s Brief at 7.

Appellant first challenges the denial of her motion for judgment of

acquittal. At trial , defense counsel orally moved for judgment of acquittal “on

all charges.” N.T., 2/15/22, at 134. The trial court heard argument before

concluding , “I feel there is sufficient evidence as a factfinder to consider in

this case . A motion for judgment of acquittal is denied.” Id. at 140.

A motion for judgment of acquittal “challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding that

cha rge.” Commonwealth v. Hutchinson , 947 A.2d 800, 805 (Pa. Super.

2008). Thus, w e view

all the evidence admitted at trial in the light most favorable to the verdict winner, [and determine whether] there [wa] s sufficient evidence to enable the fact

- finder t o 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 cir cumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. ... Finally, the finder of fact, while passing upon the credibility of witnesses and the weig ht of the evidence produced, is free to believe all, part or none of the evidence.J

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Commonwealth v. Smith , 206 A.3d 551, 557 (Pa. Super. 2019) (citations

omitted).

However, t o “preserve a sufficiency claim, the Rule 1925(b) statement

must specify the element or elements upon which the evidence was

insufficient.” Commonwealth v. Widger , 237 A.3d 1151, 1156 (Pa. Super.

2020). If the appellant does not specify such elements, th e sufficiency claim

is deemed waived. Commonwealth v. Roche , 153 A.3d 1063, 1072 (Pa.

Super. 2017).

Here, Appellant presented a general, boilerplate claim , and failed to

specify the element or elements for which the evidence was allegedly

insufficient. See Statement of Matters Complained of on Appeal, 6 /1 5 /22, at

2 (unnumbered) (stating, “ Did the trial court err in not granting [Appellant’s]

[m]otion for [j]udgment of [a]cquittal, where the evidence presented was

insufficient to prove the crimes charged? ”). Consequently, Appellant did not

preserve this issue. Roche , 153 A.3d at 1072

. Even if Appellant properly preserved , we would conclude the issue lacks

merit. A pe rson commits aggravated assault if she “attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the value

of human life[.]” 18 Pa.C.S.A. § 270 2(a)(1). An individual commits simple

assault if s he “attempts to cause or intentionally, knowingly or recklessly

causes bodily injury to another[.]” 18 Pa.C.S.A. § 2701(a)(1). “ B odily injury”J

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is defined as “[i]mpairment of physical condition or substan tial pain.” 18

Pa.C.S.A. § 2301.

Regarding REAP, an individual “ commits a misdemeanor of the second

degree if [s] he recklessly engages in conduct which places or may place

another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. §

2705. REAP “ requires the creation of danger, so the Commonwealth must

prove the existence of an actual present ability to inflict harm to another. ”

Commonwealth v. Shaw , 203 A.3d 281, 284 (Pa. Super. 2019).

T o prove PIC , the Commonwealth must show the defendant “possesses

any instrument of crime with intent to employ it criminally.” 18 Pa.C.S.A. §

907(a)

. The statute de fines an instrument of crime as “[a]nything specially

made or specially adapted for criminal use , ” or “ used for criminal purposes

and possessed by the actor under circumstances not manifestly appropriate

for lawful uses it may have.” 18 Pa.C.S.A. § 907(d)

.
Here, t he trial court explained

there was sufficient evidence to conclude that Appellant attempted to cause serious bodily injury to [the Victim .] Appellant used two dangerous items against [the Victim] : she struck [the Victim] in the hands and in the h ead with a metal car club and threw bleach at her upper body. N.T., 2/15/22, at 20, 54. The evidence revealed that Appellant’s striking [the Victim] with a metal object caused a gash to the side of her face and left blood streaming down her ears and neck

. Id. at 24. It also caused pain and swelling in her hands. Id. at 27. The bleach thrown by Appellant left red bu rn marks on [the Victim’s] skin and discolored her clothes. Id. at 25. These injuries are not insignificant; being smashed in the head with a blunt metal object or having one’s face exposed to a chemical like bleach, could cause permanent impairment of the use of vital bodily organs like the brain andJ

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eyes. But crucially, ev en if the bodily injuries [the Victim] sustained are not deemed to be “serious” as defined under § 2301, the [c] ourt found that Appellant attempted to cause a more severe injury, as shown by her decision to weaponize the car club and bleach and disregard t he common

- sense risks associated with their use.

... Simple assault is a lesser included offense of aggravated assault. Therefore, evidence that proves [a] ggravated [a] ssault is sufficient to prove [s] imple [a] ssault as well. Commonwealth v. Brown , 605 A. 2d 429, 432 (Pa. Super. 1992).

... [ T he Victim] suffered a gash to her face, pain and swelling in her hands, and red marks on her skin from her altercation with Appellant. There was sufficient evidence to convict Appellant of the greater offense of [a] ggra vated [a] ssault. Clearly, her sufficiency claim regarding the lesser included [s] imple [a] ssault charge is without merit.

* * *

[ Further, t ] here was in fact sufficient evidence to find Appellant guilty of [PIC]

. [The Victim] testified that Appellant wielded a car club: “Once I sat down in the car, that’s when [Appellant] strikes me in my head with the car club.” N.T., 2/15/22, at 20. [The V ictim] also stated that Appellant “threw bleach” at her and her daughter during the same altercation. Id. at 54. [The Victim] verified that photographs of the car club and the bleach were fair and accurate depictions of the items used on the day of the i ncident. Id. at 22. [The Victim’s] testimony confirms Appellant employed the car club and the bleach in a manner contrary to their appropriate uses. This was indeed sufficient evidence for the [c] ourt to find Appellant guilty of [PIC ]

.

* * *

[Regarding REAP , at] the outset of their argument , Appellant , kn o w ing the car club was hard and made of metal, intentionally swung this object at [the Victim] and connected with her hand and head. Id. at 17. Appellant also threw bleach towards the facial area of [the Victim]

. Id. at 25

- 26, 30. Appellant pinned [the Victim’s] hand to the steering wheel while shouting at her, thus preventing her from retreating. Id. at 28. Appellant’s actions not only demons trated an intent and purpose to harm [the Victim] , but a malicious and callous disregard for her life and safety

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- Based upon the foregoing, there was more than sufficient evidence for a factfinder to consider regarding the relevant charges in this matter. Further, the crux of this evidence rests on
a determination of the witness’s credibility. The Superior Court mandates “credibility determinations are made by the fact finder and that challenges thereto go to the weight, and not the sufficiency, of the evidence.” [ Commonwealth v. ] Stahl , [175 A.3d 301,] 306 [ ( Pa. Super. 2017 ) ]

. Under either argument, Appellant’s [m] otion for [j] udgment of [a] cquittal was rightfully denied on each charge.

Trial Court Opinion, 8/10/22, at 5

- 7.

The record supports the trial court’s analysis. Thus, even if preserved,

Appellant’s first issue would not merit relief.

In her second issue, Appellant contends the trial court erred by

ex cluding evidence “ regarding the circumstances of the prior convi ctions of

[the Victim].” Appellant’s Brief at 31. Appellant ’s argument is premised on

the V ictim ’s testimony in response to the following cross

- examination by

defense counsel :

Q. When [the Commonwealth] was asking you about what you ’ re on probation for: You ’ re on probation today for lying to authorities in Delaware County, correct?

A

. Yes.

Q. For retail theft and assault, correct?

[ THE COMMONWEALTH ] : Objection to the question, Your Honor. The assaul t is not relevant

. The probation

–

THE COURT: Sustained. Stricken.

Q. It ’ s all the same incident, correct?J

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- THE COURT: It ’ s stricken. She ’ s on probation

–
Q. For retail theft and for lying. Giving false information to authorities, correct ?

[ THE COMMONWEALTH] : Asked and answered

. [DEFENSE COUNSEL] : I ’ m just trying to clear up what was stricken and what ’ s not , that ’ s all.

Q. Is that a yes ?

A. Yes

. Q. And you received two year [ s’ ] probation for that, correct ?

A. Yes

. Q. And that was after this incident, correct, when you were arrested, correct ?

A. Yes

. Q. And [your daughter] was with you at that time, too, correct?

[THE COMMONWEALTH] : Objection to relevance.

THE COURT: Sustained.

[ THE COMMMONWEALTH] : Move to strike.

THE COURT: Stricken.

N.T., 2/15/22, at 79

- 80 (emphasis added)

. Appellant clai m s “ the trial court struck the entire impeachment

testimony of [the Victim ]. T he stricken impeachment testimony confirmed

[the Victim’s testimony] was completely incredible, a n d therefore, the trialJ

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court’s evidentiary ruling was in error. ” Appellant’s Brief at 32

. We are not

persuaded by Appellant’s ar gument.

Our standard of review regarding the admissibility of evidence is an abuse of discretion. The admissibility of evidence is a matter addressed to the sound discretion of the trial court and ... an appellate court may only reverse upon a showing that the tr ial court abused its discretion. An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.

Commonwealth v. Collins , 70 A.3d 1245, 1251

– 52 (Pa. Super. 2013)

(citations omitted)

. With respect to a witness’s criminal history, this Court has explain ed:

Pursuant to Pennsylvania Rule of Evidence 609, evidence that a witness has been convicted of a crime involving dishonesty or false state ment must be admitted if the conviction or release from confinement occurred within the last ten years. When a defendant is impeached through introduction of prior convictions, the witness ’ s opponent may only introduce the name, time, and place of the cri me and the punishment received. We have applied this limitation to all witnesses, not merely to defendants , and we employ this limitation to minimize the potential prejudice and distraction of issues already inherent in the mention of prior offenses.

In prior cases, we have precluded a party seeking to impeach a witness from using the facts underlying a prior conviction, in circumstances where such facts would increase the risk of prejudice to a party or confusion of the issues.

Commonwealth v. Creary , 201 A.3d 749, 754 (Pa. Super. 2018) (citations

omitted, emphas i s added).

C ontrary to Appellant’s assertions, the trial court did not strike the

Victim’s “entire impeachment testimony [.] ” Appellant’s Brief at 32. T he trialJ

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court admitted evidence that the Victim had been convicted in Delaware

County of retail theft and lying to authorities , “ after [ the 2019 ] incident ”

involving Appellant ; the court also admitted evidence that as a result of the

conviction, the Victim “received two years[’ ] probation

. ” N.T., 2/15/22, at 79

-

80

. Consistent with Creary , supra , the trial court properly limited the

evidence (striking testimony about the Victim’s assault conviction and the

underlying circumstances of the convictions )

. See i d

. Therefore, Appellant’s

second issue does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2023