J-S55027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LEESEAN MALLOY, Appellant No. 420 WDA 2015 Appeal from the Judgment of Sentence Entered Novemb er 17, 2014

In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009852-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and S TRASSBURGER, J. * MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 29, 2015 Appellant, Leesean Malloy, appeals from the judgme nt of sentence of two years’ probation, imposed after he was convicte d of simple assault. Appellant alleges the verdict is against the weight of the evidence. We affirm. Appellant’s conviction stems from an incident on J une 26, 2014, where two officers witnessed him choking his girlfriend, Nara Caba (“Ms. Caba”). Appellant was arrested and ultimately found guilty of simple assault 1 following a non-jury trial held on November 14, 201 4. After sentence was

____________________________________________

* Retired Senior Judge assigned to the Superior Cour t.

1 Appellant was convicted of simple assault under 18 Pa.C.S. § 2701(a)(1). Pursuant to Section 2701(a)(1), a person is guilty of assault if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S. § 2701(a)(1).J-S55027-15

- 2 -

imposed, Appellant filed a post-sentence motion all eging that the verdict was against the weight of the evidence, which was d enied by the trial court on February 11, 2015. Appellant subsequently filed a timely notice of appeal and a timely, court-ordered concise statement of er rors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Appellant presents one issue for our rev iew: “Did the trial court render a verdict that was contrary to the wei ght of the evidence presented where the Commonwealth itself presented t wo equally reasonable, mutually inconsistent, and contradictory inf[e]renc es, thereby proving neither?” Appellant’s Brief at 4. To begin, we note our standard of review in a weigh t of the evidence claim: A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the tria l court. Accordingly, an appellate court reviews the exercis e of the trial court’s discretion; it does not answer for itself w hether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only war ranted where the jury’s verdict is so contrary to the evidence t hat it shocks one’s sense of justice. In determining whether thi s standard has been met, appellate review is limited to whether th e trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Commonwealth v. Houser , 18 A.3d 1128, 1135-36 (Pa. 2011) (citations and internal quotation marks omitted).J-S55027-15

- 3 -

Here, the evidence produced at trial established t hat on June 26, 2014, at approximately 2:00 a.m., Appellant and Ms. Caba were walking together in the Shadyside neighborhood of Pittsburg h. N.T. Trial, 12/17/14, at 6. City of Pittsburgh Police Officer John McCue testified that, while on duty, he and his partner, Officer Churillo, were ap proaching the intersection of Ellsworth and College when they observed Appella nt choking Ms. Caba. Id. at 10. Officer McCue saw that Appellant had both hands around Ms. Caba’s neck and that Ms. Caba had both her hands on Appellant’s wrists, attempting to stop him. Id. at 11. Within seconds, the officers exited their vehicle and announced themselves, at which time Ms. Caba was able to get away and slapped Appellant. Id. The officers then took Appellant into custody. Id. Officer McCue stated that Ms. Caba told the offic ers that she and Appellant had gotten into an argument about her ex-boyfriend and, that during the altercation, Appellant said “he was goin g to choke the fuck out of her.” Id. at 12. Contrary to Officer McCue’s testimony, Ms. Caba te stified during the non-jury trial that Appellant merely grabbed her ar m while they were walking because he needed help after recently havin g surgery on his foot. Id. at 7. During re-cross examination, Ms. Caba furthe r testified that Appellant did not put his hands around her neck and that the officers “just came out of nowhere.” Id. at 15, 16. Ms. Caba claimed that she told the officers she did not want to press charges against Appellant. Id. It is thisJ-S55027-15

- 4 -

contradictory testimony that is the subject of Appe llant’s weight of the evidence claim. Appellant asserts that the trial court abused its d iscretion when it weighed the testimony of Officer McCue over the tes timony of Ms. Caba. Appellant’s Brief at 10. Appellant argues that the testimony of Officer McCue and that of Ms. Caba were “equally reasonable and m utually inconsistent” and, therefore, the Commonwealth failed to prove ei ther version of the incident. Id. In support of his argument, Appellant relies on t he principle that “[w]hen two equally reasonable and mutually in consistent inferences can be drawn from the same set of circumstances, a factfinder must not be permitted to guess which inference it will adopt, e specially when one of the two guesses may result in depriving a defendant of his life or his liberty.” Commonwealth v. Montalvo , 986 A.2d 84, 99 (Pa. 2009) (quoting Commonwealth v. Knee New , 47 A.2d 450, 468 (Pa. 1946)). Appellant also cites the following principle set forth in Knee New : “when a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither.”
Knee New , 47 A.2d at 468. In its opinion, the trial court explains why Appel lant’s reliance on the aforementioned principles established in Knee New is misplaced: This long standing legal principle is best understo od in the context of the Knee New facts. It was a murder prosecution resting almost exclusively upon circumstantial evid ence. As we know, circumstantial evidence is the inferences tak en from established facts. That is the important part of Knee New andJ-S55027-15

- 5 -

that is where Malloy’s reliance falters. The known facts or, using language from Knee New , the positive facts came from [Officer McCue] who saw [Appellant] with his hands around th e neck of [Ms. Caba]. This officer also relayed what [Ms. Ca ba] said immediately after [Appellant] was separated from he r – that [Appellant] “was going to choke the f*** out of her .” These positive facts satisfy the elements of the crime. There are no competing inferences that point to innocence and an other one to guilt. Trial Court Opinion (“TCO”), 4/13/15, at 3. (intern al citations omitted). Moreover, we again note that “[w]here evidence con flicts, it is the sole province of the fact finder to determine credibilit y and to believe all, part or none of the evidence.” Commonwealth v. Lyons , 833 A.2d 245, 259 (Pa. Super. 2003). Thus, Appellant is incorrect in his assertion that the trial court cannot choose to believe one witness over ano ther. Here, the trial court considered the testimony pre sented at trial and found Ms. Caba’s testimony to be non-credible as ev idenced by the following: I think what the Commonwealth did was they presente d who they believe to be the victim and what they all owed me to see is that she will distort reality to protect her boyfriend. I think what they showed me was these officers were riding down the street and saw a woman being accost ed and got out and intervened because they saw her being choke d and ... in the course of trying to get some order they asked h er whether she wanted to press charges. The officers wouldn’t ask someone if they wanted to press charges if it was two lover s strolling down the street holding hands and holding one anoth er’s arms. For her to tell me that they asked whether you want to press charges[,] to me[,] makes me believe she is lying t oday and that her story is inconsistent with the reality that the police have informed me of. It becomes an issue of credibility [. W]ho do I believe[? D]o I believe ... [t]wo officers riding ar ound at night, one of which is here today, want[] to stop their ca r to interveneJ-S55027-15

- 6 -

on two lovers walking home at two o’clock at night or whether this woman who comes in and tells me the story her boyfriend had surgery on his foot and he was hanging onto her to stop from falling. Those are the realities, there is no t a lot of overlap. I believe she is lying to protect him. TCO at 17-19. “[O]n issues of credibility and weight of the evid ence, an appellate court defers to the findings of the trial judge, wh o has had the opportunity to observe the proceedings and demeanor of the witn esses.” Commonwealth v. Cunningham , 805 A.2d 566, 572 (Pa. Super. 2002). The trial court, as fact finder, concluded that the elements of simple assault were proven beyond a reasonable doubt, and that App ellant committed these offenses. We ascertain no abuse of discretio n in the trial court’s denial of Appellant’s challenge to the weight of the evide nce. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/29/2015