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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 November 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 STRASSBURGER, J.* 

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 29, 2015

 Appellant, Leesean Malloy, appeals from the judgment of sentence of 

two years’ probation, imposed after he was convicted of simple assault. 

Appellant alleges the verdict is against the weight of the evidence. We 

affirm. 

 Appellant’s conviction stems from an incident on June 26, 2014, where 

two officers witnessed him choking his girlfriend, Nara Caba (“Ms. Caba”). 

Appellant was arrested and ultimately found guilty of simple assault1

following a non-jury trial held on November 14, 2014. After sentence was 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

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 alleging that the verdict 

was against the weight of the evidence, which was denied by the trial court 

on February 11, 2015. Appellant subsequently filed a timely notice of appeal 

and a timely, court-ordered concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). 

On appeal, Appellant presents one issue for our review: “Did the trial 

court render a verdict that was contrary to the weight of the evidence 

presented where the Commonwealth itself presented two equally reasonable, 

mutually inconsistent, and contradictory inf[e]rences, thereby proving 

neither?” Appellant’s Brief at 4. 

To begin, we note our standard of review in a weight of the evidence 

claim: 

A claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether 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 warranted where 

the jury’s verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the 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 that on June 26, 

2014, at approximately 2:00 a.m., Appellant and Ms. Caba were walking 

together in the Shadyside neighborhood of Pittsburgh. 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 approaching the intersection 

of Ellsworth and College when they observed Appellant 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 officers that she 

and Appellant had gotten into an argument about her ex-boyfriend and, that 

during the altercation, Appellant said “he was going to choke the fuck out of 

her.” Id. at 12. 

 Contrary to Officer McCue’s testimony, Ms. Caba testified during the 

non-jury trial that Appellant merely grabbed her arm while they were 

walking because he needed help after recently having surgery on his foot. 

Id. at 7. During re-cross examination, Ms. Caba further 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 this 
J-S55027-15 

- 4 - 

contradictory testimony that is the subject of Appellant’s weight of the 

evidence claim. 

Appellant asserts that the trial court abused its discretion when it 

weighed the testimony of Officer McCue over the testimony 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 mutually inconsistent” 

and, therefore, the Commonwealth failed to prove either version of the 

incident. Id. In support of his argument, Appellant relies on the principle 

that “[w]hen two equally reasonable and mutually inconsistent inferences 

can be drawn from the same set of circumstances, a factfinder must not be 

permitted to guess which inference it will adopt, especially 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 Appellant’s reliance on the 

aforementioned principles established in Knee New is misplaced: 

This long standing legal principle is best understood in the 

context of the Knee New facts. It was a murder prosecution 

resting almost exclusively upon circumstantial evidence. As we 

know, circumstantial evidence is the inferences taken from 

established facts. That is the important part of Knee New and 
J-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 the neck of 

[Ms. Caba]. This officer also relayed what [Ms. Caba] said 

immediately after [Appellant] was separated from her – 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 another one to 

guilt. 

Trial Court Opinion (“TCO”), 4/13/15, at 3. (internal citations omitted). 

 Moreover, we again note that “[w]here evidence conflicts, it is the sole 

province of the fact finder to determine credibility 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 another. 

 Here, the trial court considered the testimony presented at trial and 

found Ms. Caba’s testimony to be non-credible as evidenced by the 

following: 

I think what the Commonwealth did was they presented 

who they believe to be the victim and what they allowed 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 accosted and got 

out and intervened because they saw her being choked and ... in 

the course of trying to get some order they asked her whether 

she wanted to press charges. The officers wouldn’t ask someone 

if they wanted to press charges if it was two lovers strolling 

down the street holding hands and holding one another’s arms. 

For her to tell me that they asked whether you want to press 

charges[,] to me[,] makes me believe she is lying today 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 around at night, 

one of which is here today, want[] to stop their car to intervene 
J-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 not 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 evidence, an appellate 

court defers to the findings of the trial judge, who has had the opportunity 

to observe the proceedings and demeanor of the witnesses.” 

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 Appellant committed 

these offenses. We ascertain no abuse of discretion in the trial court’s denial 

of Appellant’s challenge to the weight of the evidence. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/29/2015