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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT 

OF PENNSYLVANIA 

Appellee 

v. 

KEVIN C. DAVENPORT, JR. 

Appellant No. 296 MDA 2018 

Appeal from the Judgment of Sentence imposed January 2, 2018 

In the Court of Common Pleas of Cumberland County 

Criminal Division at No: CP-21-CR-0001715-2017 

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J. 

MEMORANDUM BY STABILE, J.: FILED JANUARY 07, 2019 

Appellant, Kevin C. Davenport, Jr., appeals from the judgment of 

sentence imposed on January 2, 2018 in the Court of Common Pleas of 

Cumberland County following his conviction of simple assault, 

18 Pa.C.S.A. § 2701(a)(1). Appellant contends the evidence was insufficient 

to support his conviction and the verdict was against the weight of the 

evidence. Upon review, we affirm. 

In its Rule 1925(a) opinion, the trial court summarized the facts of this 

case as follows: 

On May 13, 2017, expectant mother, Akeya Brock, entered the 

Carlisle Borough Police Department to report that she had been 

assaulted by [Appellant], her boyfriend. She told Patrolman 

Mayer that [Appellant] held her to the floor face -down after she 

fell in the midst of a heated argument. She stated that while 

[Appellant] held her on the ground, he squeezed her face so hard 

with his hand that her cheeks were gashed inside and out by her 
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teeth and his nails. He also punched her several times. Patrolman 

Mayer took photographs of her injuries, which were later shown 

to the jury. Ms. Brock provided him with a sworn, written 

statement of the events before leaving the police department. 

[Appellant] was charged with simple assault. 

At trial, the Commonwealth called Ms. Brock as a witness. 

Contrary to her sworn, written statement, she testified that 

[Appellant] had merely helped her up after she fell during an 

argument. She explained that the injuries to her face occurred 

when she resisted his help. She stated that she had blacked out 

when she fell. She could not recall anything until the point where 

his finger was in her mouth and she was biting him. She stated 

that [Appellant] left right after they got up. She then went to her 

grandmother's house. She and her grandmother then went to 

the police department together where she gave her statement to 

Patrolman Mayer. 

In light of Ms. Brock's testimony at trial, the Commonwealth asked 

her to read aloud her sworn statement of May [13], 2017. She 

read from the Commonwealth's Exhibit 1 as follows: 

I came home around 5:30 to our bedroom being trashed. 

Clothes, bed, everything on the-everything on the room 

[sic]. I walked into the living room to ask why he did that. 

He told me to leave him alone. I kept asking why. He 

started to get his coat and walked away, asking where his 

bottle was-where his bottle is, so I followed him into the 

living room continuing to ask why he is acting like he is. He 

slapped me and told me-told me to leave alone-told me 

to leave him alone. He went into the bedroom, and I 

followed him, where I fell. He got on top of me-got on top 

of me on my back and squeezed my cheeks together so hard 

my teeth and his nails-my teeth and his nails cut my cheek. 

He got up, and so did I. I went into the kids' room to ask 

my stepson to get dressed and to not be like his dad. That's 

when [Appellant] came into the bedroom, the kids' room 

and continued to hit me, telling [my stepson] this is how 

you be. He punched me about three times and then left the 

apartment. 

After the trial, the jury deliberated and returned a verdict of guilty 

on the charge of simple assault. 

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Trial Court Rule 1925(a) Opinion, 5/10/18, at 1-3 (footnotes, including 

footnotes with references to notes of testimony, omitted). 

On January 2, 2018, the trial court sentenced Appellant to a term of not 

less than six months nor more than twenty-three months in the Cumberland 

County Prison, with credit for two days previously served. The court 

authorized immediate work release and determined Appellant was eligible for 

a reentry plan. After the trial court denied Appellant's post -sentence motion, 

Appellant filed a timely notice of appeal. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925. 

In this appeal, Appellant asks us to consider two issues: 

I. Was the evidence presented at trial sufficient to sustain a 

conviction for simple assault when the Commonwealth failed 

to present evidence that [Appellant] intentionally, 

knowingly, or recklessly caused bodily injury to Ms. Brock? 

II. Was the jury's verdict against the weight of the evidence so 

as to shock one's sense of justice when Ms. Brock testified 

that she was not assaulted by [Appellant]? 

Appellant's Brief at 5. 

In his first issue, Appellant argues the evidence was insufficient to 

support his conviction of simple assault. Our Supreme Court has explained: 

[T]he critical inquiry on review of the sufficiency of the evidence 

to support a criminal conviction . . . does not require a court to 

ask itself whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt. Instead, it must 

determine simply whether the evidence believed by the fact -finder 

was sufficient to support the verdict. 

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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) (emphasis 

in original) (citations and quotation marks omitted). "When reviewing the 

sufficiency of the evidence, an appellate court must determine whether the 

evidence, and all reasonable inferences deducible from that, viewed in the 

light most favorable to the Commonwealth as verdict winner, are sufficient to 

establish all of the elements of the offense beyond a reasonable doubt." Id. 

at 1237 (citation omitted). 

By definition, a person is guilty of simple assault if he "attempts to cause 

or intentionally, knowingly or recklessly causes bodily injury to another." 

18 Pa.C.S.A. § 2701(a)(1). The gist of Appellant's sufficiency argument is 

that the evidence did not support a finding that Ms. Brock sustained "bodily 

injury" as that term is defined in 18 Pa.C.S.A. § 2301, i.e., "impairment of 

physical condition or substantial pain." 

Appellant fails to appreciate that simple assault does not require actual 

bodily injury. "It is well -settled that '[t]he Commonwealth need not establish 

that the victim actually suffered bodily injury; rather, it is sufficient to support 

a conviction if the Commonwealth establishes an attempt to inflict bodily 

injury.' Commonwealth v. Duck, 171 A.3d 830, 835 n.4 (Pa. Super. 2017) 

(quoting Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 

1994) (citations omitted)). 

The trial court properly charged the jury on the elements of simple 

assault, instructing: 

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There are two possible ways of committing a simple assault. One 

is to attempt to cause bodily injury and one is actually causing 

bodily injury. So, either one of those, if you find that he did either 

one of those beyond a reasonable doubt, then you may find him 

guilty. If you do not find that either one was proven beyond a 

reasonable doubt, then you must find him not guilty. 

Notes of Testimony, Trial, 10/31/17, at 38. 

The trial court determined that the jury could "reasonably infer from the 

victim's statement that [Appellant's] actions toward her amounted to an 

intentional attempt to cause bodily injury." Trial Court Rule 1925(a) Opinion, 

5/10/18, at 4. Viewing the evidence in the light most favorable to the 

Commonwealth, we find the evidence was sufficient for the jury, as fact finder, 

to reach that conclusion. 

In support of his position, Appellant relies on Commonwealth v. 

Kirkwood, 520 A.2d 451 (Pa. Super. 1987), in which this Court determined 

that the evidence was insufficient to support a simple assault conviction. In 

Kirkwood, the victim claimed she was injured by Kirkwood's aggressive 

dancing. We determined that the victim's bruises and slight cuts on her arms 

and knees did not constitute sufficient bodily injury to sustain a simple assault 

conviction because "temporary aches and pains brought about by strenuous, 

even violent, dancing are an inadequate basis for imposing criminal liability 

upon a dance partner for assault." Id. at 454. 

We find the facts of the case before us dissimilar to those in Kirkwood 

and more like those in Duck, where a verbal argument also turned into a 

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physical altercation. There, the victim sustained lacerations to his head and 

arm. In Duck, we determined: 

Viewing the evidence in the light most favorable to the 

Commonwealth, as verdict winner, the victim in the instant case 

did not suffer a "temporary hurt" resulting from a "trivial contact" 

as occurred in Kirkwood. Rather, the victim suffered a visible 

injury to his head as a result of being pushed "really hard" or 

"slammed to the floor" during a verbal argument. It cannot be 

viewed in any sense as "trivial" social contact as was the, albeit 

aggressive, dancing in Kirkwood. 

Duck, 171 A.3d at 837. 

Finding the evidence sufficient to support Appellant's conviction, the trial 

court observed: 

In the instant case, the Commonwealth's exhibits, including the 

victim's sworn statement and photographs, were sufficient to 

sustain the conviction. The jury could reasonably infer that the 

injuries shown in the pictures caused the victim substantial pain. 

It could also reasonably infer from the victim's statement that 

[Appellant's] actions toward her amounted to an intentional 

attempt to cause bodily injury. 

Trial Court Rule 1925(a) Opinion, 5/10/18, at 3-4. 

Whether based on the attempt to cause bodily injury or on the actual 

infliction of bodily injury, we conclude, as did the trial court, the evidence was 

sufficient to support the simple assault conviction. Appellant's first issue fails. 

Appellant next argues that the verdict was against the weight of the 

evidence. Our Supreme Court has explained: 

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. Commonwealth v. Widmer, 560 Pa. 308,319,744 

A.2d 745,751-52 (2000); Commonwealth v. Brown, 538 Pa. 

410,435,648 A.2d 1177,1189 (1994). A new trial should not be 

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granted because of a mere conflict in the testimony or because 

the judge on the same facts would have arrived at a different 

conclusion. Widmer, 560 Pa. at 319-20, 744 A.2d at 752. 

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.' Id. at 320, 744 A.2d at 752 (citation 

omitted). It has often been stated that "a new trial should be 

awarded when the jury's verdict is so contrary to the evidence as 

to shock one's sense of justice and the award of a new trial is 

imperative so that right may be given another opportunity to 

prevail." Brown, 538 Pa. at 435, 648 A.2d at 1189. 

An appellate court's standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court: 

Appellate review of a weight claim is a review of the exercise 

of discretion, not of the underlying question of whether the 

verdict is against the weight of the evidence. Brown, 648 

A.2d at 1189. Because the trial judge has had the 

opportunity to hear and see the evidence presented, an 

appellate court will give the gravest consideration to the 

findings and reasons advanced by the trial judge when 

reviewing a trial court's determination that the verdict is 

against the weight of the evidence. Commonwealth v. 

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One 

of the least assailable reasons for granting or denying a new 

trial is the lower court's conviction that the verdict was or 

was not against the weight of the evidence and that a new 

trial should be granted in the interest of justice. 

Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added). 

This does not mean that the exercise of discretion by the trial court 

in granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court's discretion, we have 

explained: 

The term "discretion" imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judge. Discretion 

must be exercised on the foundation of reason, as opposed 

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to prejudice, personal motivations, caprice or arbitrary 

actions. Discretion is abused where 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. 

Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M. 

Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85 

(1993)). 

Commonwealth v. Clay, 64 A/3d 1049, 1054-55 (Pa. 2013). 

In rejecting Appellant's weight of the evidence claim, the trial court 

explained: 

When passing on the credibility of the witnesses in this case, the 

jury was free to accept all, some, or none of the testimony 

presented. Concerning Ms. Brock, she gave two versions of the 

events. The jury was free to choose between the sworn statement 

Ms. Brock made to the police on the day of the offense and her 

statements made at trial. Clearly, the jury chose to believe that 

Ms. Brock was truthful in her sworn statement to Patrolman 

Mayer. In the same vein, it chose not to believe her statements 

at trial that she was hurt accidentally. 

The fact that the jury chose to believe the sworn statements of 

Ms. Brock at trial does not require a finding that the conviction 

was against the weight of the evidence. [Appellant's] conviction, 

based on the evidence at trial, did not shock our sense of justice. 

Trial Court Rule 1925(a) Opinion, 5/10/18, at 5.1 

1 We note that Ms. Brock's written statement was properly considered by the 

jury. As our Supreme Court has recognized, a prior inconsistent statement 

may be used as substantive evidence if the statement had been reduced to a 

writing signed and adopted by the witness. See Commonwealth v. Brown, 

52 A.3d 1139, 1154 (Pa. 2012) (citing Commonwealth v. Lively, 610 A.2d 

7, 10 (Pa. 1992)). 

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We find no abuse of discretion in the trial court's determination. 

Appellant is not entitled to relief on his weight of the evidence claim. 

Judgment of sentence affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 1/7/2019 

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