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### -S65022-18
NON-PRECEDENTIAL DECISION - SEE 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 theJudgment 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.: 

### FILEDJANUARY

### 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 onthe ground, he squeezed herface so hard 

### with his hand 

### that her cheekswere gashed inside and 

### out by herJ

### -S65022-18
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 shefell. She could not recall 

### anything until the pointwhere his 

### finger was in her 

### mouth and she was biting him. She stated 

### that [Appellant] left 

### right aftertheygot up. Shethen 

### wentto her 

### grandmother's house. She and her 

### grandmother then 

### went to the police 

### departmenttogether where she gave her

### statement to Patrolman Mayer. In 

### lightof Ms. Brock's

### testimonyat

### 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 ontop of

### me-got on top of me on my back and squeezed my cheeks

### togetherso hard my

### teeth and his 

### nails-myteeth 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 

### aboutthree times and then left the 

### apartment. After the

### trial,the

### jury deliberated and 

### returned a 

### verdictof

### guilty onthe 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). OnJanuary 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 Appellantwas 

### 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 considertwo issues: I. Was the evidence presented at 

### trial sufficient to sustain a 

### convictionforsimple assaultwhenthe Commonwealth failed to 

### present evidence 

### that [Appellant] intentionally, knowingly, or recklessly caused bodily 

### injury to Ms. Brock? 

### II. Was the

### jury'sverdict againstthe weight ofthe 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 determinesimplywhetherthe evidence believed by

### thefact

### -finder was 

### sufficient to 

### support the

### verdict.



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### Commonwealthv. 

### Ratsamy, 934A.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

### verdictwinner, are 

### sufficientto establish all 

### ofthe elements ofthe offense beyond a reasonable 

### doubt." 

### Id. at 1237 

### (citation 

### omitted). By

### definition, a person is

### guiltyofsimple assault if he

### "attemptsto 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." Appellantfails to 

### appreciate 

### thatsimple assault does not 

### require actual bodily 

### injury. 

## "It is well

### -settled 

### that

### '[t]he Commonwealth need not establish 

### thatthe

### victim actuallysuffered 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 aretwo possible waysof 

### committing a simple assault. One is to 

### attempt to cause bodily 

### injury and one is 

### actually causing bodily 

### injury. So, 

### either one

### ofthose, ifyou find 

### that he did 

### either one 

### ofthose beyond a reasonable 

### doubt, then you may find him 

### guilty. 

### If you do not find 

### that either one was proven beyond a reasonable 

### doubt, thenyou 

### must find him not 

### guilty. Notes of

### Testimony, Trial, 

### 10/31/17, at 38. The

### trial courtdetermined 

### thatthe

### jury could

### "reasonably inferfromthe 

### 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, wefind the evidencewas

### sufficientforthe

### jury, as

### factfinder, 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 

### thatthe 

### victim's bruises and 

### slight cuts on herarms and knees did not

### constitute sufficient bodily 

### injuryto 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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### -S65022-18 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

### sufficientto

### supportAppellant'sconviction,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 

### attemptto 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, theevidence was 

### sufficientto 

### supportthe simple assaultconviction. 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

### thatthe

### 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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### -S65022-18 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 allthefacts, certainfactsareso 

### 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 at752 

### (citation omitted). 

### It has 

### often been stated 

### that "a new 

### trial should be awarded when the

### jury's verdict is so 

### contraryto 

### 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, 648A.2d at 1189. An 

### appellate court's standard of review when presented 

### with a 

### weight oftheevidenceclaim is

### distinctfromthe standard ofreview applied by the

### trial court: Appellate reviewof a

### weight claimis a 

### review

### ofthe exercise 

### ofdiscretion, 

### not

### ofthe 

### underlyingquestion 

### ofwhetherthe 

### verdict is 

### against the 

### weight

### ofthe 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 ofthe least assailable reasons

### forgranting 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). Thisdoes not mean

### thatthe exerciseofdiscretion bythe

### 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

### frameworkofthe law, and is notexercised 

### forthe 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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### -S65022-18

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 unreasonableorwherethe law is not applied orwherethe record shows

### that the action is a 

### result of 

### partiality, prejudice, bias or ill

### -will. 

### Widmer, 560 Pa. 

### at 322, 744A.2d 

### at753 

### (quoting 

### Cokerv.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

### jurywasfreeto choosebetween 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 ofthe evidence. 

### [Appellant's] conviction, based on the evidenceat

### 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 statementwas 

### properlyconsidered by the 

### jury. As our Supreme Court has recognized, a 

### prior inconsistent 

### statement may be used as 

### substantive evidence ifthe 

### statement had been reduced to a 

### writing signed and adopted by thewitness. 

### 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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