J-A24032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DIAMOND JACQUELYN GAUSE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1526 WDA 2019

Appeal from the Judgment of Sentence Entered August 13, 2019

in the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0002213-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2021

Diamond Jacquelyn Gause (“Gause”) appeals from the judgment of 

sentence entered following her convictions of aggravated assault with a deadly 

weapon, defiant trespass, simple assault, and criminal mischief.1 We affirm.

On February 8, 2019, Gause entered the home of Darnell Stinson 

(“Stinson” or “the victim”) in McKeesport, Allegheny County. Though Gause 

had been to Stinson’s home on other occasions, she did not have an invitation 

or permission to enter Stinson’s home on this occasion. Stinson inquired as 

to how Gause had entered the home and her reasons for being in the home, 

and told her to leave. Gause refused to leave, and a fight ensued. During the 

fight, Gause jumped onto Stinson and punched him multiple times in the face. 

Stinson kicked Gause off of him, and dragged Gause down the stairs by her 

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1 18 Pa.C.S.A. §§ 2702(a)(2), 3503(b)(1)(i), 2701(b)(1), 3304(a)(5).
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hair, in order to remove her from the house. When they arrived downstairs, 

Gause threw items around the house, and went to the kitchen and grabbed a 

kitchen knife. Gause swung the knife at Stinson two times, cutting Stinson’s 

finger with one of her swings. During the fight, Stinson repeatedly told Gause 

to leave his house. After the physical fight ended, Gause and Stinson engaged 

in a verbal argument before Gause kicked out Stinson’s living room window

and walked out of the house, dropping the knife on the front porch.

After Gause left the house, Stinson called police, and Officer James Goss 

(“Officer Goss”) of the McKeesport Police Department arrived at the house. 

Upon arriving, Officer Goss observed the broken front window, broken glass 

and a black-handled kitchen knife with blood on the blade. Officer Goss also 

observed that Stinson had a cut on his finger and obvious swelling on his face. 

Gause was located a short time later by another officer less than a block away 

from Stinson’s house. Officer Goss thereafter placed Gause under arrest. 

Upon arresting Gause, Officer Goss did not observe or note any injuries on 

Gause.

Gause was charged with aggravated assault – serious bodily injury, 

aggravated assault with a deadly weapon, criminal trespass, simple assault, 

recklessly endangering another person, and criminal mischief.2 Gause 

proceeded to a non-jury trial on August 13, 2019, after which she was 

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2 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2701(a)(1), 3503(a)(1)(i), 

2701(a)(1), 2705, 3304(a)(5).
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convicted of aggravated assault with a deadly weapon, defiant trespass, 

simple assault, and criminal mischief, and was found not guilty of aggravated 

assault – serious bodily injury, criminal trespass, and recklessly endangering 

another person. Immediately after trial, the trial court sentenced Gause to an 

aggregate term of five years of probation, during which time she was to have

no contact with Stinson. The trial court also ordered Gause to pay court costs

and restitution to Stinson, and to complete a batterers’ intervention course.

Gause filed a post-sentence Motion, which the trial court denied. Gause 

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise 

Statement of matters complained of on appeal.

Gause raises the following issues for our review:

I. Whether the Commonwealth failed to present sufficient 

evidence to establish beyond a reasonable doubt that [] Gause 

committed the crime of [a]ggravated [a]ssault with a deadly 

weapon because the Commonwealth failed to demonstrate that [] 

Gause attempted to cause or knowingly caused bodily injury to [] 

Stinson with a deadly weapon?

II. Whether the Commonwealth failed to present sufficient 

evidence to prove beyond a reasonable doubt that [] Gause’s 

actions were not undertaken in self-defense?

III. Whether the trial court abused its discretion in denying [] 

Gause’s post-sentence [M]otion that the verdict be set aside as it 

was against the weight of the evidence?

Brief for Appellant at 5 (footnote omitted).

3

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3 We note that, though Gause’s Statement of Questions Involved lists her 

general sufficiency claim before her self-defense claim, she lists her self-
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In her first issue, Gause argues that the evidence was insufficient to 

support her conviction of aggravated assault with a deadly weapon. Id. at 

32-36. Specifically, Gause claims that the Commonwealth failed to establish 

that Gause possessed the requisite mens rea to commit the offense, as the 

evidence showed only that Gause motioned towards Stinson two times with 

the knife, with one of the motions resulting in a cut on Stinson’s finger. Id.

at 32. Accordingly, Gause asserts that the Commonwealth failed to meet its 

burden of proving beyond a reasonable doubt that Gause acted either 

intentionally or with knowledge when she inflicted the injury on Stinson. Id. 

Gause argues that, at most, she recklessly inflicted Stinson’s injuries, as she 

was “in a state of panic and agitation after being dragged down a staircase by 

her hair[.]” Id. at 34-35.

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to 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 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence. Moreover, in applying 

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defense claim first in the Argument section of her brief. For ease of 

disposition, we will address Gause’s claims in the order that they are listed in 

her Statement of Questions Involved.
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the above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the [trier] 

of fact[,] while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none 

of the evidence.

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation 

omitted).

For the offense of aggravated assault with a deadly weapon, the Crimes 

Code provides that “[a] person is guilty of aggravated assault if he ... attempts 

to cause or intentionally or knowingly causes bodily injury to another with a 

deadly weapon.” 18 Pa.C.S.A. § 2702(a)(4); see also 18 Pa.C.S.A. § 2301 

(defining “bodily injury” as “[i]mpairment of physical condition or substantial 

pain,” and “deadly weapon” as, in part, “any other device or instrumentality 

which, in the manner in which it is used or intended to be used, is calculated 

or likely to produce death or serious bodily injury”).

The evidence, viewed in the light most favorable to the Commonwealth 

as the verdict-winner, established that Gause used a deadly weapon, a knife, 

and inflicted bodily injury upon Stinson by swinging the knife and cutting 

Stinson’s finger. N.T., 8/13/19, at 20. Further, sufficient evidence existed to 

show that Gause “intentionally or knowingly” caused the bodily injury to 

Stinson, as the evidence established that Gause swung the knife at Stinson 

two times, striking him once. Id. at 20-21. Additionally, the trial court, as 

the fact-finder, was free to interpret Gause’s conduct, including going to 

Stinson’s kitchen, retrieving a knife, and swinging it at Stinson two times, as 
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circumstantial evidence of knowledge. See N.T., 8/13/19, at 89-90 (wherein 

the trial court explains its reasons for finding that Gause knowingly caused 

Stinson’s injuries). Finally, Stinson’s version of the events is supported by the 

testimony of Officer Goss, who testified that when he approached the house, 

he observed the broken window, broken glass on the front porch, and the 

bloody kitchen knife. Id. at 22, 35-36. Accordingly, viewed in the light most 

favorable to the Commonwealth as the verdict-winner, sufficient evidence was 

presented at trial to support Gause’s aggravated assault conviction. See 

generally Commonwealth v. Sanders, 627 A.2d 183, 187 (Pa. Super. 

1993) (concluding that sufficient evidence existed to convict the defendant of 

aggravated assault with a deadly weapon when the defendant pointed a gun 

at the victim’s head, was verbally threatening the victim, and a struggle 

ensued prior to any shots being fired, as such evidence allowed the jury to 

infer the defendant’s intent to inflict bodily injury).

In her second claim, Gause argues that her testimony constituted an 

assertion of self-defense, and the Commonwealth failed to disprove her selfdefense assertion beyond a reasonable doubt. Brief for Appellant at 16-31. 

Gause claims that she was in fear of imminent death or serious bodily injury, 

as she had just been dragged down the stairs by Stinson. Id. at 20-23. Gause 

also asserts that she did not provoke the fight with Stinson, but rather, was 

forced to defend herself after Stinson dragged her down the stairs. Id. at 24-

27. Finally, Gause claims that she did not have a duty to retreat, as she had 
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the right to retrieve her property, which was still on the second floor. Id. at 

27-30.

“The use of force upon or toward another person is justifiable when the 

actor believes that such force is immediately necessary for the purpose of 

protecting himself against the use of unlawful force by such other person on 

the present occasion.” 18 Pa.C.S.A. § 505(a). A person may not use deadly 

force unless he believes it is necessary to protect himself against “death, 

serious bodily injury, kidnapping or sexual intercourse compelled by force or 

threat[.]” 18 Pa.C.S.A. § 505(b)(2).

Where an accused raises the defense of self-defense under 

Section 505 of the Pennsylvania Crimes Code, the burden is on 

the Commonwealth to prove beyond a reasonable doubt that the 

defendant’s act was not justifiable self-defense. The 

Commonwealth sustains this burden if it establishes at least one 

of the following: 1) the accused did not reasonably believe that he 

was in danger of death or serious bodily injury; or 2) the accused 

provoked or continued the use of force; or 3) the accused had a 

duty to retreat and the retreat was possible with complete safety. 

It remains the province of the [fact-finder] to determine whether 

the accused’s belief was reasonable, whether he was free of 

provocation, and whether he had no duty to retreat.

Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa. Super. 2005) 

(internal citations and quotation marks omitted).

Regarding Gause’s self-defense claim, Gause testified that Stinson told 

her to leave the residence after dragging her down the stairs. N.T., 8/13/19, 

at 73. Gause testified that, instead, she ran to the kitchen, and retrieved the 

knife with the intention of threatening Stinson, as she knew him to be afraid 

of knives. Id. at 73-74. Gause testified that after she threatened Stinson 
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with the knife, Stinson “backed off” and she was able to return upstairs, 

retrieve her belongings, and leave the house, kicking the window as she left. 

Id. at 69. However, Gause denied cutting Stinson with the knife, and testified 

that she did not know how blood got on the knife. Id. at 69, 73.

In light of the foregoing, we conclude that sufficient evidence existed to 

prove that Gause was not acting in self-defense when she cut Stinson with the 

knife. From the testimony presented at trial, the trial court, as the finder of 

fact, could reasonably conclude that Gause had the opportunity to retreat and 

leave Stinson’s house. See Smith, 97 A.3d at 790 (explaining that the finder 

of fact is free to believe all, part or none of the evidence). Rather than leaving, 

Gause went to the kitchen and, wielding a knife, stabbed Stinson. Further, 

the evidence demonstrated that Gause provoked the use of force, as Gause 

had entered Stinson’s home, initiated the assault, and refused to leave when 

told by Stinson to do so on multiple occasions. Accordingly, Gause’s claim of 

self-defense is not supported by the record, and her sufficiency challenge fails. 

See McClendon, supra; 18 Pa.C.S.A. § 505(b)(2)(i)-(ii).

In her final claim, Gause argues that the verdict is against the weight of 

the evidence. Brief for Appellant at 37-43. Gause claims that the trial court 

inaccurately set forth the nature of the defense exhibits presented at her nonjury trial, and minimized the evidence supporting her contention that Stinson 

had been the aggressor during the fight. Id. at 38-40. Further, Gause asserts 

that the trial court afforded improper weight to the testimony of Skye 
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Robertson (“Robertson”), who was on the phone with Gause during portions 

of the fight. Id. at 40-41. Finally, Gause attacks the credibility of Stinson’s 

testimony, and claims that the trial court improperly analyzed the physical 

evidence from the scene of the fight, depicting the trial court’s “focus on such 

tertiary details while disregarding entirely the testimony of [] Robertson and 

[] Gause[,] as well as [] Stinson’s own serious credibility problems[,] []as 

‘manifestly unreasonable.’” Id. at 43.

The law pertaining to weight of the evidence claims is wellsettled. The weight of the evidence is a matter exclusively for the 

finder of fact, who is free to believe all, part, or none of the 

evidence and to determine the credibility of the witnesses. A new 

trial is not warranted because of a mere conflict in the testimony 

and must have a stronger foundation than a reassessment of the 

credibility of witnesses. 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. On appeal, our purview 

is extremely limited and is confined to whether the trial court 

abused its discretion in finding that the jury verdict did not shock 

its conscience. Thus, appellate review of a weight claim consists 

of a review of the trial court’s exercise of discretion, not a review 

of the underlying question of whether the verdict is against the 

weight of the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) 

(quotation marks and citations omitted).

In its Opinion, the trial court addressed Gause’s challenge to the weight 

of the evidence as follows:

[Gause]’s argument is rooted in an allegation that the court erred 

in finding the victim credible and did not provide weight to defense 

witness testimony and evidence. The court explained prior to

delivering the verdict that [it] did not find the defense witnesses 

credible. When addressing [Gause]’s testimony, the court held 
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that the photographic exhibits showing injuries suffered by 

[Gause], purportedly at the hands of the victim, were not 

consistent with how she testified she received them. Moreover, 

Officer Goss, who arrested [Gause] shortly after [the] incident, 

did not observe any injury to [Gause] or reference any in his 

report. Officer Goss [] did, however[,] observe swelling to [] 

Stinson’s face along with a cut to his finger, consistent with his 

testimony about how he was assaulted by [Gause].

The court doubted [Gause]’s testimony that the victim was 

cut by broken glass. Again, [] Stinson’s testimony was 

corroborated by the observation of Officer Goss. Upon his arrival, 

the officer observed broken glass on the front porch from the 

window, which was admittedly kicked out by [Gause]. Among the 

glass shards was a bloody kitchen knife. Not only is this consistent 

with the victim’s testimony that [Gause] kicked the window from 

the inside-out, but that [Gause] dropped the knife on the porch 

as she fled. These same observations conflict with [Gause]’s 

testimony that she never stabbed the victim, and that prior to 

leaving the house she threw the knife, presumably clean, into the 

living room, whereupon she left [the] victim’s house and then 

kicked the window from the outside-in. [Gause]’s version defies 

the laws of physics and common sense, since the broken glass 

should have been inside the house, not on the porch as was 

observed. Commonwealth v. McClelland, 204 A.3d 436, 441 

(Pa. Super. 2019) ([w]here the evidence offered to support the 

verdict is in contradiction to the physical facts, in contravention to 

human experience and the laws of nature, then the evidence is 

insufficient as a matter of law[) (c]iting Commonwealth v. 

Widmer, 744 A.2d 745, 751 ([Pa. ]2000)).

As for the remaining charges of defiant trespass, criminal 

mischief and simple assault by mutual combat, the evidence and 

credibility determinations outlined above support those 

convictions as well. [Gause]’s claim in her [Concise] Statement 

that the victim’s testimony about who was allowed in and had 

access to the house was untruthful is irrelevant, as the court did 

not find her guilty of criminal trespass. It was undisputed that 

[Gause] did not live with the victim, and after making entry was 

told multiple times to leave, but refused. This is proof beyond a 

reasonable doubt of the crime of defiant trespass. The court’s 

verdict in consideration of the available record should not “shock” 

anyone’s sense of justice, such that the verdict was contrary to 

the evidence.
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Trial Court Opinion, 1/29/20, at 10-12 (some capitalization omitted).

Our review of the record confirms that the trial court did not abuse its 

discretion in concluding that the verdict was not against the weight of the 

evidence. The trial court, sitting as fact-finder, was free to assess Gause’s 

and Stinson’s credibility, afford their testimony the appropriate weight, and 

resolve any inconsistencies in their testimonies. We will not re-weigh the 

evidence or reassess the credibility of the witnesses presented at trial. See 

Gonzalez, supra. Accordingly, this claim fails. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/22/2021