J-S86003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ALAN TROY HOUSER                           :
                                               :
                      Appellant                :   No. 856 WDA 2015

               Appeal from the Judgment of Sentence May 1, 2015
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0003802-2013



BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED DECEMBER 15, 2016

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Westmoreland County following Appellant’s conviction

by a jury on the charges of aggravated assault and resisting arrest.1         On

appeal, Appellant contends (1) the evidence was insufficient to sustain his

conviction for aggravated assault, and (2) the trial court erred in permitting

the Commonwealth to introduce multiple instances of violence, which

constituted Appellant’s prior bad acts.2       We affirm.




____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1) and 5104, respectively.
2
    We have renumbered Appellant’s issues.



*Former Justice specially assigned to the Superior Court.
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       The relevant facts and procedural history have been aptly set forth by

the trial court, in part, as follows:

             [Appellant] was charged in two separate Informations with
       causing injuries to his girlfriend, [G.R.]. At 1489 C 2014, he was
       charged with aggravated assault for injuries occurring on March
       27, 2013, and at 3802 C 2013[,] he was charged with stalking,
       aggravated assault[,] and resisting arrest for an incident
       occurring on September 6, 2013.
              A jury trial occurred before [the trial] court from February
       2-5, 2015, at the conclusion of which [Appellant] was found not
       guilty of aggravated assault at 1489 C 2014. At 3802 C 2013[,]
       he was found not guilty of stalking [but] guilty of aggravated
       assault and resisting arrest.
                                        ***
             Facts elicited at trial detailed multiple episodes of
       confrontations between [Appellant] and [G.R.]. [For instance,]
       [o]n January 1, 2013, Sergeant Michael Ondo and Patrolman Eric
       Doutt of the Arnold Police Department responded to a call to
       1633 Third Avenue, Arnold, Pennsylvania at 10:15 a.m. (TT 54-
       55).3 [G.R.], who resided at that address, complained that
       [Appellant], her boyfriend, hit her in the face with a bowl, after
       which he punched her several times in the face. (TT 56). [G.R.]
       refused medical treatment. (TT 59).
             On January 31, 2013, Police Officer John Carilli responded
       to a call at 1633 Third Avenue. [G.R.] complained that
       [Appellant] had entered her home through the kitchen window
       and [had] taken her purse. (TT 71-72).
             On February 18, 2013, Officer Doutt was called to 2011
       Victoria Street, Arnold, Pennsylvania. He met with [G.R.] whose
       face was swollen and bleeding. (TT 64-65). [G.R.] explained
       that she had been babysitting and [Appellant] located her,
       punching her in the face several times and kicking her on the left
       side of her head. (TT 66). She stated that when she came to
       the door, [Appellant] grabbed her by the neck, pulled her
____________________________________________


3
  The notes of testimony from the February 2-5, 2015, jury trial have been
consolidated and provided to this Court in one large volume. The trial court
utilized the citation “TT” to refer to these notes of testimony.



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     outside[,] and punched her in the face with a closed fist. (TT
     150-51).
           On March 23, 2013, Police Officers John Carilli and Michael
     Krahe were called to 1633 Third Avenue because [Appellant] was
     in the home and [G.R.] wanted him to leave. (TT 74-75).
     Sergeant Krahe described her demeanor as upset and crying.
     (TT 103).
            Four days later, on March 27, 2013, [Appellant] entered
     [G.R.’s] Third Street home through a window. He grabbed an
     aluminum bat and struck her six or seven times. (TT 153). Her
     neighbor, [D.S.], called police.     [G.R.] sustained significant
     bruising on her torso, arms, and legs. (TT 154-55). Officer
     Carilli recalled that [G.R.] informed him that she had pulled a
     rocking chair over her body in order to protect herself. (TT 78).
     Sergeant Krahe observed bleeding from her left knee and
     injuries to her forehead and right arm. (TT 105). This incident
     formed the basis for the aggravated assault charges levied at
     1489 C 2014.
           The final episode, occurring on September 6, 2013, took
     place at 624 Bell Street, New Kensington, Pennsylvania at the
     home of [R.C.]. On that date, [Appellant] and [G.R.] were at
     her home, along with [E.B.] and [R.C.’s] children. (TT 128).
     The couple began to fight and [G.R.] fled into the backyard. (TT
     131). Police were called at 5:45 a.m. (TT 189). Officer Dion
     Wagner observed a male standing on top of [G.R.] with his knee
     on her chest. He observed 2-3 punches and yelled for the actor
     to stop.    (TT 190-91).       In response, [Appellant] fled and
     eventually was found hiding next to a tree. (TT 192-93).
     Although ordered to get on the ground, [Appellant] refused and
     had to be tased twice in order to be subdued. (TT 193-94).
     Officer Christian Baker testified that he tased [Appellant] and yet
     he and five other officers were unable to handcuff him. After
     being tased a second time, [Appellant] was subdued. (TT 207-
     08).
           [G.R.] was hospitalized for three weeks with five broken
     bones in her face. She lost some of her hearing and currently
     suffers from post traumatic stress disorder (PTSD). She since
     has had to be hospitalized for extreme anxiety. (TT 159). Dr.
     Duane Spiker, her psychiatrist, testified to her PTSD and
     depression, which were caused by the September 6, 2013,
     incident, and have resulted in her continuing treatment. (TT
     216, 219-20).


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Trial Court Opinion, filed 11/3/15, at 1-3 (footnote omitted) (footnote

added).

       Following Appellant’s conviction, on May 1, 2015, the trial court

sentenced him to ten years to twenty years in prison for aggravated assault,

and a consecutive one year to two years in prison for resisting arrest. This

timely appeal followed, and all Pa.R.A.P. 1925 requirements have been met.

       Appellant’s first claim is the evidence was insufficient to sustain his

conviction for aggravated assault.4            Specifically, while Appellant does not

dispute that he “punch[ed] [G.R.] in the face 2-3 times” on September 6,

2013, he alleges such evidence does not demonstrate an attempt to cause

serious bodily injury to G.R.        See Appellant’s Brief at 9.     Additionally, he

contends that the evidence does not reveal he actually caused G.R. to suffer

serious bodily injury.

              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
____________________________________________


4
  Appellant has presented no sufficiency of the evidence claim as it relates to
his conviction for resisting arrest.



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     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] 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.
           Further, in viewing the evidence in the light most favorable
     to the Commonwealth as the verdict winner, the court must give
     the prosecution the benefit of all reasonable inferences to be
     drawn from the evidence.

Commonwealth v. Harden,          103   A.3d   107,   111   (Pa.Super.     2014)

(quotation marks and quotations omitted).

     The Crimes Code relevantly defines aggravated assault as follows:

     2702. Aggravated assault
     (a) Offense defined.--A person is guilty of aggravated assault if
     he:
        (1) attempts to cause serious bodily injury to another, or
     causes such injury intentionally, knowingly or recklessly under
     circumstances manifesting extreme indifference to the value of
     human life.

18 Pa.C.S.A. § 2702(a)(1).

     Serious bodily injury is “bodily injury which creates a substantial risk

of death or which causes serious, permanent disfigurement or protracted

loss or impairment of the function of any bodily member or organ.” 18

Pa.C.S.A. § 2602.

     In cases where the victim does not suffer actual serious bodily injury:

     the charge of aggravated assault can be supported only if the
     evidence supports a finding of an attempt to cause such injury.
     A person commits an attempt when, with intent to commit a
     specific crime, he does any act which constitutes a substantial
     step toward the commission of that crime. An attempt under

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     Subsection 2702(a)(1) requires some act, albeit not one causing
     serious bodily injury, accompanied by an intent to inflict serious
     bodily injury.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012)

(quotations and quotation marks omitted). See Commonwealth v. Lewis,

911 A.2d 558, 564 (Pa.Super. 2006) (“In determining whether the

Commonwealth proved the [a]ppellant had the requisite specific intent, the

fact-finder is free to conclude the accused intended the natural and probable

consequences of his actions to result therefrom.”) (quotation marks and

quotation omitted)).

     The Crimes Code defines the mens rea of “intent” as follows:

     A person acts intentionally with respect to a material element of
     an offense when:
     (i) if the element involves the nature of his conduct or a result
     thereof, it is his conscious object to engage in conduct of that
     nature or to cause such a result; and
     (ii) if the element involves the attendant circumstances, he is
     aware of the existence of such circumstances or he believes or
     hopes that they exist.

18 Pa.C.S.A. § 302(b)(1).

     As the trial court aptly noted in rejecting Appellant’s sufficiency of the

evidence claim:

            In [Lewis, supra], the victim, weighing 180 pounds, was
     in a relationship with the defendant who weighed 230 pounds.
     The couple had numerous fights but none were physical until the
     instant offense. During this altercation, the defendant punched
     his girlfriend with a closed fist several times in the face causing
     her hospitalization for five days.
                                    ***


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              [In upholding the defendant’s conviction for aggravated
        assault], [t]he Lewis court made particular note of the disparity
        in [the] size of the defendant and the victim. It noted that the
        defendant delivered at least three closed fist punches to the
        victim’s body, including her stomach and face. [The defendant
        in Lewis] only desisted from his conduct after he became aware
        of the approach of the police.         This evidence, the court
        concluded, was sufficient to establish aggravated assault.
              In the case at bar, [G.R.] weighed 120 pounds while
        [Appellant’s] weight was 300 pounds. (TT 159). After police
        were called on September 6, 2013, at 5:45 a.m., Police Officer
        Dion Wagner observed [Appellant] with his knee on [G.R.’s]
        chest. He saw him punch her 2-3 times and described these
        punches as hard.      The only reason this attack ended was
        because the officer called out to [Appellant]. [G.R.] recalled that
        [Appellant] had thrown her to the ground and stated that he was
        going to kill her. He began punching her in the face causing her
        to sustain five broken bones and [ ] partial hearing loss.

Trial Court Opinion, filed 11/3/15, at 6-8.

        Based on the aforementioned, even assuming, arguendo, G.R. did not

suffer actual serious bodily injury, the record sufficiently demonstrates that

Appellant attempted to cause serious bodily injury to G.R. on September 6,

2013.     See Lewis, supra.      Accordingly, we find no merit to Appellant’s

sufficiency of the evidence claim.

        Appellant’s final claim is the trial court erred in permitting the

Commonwealth to introduce multiple instances of violence, which constituted

Appellant’s prior bad acts. Specifically, Appellant contends the evidence of

his prior crimes, wrongs, or bad acts was used in order to show his

propensity for such behavior and, thus, was prohibited under Pa.R.E.




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404(b)(1). He further argues that the probative value of the evidence was

outweighed by its prejudicial impact.5

       It is well settled that “[t]he admission of evidence is solely within the

discretion of the trial court, and a trial court's evidentiary rulings will be

reversed     on    appeal     only     upon    an   abuse    of   that   discretion.”

Commonwealth v. Woodard, ___ Pa. ___, 129 A.3d 480, 494 (2015)

(quotation marks and quotation omitted). “An abuse of discretion will not be

found based on a mere error of judgment, but rather occurs where the court

has reached a conclusion that overrides or misapplies the law, or where the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will.” Id. (citation omitted).       “The court may exclude

relevant evidence if its probative value is outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Pa.R.E. 403.

       “Evidence of a defendant's distinct crimes are not generally admissible

against a defendant solely to show his bad character or his propensity for
____________________________________________


5
  Appellant has not set forth in his brief the place in the record where he
objected to the introduction of the evidence. Our review of the record
reveals Appellant filed a pro se pre-trial motion seeking to exclude the
evidence on the same grounds asserted on appeal, but the trial court
dismissed the pro se motion since Appellant was represented by counsel.
There is no indication the trial court forwarded the pro se motion to counsel.
In any event, assuming, arguendo, Appellant preserved his claim, for the
reasons discussed infra, we find no relief is due.



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committing criminal acts, as proof of the commission of one offense is not

generally proof of the commission of another.”      Commonwealth v. Billa,

521 Pa. 168, 555 A.2d 835, 840 (1989) (emphasis in original) (citation

omitted). See Pa.R.E. 404. However, this general proscription against

admission of a defendant's distinct bad acts is subject to numerous

exceptions if the evidence is relevant for some legitimate evidentiary reason

and not merely to prejudice the defendant by showing him to be a person of

bad character.    Billa, supra. Exceptions that have been recognized as

legitimate bases for admitting evidence of a defendant's distinct crimes

include, but are not limited to:

      (1) motive; (2) intent; (3) absence of mistake or accident; (4) a
      common scheme, plan or design such that proof of one crime
      naturally tends to prove the others; (5) to establish the identity
      of the accused where there is such a logical connection between
      the crimes that proof of one will naturally tend to show that the
      accused is the person who committed the other; (6) to impeach
      the credibility of a defendant who testifies in his trial; (7)
      situations where defendant's prior criminal history had been
      used by him to threaten or intimidate the victim; (8) situations
      where the distinct crimes were part of a chain or sequence of
      events which formed the history of the case and were part of its
      natural development (sometimes called “res gestae” exception).

Billa, 521 Pa. at 177, 555 A.2d at 840 (citations omitted).

      In the case sub judice, in explaining the reasons it permitted the

Commonwealth to offer evidence regarding Appellant’s previous acts of

abuse against G.R., the trial court provided, in part, the following:

             In this case, the prior violence inflicted on [G.R.] was
      included to inform the jury of the history of the relationship and
      its pattern of abuse. These acts established [Appellant’s] motive

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       and intent in continually searching out his girlfriend in order to
       inflict both emotional distress and serious bodily injury. This
       history provided the jury with facts showing that [Appellant]
       acted intentionally, knowingly[,] and with malice when he
       [assaulted] [G.R. on September 6, 2013].

Trial Court Opinion, filed 11/3/15, at 5-6.6

       We find no abuse of discretion in this regard. See Commonwealth v.

Jackson, 900 A.2d 936 (Pa.Super. 2006) (holding the evidence of the

appellant’s prior domestic abuse of the victim was admissible to show the

chain or sequence of events which formed the history of the case, as part of

the natural development of the case, and to demonstrate the appellant’s

motive, malice, intent, and ill-will toward the victim).

       Furthermore, we find the trial court did not abuse its discretion as it

relates to Appellant’s contention the evidence should have been excluded on

the basis its probative value was outweighed by its prejudicial effect. “It is

axiomatic in a criminal trial that all evidence offered by the prosecution will

be prejudicial to the defendant. Were mere prejudice the standard, virtually

all evidence could reasonably be excluded.” Commonwealth v. Peer, 684

A.2d 1077, 1083 (Pa.Super. 1996). For this reason, the test for admissibility

is whether the probative value of the challenged evidence is outweighed by
____________________________________________


6
  We note the trial court indicated Appellant’s prior bad acts were also
relevant as it related to his stalking charge, for which he was acquitted.
Pursuant to the Crimes Code, to prove stalking, the Commonwealth was
required to show, inter alia, that Appellant “engage[d] in a course of conduct
or repeatedly commit[ted] acts toward another person[.]” 18 Pa.C.S.A. §
2709.1.



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unfair prejudice.   Pa.R.E. 403.    “‘Unfair prejudice’ means a tendency to

suggest decision on an improper basis or to divert the jury's attention away

from its duty of weighing the evidence impartially.” Id.

      In the case sub judice, the evidence of Appellant’s prior abuse of G.R.

provided the jury with the full history of the parties’ relationship, as well as

Appellant’s motive. Appellant has not demonstrated the evidence improperly

diverted the jury’s attention or provided an improper basis for convicting

Appellant of the September 6, 2013, crimes.

      Finding no merit to Appellant’s claims, we affirm his judgment of

sentence.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2016




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