J-S68032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
MARLAINA KARLA THOMAS,                     :
                                           :
                   Appellant               :           No. 3546 EDA 2013

      Appeal from the Judgment of Sentence entered on October 28, 2013
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0008066-2011

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 21, 2014

        Marlaina Karla Thomas (“Thomas”) appeals from the judgment of

sentence imposed after a jury convicted her of attempted murder,

aggravated assault, possession of an instrument of crime, and recklessly

endangering another person.1 We affirm.

        The trial court set forth the relevant facts underlying this appeal as

follows:

              On June 2, 2011, nieces of [a friend of] the victim[,
        Ayesha Thompson (hereinafter “Thompson” or “the victim”),]
        had a fight with [Thomas’s] daughter[, Marlaina Lucas
        (“Lucas”),] at a Chinese store. Later that day, [Lucas] and her
        friends approached the victim and the nieces[,] who were sitting
        on the steps on the 5200 block of Marlowe Street in Philadelphia,
        PA.




1
    See 18 Pa.C.S.A. §§ 901(a), 2702(a), 907(a), 2705.
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           Four fights then broke out. Among the people fighting
     were [Lucas], [Lucas’s] friend, and the nieces of the victim’s
     friend.

           The victim and two other adults tried to break up that
     fight. The victim then heard [Thomas] yell, “that’s my fucking
     daughter” and saw [Thomas] cross the street towards her.

            [Thomas] attempted to punch the victim in the face, but
     the victim moved her face and swung at [Thomas]. The two
     women had been fighting for about a minute, when the victim
     felt her arm “[give] out on [her].”

           After her arm gave out, the victim felt as though she could
     not breathe and collapsed on the ground, and an unknown man
     helped her up and indicated that she had been cut. The victim
     then saw [Thomas] flee toward Bridge Street.

           At that point, the victim realized that she had been cut
     from her jugular vein and down her arm.             The victim
     immediately identified [Thomas] as the person who cut her. A
     friend gave the victim a rag, and the victim wrapped her skin
     with the cloth and started to run towards [Lucas]. As the victim
     was running towards [Lucas], the victim yelled, “your mom hit
     me; your mom cut me[,]” and then hit [Lucas]. The police
     eventually separated the two women.

           Officer Luis Cordero [“Officer Cordero”] and Officer Edgar
     Vazquez arrived on the scene in response to a radio call around
     9:00 [p.m.] reporting a fight on the highway at the intersection
     of Bridge and Hawthorne Streets in Northeast Philadelphia.
     Upon arrival, Officer Cordero observed 30 to 40 individuals in a
     crowd. At the scene, Officer Cordero encountered the victim,
     who was screaming and had a towel wrapped around her right
     shoulder. Officer Cordero attempted to ask the victim what had
     occurred, but she kept screaming and attempted to attack
     [Lucas].

            Officer Cordero was holding the victim back so she could
     not attack [Lucas] again[,] when the victim began to show signs
     of dizziness. Officer Cordero tried to hold her up against a fence,
     but she collapsed and fell in and out of consciousness. After
     removing the towel to assess the extent of the victim’s injuries,
     Officer Cordero saw two large and deep lacerations starting on


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      the victim’s top right shoulder, running over her chest, and
      stretching down a few inches past her elbow.

             Officer Cordero and Officer Vazquez took her to Frankford
      South Hospital. As part of her treatment, the victim had a drain
      placed in her neck at Frankford Hospital and needed surgery to
      “repair four lacerations including a laceration to the extern[al]
      jugular vein.” She also needed a blood transfusion due to “acute
      blood loss.” Upon discharge from the hospital, the victim had
      “limited use of her right arm.” At the time of trial, the victim
      had been going to physical therapy twice a week for almost two
      years trying to rebuild muscle in her arm. At that time, she still
      had continual pain that was like an “itch inside of [her] body,”
      for which she was still taking medication.

Trial Court Opinion, 3/10/14, at 1-3 (citations to record omitted).

      After taking Thomas into custody, the police charged her with the

above-mentioned offenses.     The matter proceeded to trial, at the close of

which the jury convicted Thomas of all counts. The trial court subsequently

sentenced Thomas to serve an aggregate term of fourteen to twenty-eight

years in prison, followed by ten years of probation.    In response, Thomas

filed a post-sentence Motion challenging the weight and sufficiency of the

evidence.    The trial court denied the post-sentence Motion, after which

Thomas timely filed a Notice of Appeal.

      Thomas presents the following issues for our review:

      I.    Whether the adjudication of guilt is based upon
            insufficient evidence where no witness testified that
            they actually observed [Thomas] cut the victim or in
            possession of a cutting implement[,] and where the
            circumstantial inference that she cut the victim was
            unreasonable[?]

     II.    Whether the adjudication of guilt is against the weight
            of the evidence and shocking to one’s sense of justice


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           where no witness testified that they had actually seen
           [Thomas] cut the victim[,] and where there was
           credible evidence that [Thomas’s] daughter was the
           perpetrator who was seen throwing something into a
           sewer after the assault[?]

Brief for Appellant at 6 (issues reordered for ease of disposition).

      Thomas first argues that the evidence was insufficient to convict her of

any of the charged crimes because the Commonwealth did not establish

beyond a reasonable doubt her identity as the person who had attacked the

victim.2   See id. at 14-16; see also Commonwealth v. Hickman, 309

A.2d 564, 566 (Pa. 1973) (stating that, in every criminal case, “[p]roof

beyond a reasonable doubt of the identity of the accused as the person who

committed the crime is essential to a conviction.”).       Specifically, Thomas

contends as follows:

      [Thompson] … never saw [Thomas] with a weapon, nor did she
      see [Thomas] cut her.        Thompson was face to face with
      [Thomas] and would have seen the weapon and the cutting had
      [Thomas] been the perpetrator. Thompson observed [Thomas’s]
      daughter[,] [] Lucas[,] throw an object down a sewer, so[,]
      circumstantially[,] it was [Lucas] who was in possession of the
      implement used for the cutting. [Additionally, an eyewitness to
      the fight,] Vernice Byrd [“Byrd,”] [] did not see the actual
      cutting. [Byrd] claimed to have seen [Thomas] take something
      out of her mouth[;] however[,] it would be preposterous to infer
      that the [Thomas was] engaging in a fist fight with a razor or
      other cutting implement in her mouth.            This is a flatly
      unreasonable inference.      …     Additionally, when Byrd was
      interviewed by a Detective on the day of the incident[,] she
      identified the cutter as the individual who was fighting Amanda


2
 Aside from challenging the jury’s finding regarding Thomas’s identity as the
perpetrator, Thomas does not dispute that the evidence was sufficient to
establish the elements of the crimes of which she was convicted.


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      Samuels[,] and she identified [Lucas as] the person fighting
      Amanda Samuels.

Brief for Appellant at 15.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      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 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.

Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014)

(citation omitted).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court determined that the

evidence was sufficient to support each of Thomas’s convictions, and her

identity as the perpetrator, stating as follows:

            While the victim admitted that she did not actually see
      [Thomas] slash her or the weapon used, she knew no one else
      had been in physical contact with her. (N.T. 7/19/13 p. 54.)
      Additionally, [Byrd] saw [Thomas] reach into and pull something


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      out of her mouth right before the victim sustained her injuries.
      (N.T. 7/19/13 p. 97-98.)

             Moreover, the victim identified [Thomas] unequivocally as
      her attacker three separate times before formal proceedings
      began: at the scene when the victim punched [Lucas] because
      her mother, [Thomas], cut her; at the hospital to the police
      officers[;] and in a photo array fourteen days after the attack.
      (N.T. 7/19/13 p. 46, 56-57, 63, 130, 133-34; N.T. 7/22/13 p. 8-
      9.)

           Consequently, there was sufficient circumstantial evidence
      from which the jury could reasonably infer that it was [Thomas]
      who slashed the victim’s throat and arm.[FN]
          [FN]
              Although there was some evidence from which the
          jury could infer that it was [Lucas,] and not [Thomas,]
          who slashed the victim’s throat and arm, it was certainly
          reasonable and within the jury’s province to disregard
          that evidence and conclude, based on other evidence,
          that it was, in fact, [Thomas] who slashed the victim’s
          throat and arm.

Trial Court Opinion, 3/10/14, at 4-5 (footnote in original). We agree with

the trial court’s rationale, and find that it is supported by the record.

      Additionally, we observe that, regarding Thomas’s contention that Byrd

had stated to a detective after the incident that Lucas was the person who

cut the victim, Byrd testified at trial that the detective incorrectly reported

her account of the attack. See N.T., 6/19/13, at 101-02, 105-07. It was

the province of the jury to assign the weight to these conflicting accounts.

See Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011).

Additionally, the jury could have considered the fact that Thomas fled the

scene after the incident as circumstantial evidence that she was the

perpetrator. See Commonwealth v. Spotz, 84 A.3d 294, 316 (Pa. 2014)


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(noting that flight may constitute circumstantial evidence of consciousness of

guilt).   Accordingly, we conclude that the trial court properly rejected

Thomas’s sufficiency challenge.

      Next, Thomas argues that the trial court erred in denying her post-

sentence Motion challenging the jury’s verdict as against the weight of the

evidence. See Brief for Appellant at 12-14.

      Our standard in reviewing a weight of the evidence claim is as follows:

      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. 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. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Relief on a weight of the evidence claim is reserved for
      extraordinary circumstances, 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. On appeal, [an appellate] Court
      cannot substitute its judgment for that of the jury on issues of
      credibility, or that of the trial judge respecting weight. Our
      review is limited to determining whether the trial court abused
      its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted).



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      Initially, we   observe      that Thomas      raises essentially      the    same

arguments in support of her weight claim as she did in her challenge to the

sufficiency of the evidence. See Brief for Appellant at 13-14; see also id.

at 14-16 (setting forth Thomas’s argument concerning her sufficiency claim).

Particularly,    Thomas    challenges    the    jury’s    credibility   determinations

concerning the Commonwealth’s witnesses, and contends that the evidence,

and reasonable inferences to be drawn therefrom, more credibly indicated

that Lucas was the perpetrator. See id. at 13-14. According to Thomas,

“[i]t was [Lucas] who was the aggressor in this whole sorry incident.                   …

[Lucas] had both the motive and the opportunity[,] and based upon [the

victim’s] observation that [Lucas] threw something into a sewer[,] had

possession of the cutting implement.”           Id. at 13.      Additionally, Thomas

contends that the jury’s credibility determinations were so erroneous as to

shock one’s sense of justice. See id. at 14 (arguing that no reasonable jury

would have credited the testimony of Byrd that “[Thomas] reached into her

mouth or a razor blade or other cutting instrument while trading punches

with Thompson ….”).

      In   the   instant   case,   the   jury   credited    the   testimony       of   the

Commonwealth’s witnesses, and we may not reweigh the evidence or

substitute our judgment for that of the jury.            See Sanchez, supra; see

also Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009)

(holding that the trial court properly exercised its discretion in denying a



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weight challenge where appellant asked this Court to reweigh the evidence).

To the extent that there were purported conflicts in the testimony presented

by some of the Commonwealth’s witnesses, the jury assessed the weight, if

any, to be given this evidence.   See Ratushny, 17 A.3d at 1272 (stating

that it is exclusively the province of the fact-finder to determine the weight

to be accorded conflicting evidence). We discern no abuse by the trial court

in rejecting Thomas’s challenge to the weight of the evidence.

      Accordingly, because we conclude that there was sufficient evidence to

support each of Thomas’s above-mentioned convictions, and the trial court

properly rejected Thomas’s weight of the evidence claim, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2014




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