Com. v. Oakes, J.

J-A28041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JESSICA M. OAKES,

Appellant No. 2849 EDA 2014

Appeal from the Judgment of Sentence June 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006574-2013

BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 14, 2015

Appellant, Jessica M. Oakes, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on June 5,

2014. We affirm.

Following a physical altercation with another woman on June 13, 2012,

Appellant was charged with, inter alia, aggravated assault and possession of

an instrument of crime. A jury trial was held on March 27-28, 2014 where

Appellant was found guilty of the above-referenced charges. A presentence

investigation report was ordered. Appellant was sentenced on June 5, 2014,

to two and one-half to five years of incarceration at a state correctional

institution. Additionally, Appellant was ordered to pay court costs and to

complete a graduate equivalency degree (“GED”).
J-A28041-15

Appellant filed a post-sentence motion on June 5, 2014, which was

denied by operation of law on October 6, 2014. On October 8, 2014,

Appellant filed a timely notice of appeal. Appellant was directed to file a

Pa.R.A.P. 1925(b) statement. Appellant complied and the trial court filed a

Pa.R.A.P. 1925(a) opinion.

Appellant presents the following issues for our review,1 which we

reproduce here verbatim:

1. Whether a new trial must be ordered because the court -
contrary to the well-established law of Pennsylvania - abused its
discretion by precluding Ms. Oakes from offering evidence of the
alleged victim’s tumultuous character (specifically evidence of an
additional fight at a Chinese restaurant and a social media profile
wherein the complaining witness described herself as “sweet as
candy but hard as ice”) during trial for the purpose of proving
that the victim was the first aggressor and for the purpose of
impeaching the complaining witness, all of which violated Ms.
Oakes’ rights to confrontation and to present a complete
defense.

2. Whether a new trial must be ordered because the court
abused its discretion when it denied counsel’s reasonable
request for a very brief continuance because his character
witness’ child had a medical emergency and unexpectedly
became unavailable to offer character evidence.

3. Whether a new trial must be ordered because the Court
abused its discretion by denying counsel’s request for a jury
instruction on the law of inconsistent statements (i.e., that the
jury may consider an inconsistent statement for the truth of the
matter asserted) where the inconsistent statement at issue
concerned a material element of the justification defense.

____________________________________________

1
We note that the issues raised in Appellant’s brief are identical to the
issues raised in her Pa.R.A.P. 1925(b) statement.

-2-
J-A28041-15

4. Whether the verdict was against the weight of the
evidence because there was uncontradicted testimony that the
complaining witness pulled Jessica Oakes from her bike and
began attacking her, the foreman of the jury stated that the jury
did not believe that Ms. Oakes meant to harm the victim, and
the Commonwealth failed to sustain its burden to disprove self-
defense beyond a reasonable doubt.

5. Whether the evidence was insufficient to disprove self-
defense beyond a reasonable doubt because there was
uncontradicted testimony that the complaining witness pulled
Jessica Oakes from her bike and began attacking her, the
foreman of the jury stated that the jury did not believe that
Ms. Oakes meant to harm the victim, and in any event the
Commonwealth’s witnesses were so incredible and contradictory
that no probability of fact can be reasonably drawn from their
testimony.

Appellant’s Brief at 11-12.

Upon review of the issues raised, the credibility determinations made

by the trial court, the certified record, the briefs of the parties, and the

applicable legal authority, we conclude that the trial court’s thorough and

well-crafted opinion entered on March 12, 2015, comprehensively and

correctly disposes of Appellant’s issues.2 Accordingly, we affirm Appellant’s

judgment of sentence, and we do so based on the trial court’s opinion. The

parties are directed to attach a copy of that opinion in the event of further

proceedings in this matter.

____________________________________________

2
We note some discrepancy in the trial court’s opinion regarding the date of
the incident at issue in this case. Several times in its opinion the trial court
references the date of the incident as June 5, 2012. As the testimony at
trial reveals, however, the altercation took place on June 13, 2012. N.T.,
3/27/14, at 29, 69, 120.

-3-
J-A28041-15

Judgment of sentence affirmed.

Judge Panella joins the memorandum.

P.J. Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015

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CP~1-CR-0006574-2013 Comm. v. Oakes. Jessica M.
Opinion

IN THE COURT OF COMMON PLEAS OF PIDLADELPHL
FIRST JUDICIAL DISTRICT OF PENNSYL VANI
CRIMINAL TRIAL DIVISION
111 11111111 IH
7268868731

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0006574-2013

v. FIL.ED
MAR 12 ,2015 SUPERIOR COURT
JESSICA M. OAKES O .. inal Appeals Unit : NO. 2849 EDA 2014
f 1rsrTuo1e1s1 Olstnet of PA
OPINION

THOMAS STREET, J. March 12, 2015

I. OVERVIEW.AND PROCEDURAL IDSTORY

The Defendant, Jessica M. Oakes, appeals this Court's Judgment of Sentence. The
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Defendant was arrested and charged with inter alia Aggravated Assault' and Possession of an

Instrument of Crime2 for a June 5, 2012 incident that occurred at or near 22nd and McKean
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Street, Philadelphia, Pennsylvania. A jury trial was held before this Court on March 27-28, '.
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2014. At the conclusion of trial, the Defendant was found guilty of the above charges. A ; I
<

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presentence investigation was ordered. On June 5, 2014, the Defendant was sentenced to _two

and a half (2 Yz) to five (5) years of incarceration at a State Correctional Institution (SCI).

Additionally, the Defendant was ordered to pay impending court costs and to complete a

Graduate Equivalency Degree (GED).

The Defendant filed a post-sentence motion on June 5, 2014. On October 6, 2014, the

motion was denied. On October 8, 2014, the Defendant filed a timely Notice of Appeal. On

October 22, 2014, this Court ordered the Defendant to file a Concise Statement of Errors
1
18 P.A. C.S.A. § 2702
2
18 P.A. C.S.A § 907
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Complained of on Appeal pursuant to Pa. R.A.P. 1925 (b) within 21 days. On November 7,

2014, the Defendant filed the Concise Statement of Errors.

II. FACTUALIDSTORY

Ms. Vitia Wilson, the Complainant, testified that on the morning of June 5, 2012 she took

her two children to school and went to meet her boyfriend, Mr. Richard Jackson, at a doughnut

shop located on 22nd and Snyder Street, Philadelphia, Pennsylvania. (N.T. 3/27/14 pp. 29-30).3

While en route to the shop, she encountered the Defendant riding her bike near the point of

rendezvous. (N.T. 3/27/14 p. 30). A confrontation ensued and the two began fighting. (N.T.

3/27/14 p. 31 ). The Complainant testified that during the scuffle the Defendant took out a pocket

style knife and stabbed her directly above the ribs. (N.T. 3/27/14 pp. 36-38). When the

Complainant discovered that she was bleeding, she sat down outside a nearby store and

screamed. "You stabbed me." "You stabbed me." "We was just out here fighting." "Why did you

have to stab me?" (N.T. 3/27/14 p. 39). Police and emergency personnel arrived. Id. The
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Complainant was transported to the hospital where she underwent treatment for her injuries. Id.

The Complainant was hospitalized for a period of nineteen (19) days. (N.T. 3/27/14 p. 40).

The Complainant first met the Defendant in 2009 at a time when her boyfriend, Mr.

Jackson, was engaged in an argument with his sister outside of the sister's house. (N.T. 3/27/14

p. 35). The Defendant injected herself into the argument. Id. This upset the Complainant and a

quarrel between her, the Defendant, and the Defendant's girlfriend erupted. Id. Although no

physical violence took place, the incident sparked a three year long feud in which the pair often

exchanged words of hostility upon encountering one another. Id.

On cross examination, Defense Counsel referred to the May 2012 preliminary hearing in

which the Complainant admitted confronting the Defendant just prior to the fight. (N.T. 3/27/14
3
All references to the record refer to the transcript of the jury trial recorded on March 27 and March 28, 2014

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p. 49). The Complainant vehemently denied this account and insisted that she never initiated the

confrontation. Id. She stated that she was merely defending herself as she was unable to escape

from the Defendant. (N.T. 3/27/14 pp. 53-55).
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Mr. Richard Jackson, the Complainant's boyfriend, testified that on the morning of June

13, 2012, he was in the doughnut shop oh 22nd and Snyder Street, Philadelphia, Pennsylvania.
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(N.T. 3/27/14 p. 66). Instead of waiting for the Complainant inside the shop as originally . !
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planned, he set out on foot in her anticipated direction. (N.T. 3/27/14 p. 69). As he came within
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half of a block of 22nd and Mckean Street, he saw the Defendant and the Complainant engaged

in a face-to-face confrontation. Id. The Complainant had the Defendant on the ground. Id. Mr.

Jackson stated that he then saw the Defendant pull out a knife and strike the Complainant twice.

Id. The first strike only grazed the victim but the second punctured her lung. (N.T. 3/27/14 pp.

69-70). The Defendant asked him "You want to defend for this bitch?" (N.T. 3/27/14 p. 71).

The Defendant then kicked the Complainant in the face and fled up 22nd Street. Id. Mr. Jackson

stated that he pursued the Defendant but his efforts ended when police arrived on scene shortly

thereafter. Id.

Mr. Jackson further testified that he had known the Defendant since 2006 or 2007. (N.T.

3/27/14 p. 66). The Complainant and the Defendant first became acquainted in 2009 during the

incident in which Mr. Jackson and Mr. Jackson's sister were engaged in a verbal altercation.

(N.T. 3/27/14 p. 67). The Defendant, who was not a party to the dispute, "added her two cents."

Id.. This fueled an argument that culminated into both police intervention and a three year long

hostile relationship between the Defendant and the Complainant. (N.T. 3/27/14 pp. 66-67).

On cross examination, Mr. Jackson admitted that he did not see who initiated the June 13,

2012 incident. (N.T. 3/27/14 p. 75). While he was in the doughnut shop that morning, he and

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the Complainant spoke by phone about meeting at that location. (N.T. 3/27/14 p. 76). Mr.

Jackson reiterated that instead of waiting in the shop, he walked down 22nd Street in the

direction of the Complainant. Id. Upon arriving at McKean Street, he witnessed the

Complainant and the Defendant engaged in the physical altercation. (N.T. 3/27/14 p. 75). Mr.

Jackson reiterated that the Defendant took out a knife, grazed the Complainant with one swipe

and punctured her lung with the second. (N.T. 3/27/14 p. 78). A man walked up and said,

"[d]on't swing the knife, [d]on't swing the knife." Id. This is when the Defendant stated, "[y]ou

want to defend for this bitch" and ran away. Id.

The Defendant, Jessica M. Oakes, testified that she moved to Philadelphia from

Jacksonville, Florida at the age of thirteen (13). (N.T. 3/28/14 p. 17). She met Mr. Richard

Jackson, the Complainant's boyfriend, one year later when she moved to South Philadelphia.

(N.T. 3/28/14 p. 18). Mr. Jackson, in his late twenties (20's) at the time, initially expressed

romantic interest in her. Id. No intimate relationship materialized after the Defendant's mother

approached him and the Defendant herself informed him that she was "into females." Id.

Nevertheless, the Defendant continued to encounter Mr. Jackson. (N.T. 3/28/14 p. 19).

In 2009, she went to his residence to purchase marijuana. (N.T. 3/28/14 p. 20). The

Complainant was present and inquired why the Defendant was speaking with "her man." Id.

The Defendant informed her that she was not talking to Mr. Jackson and that, as she was in fact a

lesbian, she was not romantically interested in him. Id. The Complainant did not believe the

Defendant and an argument began. Id. Thus, the Defendant and the Complainant's relationship

worsened as nearly every encounter between the two resulted in an angry verbal exchange. (N.T.

3/28/14 p. 21). The Complainant harassed and verbally assaulted her with anti-gay slurs. (N.T.

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3/28/14 p. 22). Mr. Jackson also told the Defendant to "stop being gay" and to come· over to his

side so he could engage in sexual relations with her. Id.

The Defendant testified that on June 5, 2012, she encountered Mr. Jackson on 22nd Street

as she rode her bike to a nearby store. (N.T. 3/28/14 pp. 23-25). Mr. Jackson, who was walking

on foot, smiled at her. (N.T. 3/28/14 p. 25). The Defendant did not smile back but did stop her

bike to "assess the situation." (N.T. 3/28/14 pp. 25-26). When the Defendant stopped the

Complainant grabbed her by the hair and pulled her off the bike. (N.T. 3/28/14 p. 26). The bike

fell to the side and the two began fighting. (N.T. 3/28/14 pp. 26-27). The Defendant stated that

Mr. Jackson intervened and punched her three (3) or four (4) times in the head. Id The

Defendant stated that she took out her knife and swung it because she was being attacked by Mr.

Jackson and the Complainant.. (N. T. 3/28/14 pp. 30-31 ). The knife hit the Complainant, thereby

causing her to bleed profusely. (N.T. 3/28/14 p. 31). Mr. Jackson appeared to notice that the

Complainant was bleeding, backed up and called the police. (N.T. 3/28/14 p. 33). Two people

then came up to stop the fight. (N.T.- 3/28/14 p. 34). The Defendant stated that she ran in the

direction of her house because she was scared from having hurt the victim. (N.T. 3/28/14 p. 34).

On cross examination, the Defendant reaffirmed that Mr. Jackson had tried to date her

· when she was just fourteen (14) years old. (N.T. 3/28/14 p. 40). She restated that she purchased

marijuana from Mr. Jackson and that her initial altercation with the Complainant took place

during a marijuana purchase at Mr. Jackson's residence. (N.T. 3/27/14 p. 41).

Dr. Richard Cohn, a qualified expert in forensic toxicology and pharmacology, testified

that the Complainant's urine drug screen administered during her hospital stay was positive for

benzodiazepines and the marijuana metabolite tetrahydrocannabinol (THC). (N.T. 3/27/14 pp.

101-104 ). However, in the absence of additional testing, Dr. Cohn could not be certain when the

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THC metabolites had entered the Complainant's body or whether the presence of THC meant the

Complainant had been in anyway impaired during the incident. (N.T. 3/27/14 p. 101).

On cross examination, Dr. Cohn clarified that drug screening tests only indicate the

presence of marijuana metabolites. (N.T. 3/27/14 p. 106). They do not identify the substance

(i.e. marijuana). (N. T. 3/27 /14 pp. 105-108). Additionally, such screening tests do not reveal the

quantity of metabolite present nor whether the individual being tested is a marijuana user. (N.T.

3/27 /14 p. 113). Dr. Cohn further stated that in cases of emergency medical intervention such as

the Complainant's it may have been appropriate for benzodiazepine to be administered during
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treatment. (N.T. 3/27/14 p; 114). For this reason, the significance of the screening test was

indeterminable. Id.

Philadelphia Police Officer Michael Policella testified that on June 13, 2012, he

responded to a radio call about a female being stabbed at 22nd and McKean Street. (N.T.

3/27/14 p. 121). Upon his arrival, Officer Policella noted that the Complainant was holding her .

left side and that both her shirt and hands were soaked in blood. (N.T. 3/27/14 p. 123).

Nevertheless, Officer Policella was able to converse with both the Complainant and Mr. Richard

Jackson who stated that he witnessed the entire incident. (N.T. 3/27/14 p. 124).

On cross examination, Officer Policella stated that he did not personally witness the

incident. (N.T. 3/27/14 p. 130). In addition, he never saw the Defendant and only received

information about the Defendant's whereabouts through his conversations with the Complainant

and Mr. Jackson. (N.T. 3/27/14 pp. 131-132).

Philadelphia Detective Arthur Maccari testified that on the morning of March 13, 2014 he

arrived at 22nd and Mckean Street after the crime scene had been taped off. (N.T. 3/27/14 p.

145). By the time he arrived, the Complainant had been transported to University of

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Pennsylvania Hospital. (N.T. 3/27/14 p. 147). However, by interviewing the Complainant and
I
the eyewitness (Mr. Richard Jackson) Detective Maccari was able to obtain the Defendant's

name and physical description. Id. A search warrant was issued for the Defendant's residence at

2219 McKean Street and affected on March 16, 2014 but yielded no contact. (N.T. 3/27/14 pp.

148, 152). Police ran the Defendant's identifying information through Lexis Nexis (a computer

software program) and found an address in Jacksonville, Florida. (N.T. 3/27/14 p. 152).

Detective Maccari contacted law enforcement in Jacksonville who then went to the address but i
yielded no contact. (N.T. 3/27/14 p. 156). Over the next year, Detective Maccari periodically
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visited the Defendant's Philadelphia residence but made no contact. (N.T. 3/27/14 p. 157).

Detective Maccari testified on cross examination that he did not know how Lexis Nexis

worked. (N.T. 3/27/14 p. 162). Additionally, he stated that he did not know how far in distance L i
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the Defendant's 2219 Mckean Street residence was from where the Defendant was ultimately

arrested. (N.T. 3/27/14 p. 166).
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Philadelphia Police Officer Michael Navedo testified that on the evening of May 5, 2013, .· I
he encountered the Defendant near 5500 Chester Avenue, Philadelphia, Pennsylvania. (N.T. I
i

3/27/14 p. 176). He believed that theDefendant was in violation of city curfew laws because of

her youthful appearance.· Id. Officer Navedo stopped her, requested her name and address, and

· ran her information through the National Crime Information (NCIC/PCIC) database. Id. The

search revealed that a warrant had been issued on her for aggravated assault. (N.T. 3/27/14 p.

177). Based on this information, Officer Navedo arrested the Defendant and placed her into

custody. (N.T. 3/27/14 p. 178).

On cross examination, Officer Navedo restated that he approached the Defendant

because he believed she·was under the age of sixteen (16). (N.T. 3/27/14 p. 184). He requested
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her name and date of birth. (N.T. 3/27/14 pp. 184 -187). He then ran this information through

the NCIC/PCIC database and learned that the Defendant had a warrant for her arrest. Id

The Commonwealth stipulated with Defense Counsel that the Complainant was admitted

to University of Pennsylvania Hospital on June 13, 2012. (N.T. 3/27/14 p. 95). The parties also

agreed that the Complainant suffered a two (2) inch laceration to the left chest, that a urine drug

screen testified positive for benzodiazepines and THC, and that the Complainant had an

emergency surgery procedure called a left anterolateral thoracotomy. Id Finally, it was also

stipulated that the Complainant remained hospitalized under the care and supervision of Dr.

Daniel Grabo and Steven Allen for nineteen (19) days until she was discharged on July 2, 2012.

(N.T. 3/27/14 p. 96).

III. ISSUES

In the Pa. R.A.P. 1925 (b) Statement of Matters Complained of on Appeal, the Defendant

identifies the following issues:

1. Whether a new trial must be ordered because the court - contrary to
the well-established law of Pennsylvania-abused its discretion by
precluding Ms. Oakes from offering evidence of the alleged
victim's tumultuous character (specifically evidence of an
additional fight at a Chinese restaurant and a social media profile ~. i '
wherein the complaining witness described herself as "sweet as
candy but hard as ice") during trial for the purpose of proving that
the victim was the first aggressor and for the purpose of
impeaching the complaining witness, all of which violated Ms.
Oakes' rights to confrontation and to present a complete defense.
I
!

2. Whether a new trial must be ordered because the court abused its
discretion when it denied counsel's reasonable request for a very
brief continuance because his character · witness' child had a
medical emergency and unexpectedly became unavailable to offer
character evidence.
, II
3. Whether a new trial must be ordered because the Court abused its I
discretion by denying counsel's request for a jury instruction on
the law of inconsistent statements (i.e., that the jury· may consider

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an inconsistent statement for the truth of the matter asserted) where
the inconsistent statement at issue concerned a material element of
the justification defense.

4. Whether the verdict was against the weight of the evidence
because there was uncontradicted testimony that the complaining
witness pulled Jessica Oakes from her bike and began attacking
her, the foreman of the jury stated that the jury did not believe that
Ms. Oakes meant to harm the victim, and the Commonwealth
failed to sustain its burden to disprove self-defense beyond a
reasonable doubt.

5. Whether the evidence was insufficient to disprove self-defense
beyond a reasonable doubt because there was uncontradicted
testimony that the complaining witness pulled Jessica Oakes from
her bike and began attacking her, the foreman of the jury stated
that the jury did not believe that Ms. Oakes meant to harm the
victim, and in any eventthe Commonwealth's witnesses were so
incredible and contradictory that no probability of fact can be
reasonably drawn from their testimony.

IV. STANDARDOF REVIEW

A challenge to the sufficiency of evidence is a question of law. Commonwealth v.

Heater, 2006 PA Super 86, 11, 899 A.2d 1126, 1131 (2006) (citing Commonwealth v. Widmer,

560 Pa. 308, 319, 744 A.2d 745, 751 (2000). The role of an appellate court in reviewing the

weight of the evidence is very limited; Commonwealth v. Holmes, 444 Pa. Super. 257, 264, 663

A.2d 771, 774 (1995). When reviewing a sufficiency of the evidence claim, a court must review

. ·· the evidence and all reasonable inferences in the light most favorable to the Commonwealth as

the verdict winner, and must determine if the evidence, thus viewed, is sufficient to enable the
·I
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fact-finder to find every element of the offense beyond a reasonable doubt. Commonwealth v. I

Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992); Commonwealth v. Marks, 704 A.2d 1095

(Pa. Super. 1997).

A reviewing court may not weigh the evidence or substitute its own judgment for that of

the fact-finder, who is free to believe all, part, or none of the evidence. Commonwealth v.

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Adams, 2005 Pa. Super. 296, 882 A.2d. 496, 498-99 (Pa. Super. 2005). An appellate court may

reverse a lower court's verdict only in the instance that it is so contrary to the evidence as to

shock one's sense of justice. See Commonwealth v. Hunzer, 868 A.2d 498, 506-507

(Pa.Super.2005), appeal denied, 584 Pa. 673, 880 A.2d 1237 (2005). Whether a new trial should

be granted on the ground that a conviction was against the weight of the evidence is addressed to

the sound discretion of the trial judge, and that. decision will not be reversed on appeal absent a

showing of abuse of discretion. Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super..

2004) (citing Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002)).

Additionally, the Commonwealth may satisfy its burden of proof entirely by

circumstantial evidence. See Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 499

(Pa. Super 2005); see also Commonwealth v. Murphy, 2002 PA Super 84, 795 A.2d 1025, 1038-

39 (Pa. Super. 2002) (''The fact that the evidence establishing a defendant's participation in a

crime is circumstantial does not preclude a conviction where the evidence coupled with the

reasonable inferences drawn therefrom overcomes the presumption of innocence.11). "If the

record contains support for the verdict, it may not be disturbed." Adams, 882 A.2d. at 499.

V. DISCUSSION

The Defendant first contends that the trial court erred when it refused to admit certain

specific instances of the Complainant's character. This Court disagrees.

Whether relevant evidence is admitted is a matter fully vested within the trial court's

discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 196 (1985). The trial court must,

in making such determinations, weigh the probative value of the proffered evidence against its

prejudicial impact. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). Ultimately, this

means a trial court's evidentiary ruling is only reversible upon a showing of discretionary abuse.

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Commonwealth v. Bartlett, 446 Pa. 392, 400, 288 A.2d 796, 799-800 (1972). This is more than a

judgment error. Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004). The decision to

include or exclude the evidence must have been either manifestly unreasonable, the result of

partiality, bias, or the result of ill-will. Id. Thus, a discretionary ruling cannot be overturned

simply because the reviewing court disagrees with the trial court's conclusion. In re Semeraro,

511 Pa. 584, 587, 515 A.2d 880, 882 (1986).

Here, the Defendant referenced two specific instances of the Complainant's character: a

video of a fight between the victim and an unidentified female outside of a Chinese store, and a

social media site posting in which the victim allegedly described herself as "sweet as candy but

hard as ice." (N.T. 3/27/14 pp. 4-10). The Defendant asserts that this evidence was admissible

under the Pennsylvania Rules of Evidence to show the victim's violent propensities. Because the

trial court excluded this evidence, the Defendant raises a claim for discretionary error, the

remedy for which is reversal and a new trial.

The Defendant's argument fails for two reasons. First, this Court never substantively

opposed the fight video's admissibility. The Court's primary objection concerned Defense

Counsel's failure to produce the physical video at trial. Due diligence requires that Defense

Counsel have the video readily available to show the Court and the Commonwealth. See Pa. R.

Crim. P. 573. Thus, in an exercise of discretion, this Court refused the evidence because

Defense Counsel failed to do his due diligence.

This Court also objected to the manner in which Defense Counsel sought to introduce the

character evidence. During pre-trial proceedings and during the first day of trial, Defense

Counsel suggested that he would either cross examine the victim about the fight and the contents

of the social media posting or call the victim to testify to them. Such actions are in violation of

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the Pennsylvania Rules of Evidence. The Pennsylvania Rules of Evidence require defendants in : !
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criminal cases to proffer their own evidence of a victim's tumultuous character. See Pa. R. Evid. ; j
'i !
404 (a)(2)(B); Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991). Under the rules, the !

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Defendant is also barred from inquiring into specific instances of conduct without first satisfying .
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Pa. R. Evid. 404(a)(2)(B). See Pa. R. Evid. 405. Accordingly, this Court correctly concluded I'
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that, in the absence of a proffer of evidence, the Defendant could only pursue matters that the

witness opened the door to on cross examination.

Next, the Defendant objects to the Court's denial of a continuance request that was made

when the Defendant's character witness became unavailable. (N.T. 3/28/14 p. 11). The

Defendant maintains the request was reasonable and that the Court committed reversible error

when it barred the witness from testifying at a later date. This Court disagrees. : !
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A decision to grant a continuance based on the absence of a material witness lies within .
: l
the sound discretion of the trial court. Commonwealth v. Smith, 442 Pa. 265, 270 (1975). In this :;. II
respect, a denied continuance request is only reversible upon a showing of discretionary abuse. ;. I

Commonwealth v. Boxley, 596 Pa. 620, 948 A.2d 742, 746 (2008) (citing Commonwealth v.

Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005)). In determining how to utilize its

discretion, the trial court conducts a factor analysis. See Smith, 442 Pa. 265 at 270. Relevant

factors include: 1) whether the absent witness is necessary to strengthen the appellant's case; 2)

the essentiality of the witness to appellant's defense; 3) the diligence exercised to procure the

witness's presence at trial; 4) the facts to which the witness could testify; 5) and the likelihood

that the witness could be produced at the next term of court. Id

Here, the Defendant requested a continuance because a character witness, V alitama

Murray, was unavailable to testify. (N.T. 3/28/14 p. 11). Although Ms. Murray was present

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during the first day of trial, she was absent the day of her scheduled testimony due to an alleged

hospital emergency involving one of her children. (N.T. 3/28/14 p. 15). The Court denied

Defense Counsel's request because the continuance would delay trial as it was the end of the

week and the character witness had proper notice of the trial date. Id. A continuance, based on

Ms. Murray's absence, could not be accommodated. Id Moreover, Defense Counsel made no

mention of how essential Ms. Murray's testimony was to the Defense. Smith, 442 Pa. 265 at

i10. In fact, Defense Counsel never articulated any reason, other than Ms. Murray's

unavailability, for requesting a continuance. (N.T. 3/28/14 p. 15). Thus, this decision was

within the Court's proper discretion and should stand.

Third, the Defendant argues that this Court abused its discretion by denying his request

for a jury instruction on the law of inconsistent statements. The Defendant claims that this

refusal constituted reversible error because the inconsistent statement at issue was an essential

element of the Defendant's justification defense. This Court disagrees.

In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is

the function of the appellate court t? determine whether the record supports the trial court's

decision. Commonwealth v. Thomas, 2006 PA Super 192, 904 A.2d 964 (Pa. Super. 2006)

quoting Lockhart v. List, 542 Pa. 141, 147, 665 A.2d 1176, 1179 (1995). Appellate review of a

trial court's jury instructions is one of deference. Commonwealth v. Demarco, 570 Pa. 263, 271,

809 A.2d 256, 260-61(2002). An appellate court will only reverse a decision to refuse a

proposedjury instruction when that decision constituted an abuse of discretion or an error oflaw.

Commonwealth v. Galvin, 603 Pa. 625, 651, 985 A.2d 783, 798-799 (2009) (citing

Commonwealth v. DeMarco, 570 Pa. 263, 271, 809 A.2d 256, 260-61 (2002).

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Consequently, the trial court has wide discretion in fashioning jury instructions. Atwell v.

Beckwith Machinery Co., 2005 PA Super 132, 872 A.2d 1216, 1222 (Pa. Super. 2005); Angelo v.

Diamontoni, 2005 PA Super 120, 871 A.2d 1276, 1279 (Pa. Super. 2005). Moreover, the trial

court is not required to give every charge that is requested by the parties and its refusal to give a

requested charge does not require reversal unless the appellant was prejudiced by that refusal.

Commonwealth v. Newman, 382 Pa. Super. 220, 555 A.2d 151, 158-159 (Pa. Super. 1989).

Furthermore, for a claim to have validity on appeal, an objection must be raised at the time the

instruction is given. See Commonwealth v. Pressley, 887 A.2d 220, 224-25 (Pa. 2005). If no

objection is raised at the time of instruction, the right to appeal the court's instruction is waived.

Commonwealth v. Russel, 838 A.2d 1082, I093 (Pa.. Super. 2007).

The Court did in fact address inconsistent statements in its jury instructions. (N.T.

3/28/14 pp. 79-81). The Defendant's request for a specific instruction on prior inconsistent

statements and their use as substantive evidence is a matter of judicial discretion according to

relevant authority. See Demarco, 570 Pa. 263 at 271. Furthermore, whether a prior inconsistent

statement constitutes truth is a matter of credibility. Commonwealth v. Adams, 882 A.2d at 498.

This Court addressed this issue thoroughly throughout its jury instructions. (N.T. 3/28/14 pp. 79-

81 ). Thus, because the Court informed the jury of its role in deciding credibility issues,

additional instructions specifically addressing when an inconsistent statement should be

considered true would have been redundant and inconsequential.

The Defendant also never raised a direct objection to the Court's jury instructions at the

time they were given. (N.T. 3/28/14 pp. 70, 99). Thus, the claim is waived as a matter of law.

Commonwealth v. Russel, 838 A.2d 1082, 109 3 (Pa. Super. 2007). The Defendant may not,

under these circumstances, request appellate review. Id

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Fourth, the Defendant argues that the verdict was against the weight of the testimony.

Specifically, the Defendant contends that there was uncontradicted testimony that the

Complainant pulled the Defendant from her bike and attacked her. The Defendant also notes that

the jury foreman stated the jury did not believe that the Defendant meant to harm the

Complainant. This Court disagrees.

To be guilty of Aggravated Assault, a person must attempt to cause serious bodily injury

to another or cause such injury intentionally, knowingly, or recklessly under circumstances

manifesting extreme indifference to the value of human life. 18 Pa. C.S.A. § 2702. To be guilty

of Possessing an Instrument of Crime, one must possess an instrument of crime with intent to

employ it criminally. 18 Pa. C.S.A. § 907. The statute defines an instrument of crime as

anything specially made or specially adapted for criminal use or anything used for criminal

purposes and possessed by the actor under circumstances not manifestly appropriate for the

lawful uses it may have. Id.

Here, the evidence supports the verdict as the jury heard testimony from the

Complainant, Mr. Jackson, and the Defendant herself that the Defendant stabbed the

Complainant and punctured her lungs. (N.T. 3/27/14 pp. 31, 36-70). Additionally, Defense

Counsel stipulated that these actions resulted in Ms. Wilson being hospitalized for nineteen (19)

days. (N.T. 3/28/14 p. 96). Hence, there was sufficient evidence for the jury to conclude that the

Defendant caused the victim serious bodily injury.

Furthermore, there was evidence that the Defendant's actions were committed either

intentionally, knowingly, or recklessly. On direct examination, the victim testified that the fight

began when the two confronted each other. The victim also· stated that .she was unarmed. The

Defendant, by contrast, had a knife. Thus, it was logical for the jury to conclude that the

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Defendant, who not only had a knife but struck the victim twice, was aware that serious bodily

harm could result. Because a defendant's awareness is essential to a fact finder's analysis of the

mental states "knowingly" and "recklessly" it cannot be said that the evidence was insufficient.

In this respect, the Defendant's assertion that the jury did not believe that the Defendant

meant to harm the Complainant is of little consequence. The jury's verdict was based on the

evidence of record. Intent is only one mental state required to prove aggravated assault. 18 Pa.

C.S.A. § 2702. The jury was instructed on all three mental states and permitted to consider each

state when deciding the-Defendant's guilt. For this reason, the Defendant's argument must fail.

There was also sufficient evidence to convict the Defendant for Possession of an

Instrument of Crime. Here, the Defendant had a knife on her that was designed to fix bikes yet

she used it to strike the victim. Striking a person was not the knife's intended purpose. Thus, it

was logical for the fact finder to conclude that the Defendant possessed an instrument of crime

and used it for criminal purposes as defined by the statute.

The Defendant argues in the fifth issue on appeal, that the evidence was insufficient to

disprove self-defense beyond a reasonable doubt. This Court disagrees.

To claim justifiable use of force (self-defense), an actor must believe that force is

immediately necessary to protect himself against the use of unlawful force by another. 18 Pa.

C.S.A. § 505. The defendant has no "burden to prove" self-defense. Commonwealth v. Torres,

564 Pa. 219, 224, 766 A.2d 342, 345 (2001). However, there must be some evidence, from

whatever source to justify a finding of self-defense. Id. If there is any evidence that will support

the claim, then the issue is properly before the fact finder. Id.

A proper self-defense claim places the burden on the Commonwealth to prove beyond a

reasonable doubt that the defendant's act was not justifiable self-defense. Commonwealth v.

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Mcclendon, 874 A.2d 1223, 1229-30 (Pa. Super. 2005). 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. Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super. 2008), appeal

denied, 600 Pa. 743, 964 A.2d 894 (2009) (quoting McClendon, 874 A.2d at 1230).

In this case, it is incorrect to say there was uncontradicted testimony that the Complainant

pulled the Defendant from her bike and began attacking her. This version of events, according to

the trial transcript, is only recounted by the Defendant herself. (N.T. 3/27/14 p. 26). The other

witnesses' testimony was contrary to the Defendant's account. (N.T. 3/27/14 pp. 45-75). Ms.

Wilson, the Complainant, testified that she never confronted the Defendant. Id. Mr. Jackson, the

only other witness near the crime scene corroborated this testimony, testifying that although he

saw the Defendant and the Complainant in a mutual face-to-face confrontation, he did not see the
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fight's beginning. (N.T. 3/27/14 pp. 49-75).

The Defendant also admitted that she stabbed the Complainant, who by all accounts was

unarmed. (N.T. 3/28/14 pp. 30-35). The Defendant also fled the scene and later disposed of the

knife on her way to the park that same day. Id. The Defendant claimed that she received a

busted lip, swollen head, and bruises on her lips as a result of the fight. (N.T. 3/28/14 pp. 47-48).

However, there was no physical or documented evidence that she received any injuries. Id.

Whereas the parties stipulated that the Complainant was hospitalized for nineteen (19) days to

treat her injuries. (N.T. 3/27/14 p. 96). Thus, the jury had evidence to reasonably conclude that

the Defendant's actions did not amount to justifiable self-defense. For this reason, it cannot be

said that there was insufficient evidence to disprove self-defense beyond a reasonable doubt.

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vr, CONCLUSION

For all of these reasons, this Court's decision should be affirmed.

BY THE COURT:

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Dated:~A /2"': 2015

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