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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SEAN FITZPATRICK :
:
Appellant :
No. 1258 WDA 2016
Appeal from the Judgment of Sentence August 2, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001070-2015
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 22, 2017
Appellant, Sean Fitzpatrick, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas, following his jury trial
convictions for simple assault and harassment.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts of this case. Therefore, we have no reason to restate them.
Procedurally, the Commonwealth filed a criminal complaint against
Appellant on July 4, 2015, and a subsequent information charging Appellant
with simple assault and harassment. On July 24, 2015, Appellant waived his
arraignment and entered a plea of “not guilty.” A jury trial ensued on July 5,
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1
18 Pa.C.S.A. §§ 2701(a)(1), 2709(a)(1), respectively.
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2016, at the conclusion of which, the jury convicted Appellant of the
charges. On August 17, 2016, the court sentenced Appellant to three to six
months’ imprisonment for simple assault only, to pay fines and the costs of
prosecution, and to undergo mental health counseling for anger
management. Appellant timely filed a notice of appeal on August 22, 2016.
On August 23, 2016, the court ordered Appellant to file a concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant
timely complied on September 7, 2016.
Appellant raises one issue for our review:
WHETHER THE EVIDENCE WAS LEGALLY AND FACTUALLY
INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY
OF SIMPLE ASSAULT AND HARASSMENT?
(Appellant’s Brief at 7).
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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
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evidence. Moreover, in applying 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). Section 2701 of the
Pennsylvania Crimes Code defines the offense of simple assault, in relevant
part, as follows:
§ 2701. Simple assault
(a) Offense defined.—Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
* * *
18 Pa.C.S.A. §2701(a)(1). Section 2709 of the Crimes Code also defines the
offense of harassment, in relevant part, as follows:
§ 2709. Harassment
(a) Offense defined.—A person commits the crime of
harassment when, with intent to harass, annoy or
alarm another, the person:
(1) strikes, shoves, kicks or otherwise subjects the
other person to physical contact, or attempts or
threatens to do the same;
* * *
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18 Pa.C.S.A. §2709(a)(1).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Nancy D.
Vernon, we conclude Appellant’s sufficiency of the evidence claim merits no
relief.2 The trial court opinion comprehensively discusses and properly
disposes of the question presented. (See Trial Court Opinion, filed October
18, 2016, at 1-6) (finding: evidence presented at trial demonstrated
Appellant caused bodily injury to his two-year-old daughter by hitting her
buttocks in manner that caused bruising and lacerations; although Appellant
argued his actions were justified because force was used to prevent or
punish his daughter’s misconduct, statute on which Appellant relies does not
permit any degree of corporal punishment; statute prohibits “serious bodily
injury, disfigurement, extreme pain or mental distress or gross
degradation”; child’s mother testified her daughter was crying throughout
night, whiny, and unable to sleep in her usual position on her back; such
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2
In his brief, Appellant also challenges the weight of the evidence
concerning each of his convictions. We observe, however, Appellant’s
weight of the evidence claim is waived for appellate review because
Appellant failed to preserve it. See Pa.R.A.P. 302(a) (stating issues not
raised in trial court are waived and cannot be raised for first time on
appeal); Commonwealth v. Wall, 953 A.2d 581 (Pa.Super. 2008), appeal
denied, 600 Pa. 733, 963 A.2d 470 (2008) (explaining claim that verdict was
against weight of evidence shall be raised with trial judge in motion for new
trial orally, on record, at any time before sentencing, by written motion at
any time before sentencing, or in post-sentence motion, pursuant to
Pa.R.Crim.P. 607(A); purpose of rule is to make clear that challenge to
weight of evidence must be raised with trial court or it will be waived).
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behavior displayed child suffered from extreme pain, mental distress, or
gross degradation; moreover, court was distressed by Appellant’s argument
regarding his justification for use of corporal punishment of this kind on his
two-year-old daughter). Accordingly, we affirm on the basis of the trial
court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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