J-S05010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARTIN ANDREW BARTLEBAUGH :
:
Appellant : No. 465 WDA 2017
Appeal from the Judgment of Sentence January 25, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004237-2016
BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 26, 2018
Appellant, Martin Andrew Bartlebaugh, appeals from the judgment of
sentence entered on January 25, 2017, as made final by the denial of
Appellant’s post-sentence motion on February 24, 2017. We affirm.
The trial court provided an able summary of the underlying facts of
this case. As the trial court explained:
[Appellant] was charged with simple assault and
harassment in relation to an incident which occurred on
January 16, 2016 at Lizzie’s [Kitchen] in Whitaker[,
Pennsylvania]. He appeared before [the trial court] for a
non-jury trial from December 14-15, 2016. . . .
The evidence presented at trial . . . established that on
January 16, 2016, [the Victim] was working at [Lizzie’s
Kitchen] . . . when [Appellant] came in and ordered a
[cheesesteak] sandwich. As [the Victim] began to prepare
the sandwich, [Appellant declared] that he [did not] have
any money [and] wanted the sandwich for free. When [the
Victim] refused to give [Appellant] the sandwich for free,
[Appellant] began screaming. [The Victim] asked
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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[Appellant] to leave but [Appellant] refused to do so.
Eventually, [Appellant] went to the back of the store and
blocked the rear entrance. Again, [the Victim] asked
[Appellant] to leave and [Appellant] punched [the Victim] in
the jaw. [The Victim] wrestled [Appellant] to the ground
but eventually released him. At that point, [Appellant] left
the building but remained in the parking lot and continued
to yell and scream. [The Victim] retrieved a baseball bat
and went out to the parking lot, where he again told
[Appellant] to leave. Again [Appellant] refused and began
to taunt [the Victim] regarding the bat and [the Victim]
struck [Appellant] in the outer calf and then went to call the
police. [The Victim] was later seen at [the hospital] for an
injury to his jaw.
Trial Court Opinion, 6/19/17, at 1 and 3.
The trial court found Appellant guilty of simple assault and
harassment.1 On January 25, 2017, the trial court sentenced Appellant to
serve a term of six to 12 months in jail, followed by 12 months of probation,
for his convictions.
Appellant filed a timely post-sentence motion and, within this motion,
Appellant claimed that the trial court’s decision was against the weight of the
evidence because the Victim’s testimony was not credible and the
Commonwealth presented no evidence that independently corroborated the
Victim’s story or injuries. See Appellant’s Post-Sentence Motion, 1/30/17, at
1-2.
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1 18 Pa.C.S.A. §§ 2701(a)(1) and 2709(a)(1), respectively.
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The trial court denied Appellant’s post-sentence motion on February
24, 2017 and Appellant filed a timely notice of appeal. Appellant raises two
claims on appeal:
[1.] Did the trial court abuse its discretion when it allowed
[the Victim’s] testimony regarding what the doctors told
him his alleged injuries were, as the testimony was hearsay,
wholly speculative and without foundation?
[2.] Was the guilty verdict at Count 1 – Simple Assault
contrary to the weight of the evidence because the
Commonwealth’s only witness did not testify credibly, and
the Commonwealth presented no other evidence, such as
surveillance videos or medical records?
Appellant’s Brief at 5.
Appellant first claims that the trial court erred when it allowed the
Victim to testify to “what the doctors told him his alleged injuries were.” Id.
This claim fails.
As this Court has stated:
our standard of review for evidentiary rulings is a narrow
one: when we review a trial court’s ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the trial
court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a ruling
on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party. A
party suffers prejudice when the trial court’s error could
have affected the verdict.
Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa. Super. 2015) (internal
citations and corrections omitted).
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“An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Cameron, 780 A.2d 688, 692 (Pa. Super. 2011). Moreover, since this was
a bench trial, we note that the trial court “is presumed to know the law,
ignore prejudicial statements, and disregard inadmissible evidence.”
Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014).
During the Victim’s direct testimony, the Victim testified as to the pain
he felt and injuries he sustained after Appellant punched him in the face.
The Victim testified:
Q: [] Did you seek medical attention after [the incident]?
A: Yes. I mean, that night I went to [the hospital], when I
went home.
...
Q: Now, do you remember what the doctors said about your
physical condition?
[Appellant’s Attorney]: Object at this point to hearsay,
your Honor. . . .
[Trial Court]: He can testify to his own injuries, not what
the doctor said.
...
Q: What were your injuries?
[Appellant’s Attorney]: Objection. This calls for hearsay.
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[Trial Court]: He can testify to his own injuries.
...
Q: What was wrong with you, if anything, after this
incident, as a result?
A: My face was hurting, so I don’t remember, like I was
thinking it was a jaw or a tooth. So I was, like – I had my
finger up in my mouth and my tooth was in place. So it
didn’t fell, so it must be a jaw.
Q: So do you know whether your jaw was injured in any
way?
[Appellant’s Attorney]: Objection, your Honor, he is not
a doctor.
[Trial Court]: I will overrule.
A: Yes, it got broken, actually like –
[The Commonwealth]: All right. At this time I have
nothing further for this witness and I will offer for cross.
N.T. Trial, 12/14/16, at 13-15.
On appeal, Appellant claims that the trial court erred when it allowed
the Victim to testify that his jaw was broken. Appellant claims that the
statement was inadmissible, as it constituted hearsay.2 Appellant’s Brief at
19.
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2 On appeal, Appellant also claims that the statement was inadmissible, as it
was speculative and without foundation. Appellant’s Brief at 19. Appellant’s
claims regarding the statement being speculative and without foundation are
waived because Appellant did not object to the statement on such bases.
Commonwealth v. Lopez, 57 A.3d 74, 81-82 (Pa. Super. 2012) (“[a] party
complaining, on appeal, of the admission of evidence in the court below will
be confined to the specific objection there made. If counsel states the
(Footnote Continued Next Page)
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“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa.
Super. 2016) (internal quotations and citations omitted); see also Pa.R.E.
801(c). “Hearsay is not admissible except as provided by the Pennsylvania
Rules of Evidence, by other rules prescribed by the Supreme Court of
Pennsylvania, or by statute.” Watley, 153 A.3d at 1040 (internal
quotations, citations, and corrections omitted); see also Pa.R.E. 802.
At the outset, the trial court did not explore how the Victim came to
believe that his jaw “got broken.” See N.T. Trial, 12/14/16, at 13-15.
Therefore, this Court is in no position to analyze whether the statement was
or was not hearsay. Indeed, depending on how severe the injury actually
was, the Victim might or might not have had to rely upon a medical
practitioner’s diagnosis to know whether his jaw was broken.
Nevertheless, Appellant’s claim fails, first, because the trial court
never ruled that the Victim was permitted to testify that his jaw was
broken. Again, on direct, the Commonwealth asked the Victim “do you
remember what the doctors said about your physical condition?” N.T. Trial,
12/14/16, at 13. Appellant objected to this question on grounds of hearsay
(Footnote Continued) _______________________
grounds for an objection, then all other unspecified grounds are waived and
cannot be raised for the first time on appeal”) (internal quotations and
citations omitted).
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and the trial court sustained Appellant’s objection, ruling that the Victim
could “testify to his own injuries, not what the doctor said.” N.T. Trial,
12/14/16, at 13-14 (emphasis added). The Victim then testified that, after
being punched: “[m]y face was hurting, so I don’t remember, like I was
thinking it was a jaw or a tooth. So I was, like – I had my finger up in my
mouth and my tooth was in place. So it didn’t fell, so it must be a jaw.” Id.
at 14. Further, even though Appellant later testified that his jaw “got
broken,” Appellant did not move to strike this statement as being in
contravention of the trial court’s earlier ruling that the Victim could “testify
to his own injuries, not what the doctor said.” See id. at 13-14.
On appeal, Appellant claims that the trial court erred “when it allowed
[the Victim’s] testimony regarding what the doctors told him his alleged
injuries were” and in allowing the Victim to testify as to a medical diagnosis.
Appellant’s Brief at 15-21. Yet, the trial court sustained Appellant’s
objection and, in so doing, prohibited the Victim from testifying as to “what
the doctor said.” N.T. Trial, 12/14/16, at 13-14. Therefore, Appellant
simply cannot claim that the trial court “allowed [the Victim’s] testimony
regarding what the doctors told him his alleged injuries were,” when the trial
court specifically ruled that such testimony was prohibited. See Appellant’s
Brief at 15. Moreover, after the Victim testified that his jaw “got broken,”
Appellant did not move to strike the statement as being in violation of the
trial court’s earlier ruling. As such, Appellant has waived any claim of error
in this regard. See Pa.R.E. 103(a) (“[a] party may claim error in a ruling to
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admit or exclude evidence only: (1) if the ruling admits evidence, a party,
on the record: (A) makes a timely objection, motion to strike, or motion in
limine”).
Secondly, Appellant’s claim fails because he did not suffer any
prejudice by the statement’s introduction. As noted, since this was a bench
trial, we presume that the trial court disregarded inadmissible evidence.
Smith, 97 A.3d at 788. Moreover, Appellant was convicted of simple assault
under 18 Pa.C.S.A. § 2701(a)(1). This section defines simple assault as:
“attempt[ing] to cause or intentionally, knowingly or recklessly caus[ing]
bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). The term “bodily
injury” is then defined as: “[i]mpairment of physical condition or substantial
pain.” 18 Pa.C.S.A. § 2301. Further, we have held: “[t]he Commonwealth
need not establish that the victim actually suffered bodily injury; rather, it is
sufficient to support a conviction if the Commonwealth establishes an
attempt to inflict bodily injury. This intent may be shown by circumstances
which reasonably suggest that a defendant intended to cause injury.”
Commonwealth v. Richardson, 636 A.2d 496, 498-499 (Pa. Super.
1994).
The evidence in this case demonstrates that Appellant punched the
Victim in the face and, in so doing, caused the Victim to suffer the following
injury: “[m]y face was hurting, so I don’t remember, like I was thinking it
was a jaw or a tooth. So I was, like – I had my finger up in my mouth and
my tooth was in place. So it didn’t fell, so it must be a jaw.” N.T. Trial,
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12/14/16, at 14. Therefore, even if Appellant did not break the Victim’s jaw,
the evidence demonstrates that Appellant “attempt[ed] to cause or
intentionally, knowingly or recklessly caus[ed] bodily injury” to the Victim –
and, thus, that Appellant’s action and mindset satisfied the elements of 18
Pa.C.S.A. § 2701(a)(1). See Trial Court Opinion, 6/19/17, at 8 (“Here, [the
Victim] testified that he suffered pain in his face and jaw area. As the
injured person, [the Victim] was certainly permitted to testify regarding
what parts of his body hurt after the assault. Even if [the Victim’s]
statement that his jaw was broken is deemed hearsay, the remaining
statements regarding the location of his pain are admissible and sufficient to
establish the injury necessary for the charge of simple assault”); see also
Richardson, 636 A.2d at 1196 (“[a]ppellant first argues that [the victim]
did not suffer bodily injury because he did not receive any medical treatment
or miss any work as a result of the blow to the face. Such a claim is
frivolous. Appellant cites no authority which states that such consequences
are necessary to sustain a simple assault conviction. [The victim] testified
that [a]ppellant's punch broke his glasses, caused him to stumble
backwards, and caused pain for the next few days. Such testimony was
sufficient to sustain a finding that [a]ppellant actually caused bodily injury to
[the victim]”) (emphasis omitted).
Appellant’s first claim on appeal thus fails.
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Second, Appellant claims that the trial court’s decision, finding him
guilty of simple assault, was against the weight of the evidence. This claim
also fails.
Our Supreme Court has held:
a verdict is against the weight of the evidence only when
the jury’s verdict is so contrary to the evidence as to shock
one’s sense of justice. It is well established that a weight of
the evidence claim is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather,
the role of the trial court is to determine that
notwithstanding all the evidence, 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. A motion for a
new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient
evidence to sustain the verdict; thus the trial court is under
no obligation to view the evidence in the light most
favorable to the verdict winner.
Significantly, in a challenge to the weight of the evidence,
the function of an appellate court on appeal is to review the
trial court’s exercise of discretion based upon a review of
the record, rather than to consider de novo the underlying
question of the weight of the evidence. In determining
whether this standard has been met, appellate review is
limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts
and inferences of record disclose a palpable abuse of
discretion. It is for this reason that the trial court’s denial of
a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
quotations and citations omitted).
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According to Appellant, his conviction for simple assault was against
the weight of the evidence because the Victim’s “testimony was so unreliable
and inconsistent that the trial court should not have believed it” and “the
Commonwealth offered no other evidence to prove its case.” Appellant’s
Brief at 23 and 26. Specifically, Appellant claims that the Victim’s testimony
was not credible because: the Victim’s “claim that he remained entirely
calm and let [Appellant] slug him without instigating that action in any way
was entirely specious;” the Victim “repeatedly testified that he did not
remember key details from the incident;” the Victim’s trial testimony
“contradicted the statements that were made to the police on the night of
the incident;” and, the Victim “flipped his story when being questioned about
the text messages that he and [Appellant] exchanged.” Id. at 22-26.
The trial court sat as the fact-finder in this case and, after hearing
testimony from both the Victim and Appellant, the trial court specifically
found “that the testimony of the [V]ictim was consistent and clear.” N.T.
Trial, 12/15/16, at 47-48. The trial court thus believed the Victim’s
testimony, found Appellant guilty of the charged crimes, and denied
Appellant’s weight of the evidence claim. After reviewing the record, we
conclude that the trial court was well within its discretion to believe the
Victim’s straightforward and clear testimony and to deny Appellant’s weight
of the evidence claim. As such, Appellant’s weight of the evidence claim
fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2018
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