J-S04021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DAVID MICHAEL BEECH
Appellant No. 1020 MDA 2020
Appeal from the Judgment of Sentence June 2, 2020
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000002-2019
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 8, 2021
Appellant, David Michael Beech, appeals from his judgment of sentence
of thirty to sixty months’ imprisonment for strangulation, simple assault and
harassment.1 Appellant challenges the sufficiency and weight of the evidence
and contends that the trial court erred in admitting photographs taken by the
victim of these crimes. We affirm.
The record reflects that the female victim and Appellant had been in a
relationship from 2015 to 2018. For most of the relationship, the couple lived
together in a house owned by the victim’s parents. During the last two years
of the relationship, Appellant abused the victim verbally and physically, often
because of Appellant’s jealousy. As a result, the victim could not maintain a
job and relied on Appellant to provide for her financially.
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1 18 Pa.C.S.A. §§ 2918, 2701, and 2709, respectively.
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On November 5, 2018, Appellant and victim mutually ended their
relationship. Although Appellant moved out of the home, he took the victim’s
car with him. On November 14, 2018, the victim went to the State Police in
an attempt to retrieve the vehicle. Trooper Ryan Bivens spoke to the victim
and became concerned by her timid demeanor and her need to involve the
police in a vehicle dispute. The victim told Trooper Bivens she came to the
police to avoid confrontation with Appellant, and she revealed various
instances of abuse she had endured during her relationship with Appellant.
In particular, the victim told Trooper Bivens about the instance of abuse
leading to Appellant’s conviction for strangulation and other offenses. During
the late evening on September 25, 2018, Appellant and victim began arguing
over texts on the victim’s cell phone. The argument began verbally but
Appellant became physically abusive when the victim tried to walk away. The
victim testified that when she turned her back towards Appellant, he
approached her from behind, grabbed her by the neck and put a chokehold
on her. The victim could not recall exactly how long Appellant strangled her
but testified that Appellant held her for “what felt like a long time” until she
could not breathe. N.T. 2/4/20, at 12. Only when the victim collapsed did
Appellant finally release her from the chokehold. Lightheaded and flustered,
the victim retreated to her bedroom in an attempt to find safety. Because of
this incident, the victim’s eyes were bloodshot for weeks, she had marks and
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bruises around her neck, her throat was sore and raspy for months, and she
had redness on the roof of her mouth.
Throughout the relationship, the victim took photos of the most severe
injuries caused by Appellant in the hope of reporting the abuse one day. The
day after the incident in question, the victim took photographs on her Android
cell phone of the injuries caused by Appellant’s abuse. Fearful Appellant may
go through her cell phone and view the pictures, the victim printed the photos
at Walmart and deleted them from her phone immediately afterward. At trial,
the Commonwealth introduced ten photographs depicting her injuries
sustained during the incident. The photographs showed the bruises on her
neck, her bloodshot eyes, the redness on her throat and a laceration on her
forehead.
Trooper Bivens testified that these photographs showed various injuries
related to strangulation. He mentioned that the extreme bruising around the
victim’s neck and throat area clearly indicated strangulation. He also
concluded that the victim suffered petechiae (stress of the blood vessels) in
both eyes due to oxygen deprivation.
Although Appellant’s charges relate solely to the September 25, 2018
incident, the victim reported three other instances of abuse to Trooper Bivens.
About one year into their relationship, Appellant pushed the victim so hard
she hit her head on the floor. On another occasion, Appellant suffocated the
victim by putting blankets over her head. Finally, in early 2018, Appellant
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injured the victim’s arm to the point where she thought it may be broken.
Similar to her documentation of the September 25, 2018 strangulation, the
victim printed photographs of her arm so she could report the abuse one day.
In addition to the physical altercations, Appellant broke two of the victim’s cell
phones in a jealous rage and caused damage to the house.
When questioned why she did not report her abuse to the police earlier,
the victim stated “just out of fear of him still being there, what he would do
to me or my house.” Id. at 14. The victim elaborated that she feared
Appellant would again abuse her, break things in her house, or even burn her
house down. Further, she felt stuck in the relationship because of her
dependence on Appellant as the sole financial provider.
On cross-examination, defense counsel attempted to weaken the
victim’s credibility by suggesting that her testimony was inconsistent.
Defense counsel suggested that the victim testified that Appellant used his
arm to perform the chokehold, but she told Trooper Bivens that Appellant used
both his hands when attacking her. The victim clarified that Appellant’s arm
had been across her throat while both his hands were applying pressure to his
grip. N.T. 38, 55.
Shortly after the victim disclosed her abuse on November 14, 2018,
Trooper Bivens arrested Appellant. During the arrest, Trooper Bivens said,
“I’m here on a domestic violence strangulation.” N.T. 67. Before Trooper
Bivens could say anything else relating to the incident or victim, Appellant said
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“this occurred over a month [ago],” and he could not believe Trooper Bivens
was there talking to him. N.T. 67.
Prior to trial, the trial court denied Appellant’s motion in limine to
exclude the victim’s photographs of her injuries. The jury found Appellant
guilty of strangulation and two counts of simple assault, and the trial court
found Appellant guilty of the summary offense of harassment. Following
sentencing, Appellant filed timely post-sentence motions, which the court
denied, and a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
I. Whether the evidence was insufficient to support the jury’s
verdict of guilty as to the charge of strangulation?
II. Whether the verdict of guilty as to the charge of strangulation
was against the weight of the evidence presented at trial?
III. Whether the trial court erred in allowing the admission of
photographs purportedly taken by the alleged victim?
Appellant’s Brief at 6.
In his first argument, Appellant challenges the sufficiency of the
evidence underlying his conviction for strangulation. When reviewing the
sufficiency of the evidence, we must determine whether the evidence admitted
at trial and all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. Commonwealth
v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he facts and circumstances
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established by the Commonwealth need not preclude every possibility of
innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–26 (Pa.
Super. 2016). It is within the province of the fact-finder to determine the
weight to accord to each witness’s testimony and to believe all, part or none
of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–93 (Pa.
Super. 2015). The Commonwealth may sustain its burden of proving every
element of the crime by means of wholly circumstantial evidence.
Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super. 2018). As an
appellate court, we may not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d
994, 1001 (Pa. Super. 2015). Furthermore, “the uncorroborated testimony of
a victim, if believed by the trier of fact, is sufficient to convict a defendant . .
.” Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018).
A person commits the offense of strangulation if he “knowingly or
intentionally impedes the breathing or circulation of the blood of another
person by . . . applying pressure to the throat or neck.” 18 Pa.C.S.A.
§ 2718(a)(1). Here, the victim testified that Appellant attacked and choked
her to the point that she had been unable to breathe, causing sustained
injuries. The Commonwealth also presented photographs of the victim’s
injuries as well as Appellant’s admission to a state trooper that he was aware
of the incident. Viewed in the light most favorable to the Commonwealth, this
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evidence was more than sufficient to support Appellant’s conviction for
strangulation.
In his second issue, Appellant argues the guilty verdict on strangulation
was against the weight of the evidence. Our Supreme Court has instructed:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence 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 judge is to determine that notwithstanding all the facts,
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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and
quotation marks omitted). “A motion for 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.” Commonwealth v. Widmer, 744
A.2d 745, 751 (Pa. 2000). This Court does not step into the shoes of the trial
court to revisit the question of whether the verdict was against the evidence.
Rather, our task is to “analyze whether the trial court abused its discretion by
reaching a manifestly unreasonable judgment, misapplying the law, or basing
its decision on partiality, prejudice, bias, or ill-will.” Clay, 64 A.3d at 1056.
A new trial should only be awarded “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. Id. at
1055.
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Here, during trial, the jury heard the victim testify that Appellant
strangled her to the point she could not breathe and had lasting injuries. The
jury also saw the photographs taken by the victim depicting the injuries
caused by Appellant’s act. Further, the jury listened to Trooper Bivens testify
that the injuries depicted in the photographs were consistent with
strangulation. In response to this evidence, defense counsel cross-examined
both the victim and Trooper Bivens as to the alleged discrepancy between the
victim’s statement to the trooper and her trial testimony. Counsel also
suggested that the photocopies of the victim’s photographs were not authentic
because she deleted the originals from her cell phone. The jury, as the sole
finder of fact and judge of each witness’s credibility, weighed this evidence
and found the Commonwealth’s evidence credible. The trial court observed
that the “inconsistencies in the Commonwealth's evidence did not strike the
court as particularly significant, and in any event were for the jury to resolve
in evaluating the strength of the prosecution, as was the import, if any, to be
accorded the photographs. Accordingly, the court did not find the verdict
shocking, as being contrary to the weight of the evidence.” We conclude that
this determination was well within the trial court’s discretion.
Finally, Appellant argues that the trial court erred by admitting the
victim’s photographs of her injuries into evidence, challenging authenticity,
the fact the originals were destroyed, and that the originals had to be
produced. The admissibility of evidence is a matter within the sole discretion
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of the trial court. Commonwealth v. Woeber, 174 A.3d 1096, 1100 (Pa.
Super. 2017). We conclude the trial court acted within its discretion by
admitting the photographs.
Under Pennsylvania Rule of Evidence 1002, “[a]n original writing,
recording, or photograph is required in order to prove its content unless these
rules, other rules prescribed by the Supreme Court, or a statute provides
otherwise.” Pa.R.E. 1002. The comment to the rule notes that “[t]his rule
corresponds to the common law ‘best evidence rule.” Comment, Pa.R.E. 1002.
“For electronically stored information, ‘original’ means any printout—or other
output readable by sight—if it accurately reflects the information. An ‘original’
of a photograph includes the negative or a print from it.” Pa.R.E. 1001(d).
“A duplicate is admissible to the same extent as the original unless a
genuine question is raised about the original’s authenticity or the
circumstances make it unfair to admit the duplicate.” Pa.R.E. 1003. “In those
cases where the opposing party raises a genuine question as to the
authenticity or fairness of using a duplicate, the trial court may require the
production of the original under this rule.” Comment, Pa.R.E. 1003. Finally,
under Pennsylvania Rule of Evidence 1004, “[a]n original is not required and
other evidence of the content of a writing, recording, or photograph is
admissible if . . . all the originals are lost or destroyed, and not by the
proponent acting in bad faith.” Pa.R.E. 1004(a).
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Here, the victim authenticated the photographs by testifying that she
took the photographs with her cell phone and made photocopies of the
photographs at a Walmart. Pa.R.E. 901(a)(1) (item may be authenticated by
a “witness with knowledge,” through “testimony that an item is what it is
claimed to be”). Second, the prints introduced at trial qualified as “originals”
under Pa.R.E. 1001(d). In this regard, a print of a photograph from a
cellphone is no less an “original” than a print of a photograph from a film.
Third, had the photographs not qualified as originals, they could be considered
the functional equivalents of duplicates, sufficient under the circumstances to
satisfy the purposes under Pa.R.E. 1002 for admission. Finally, given that the
victim provided a plausible explanation for the unavailability of the
photographs on her cellphone, the photographs would have been admissible
under Pa.R.E. 1004 because the originals were not destroyed in bad faith.
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/08/2021
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