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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ARCHIE G. MOSSES
Appellant No. 3504 EDA 2015
Appeal from the Judgment of Sentence November 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013782-2014
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JULY 24, 2017
Archie G. Mosses appeals from the aggregate judgment of sentence of
three to six years incarceration followed by a five year period of probation
imposed following his bench trial convictions for, inter alia, prohibited
possession of a firearm and simple assault. We affirm.
The trial court thoroughly set forth the facts established by the
Commonwealth and we adopt its summation as our own.
The incident in this case took place on November 20, 2014. On
that day at approximately 11:00 a.m., the Complainant, Latia
Mosses, became involved in a verbal altercation with her
husband, Appellant Archie Mosses, in the bedroom of their
home. Their three-year-old child was in the bedroom with them
at this time. The altercation became violent as Mr. Mosses
began choking Ms. Mosses with his hands and slamming her
around the bedroom. Appellant also pulled Complainant's hair,
causing her braids to rip out from her scalp. Complainant
attempted to free herself by biting and scratching the Appellant.
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At one point in the scuffle, Appellant threw Complainant onto the
bed and retrieved a gun from the nearby closet. Appellant
pointed the gun at Complainant and told her he would "blow her
fu**ing head off.”
The Appellant's brother then came into the bedroom and took
the gun from Appellant saying, "You know the safety isn't on."
Appellant's brother then went back downstairs, taking both the
gun and the three-year-old child with him. Complainant and
Appellant continued to fight and Appellant began poking
Complainant in the face with a screwdriver. Complainant finally
ran downstairs with Appellant following behind her. Appellant
asked his brother for the gun back, but his brother refused.
Complainant then grabbed a knife from the kitchen to defend
herself, but Appellant continued to walk toward her, saying "You
think I won't still beat you the fu** up because you got a knife."
Complainant dropped the knife and left for her aunt's house in
order to call the police.
When the police arrived, they noted that the Complainant had
bruising under her left eye and red marks around her neck.
Police then took the Complainant back to her home where she
positively identified the Appellant. Police retrieved the firearm
from the Appellant's brother who stated the firearm was his and
that he had a license to carry permit. Records revealed the
Appellant did not have a permit to carry a firearm. Complainant
was then transported to the Northwest Detective Division
(NWDD) where she was interviewed and had photographs taken
of the bruising under her left eye, redness to the left side of her
face, bruising to her left wrist, and red marks around her neck.
Trial Court Opinion, 7/19/16, at 3-4 (citations omitted). Appellant was
charged with aggravated assault, prohibited possession of a firearm,
possession of an instrument of crime, terroristic threats, simple assault, and
recklessly endangering another person. Following a bench trial, Appellant
was acquitted of aggravated assault and convicted of the remaining
offenses, and the trial court imposed the aforementioned sentence.
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Appellant did not file post-sentence motions but filed a timely notice of
appeal. Appellant complied with the trial court’s order to file a concise
statement of matters complained of on appeal and the court authored its
opinion in response. Appellant raises four claims for our review.
1. Whether the verdict is against the weight of the evidence
where there is insufficient evidence to establish that Defendant
possessed a firearm, constructively or otherwise during the
commission of the alleged crime where no weapon was found
inside the property only one being legally carried by Appellant's
brother.
[2]. Whether the trial court erred in finding that the defendant
was guilty of simple assault where there were no medical records
of the alleged victim, and where the victim did not seek medical
treatment for approximately one (1) day.
[3]. Whether the trial court erred when it permitted and took
into consideration evidence of the defendant's past conduct
which was improperly referred to by the complaining witness on
cross examination.
4. Whether the [t]rial [c]ourt erred in permitting the
Commonwealth to present prison tapes for which there was no
proper foundation or authentication, the content of which
contained prejudicial material and which prejudiced the outcome
of the trial.
Appellant’s brief at 4-5 (second and third issues reordered for ease of
discussion).
Appellant’s first issue concerns his conviction for prohibited possession
of a firearm. Appellant conflates two distinct concepts: weight and
sufficiency. The two claims have different standards of review as well as
separate remedies. A claim stating that the evidence was insufficient to
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support the verdict asserts that the evidence set forth by the Commonwealth
failed to meet all the elements of the pertinent crime. In reviewing the
sufficiency of the evidence we
must determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. It is well-established that the
Commonwealth may sustain its burden of proof by means of
wholly circumstantial evidence and the jury, while passing upon
the credibility of witnesses and the weight of the evidence, is
free to believe all, part, or none of the evidence.
Commonwealth v. Yandamuri, 159 A.3d 503, 514 (Pa. 2017) (quotation
marks and citations omitted). Whether the evidence was sufficient to
support the conviction presents a matter of law; our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Walls, 144
A.3d 926, 931 (Pa.Super. 2016) (citation omitted). A successful sufficiency
challenge requires discharge. Commonwealth v. Ford, 141 A.3d 547, 552
(Pa.Super. 2016).
A claim attacking the weight of the evidence, on the other hand,
concedes that there is sufficient evidence to support the verdict, but
questions which evidence the fact-finder should have believed. Thus, a
successful weight challenge requires a new trial. Commonwealth v. Clay,
64 A.3d 1049, 1055 (Pa. 2013). A weight claim must first be presented to
the trial court and therefore must be preserved in a post-sentence motion.
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As we explained in Commonwealth v. Konias, 136 A.3d 1014, 1022
(Pa.Super. 2016):
When we review a weight-of-the-evidence challenge, we do not
actually examine the underlying question; instead, we examine
the trial court's exercise of discretion in resolving the challenge.
Commonwealth v. Leatherby, 116 A.3d 73, 82 (Pa.Super.
2015). This type of review is necessitated by the fact that the
trial judge heard and saw the evidence presented. Id.
Id. at 1022.
Appellant did not file a post-sentence motion. Thus, any challenge to
the weight of the testimony presented has been waived. We therefore
examine his claim as a sufficiency of the evidence claim.
Appellant first challenges the sufficiency of the evidence supporting the
firearms charge. The Commonwealth must prove the following:
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use,
control, sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S. § 6105. The parties stipulated that Appellant had been convicted
of an offense enumerated in subsection (b). N.T., 6/19/15, at 57.
Therefore, at issue is whether Appellant “possess[ed] . . . a firearm[.]”
Possession of a firearm may be proven by wholly circumstantial evidence.
Commonwealth v. Buford, 101 A.3d 1182, 1189 (Pa.Super. 2014).
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Appellant’s legal argument assumes that Ms. Mosses’ testimony was
not worthy of belief, and relies upon the favorable testimony given by
Appellant’s brother, Hiram. “Hiram Mosses testified that his brother never
possessed the gun and there was not a firearm in the house.” Appellant’s
brief at 17. However, we are required to view all of the evidence in the light
most favorable to the Commonwealth as verdict winner, and “[p]recedent
forbids us from substituting our judgment of facts for that of the fact-finder.”
Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa.Super. 2014). Ms.
Mosses testified that Appellant retrieved a firearm, pointed it at her, and
threatened to blow off her head. Furthermore, while no explanation was
necessary, the victim supplied an answer as to why Appellant’s brother
possessed the firearm, as she stated that Hiram came upstairs and took the
gun from Appellant during the incident. N.T., 6/19/15, at 14. Hence, the
evidence was plainly sufficient to sustain the firearm charge.
Appellant’s next sufficiency challenge is to the simple assault
conviction. To establish the crime of simple assault, the Commonwealth
must establish that the actor “attempt[ed] to cause or intentionally,
knowingly or recklessly cause[d] bodily injury to another.” 18 Pa.C.S. §
2701. Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S. § 2301. Substantial pain may be inferred from
the circumstances surrounding the physical force used. Commonwealth v.
Smith, 848 A.2d 973 (Pa.Super. 2004) (citing Commonwealth v. Ogin,
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540 A.2d 549, 552 (Pa.Super. 1988)). Moreover, “The Commonwealth need
not establish the victim actually suffered bodily injury; rather, it is sufficient
to support a conviction if the Commonwealth establishes an attempt to inflict
bodily injury.” Commonwealth v. Martuscelli, 54 A.3d 940, 948
(Pa.Super. 2012). That intent may be shown by circumstances which
reasonably suggest the defendant intended to cause injury. Id.
Appellant alleges that the prosecution did not introduce medical
records and therefore failed to prove bodily injury. He states that “[t]here is
no evidence that there was any impairment of physical condition or
substantial pain and that there was any intent to do so.” Appellant’s brief at
20. Viewing the evidence in the light most favorable to the Commonwealth,
as we must, the victim testified that Appellant choked her, threw her into
the wall and floor of the room, and pulled out handfuls of her hair. Id. at
12. Ms. Mosses reviewed photographs depicting her injuries, which included
bruising, a black eye, and bald spots where her hair was ripped from the
scalp, and she confirmed that these injuries resulted from Appellant’s attack.
This testimony constitutes direct evidence of bodily injury, and, while the
victim did not directly testify to substantial pain, we find that the
Commonwealth inferentially established substantial pain under these facts.
Additionally, the Commonwealth clearly presented sufficient evidence for the
fact-finder to conclude that Appellant intended to cause bodily injury.
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Therefore, the Commonwealth proved both actual bodily injury and an
attempt to cause bodily injury. No relief is due.
Appellant’s third issue involves the presentation of prior bad acts
testimony. The alleged error concerns a statement by the victim. During
cross-examination, counsel asked Ms. Mosses multiple questions regarding
Appellant’s affair with another woman, Christina Edwards, suggesting that
the victim was the aggressor and concocted the story of Appellant’s assault.
Q. Do you know Christina Edwards?
A. Yes.
Q. And you knew of her on November 20, 2014?
A. No.
Q. You didn't know of her then?
A. To my knowledge she was no longer in the picture and no
longer existed. Anytime was he sure he wanted [sic] to be a
family with myself and our daughter, he convinced me that he
did. I had no reason to think she was still part of our lives.
Q. You were aware of the existence prior to November 20?
A. Yes.
THE COURT: There is a Court Reporter. She can't take you both
at the same time.
Q. You would agree that you knew of her and my client's
relationship with her before November 20?
A. Yes.
Q. And you knew he had dated her?
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A. Yes.
Q. And you were in the room on November 20 and you found out
that my client had impregnated her; is that correct?
N.T., 6/19/15, at 30. Appellant then suggested that Ms. Mosses lied about
the gun. In response, Ms. Mosses, clearly frustrated by the questioning, sua
sponte brought up Appellant’s criminal history.
Q. You knew about making gun allegations you would get
immediate response?
A. It is not an allegation, it is truth. I have no reason to lie.
THE COURT: Stop, stop. This is not a fight. Ask a question.
Q. It is the truth that the weapon you are referring to never left
the waistband of his brother throughout the entire incident?
A. That is a lie. The gun was never on Hiram. It was in the
closet. He pulled it out and told me he was going to blow my
f**king head off in front of my three year old daughter. What
are you talking about?
Q. You knew by making a gun allegation things would rise to --
A. Check your client's wrap [sic] sheet. I don't have to lie on
him.
[APPELLANT]: I move for a mistrial.
THE COURT: No. She had not said something.
Id. at 36-37 (emphasis added).
Appellant asserts that this vague reference to Appellant’s criminal
history violated Pa.R.E. 404(b). “[Rule] 404(b)(1) provides that evidence of
‘other crimes, wrongs, or acts is not admissible to prove the character of a
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person in order to show conformity therewith.’" Appellant’s brief at 18.
First, the evidence in question was not admitted by the trial court and
therefore the only issue on appeal is whether the mistrial was improperly
denied. However: “It has long been held that trial judges, sitting as
factfinders, are presumed to ignore prejudicial evidence in reaching a
verdict.” Commonwealth v. Irwin, 579 A.2d 955, 957 (Pa.Super. 1990).
Since the trial court is presumed to have ignored the improper remark, the
mistrial was properly denied.
Finally, Appellant argues that the court erred in permitting the
Commonwealth to present, on cross-examination of Hiram Mosses,
audiotapes for which there was no proper foundation or authentication. Our
review of a trial court's evidentiary rulings applies the following standard.
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. 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. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).
The disputed evidence was as follows. Hiram testified on Appellant’s
behalf and contradicted the victim’s account. On cross, the Commonwealth
asked, “And did you not tell your brother he needs to call [Ms. Mosses] and
tell her to say that none of this happened?” Id. at 78. Hiram denied telling
Appellant to contact his wife. The Commonwealth then announced that it
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intended to play a prison recording from November 25, 2014. Id. at 79.
Appellant objected, stating that the information was never provided to him
in discovery. Appellant was granted a brief recess to listen to the tape.
When the parties reconvened the Commonwealth played the tape,
which was not transcribed by the court reporter.1 Id. at 82. Appellant then
raised an authentication objection. The trial court permitted more
questioning. Hiram stated that the voices on the tape belonged to Appellant
and one of his other brothers, John or Aaron. Following redirect
examination, the trial court specifically stated, “I don’t think it was [Hiram’s]
voice on the phone.” N.T., 7/19/15, at 84.
We find that Appellant is not entitled to relief. Obviously, the
Commonwealth’s goal was to impeach Hiram by establishing that he did in
fact tell Appellant to contact the victim. See Pa.R.E. 613(a) (“A witness may
be examined concerning a prior inconsistent statement[.]”). Hiram denied
that he made the statements in question, leading the prosecutor to attempt
to prove the statement through extrinsic evidence. “An inconsistent
statement may be proved by getting the witness on the stand to admit
making it. But where, as here, the witness does not admit making the
inconsistent statement, it may be proved by extrinsic evidence[.]”
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1
Both parties agree that the recording contains a male voice suggesting to
Appellant that Appellant call Ms. Mosses to have her say that nothing
happened.
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Commonwealth v. Brown, 448 A.2d 1097, 1103–04 (Pa.Super. 1982);
Pa.R.E. 613(b).
The relevance of the extrinsic evidence turned on an authentication
issue, as the tape did not otherwise damage Hiram’s credibility. 2 See
Pa.R.E. 901(a) (“To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.”); Pa.R.E.
104(b) (“When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact
existed.”).3
Since the trial judge explicitly stated that he did not think Hiram’s
voice was on the phone, he determined that the call was not properly
authenticated and was therefore irrelevant to the attempted impeachment.
Furthermore, we presume that the court did not consider the prejudicial
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2
We disagree with the Commonwealth’s assertion that the evidence was
properly authenticated and admitted because Hiram testified that the voices
on the call belonged to Appellant and another brother. Commonwealth’s
brief at 21. That testimony would indeed authenticate the tape, but then the
authentication is no longer proper, as the tape would have become
irrelevant. The fact that Appellant’s other brothers urged Appellant to
contact the victim does not impeach Hiram’s testimony.
3
Rule 901(a) is identical to F.R.E. 901(a). The federal rule’s Advisory
Committee Notes to F.R.E. 901(a) states, “This requirement of showing
authenticity or identity falls in the category of relevancy dependent upon
fulfillment of a condition of fact[.]”
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value of this evidence, e.g. as generally discrediting Appellant based on his
brothers’ actions, in reaching its verdict.4 “When, as here, a case is tried to
the court rather than a jury, we will presume that the court applied proper
legal standards.” Commonwealth v. Hunter, 381 554 A.2d 550, 558
(Pa.Super. 1989) (citation omitted).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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4
The trial court’s opinion addresses the claim in a manner contradictory to
its trial ruling. “Here, the admission of the prison tapes did not result in a
prejudicial result for the trial. The tapes had the proper foundation and were
authenticated by a witness' testimony. As such, this Court determined that
the tapes should have been admissible as evidence.” Trial Court Opinion,
7/19/16, at 10. We examine this issue in the context of the actual ruling
rendered at trial.
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