Com. v. McLaughlin, S.

J-S06019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SAMANTHA MCLAUGHLIN :

:

Appellant : No. 3334 EDA 2017

Appeal from the Judgment of Sentence August 22, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0004617-2016

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED MAY 12, 2021

Appellant Samantha McLaughlin appeals from the judgment of sentence

imposed following her jury trial conviction of aggravated assault—causing

serious injury, aggravated assault—deadly weapon, simple assault—attempt

to cause bodily injury, and possession of an instrument of crime.1 On appeal,

she challenges the weight and sufficiency of the evidence supporting her

conviction and argues that the trial court erred when it admitted hearsay

evidence and improper leading questions during trial. We affirm.

We state the facts as set forth by the trial court:

The underlying charges stem from the report that Appellant []

severely lacerated the throat, neck and face of victim, Darlene

Davis when [Appellant] struck the victim over her head and sliced

her neck with a beer bottle on February 14, 2016 inside Fiddler’s

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a)(1); 2702(a)(4); 2701(a)(1); and 907 respectively.

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Green Tavern located at 7356 Frankford Avenue in the lower

Northeast section of Philadelphia. At the time of the attack, the

victim had been blissfully dancing in a front corner of the bar

unaware of the impending danger.

At trial, a video surveillance tape retrieved from the bar was

repeatedly played for the jury which corroborated eyewitness

accounts of the assault. That video unequivocally displayed the

unabated stalking movement of Appellant from the back of the

establishment through a crowd of bar patrons followed by the

striking and then stabbing motion upon reaching the victim. Ms.

Davis [has] fortunately survived the assault due to the immediate

aid of patrons that slowed the bleeding and emergency treatment

from responding medics followed by immediate transportation to

nearby Aria Hospital, Torresdale Division, where she received life-

saving surgery for her injuries. Those critical injuries included

severe lacerations to her face and neck coupled with substantial

blood loss.

To date, the victim has been disfigured from permanent scarring

the length of her throat to her chest. Multiple eyewitnesses and

the victim at the scene immediately reported to emergency

responders that Appellant was the one who stabbed the victim.

The acknowledged motivating factor for the assault stemmed from

at least one previous physical altercation between the victim and

her relatives with Appellant’s relatives.

* * *

. . . Over the course of trial, the Commonwealth introduced

compelling varied forms of direct and circumstantial evidence from

uniformed police officers, assigned investigators, the victim

Darlene Davis and other eyewitnesses. The Commonwealth and

the defense presented for full viewing numerous times the

recorded video feed that had been obtained from the Fiddler’s

Green Tavern showing various viewing during the time frames at

issue. A broken bottle neck shard of glass that had been

recovered among other broken glass pieces from the bar was

introduced. Analysts reported that no identifiable fingerprint had

been detected upon analysis. The swabs upon portions of the

bottle neck for DNA analysis were not analyzed. Witnesses on

behalf of Appellant also testified as to their version of events and

reflective of their view of Appellant’s character. Closing

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arguments and the final charges were presented in the morning

on May 8, 2016 and the jury returned verdicts later that day.

Trial Ct. Op., 9/7/18, at 1-3.

The jury found Appellant guilty of the aforementioned charges. The trial

court ordered a presentence investigation (PSI) report and a mental health

evaluation. On August 22, 2017, the court sentenced Appellant to five to ten

years of imprisonment followed by five years of probation for aggravated

assault—causing serious bodily injury, and one to five years of consecutive

confinement for possession of an instrument of crime. The court noted that

the charges of simple assault and aggravated assault—deadly weapon both

merged with aggravated assault—causing serious bodily injury. Appellant

timely filed a post-sentence motion challenging the sufficiency and weight of

the evidence.

On September 6, 2017, the trial court denied Appellant’s post-sentence

motion. Appellant subsequently filed a timely notice of appeal and a court-

ordered Pa.R.A.P. 1925(b) statement. The trial court issued its opinion on

September 7, 2018.2 See Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Whether the evidence was insufficient to sustain the verdicts

of aggravated assault, 18 Pa.C.S. § 2702 §§ A, F1, aggravated

assault 18 Pa.C.S. § 2702 §§ A, F2, poss instrument of crime

w/int., 18 Pa.C.S. § 907 §§ A, M1 and simple assault 18 Pa.C.S.

§ 2701 §§ A?

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2 On January 21, 2019, appellate counsel filed an application to withdraw. The

trial court appointed new counsel on September 24, 2020.

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2. Whether the verdicts were against the weight of the evidence

as the surveillance video clearly illustrates that [Appellant] did

not have a weapon, a bottle, in her hand?

3. Whether the verdicts were against the weight of the evidence

as the bottle recovered, the alleged weapon used did not have

[Appellant’s] fingerprints on the bottle?

4. Whether the verdicts were against the weight of the evidence

as the bottle recovered, the alleged weapon used did not have

any blood on the bottle?

5. Whether the trial court improperly allowed hearsay testimony

regarding witnesses testifying that [Appellant’s] brother said

that [Appellant] committed the crime outside the bar?

6. Whether the trial court improperly allowed hearsay testimony

regarding witnesses testifying that people were saying that the

defendant committed the crime?

7. Whether the trial court improperly allowed the prosecuting

attorney to lead witnesses and/or to testify regarding what the

surveillance film demonstrated despite repeated objections by

the defense?

Appellant’s Brief at 7-8.

Sufficiency of Identification Evidence Claim

Appellant’s first issue challenges the sufficiency of the identification

evidence supporting her conviction. See id. at 46, 34. She asserts that the

Commonwealth failed to establish that she was the attacker based on the

uncertainty of some eyewitnesses and the clarity of the surveillance video.

See id. at 35-36, 42-43, 45. Appellant claims that there was no physical

evidence tying her to the attack because the broken bottle used had no blood

or identifiable fingerprints. See id. at 37-38. Finally, Appellant argues that

the testimony failed to establish that she purposefully used a beer bottle to

strike and injure the victim. See id. at 49.

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We apply the following standard when reviewing a sufficiency claim:

Because a determination of evidentiary sufficiency presents a

question of law, our standard of review is de novo and our scope

of review is plenary. In 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.

The facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. It is within the

province of the fact-finder to determine the weight to be accorded

to each witness’s testimony and to believe all, part, or none of the

evidence. The Commonwealth may sustain its burden of proving

every element of the crime by means of wholly circumstantial

evidence. Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the

factfinder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted).

A person is guilty of aggravated assault if she:

(1) attempts to cause serious bodily injury to another, or causes

such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of

human life;

* * *

(4) attempts to cause or intentionally or knowingly causes bodily

injury to another with a deadly weapon[.]

18 Pa.C.S. § 2702(a)(1), (4).

A person is guilty of simple assault if she “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another[.]” 18

Pa.C.S. § 2701(a)(1).

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Finally, a person is guilty of possession of an instrument of crime if she

“possesses an instrument of crime with intent to employ it criminally.” 18

Pa.C.S. § 907 (a). An instrument of crime is defined as “[a]nything used for

criminal purposes and possessed by the actor under circumstances not

manifestly appropriate for lawful uses it may have.” Id. at § 907.

“In addition to proving the statutory elements of the crimes charged

beyond a reasonable doubt, the Commonwealth must also establish the

identity of the defendant as the perpetrator of the crimes.” Commonwealth

v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (citation omitted).

Appellant’s claim relates solely to the sufficiency of the identification

evidence. Accordingly, we limit our discussion to the evidence of that element.

See Commonwealth v. Cain, 906 A.2d 1242, 1244 (Pa. Super. 2006)

(declining to address the sufficiency of evidence supporting every element

where an appellant only challenges identification evidence).

[E]vidence of identification need not be positive and certain to

sustain a conviction. Although common items of clothing and

general physical characteristics are usually insufficient to support

a conviction, such evidence can be used as other circumstances

to establish the identity of a perpetrator. Out-of-court

identifications are relevant to our review of sufficiency of the

evidence claims, particularly when they are given without

hesitation shortly after the crime while memories were fresh.

Given additional evidentiary circumstances, any indefiniteness

and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)

(citations and quotation marks omitted).

Here, in its 1925(a) opinion, the trial court concluded that “each guilty

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verdict was amply supported by overwhelming cumulative and corroborating

eyewitness testimony and physical evidence of Appellant’s liability.” Trial Ct.

Op. at 7. At trial, the Commonwealth introduced the testimony of Alexis Ortiz

who had been dancing with the victim when Appellant approached and then

struck the victim across the right side of her head with a bottle. See N.T.

Trial, 5/2/17, at 9-11. Mr. Ortiz had an unobstructed view of Appellant during

the attack and positively picked her photograph from an array shown to him

by police.3

The Commonwealth also introduced the testimony of Apostolos Vasiliou,

who saw Appellant swing the beer bottle at the victim. He did not see the

bottle connect with the victim’s body, but he testified that immediately after

the attack the victim was bleeding from the neck. See N.T. Trial, 5/3/17, at

35-36.

The victim’s paramour Julio DeLeon testified that after hearing a glass

bottle break, he turned around and saw the victim bleeding. He stated that

after asking her what happened, “she said Sam hit me in the head” and

____________________________________________

3 Appellant’s argument concerning Mr. Ortiz’s statement that the photo of

Appellant “looked like her” demonstrated uncertainty, and his different

descriptions of the color of the bottle with which Appellant struck the victim,

relate to the weight of the evidence. See Commonwealth v. Griffin, 65

A.3d 932, 939 (Pa. Super. 2013) (stating that an argument as to the

“credibility of the Commonwealth’s chief witness” is a challenge to the weight,

not the sufficiency, of the evidence); see also Commonwealth v. Davis,

799 A.2d 860, 864 (Pa. Super. 2002) (reiterating that weight and sufficiency

claims “are discrete inquiries”).

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“pointed towards the door” where Appellant had fled, escaping in a cousin’s

car before police arrived. Id. at 101.

As noted by the trial court,

[a]dditional eyewitness testimony evidence corroborated the

positive identification of the Appellant as the assailant, as well as

the motive and the deliberate method. These sources included

testimony from the victim’s friend Natasha McLean; an

independent, unbiased bar patron Shawn Horochiwsky; the

victim’s mother Nancy Davis; and finally by the victim Darlene

Davis. Each individual recounted their individual perspectives of

the attack that collectively supported the guilty verdicts.

Trial Ct. Op. at 13.

Finally, the Commonwealth also introduced a surveillance video of the

attack which depicted Appellant raise her arm upward and downward in a

striking motion and then lunging toward the victim’s head and neck areas. As

the trial court stated:

The only debatable portion of the video was whether the angle

and lighting provided a view of a bottle in [Appellant’s] hand at

the precise moment of striking and lunging. As to that single

point, evidence displayed the obvious jagged edge neck injuries

along with credible testimony from multiple eyewitnesses and the

victim herself along with the presentation of photographs showing

the resulting numerous shards of glass left at the scene and the

collected broken glass beer bottle neck supported the jury’s

determination that a beer bottle had been used by Appellant as a

deadly weapon to cause this victim serious bodily injury. The

decision of the jury as fact finder was fully supported by the

cumulative direct and circumstantial evidence presented from all

sources.

Id. at 9.

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Viewing the evidence in the light most favorable to the Commonwealth,

as our standard requires, we conclude that there was sufficient evidence

proving that Appellant was the perpetrator of the attack. See Palmer, 192

A.3d 85, 89; Orr, 38 A.3d at 874. Therefore, Appellant’s first issue is

meritless.

Weight of The Evidence Claims

In her next three issues, Appellant alleges that the verdicts were against

the weight of the evidence because the surveillance video from the bar did not

show a bottle in her hand and because broken glass from the bottle did not

have either her blood or fingerprints on it. See Appellant’s Brief at 50.

Therefore, Appellant claims she is entitled to a new trial.

It is well settled that

[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.’” It has often been stated that “a new trial should 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.”

An appellate court’s standard of review when presented with a

weight of the evidence claim is distinct from the standard of review

applied by the trial court:

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge has

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had the opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the findings

and reasons advanced by the trial judge when reviewing a trial

court’s determination that the verdict is against the weight of the

evidence. One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict

was or was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial court

in granting or denying a motion for a new trial based on a

challenge to the weight of the evidence is unfettered. In

describing the limits of a trial court’s discretion, we have

explained:

The term “discretion” imports the exercise of judgment, wisdom

and skill so as to reach a dispassionate conclusion within the

framework of the law, and is not exercised for the purpose of

giving effect to the will of the judge. Discretion must be exercised

on the foundation of reason, as opposed to prejudice, personal

motivations, caprice or arbitrary actions. Discretion is abused

where the course pursued represents not merely an error of

judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the

action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation

omitted and some formatting altered).

Instantly, the trial court concluded that despite the minor

inconsistencies highlighted by Appellant, her weight claims “fail because the

cumulative direct and circumstantial evidence presented before the jury

overwhelmingly proved Appellant’s culpability in every respect.” Trial Ct. Op.

at 5. We discern no basis to disturb the trial court’s ruling denying Appellant’s

weight of the evidence claims. See Soto, 202 A.3d at 97.

Appellant next claims that the trial court erred in allowing hearsay

testimony of Julio DeLeon, who stated: “I asked who hit my fiancé[, the

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victim,] in the head with a bottle and her brother said, my sister did.” N.T.

Trial, 5/3/17, at 107; see Appellant’s Brief at 56-57. Appellant claims that

DeLeon’s statement constituted hearsay and did not fall under the excited

utterance exception. Specifically, she claims that DeLeon did not sufficiently

identify the declarant and could either be Appellant’s brother or the victim’s

brother. Therefore, she alleges the court abused its discretion in applying the

excited utterance exception and admitting the testimony. See Appellant’s

Brief at 60.

This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

Questions concerning the admissibility of evidence are within the

sound discretion of the trial court . . . [and] we will not reverse a

trial court’s decision concerning admissibility of evidence absent

an abuse of the trial court’s 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. If in reaching a

conclusion the trial court over-rides [sic] or misapplies the law,

discretion is then abused and it is the duty of the appellate court

to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations

omitted and some formatting altered).

“Relevance is the threshold for admissibility of evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)

(citation omitted).

Evidence is relevant if it logically tends to establish a material fact

in the case, tends to make a fact at issue more or less probable,

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or tends to support a reasonable inference or proposition

regarding a material fact. Relevant evidence may nevertheless be

excluded if its probative value is outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation

omitted and some formatting altered).

Hearsay is an out-of-court statement made by a declarant, which a party

seeks to offer into evidence to prove the truth of the matter asserted in the

statement. See Pa.R.E. 801(c). Generally, hearsay is not admissible except

as provided by the Pennsylvania Rules of Evidence, by other rules prescribed

by the Pennsylvania Supreme Court, or by statute. See Pa.R.E. 802. “The

rationale for the hearsay rule is that hearsay is too untrustworthy to be

considered by the trier of fact.” Commonwealth v. Charlton, 902 A.2d 554,

559 (Pa. Super. 2006) (citation omitted).

“Exceptions have been fashioned to accommodate certain classes of

hearsay that are substantially more trustworthy than hearsay in general, and

thus merit exception to the hearsay rule.” Id. (citation omitted).

Pennsylvania Rule of Evidence 803(2) concerns one such exception and

defines “excited utterance” as: “A statement relating to a startling event or

condition, made while the declarant was under the stress of excitement that

it caused. When the declarant is unidentified, the proponent shall show by

independent corroborating evidence that the declarant actually perceived the

startling event or condition.” Pa.R.E. 803(2).

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In the present case, the statement in question came from the testimony

of Mr. DeLeon, the victim’s fiancé.

[The Commonwealth]: When you went outside, did anybody say

anything to you?

* * *

[Mr.DeLeon]: I asked who hit my fiancé in the head with a bottle

and her brother said, my sister did.

[The Commonwealth]: When you say “her brother,” are you

talking about Darlene or –

[Mr.DeLeon]: I’m sorry, Samantha’s brother said my sister did.

N.T. Trial, 5/3/17, at 106-07.

In admitting the evidence, the trial court concluded that the comment

qualified as an excited utterance because it was a statement relating to a

startling event made while the declarant was under the stress of the

excitement. The court found that the “remark was made within a few

moments after [the victim] was struck and during the course of the collective

efforts of Appellant’s family members to prevent Mr. DeLeon from pursuing

the fleeing perpetrator and the angry ensuing shoving match.” Trial Ct. Op.

at 22.

Upon review, we find that the recent assault amounts to a startling event

for purposes of the excited utterance exception, and Appellant’s brother’s

statement was about that event. See Pa.R.E. 803(2); see also

Commonwealth v. Gray, 867 A.2d 560, 571 (Pa. Super. 2005) (holding that

a witness who watched the assault of her mother viewed a startling event).

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Further, contrary to Appellant’s claim, DeLeon clearly identified the declarant

as Appellant’s brother, who was at the bar during the assault, and made the

statement while escorting Appellant away from the bar. Accordingly, we

conclude that the trial court did not abuse its discretion when it admitted the

statement under the excited utterance exception to the hearsay rule.

In her sixth issue, Appellant claims that the trial court erred when it

allowed hearsay testimony from the victim and witness Nancy Davis.

However, Appellant fails to identify which statements were inadmissible

hearsay. See Appellant’s Brief at 60-61. Accordingly, because she has failed

to properly develop this argument, she has waived this claim.4 See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)

(holding that “the failure to develop an adequate argument in an appellate

brief may [] result in waiver of the claim under Pa.R.A.P. 2119”) (citation and

quotation marks omitted).

In her final issue, Appellant claims that the trial court abused its

discretion by allowing the prosecutor to ask leading questions and make

improper prosecutorial comments. However, again, Appellant fails to offer

any specific incidents of improper leading questions or prosecutorial

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4 Moreover, even if Appellant had not waived this claim, we would not find an

abuse of discretion in the trial court’s conclusion that “each of the admitted

hearsay statements made by Nancy Davis and the victim [] during their

respective portions of testimony, and as introduced through the other

eyewitnesses and the paramedic, who heard them speak immediately after

the assault, that [Appellant] was the perpetrator, were similarly admissible as

excited utterances.” Trial Ct. Op. at 22.

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comments. Rather, she simply states “the trial court abused its discretion

when it permitted the prosecutor to ask leading questions through the trial

which ultimately prejudiced Appellant” and “throughout most of the trial, the

prosecutor made comments that were, in substance, his own testimony. This

prejudiced the Appellant.” Appellant’s Brief at 62-63. Appellant then cites to

the entirety of the trial transcript. See id. Accordingly, because it is likewise

not properly developed, Appellant has waived this claim as well. 5 See

Beshore, 916 A.2d at 1140.

Accordingly, for the aforementioned reasons, Appellant’s claims are

either meritless or waived. Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2021

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5 Again, even if not waived, we would agree with the trial court’s findings that

improperly leading questions, if objected to, were sustained and the

prosecutor redirected. See Trial Ct. Op. at 23. The trial court never

“erroneously allow[ed] any leading questions that caused introduced

responses that would have impacted the outcome of this full and fair trial.”

Id.

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