J   -S62024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

                 v.


    WILLIAM EDWARD SHAW

                          Appellant            :   No. 993 EDA 2018

         Appeal from the Judgment of Sentence Entered October 5, 2016
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0001461-2016

BEFORE:      LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED JANUARY 07, 2019

        William Edward Shaw appeals from the judgment of sentence entered

on October 5, 2016, after a       jury convicted him of simple assault, endangering
the welfare of        a   child ("EWOC"), and harassment.' Shaw challenges the

sufficiency and weight of the evidence. We affirm.

        The trial court aptly summarized the facts of the case as follows:

                D.S. and B.S. are twin sisters and daughters of [Shaw]. At
        the time of the incident in question, the sisters were 11 years old.
        D.S. and B.S. testified that [Shaw] lived in an RV the distance of
        'football field' away from their mother's trailer, while Detective
        Catherine Coffman stated during testimony that she did not 'even
        think it's that far in distance.' D.S visited [Shaw] 'frequently' after
        [Shaw] moved out of the juveniles' mother's home, while B.S. also
        testified to visiting her father at his RV between his move and the
        incident in question. D.S. identified a bed in [Shaw's] RV as hers
        and noted that she slept at the RV on multiple occasions, and B.S.
        testified that she kept "sleepover clothes" at [Shaw's] RV and


'   18 Pa.C.S.A. §§ 2701(a)(1), 4304, and 2709(a)(1), respectively.
J   -S62024-18


        affirmed that she slept over at the RV prior to the incident in
        question.

              On August 15, 2015, D.S. and B.S. walked from their
        mother's home to [Shaw's] RV, to play with kittens [Shaw] was
        keeping in the RV. D.S. and B.S. were seated on [Shaw's] bed
        playing with the kittens while [Shaw] was sitting at the end of the
        bed. During the visit, B.S. expressed an interest in taking the
        kittens to her mother's home. [Shaw] refused and indicated his
        intention to take the kittens to the Women's Humane Society. A
        verbal argument ensued between [Shaw] and his daughters,
        during which [Shaw] grabbed D.S. by the neck, placing the fingers
        and thumb of one hand around D.S.'s neck and applying pressure.
        D.S. stated during trial that the pressure placed by [Shaw] on her
        neck made breathing difficult. D.S. also testified that as [Shaw]
        grabbed her neck, [Shaw] told her to "get ready to die." B.S. then
        jumped on [Shaw's] back, biting, kicking, and pinching [Shaw] in
        order to prevent him from choking D.S. Following this action,
        [Shaw] released D.S. and pushed both D.S. and B.S. out of the
        RV.

               [Shaw] thereafter emerged from the RV with the kittens in
        a carrying case. [Shaw] carried the case to his truck and placed
        the case in the back. D.S. testified that [when] she attempted to
        retrieve the case from the vehicle, [Shaw] threw D.S. onto the
        hitch of the RV, while B.S. stated during trial that [Shaw] grabbed
        D.S. by the shirt at this point. D.S. then took the case from the
        vehicle, but [Shaw] knocked the case out of her hands, causing
        the case to fall open and allowing the cats to escape. D.S. found
        both cats, and she and B.S. ran to their mother's home with the
        cats. D.S. and B.S. informed their mother of what had happened,
        at which point their mother contacted the police.

               Officer David Gold of the Falls Township Police Department
        arrived at the home of B.S. and D.S.'s mother to respond to the
        call she had made to police. Officer Gold noted that the left side
        of D.S.'s neck showed red markings parallel to one another, each
        approximately the thickness of a finger. The officer further
        observed an abrasion on D.S.'s right arm about the length and
        thickness of a permanent marker, as well as general redness on
        her arm. During trial, the officer also testified that he saw a round
        abrasion about the size of a grapefruit on D.S.'s right thigh, as
        well as a "sharp pea -sized abrasion" on D.S.'s left arm.


                                        -2
J   -S62024-18


              Detective Coffman also testified at trial concerning her
        involvement in this case. As part of her investigation, Detective
        Coffman took pictures of D.S.'s injuries. These photographs
        displayed red marks on D.S's neck, a three -to four -inch red mark
        on her right arm, an injury approximately an inch and a half long
        on her left arm, and some redness and topical abrasion on D.S.'s
        back.

Trial Court Opinion ("TCO"), filed April 25, 2018, at 1-2 (citations to notes of

testimony omitted).

        On October 5, 2016, the    jury found Shaw guilty of the above -referenced
crimes and the trial court sentenced him to one to three years in prison

followed by two years of reporting probation. In March 2018, the trial court

reinstated Shaw's direct appeal rights nunc pro tunc and this timely appeal

followed.

        On appeal, Shaw asks this Court to review the following:

        I.      Was there insufficient evidence to convict [Shaw] of simple
                assault, where, including, but not limited to, the jury
                rejecting the majority of the Commonwealth's case on the
                nine most serious counts, Commonwealth's evidence was
                inconsistent, insufficient mens rea evidence, and insufficient
                evidence of injury?

        II.     Was there insufficient evidence of endangering the welfare
                of a child, where, including but not limited to, the jury
                rejecting the majority of the Commonwealth's case on the
                nine most serious counts, Commonwealth's evidence was
                inconsistent and constitutionally unreliable, insufficient
                mens rea evidence, insufficient evidence of injury, and
                insufficient evidence of how [Shaw] violated any duty of
                care?

        III.    Was the verdict against the weight of the evidence on the
                charge of simple assault, where the Commonwealth relied
                on inconsistent, constitutionally unreliable evidence, the
                jury rejected the majority of the Commonwealth's case
                based upon the same witnesses found incredible on the nine

                                         - 3 -
J   -S62024-18


                most serious charges, and the defense evidence negated
                and outweighed the Commonwealth's evidence?

        IV.     Was the verdict against the weight of the evidence on the
                charge of endangering the welfare of children, where the
                Commonwealth relied on inconsistent, constitutionally
                unreliable evidence, the jury rejected the majority of the
                Commonwealth's case based upon the same witnesses
                deemed insufficient on the nine most serious charges, and
                the defense evidence negated and outweighed the
                Commonwealth's evidence?
Shaw's Br. at 4-5 (answers of trial court omitted).

        We only address Shaw's claims challenging            the sufficiency of the

evidence because he waived any challenge to the weight of the evidence. In

order to preserve     a   challenge to the weight of the evidence,   a   defendant must

make     a     motion before the trial court, which Shaw failed to do. See

Pa.R.Crim.P. 607(A).2 While the trial court's Pa.R.A.P. 1925(a) opinion

addresses the merits of his challenge to the weight of the evidence, the claim

is   still waived. See Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.

2009) (stating trial court's addressing weight claim in Rule 1925(a) opinion

does not preserve         a   weight claim where defendant did not make       a   motion

raising issue with the trial court pursuant to Pa.R.Crim.P. 607(A)). Therefore,

because Shaw did not properly raise and preserve his weight claim, it is waived

and we will not review it.




2          that the verdict was against the weight of the evidence shall be
     A claim
raised with the trial judge in a motion for new trial: (1) orally, on the record,
at any time before sentencing; (2) by written motion at any time before
sentencing; or (3) in a post -sentence motion. Pa.R.Crim.P. 607(A).
                                           - 4 -
J   -S62024-18



         Shaw's remaining issues challenge the sufficiency of the evidence

regarding his convictions for simple assault and EWOC. When reviewing                     a

challenge to the sufficiency of the evidence, we ask "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." Commonwealth v. Brown, 23 A.3d

544, 559 (Pa.Super. 2011) (en banc) (citation omitted). Our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v.   Neysmith, 192 A.3d 184, 189 (Pa.Super. 2018).
SIMPLE ASSAULT SUFFICIENCY

         We first address the sufficiency of the simple assault conviction. The

Commonwealth must prove beyond                a       reasonable doubt that the defendant

"attempt[ed] to cause or intentionally, knowingly or recklessly cause[d] bodily
injury to another." 18           Pa.C.S.A.        §    2701(a)(1).   Bodily injury is the

"[i]mpairment of physical condition or substantial pain." 18 Pa.C.S.A.            §   2301.

"[I]ntent may       be inferred from the circumstances surrounding the incident if

a    specific intent to cause bodily injury may reasonably be inferred therefrom."

Commonwealth v. Polston, 616 A.2d 669, 679 (Pa.Super. 1992).
         Here, Shaw maintains that "[his] conviction [for simple assault] was not

supported by sufficient evidence" for four reasons. Shaw's Br. at 14. We

address each argument separately.

          First, he maintains that "because the unreliability of the complainant

[sic] witnesses were substantially rejected by the jury on the most serious

                                             - 5 -
J   -S62024-18



counts," this shows that his conviction was not supported by sufficient

evidence.    Id.   To begin, Shaw cites no authority to support his argument

regarding this claim and therefore it is waived for purposes of appellate

review. See Pa.R.A.P. 2119(a).3 However, even if Shaw had properly

preserved this claim, we would conclude it lacks merit. "[C]onsistency in

verdicts between counts"      is   not necessary and therefore as long as there   is

"sufficient evidence to support convictions which the jury has returned," there

is no need   to reverse the judgment of sentence.    Commonwealth v. Bricker,
580 A.2d 388, 389 (Pa.Super. 1990). The facts viewed in the most favorable

light to the Commonwealth established that Shaw, the father of D.S. and B.S.,

applied enough pressure to D.S.'s neck with his hands that it left marks on

her neck. The pressure was also so severe that she had difficulty breathing.

Shaw then told his daughter to get ready to die. Additionally, when D.S.

attempted to retrieve the kittens from Shaw's vehicle, he threw her onto the

hitch of another vehicle. These facts were amply sufficient to satisfy the charge

of simple assault and therefore no relief is due.




3   The Pennsylvania Rules of Appellate Procedure provide:

        The argument shall be divided into as many parts as there are
        questions to be argued; and shall have at the head of each part -
        in distinctive type or in type distinctively displayed - the particular
        point treated therein, followed by such discussion and citation of
        authorities as are deemed pertinent.

Pa.R.A.P. 2119(a) (emphasis added).


                                          -6
J   -S62024-18



        Second, Shaw maintains "the claims of physical harm are inconsistent

with the forensic evidence." Shaw's Br. at 14. He claims that D.S.'s testimony

in   court was directly inconsistent with her videotaped statement. At trial she

testified that Shaw applied pressure to her neck with one hand but in her video

statement she claimed he used two hands. Shaw maintains that "[t]his

comparison      is   crucial because there is no forensic or in court live evidence

about two hands, so this is             a   direct inconsistency." Id. at 17. While

inconsistent, the jury believed D.S.'s testimony regarding Shaw using his hand

to restrict her breathing, which it was free to do. See          Commonwealth v.
Boxley, 838 A.2d 608, 612          (Pa. 2003) (stating fact finder is free to believe

all, part or none of the evidence presented to it). Additionally, whatever

inconsistency there may have been between D.S.'s testimony and the forensic

evidence is an issue of weight, not sufficiency.       Id. (stating   a   challenge to the

inconsistency of evidence is      a   proper question of weight not sufficiency). This

claim is meritless and no relief is due.

        Third, Shaw argues that "the Commonwealth failed to establish the

requisite mens rea." Shaw's Br. at 14. He maintains that "[t]here                   is no

competent, credible evidence of any criminal malicious intent nor the proof of

substantial pain, never mind extreme pain."            Id. at   18. We disagree. The

evidence considered in the light most favorable to the Commonwealth as

verdict -winner established that Shaw placed enough pressure around D.S.'s

neck for   a   period of time to partially impair her ability to breathe. The jury

reasonably inferred that he did so at least recklessly. In addition, while he

                                             - 7 -
J   -S62024-18



applied that pressure to D.S.'s neck, he told her to get ready to die. The record

supports    a   finding that Shaw intended to cause bodily injury to his daughter.

As trial court stated:

        The circumstances of this incident clearly suggest an intent by
        [Shaw] to cause injury to D.S., as no reasonable adult male could
        suppose that placing pressure on the neck of an 11 -year -old girl,
        or throwing the same juvenile against an RV hitch, would not
        result in injury.
TCO at 6.

        Finally, Shaw argues that the Commonwealth failed to carry its burden

under Section 509 of the Crimes Code, which relates to the use of force by       a

person with special responsibility to care for another including parents.4 See

Shaw's Br. at 13. He maintains that the Commonwealth "must prove that the



4   Section 509 reads:

                The use of force upon or toward the person of another is
                justifiable if:

                (1)   The actor is the parent or other person similarly
                      responsible for the general care and supervision of a
                      minor or a person acting at the request of such parent,
                      guardian or other responsible person and:

                      a. The force is used for the purpose of safeguarding
                         or promoting the welfare of the minor, including
                         the preventing or punishment of his misconduct

                      b. The  force used is not designed to cause or known
                         to create a substantial risk of causing death,
                         serious bodily injury, disfigurement, extreme pain
                         or mental distress or gross degradation.

18 Pa.C.S.A. § 509(1)
                                         -8
J   -S62024-18



force was designed to create      a   substantial risk of causing death, serious bodily

injury, disfigurement, extreme pain or mental distress or degradation." Id.

However, this claim of      a   justification defense pursuant to Section 509               is

waived     because   Shaw       failed   to    raise       it with   the trial   court.   See

Commonwealth v. Bradley, 69 A.3d 253, 256 (Pa.Super. 2013) (where
Section 509 claim "was not raised before the trial court in any manner,"

including the 1925(b) statement, claim             is   waived); see also Commonwealth

v. Ogin, 540 A.2d 549, 554 (Pa.Super. 1988) (en banc) (reviewing denial of

request for justification defense instruction by defendant where issue was

preserved by raising it with trial court). Here, Shaw did not request                       a

justification defense instruction to the jury and            in fact argued to the   jury that
his daughters were lying about the assault.                  See N.T., Closing Argument,

10/5/16, at 5-27. As such we do not address this claim. See Pa.R.A.P. 302(a)
(claims not raised with trial court may not be raised for the first time on

appeal).

EWOC SUFFICIENCY

        Next, we address the sufficiency of the evidence for Shaw's EWOC

conviction. The Pennsylvania Crimes Code defines EWOC as:

        A parent, guardian or other person supervising the welfare of a
        child under 18 years of age, or a person that employs or
        supervises such a person, commits an offense if he knowingly
        endangers the welfare of the child by violating               a   duty of care,
        protection or support.
18 Pa.C.S.A. § 4304(a)(1).



                                              -9
J   -S62024-18



        Shaw maintains that evidence was insufficient because there was no

physical evidence to corroborate D.S.'s testimony regarding "double -handed

choking" or "being thrown against the tongue of       a   trailer." Shaw's Br. at 20.
Due to the alleged inconsistency between D.S.'s injuries and her testimony,

Shaw claims the evidence "at best is so unreliable and uncontradictory [sic]

that it violates the Bennett Principle[5] and is, therefore, clearly legally
insufficient." Id. at 21. Shaw also claims that the evidence was insufficient

because of the "heightened [Section] 509 protections recognizing the leniency

that must be given to parents." Id. at 21. However, as discussed previously,
his Section 509 claim is waived because he failed to raise it with the trial court.

See Bradley, 69 A.3d at 256. Additionally, Shaw's issue regarding D.S.'s

inconsistent testimony and her injuries goes to the weight and not the

sufficiency of the evidence which he did not preserve for appellate review. See

Pa.R.Crim.P. 607(A). Even if Shaw had properly presented               a   sufficiency

challenge to this Court, we would conclude it lacks merit.

        In order to sustain    a   conviction for EWOC, the Commonwealth must

prove beyond     a   reasonable doubt that: "(1) the accused [was] aware of his or

her duty to protect the child; (2) the accused [was] 'aware that the child [was]

in   circumstances that could threaten the child's physical or psychological


5 Commonwealth v. Bennett, 303 A.2d 220, 221 (Pa.Super. 1973) (en

banc) (stating "a case should not go to the jury where the party having the
burden offers testimony of a witness, or of various witnesses, which is so
contradictory on the essential issues that any finding by the jury would be a
mere guess").


                                        - 10 -
J   -S62024-18



welfare'; and (3) the accused either failed to act, or [take] 'action so lame or

meager that such actions cannot reasonably be expected to protect the child's

welfare.' Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa.Super. 2008)
(en banc) (citation omitted).

         We only address the last two factors because Shaw does not deny that

he owed a     duty to his daughters in his role as their father. See generally

Shaw's Br. at 19-21. Viewing the evidence in the light most favorable to

Commonwealth, Shaw knew he was placing D.S. in               a   life -threatening

circumstance when he applied enough pressure to her neck to cause difficulty

in her   breathing and told her to get ready to die. Additionally, the action of

choking his daughter could not reasonably be expected to protect her welfare.

This altercation between Shaw and D.S. only subsided when his other

daughter, B.S., jumped on his back and began to bite, kick, and pinch him

until he released the grip he had around D.S.'s neck. These facts were amply

sufficient to satisfy the charge of EWOC and therefore no relief          is due.

Moreover, D.S.'s testimony was not "so contradictory on the basic issues as

to make any verdict thereon pure conjecture," in regards to Shaw's suggestion

that the Bennett principle applies to this case. Bennett, 303 A.2d at 221.
D.S.'s inconsistent testimony regarding how many hands Shaw used to choke

her does not negate the evidence that she was in fact choked. This claim is

meritless and we therefore affirm the judgment of sentence.

         Judgment of sentence affirmed.
J   -S62024-18




Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 1/7/19




                     - 12 -
