J-A28018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES COLE                               :
                                          :
                    Appellant             :   No. 1807 EDA 2016

          Appeal from the Judgment of Sentence October 2, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008146-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY PANELLA, J.                               FILED MAY 09, 2018

      James Cole appeals from the judgment of sentence entered on October

2, 2015, in the Court of Common Pleas of Philadelphia County. The trial court

resolved this case by crediting the victim’s testimony over Cole’s. On appeal,

he argues the Commonwealth presented insufficient evidence to support the

convictions for burglary, 18 Pa.C.S.A. § 3502(a)(1), and aggravated assault,

18 Pa.C.S.A. § 2702(a)(1). We affirm.

      In considering claims challenging the sufficiency of the evidence, “all

evidence received against the defendant is considered, being cognizant that

the trier of fact is free to believe all, part, or none of the evidence.”

Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (citation omitted).

We “must determine simply whether the evidence believed by the fact-finder

was sufficient to support the verdict.” Id., at 729 (citation omitted). See also

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017) (“We
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must view evidence in the light most favorable to the Commonwealth as the

verdict winner, and accept as true all evidence and all reasonable inferences

therefrom upon which, if believed, the fact finder properly could have based

its verdict.”)

      The key is what the fact finder, here the trial court, believed. For at the

waiver trial the court was presented with two conflicting stories—Cole’s and

the victim’s, Trenda Cole, his biological daughter. Cole relies in part,

particularly for his argument asserting insufficient evidence to sustain the

burglary conviction, on his testimony. See, e.g., Appellant’s Brief, at 12

(“Although Trenda testified that…. Appellant testified that….”); id., at 14

(“Appellant … testified…. [A]ppellant stated …”). After hearing the testimony

from Trenda and Cole, the court stated:

             I have heard everything. … And, sir, I just don’t believe a
      word you said. Your testimony was not credible. It was incredible.
      … I find she’s completely credible[.] …

            I guess it’s his testimony that’s really bothering me. I didn’t
      believe a single word that came out of your mouth. As a matter of
      fact -– I do this all day -– you’re the worst liar I’ve ever seen. I
      wouldn’t believe it were raining outside if you told me that.

             … I just don’t believe anything that you say.

N.T., Waiver Trial, 7/24/15, at 68, 72 (emphasis added).

      With that firmly in mind, we proceed to Trenda’s version of events,

which the trial court found “completely credible.” This case concerns a break-

in and assault that occurred on June 1, 2014, at a home previously owned by

Cole’s father, and Trenda Cole’s grandfather, James R. Cole, Sr., who passed

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away just two weeks prior. On February 1, 2013, James R. Cole, Sr., had

transferred the deed to the home to Trenda’s son. James R. Cole, Sr., lived in

the home, with Trenda taking care of him, right up until his death. Trenda’s

uncle moved in after James R. Cole, Sr., passed away.

      The home had two doors: a screen door and a main door. On the day in

question, her uncle told her he was going away. So, before she left for work

Trenda locked the screen door. Only she and her uncle had keys to the home.

      After work, she stopped by to check on the home and saw the “lock …

broken off the [screen] door.” Id., at 15. She walked in and saw Cole sitting

in a chair. She also noticed a hammer and screwdrivers by his feet. He then

stood up and said, “This mother fucking house, you don’t own anything, you

only own what’s yours.” Id., at 31. From her perspective, there was no doubt

who owned the home; her son owned it. She believed Cole was upset he did

not have a key to what he viewed as his father’s home. In any event, Trenda

kept walking past him to go and call her brother, saying “nothing” to her

father, to tell her brother that Cole “broke into the house.” Id., at 17, 36-37.

Cole walked towards her and said, “I’m your fucking dad,” and then “pinned”

her against the wall, while holding her by the throat, and hit her with the

hammer. Id., at 37, 39, 43-44.




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       He hit her once on the head with the hammer and then on her arm and

the back of her legs, leaving a “gash” in one, as well as bruising. Id., at 23.1

The blow to her head led to “blood gushing out.” Id., at 17. Eventually, she

disarmed her father and escaped from his clutches. Cole ran off. Eventually,

the police arrived. Although she suffers from sickle cell anemia, and had just

sustained a beating, she initially declined the police officer’s suggestion that

she go to the hospital; however, the police insisted and her brother took her

to the hospital.

       She was still bleeding when she arrived at the hospital, so she “applied

pressure” with a tissue and an ice pack and the bleeding stopped. Id., at 24.

The hospital records indicate that by the time she was seen no “active

bleeding” was noted and she “denied loss of consciousness, blurred vision,

and cervical neck pain.” Id., at 50. “Her speech was clear[,]” she had no

“facial droop[,]” and “[n]o weakness.” Id. She did not receive any stitches.

       As noted, Cole only challenges the sufficiency of the evidence to sustain

his convictions. We proceed to determine whether the Commonwealth

presented sufficient evidence to sustain the burglary conviction. “Burglary is

defined as the act of entering or occupying a structure with intent to commit

a crime therein.” Commonwealth v. Magnum, 654 A.2d 1146, 1147 (Pa.

Super. 1995) (citing 18 Pa.C.S.A. § 3502).


____________________________________________


1The Commonwealth admitted photographs of the injuries, marked as Exhibit
C-1, at trial. See N.T., Waiver Trial, 7/24/15, at 22.

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      We first consider Cole’s assertion that the Commonwealth failed to prove

he had the required specific intent upon entering the home to commit a crime

within.

      The unauthorized entry into a building, by itself, does not provide an

inference of an intent to commit a crime inside. See Commonwealth v.

Wilamowski, 633 A.2d 141, 144 (Pa. 1993). Instead, a “totality of the

circumstances” approach is used where “[t]he Commonwealth must establish,

as part of its evidentiary burden, additional evidence that goes beyond the

mere breaking in of a door or window.” Id.

      The trial court found Cole “went there and waited” for Trenda to show

up. N.T., Waiver Trial, 7/24/15, at 69. In other words, he broke into the home

and waited to ambush her. The trial court reached this conclusion given “the

circumstances as described by the complaining witness.” Id. This is a

reasonable inference to draw from Trenda’s testimony. She testified Cole

immediately verbally pounced on her as soon as she walked into the home—

and then grabbed her and hit her, repeatedly, with the hammer. We find the

totality of the circumstances here establishes Cole’s specific intent to commit

a crime after he broke into the home.

      To be sure, Cole’s testimony stands in stark contrast to Trenda’s. And

in his brief, Cole, using his testimony, attempts to portray what happened as

an argument between two people that sadly escalated into violence. He

explains: “Given the highly emotional context of the familial property dispute,


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the evidence suggests that [A]ppellant assaulted Trenda as an impulsive

reaction to this fraught interchange, and not, as the trial court theorized, as

part of a previously conceived plan to sit and wait for her.” Appellant’s Brief,

at 15 (internal quotation marks and brackets omitted). The problem with this

argument is that to accept it, one would have to credit Cole’s testimony about

the incident. Unfortunately for Cole, the trial court disbelieved him.

       Next, we consider Cole’s reliance on 18 Pa.C.S.A. § 3502(b)(3), which

provides that “[i]t is a defense to prosecution for burglary if any of the

following exists at the time of the commission of the offense: … The actor is

licensed or privileged to enter.”

       At trial, Cole, in his testimony, tried to frame and explain away this

incident as a property dispute. One where he believed he had an ownership

interest in the home and a right to enter. He admitted he broke in, but did so

only because he did not have a key to the screen door. And he explained that

on the day of the incident he was expecting family to visit the home. But the

trial court, as mentioned, did not believe his testimony. Trenda testified she

had no doubt as to ownership—her son owned the property.2 And according

____________________________________________


2The Commonwealth admitted the deed, marked as Exhibit C-2, at trial. See
N.T., Waiver Trial, 7/24/15, at 11.

 In his brief, Cole cites to the notes of testimony from the post-sentence
motions hearing to note the deed was not recorded. We are only interested in
what happened at trial. See Martin, 101 A.3d at 718. In any event, that the
deed was not recorded makes no difference in ownership. See MERSCORP,



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to her, Cole had no right of access. The trial court fully credited her testimony.

The Commonwealth presented sufficient evidence to refute the defense. See

Commonwealth v. Hardcastle, 546 A.2d 1101, 1109 (Pa. 1990) (“The

evidence of forced entry was also sufficient for the jury to conclude that

appellant was not licensed or privileged to enter the premises.”)

        We next consider whether the Commonwealth presented sufficient

evidence to sustain the aggravated assault conviction. We find the

Commonwealth presented sufficient evidence to find Cole attempted to cause

Trenda serious bodily injury.

        “A person is guilty of aggravated assault if he: … attempts to cause

serious bodily injury to another….” 18 Pa.C.S.A. § 2702(a)(1). “Serious bodily

injury” is defined as “[b]odily injury which creates a substantial risk of death

or which causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. §

2301.

              “A person commits an attempt when, with intent to commit
        a specific crime, he does any act which constitutes a substantial
        step toward the commission of that crime.” 18 Pa.C.S.[A]. §
        901(a). For purposes of an Aggravated Assault charge, an
        ‘attempt’ is found where an accused who possesses the required
        specific intent acts in a manner which constitutes a substantial
____________________________________________


Inc. v. Delaware County, 160 A.3d 961, 966 (Pa. Cmwlth. 2017) (“[T]he
failure to record a deed or mortgage is of limited consequence: Pennsylvania
law recognizes an unrecorded interest in property as valid.”) The record
provides no evidence, and Cole makes no assertion, that he subsequently
purchased the property.


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      step toward perpetrating a serious bodily injury upon another. An
      intent ordinarily must be proven through circumstantial evidence
      and inferred from acts, conduct or attendant circumstances.

Commonwealth v. Bullock, 170 A.3d 1109, 1119 (Pa. Super. 2017) (some

internal quotation marks and a citation omitted).

      At trial, Cole explained he “reacted with the hammer,” by hitting

Trenda—“BAM”—“to get her back in balance.” N.T., Waiver Trial, 7/24/15, at

59. He denied putting his hands around her throat or hitting her on her body.

None of which the trial court believed. In his brief, he acknowledges he struck

her, but in “areas that are not vital organs.” Appellant’s Brief, at 17. And Cole

writes that the attack on Trenda could have been far worse—after all, he was

using a hammer—but did not “avail himself of the opportunity to inflict serious

bodily injury,” as he stopped and “abruptly left the premises….” Id., at 18.

      Cole’s take does not comport with the record. As we well know by now,

Trenda testified Cole restrained her by holding her by the throat, and struck

her in the head with the hammer, drawing blood, and continued to strike her

on the left arm and on the legs, leaving a “gash” in one. The attack only

stopped when she disarmed him; it was only then Cole ran off. See id., at 39.

      Under these circumstances, we find that the Commonwealth presented

sufficient evidence to prove Cole attempted to cause serious bodily injury.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/17




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