J-A06031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EDWARD ANDREW BENDIK                      :
                                           :
                    Appellant              :   No. 815 MDA 2018

          Appeal from the Judgment of Sentence February 3, 2017
    In the Court of Common Pleas of Clinton County Criminal Division at
                      No(s): CP-18-CR-0000212-2016

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EDWARD ANDREW BENDIK                      :
                                           :
                    Appellant              :   No. 816 MDA 2018

        Appeal from the Judgment of Sentence Entered May 18, 2018
    In the Court of Common Pleas of Clinton County Criminal Division at
                      No(s): CP-18-CR-0000046-2016


BEFORE:    OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED APRIL 05, 2019

      Edward Andrew Bendik (Bendik) appeals from each judgment of

sentence imposed following two non-jury trials. He raises identical challenges

at both cases pertaining to his statutory right to a speedy trial, sufficiency of

evidence, and discretionary aspects of sentence. We affirm.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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                                               I.

       Bendik attacked two inmates while he was incarcerated pending trial

and charged with an identical set of five counts1 at each of the two criminal

dockets captioned in this appeal. Bendik elected for a non-jury trial at both

cases, which occurred consecutively on February 3, 2017. The judge found

Bendik guilty of all charges and sentenced him the same day2 to consecutive

periods of 42 to 84 months of incarceration at each case.

       While the two incidents do not overlap factually, we sua sponte

consolidated these matters as Bendik raises the same three claims at each

case. At the conclusion of each non-jury trial, the trial judge summarized his

factual findings based on the testimony presented, which we adopt as our

own.

                             Case 46-2016 / 816 MDA 2018

       On the date of November 24, 2015, the Defendant, Edward
       Bendik, and the victim, Alex Bell, were both inmates housed at
       the Clinton County Correctional Facility. On the same date at
       approximately 6:30 a.m., both Mr. Bell and Mr. Bendik were
       located in Classification Cell No. 1 at the facility awaiting transport
____________________________________________


1Aggravated Assault, 18 Pa.C.S. § 2702(a)(1); Assault by Prisoner, 18 Pa.C.S.
§ 2703(a); Simple Assault, 18 Pa.C.S. § 2701(a); Recklessly Endangering
Another Person, 18 Pa.C.S. § 2705; and Harassment, 18 Pa.C.S. § 2709(a)(1).

2 Bendik was also sentenced on the third case that same date. This Court
separately issued a memorandum involving that case, which had proceeded
to a jury trial. See Commonwealth v. Bendik, 2019 WL 256501 (Pa. Super.
2019) (unpublished memorandum). Bendik failed to file a timely notice of
appeal for these two cases but his appellate rights were subsequently
reinstated through the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.


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     to court. On or about the same time, while Mr. Bell was in a seated
     position, he was viciously attacked by the Defendant, Edward
     Bendik. Mr. Bendik punched, kicked, and stomped on the head
     and face of Mr. Bell numerous times during the incident. These
     findings are supported by a video of the incident that was
     maintained by the correctional facility. The Court finds that as a
     result of the attack, Mr. Bell suffered multiple bruising, multiple
     cuts, swelling, and abrasions to the head and facial region. These
     injuries were documented by various photos that were introduced
     into evidence.

     Mr. Bell did not receive stitches, Mr. Bell had no broken bones, Mr.
     Bell had no scarring, Mr. Bell had no loss of blood, Mr. Bell was
     seen by the medical department at the facility and was not
     admitted to any other medical facility. Mr. Bell was ambulatory
     following the incident, although, he did need some minor
     assistance in being able to walk, and Mr. Bell received Tylenol by
     way of medication.       Furthermore, Mr. Bell did not wish to
     participate in today's proceedings.

N.T., 2/3/17, at 87-88.

                          Case 212-2016 / 815 MDA 2018

     On March 13, 2016, the Defendant, Edward Bendik, and the
     victim, Curtis Reynolds, were both inmates at the Clinton County
     Correctional Facility. On the same date at approximately 4:29,
     the Defendant and the victim were both located in the visitation
     area of the correctional facility talking to other individuals on the
     correctional facility phone system. At approximately 4:29 p.m.
     the same date, the Defendant approached Curtis Reynolds,
     walk[ed] behind Mr. Reynolds and punched Mr. Reynolds
     unprovok[ed] in the face, back, and ribs numerous times. The
     Defendant eventually threw Mr. Reynolds to the floor in the corner
     of the visitation room and continued to punch Mr. Reynolds
     numerous times. The Defendant had to be removed from Curtis
     Reynolds by at least two correctional officers.

     As a result of the punches, Mr. Reynolds received a large contusion
     and laceration to his right eye. He also had blood coming from
     his nose area. He also received a laceration to the elbow area.
     Mr. Reynolds suffered pain to his neck, back, and ribs. Mr.
     Reynolds continues to experience pain in the lower back as of
     today's testimony.

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      The Court would note that this incident was memorialized via
      video, and there also were photos, taken of Mr. Reynolds’ injuries
      that the Court has previously identified. Mr. Reynolds also
      suffered bad headaches as a result of the attack.

      The Court finds that Mr. Reynolds received medical treatment at
      the correctional facility which consisted of aspirin and an ice pack.
      The Court makes a further finding that based on the photographs
      that have been presented this date that the Defendant did cause
      bodily injury to the victim, Curtis Reynolds[.]

Id. at 91-92.

      As previously stated, Bendik raises the same three claims at each appeal

with slight differences owing to factual distinctions regarding the separate

claims. We shall address all claims together for both appeals.

                                       II.

      Bendik’s first claim is that the trial court erroneously failed to grant his

motion to dismiss under Pennsylvania Rule of Criminal Procedure 600, which

sets forth time limits for commencing trial. Bendik alleges that since he was

incarcerated and not brought to trial within 180 days as required by the Rule,

he was entitled to dismissal.

      Preliminarily, we note that it is unclear if this motion was validly

presented. Immediately prior to trial, Bendik’s counsel said, “my client . . .

has provided me with a written motion for Rule 600,”         N.T., 2/3/17, at 3,

which the court took under advisement.        At the conclusion of both trials,

Bendik himself argued its merits. However, Bendik could not litigate a pro se

Rule 600 motion that counsel did not adopt.           See Commonwealth v.

Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (“Appellant had no right to

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file a pro se motion because he was represented by counsel. This means that

his pro se post-sentence motion was a nullity, having no legal effect.”)

(citation omitted). Accordingly, this motion arguably did not exist, leaving

nothing to review.

       In any event, it is clear that Bendik is not entitled to relief as he mistakes

the applicable remedy.          Dismissal is reserved for failures to bring the

defendant to trial within 365 days.3 The pertinent provisions of Rule 600 read:

       (A) Commencement of Trial; Time for Trial.

       (1) For the purpose of this rule, trial shall be deemed to commence
       on the date the trial judge calls the case to trial, or the defendant
       tenders a plea of guilty or nolo contendere.

       (2) Trial shall commence within the following time periods.

             (a) Trial in a court case in which a written complaint is filed
       against the defendant shall commence within 365 days from the
       date on which the complaint is filed.

                                           ....

       (B) Pretrial Incarceration. Except in cases in which the
       defendant is not entitled to release on bail as provided by law, no
       defendant shall be held in pretrial incarceration in excess of

       (1) 180 days from the date on which the complaint is filed . . .

                                           ....


____________________________________________


3 At case 212-2016, the trial took place within one year of the complaint,
which was filed on March 29, 2016. At case 46-2016, charges were initiated
on December 3, 2015. While trial did not occur within one calendar year,
Bendik does not allege a violation of the 365-day limit. Furthermore, the Rule
excludes certain periods of time from the calculation.


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      (D) Remedies.

      (1) When a defendant has not been brought to trial within the time
      periods set forth in paragraph (A), at any time before trial, the
      defendant’s attorney, or the defendant if unrepresented, may file
      a written motion requesting that the charges be dismissed
      with prejudice on the ground that this rule has been violated. A
      copy of the motion shall be served on the attorney for the
      Commonwealth concurrently with filing. The judge shall conduct
      a hearing on the motion.

      (2) Except in cases in which the defendant is not entitled to
      release on bail as provided by law, when a defendant is held in
      pretrial incarceration beyond the time set forth in paragraph (B),
      at any time before trial, the defendant’s attorney, or the
      defendant if unrepresented, may file a written motion requesting
      that the defendant be released immediately on nominal bail
      subject to any nonmonetary conditions of bail imposed by the
      court as permitted by law. A copy of the motion shall be served
      on the attorney for the Commonwealth concurrently with filing.
      The judge shall conduct a hearing on the motion.

Pa.R.Crim.P. 600 (emphases added).

      Here, Bendik argues that he was entitled to dismissal for a violation of

paragraph (B). “Appellant should have been tried within 180 days of where

the charges were filed . . . which he was not. Accordingly, a violation has

occurred, and the Appellant should have been released from custody and the

charges should have been dismissed.”             Bendik’s briefs at 7 (emphasis

added). But as emphasized in the quoted text, dismissal is a remedy reserved

for violations of paragraph (A). Assuming a violation of paragraph (B), Bendik

was   only   entitled   to   release   on   nominal   bond   before   trial.   See

Commonwealth v. Murray, 879 A.2d 309, 314 (Pa. Super. 2005) (“Other

than release on nominal bail, no other remedy is prescribed for defendants


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incarcerated for less than three hundred sixty-five days, even if they were

not, in fact, released on nominal bail.”). His claim, therefore, fails.

                                           III.

       Bendik next argues that the evidence was insufficient4 to support his

convictions for the crimes of Aggravated Assault and Assault by Prisoner.5 We

quote his argument in full for 815 MDA 2018:

____________________________________________


4 In his summary of argument, Bendik alleged that the “injuries suffered by
the victim were so minor that the Court should not legally have found that the
Appellant attempted to cause serious bodily injury[.]” Bendik’s briefs at 4.
This appears to attack the sufficiency of the evidence as a matter of law. Yet
in the actual argument section, Bendik argues that the verdict “is so contrary
to the evidence as to shock one’s sense of justice.” Id. at 5. That assertion
goes to the weight of the evidence, not its sufficiency. Commonwealth v.
Clay, 64 A.3d 1049, 1055 (Pa. 2013). One paragraph later, Bendik again
pivots and writes, “Clearly the evidence was insufficient[.]” Id. The failure
to clearly advance a coherent argument hampers our review.

5We apply the following standard of review when reviewing the sufficiency
of evidence in bench trials:

       Evidence is sufficient to support a conviction where, viewing all of
       it in the light most favorable to the Commonwealth as the verdict
       winner, the Commonwealth has introduced evidence so that the
       fact-finder could conclude that every element of the crime charged
       could be found beyond a reasonable doubt. Commonwealth v.
       Dailey, 828 A.2d 356, 358 (Pa.Super.2003). It is the role of the
       fact-finder to determine whether the evidence is believable in
       whole, in part, or not at all, and to assign weight to the evidence
       that it believes as it deems appropriate. Commonwealth v.
       Wright, 722 A.2d 157, 161 (Pa.Super.1998). An appellate court
       should interfere with the trial court’s findings from the evidence in
       a non-jury trial only if “the evidence is so weak and inconclusive
       that as a matter of law no probability of fact can be drawn from
       the combined circumstances.” Id. (quotations omitted).




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       In the instant matter, the victim suffered only a cut on his left
       elbow, a lump under his right eye and bruising and some bleeding.
       He also suffered broken glasses. The victim here had no stitches
       and was treated only at the Clinton County Correctional Facility.
       NT 43, 44.

       Clearly the evidence was insufficient for the Court to convict
       Appellant of the violation of Pa.C.S.A. 2702 and 2703 where the
       victim suffered such minor injuries, as here.

       Likewise, with the charge of Aggravated Assault, and Assault by a
       Prisoner, a violation of sections 2702 and 2703 of the Crimes
       Code, it is argued that the Appellant did not cause serious bodily
       injury to another nor did he attempt to cause same as the
       evidence indicates that only minor injuries were suffered by the
       victim of this case. Both laws require an attempt to cause “serious
       bodily injury” in order that the Appellant to be convicted.

       In each offence, the Appellant was convicted of attempting to
       cause serious bodily injury. However, there was no testimony that
       the Appellant had either a gun or a knife to which would be used
       to inflict serious bodily injury. See, Com. v. Fortune, 68 A.3d
       980, Super.2013, appeal denied 78 A.3d 1089, 621 Pa. 701. See
       also, Com. v. Gray, 867 A.2d 560, Super02005 [sic], appeal
       denied 879 A.2d 781, 583 Pa. 694. The fact is that the Appellant
       did not have any type of weapon used on the victim in the charges
       in the instant matter.

Bendik’s brief, 815 MDA 2018, at 5-6 (citations to transcript omitted). As to

the other case, Bendik reproduces the same argument with the exception of

the first paragraph which was modified to state:

       In the instant matter, the victim suffered only bruising and pain
       such that he was given Tylenol, he had no stiches, nor bleeding.
       He did not need to be seen by a Medical Doctor or taken to a
       Medical Facility for treatment. He had no broken bones and he
       was able to walk. He was only seen by the Prison Medical
       Personnel. NT 20, 21.
____________________________________________


Commonwealth v. George, 878 A.2d 881, 885 (Pa. Super. 2005).


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Bendik’s brief, 816 MDA 2018, at 5.

       Accordingly, Bendik’s argument attacks the element “attempts to cause

serious bodily injury,” 18 Pa.C.S. § 2702(a)(1), as to Aggravated Assault, and

the element “commits an assault upon another . . . by any means or force

likely to produce serious bodily injury,” 18 Pa.C.S. § 2703, for Assault by

Prisoner. Bendik’s argument appears to be that the Commonwealth cannot

satisfy the elements of these respective crimes where (1) serious bodily injury

did not occur and (2) the attacker does not use a weapon.

       There is no dispute that Bendik did not actually cause serious bodily

injury and as a result the Commonwealth was required to establish that Bendik

specifically intended to do so.6 Our Supreme Court explained the relevant

concepts in Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006):

       A person may be convicted of aggravated assault graded as a first
       degree felony if he “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....” 18 Pa.C.S. § 2702(a)(1). “Serious
       bodily injury” means “[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. § 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. § 901(a). An attempt under § 2702(a)(1)
____________________________________________


6 As indicated by the statutory text, a conviction for Assault by Prisoner
requires that the actor use force that is likely to actually produce serious
bodily injury, whereas Aggravated Assault merely requires that the actor
intend to cause serious bodily injury. Bendik treats the two alike and for
purposes of review, we do the same.


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     requires a showing of some act, albeit not one causing serious
     bodily injury, accompanied by an intent to inflict serious bodily
     injury. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d
     887, 889 (1978).

     “A person acts intentionally with respect to a material element of
     an offense when ... it is his conscious object to engage in conduct
     of that nature or to cause such a result....” 18 Pa.C.S. §
     302(b)(1)(i). “As intent is a subjective frame of mind, it is of
     necessity difficult of direct proof.” The intent to cause serious
     bodily injury may be proven by direct or circumstantial evidence.

     Alexander created a totality of the circumstances test, to be used
     on a case-by-case basis, to determine whether a defendant
     possessed the intent to inflict serious bodily injury. Alexander
     provided a list, albeit incomplete, of factors that may be
     considered in determining whether the intent to inflict serious
     bodily injury was present, including evidence of a significant
     difference in size or strength between the defendant and the
     victim, any restraint on the defendant preventing him from
     escalating the attack, the defendant’s use of a weapon or other
     implement to aid his attack, and his statements before, during, or
     after the attack which might indicate his intent to inflict injury.
     Alexander, at 889. Alexander made clear that “simple assault
     combined with other surrounding circumstances may, in a proper
     case, be sufficient to support a finding that an assailant attempted
     to inflict serious bodily injury, thereby constituting aggravated
     assault. All we hold is that the evidence in the instant case is
     insufficient to support such a finding.” Id. at 889-90.

Id. at 1257 (some citations omitted).

     Applying the totality of the circumstances, there was sufficient evidence

presented by the Commonwealth for the trial court could to conclude that

Bendik intended to cause serious bodily injury beyond a reasonable doubt.

Regarding Mr. Bell, the trial court characterized the attack as “vicious” and




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Bendik “punched, kicked, and stomped on the head.”7 See Commonwealth

v. Kinney, 157 A.3d 968, 973 (Pa. Super. 2017) (“The evidence was sufficient

to prove that Appellant attempted to cause Mr. Pepperman serious bodily

injury by repeatedly kicking and punching him in the head until he lost

consciousness.”). Turning to Mr. Reynolds, the court noted that Bendik threw

the victim to the ground during the attack and stated that Bendik “had to be

removed from Curtis Reynolds by at least two correctional officers[.]” N.T.,

2/3/17, at 87.      As noted by Matthews, a relevant consideration is “any

restraint on the defendant preventing him from escalating the attack[.]”

Matthews, 909 A.2d at 1257.

                                               IV.

       Finally, Bendik challenges the discretionary aspects of his sentence. We

quote the entirety of his argument as set forth in both briefs: “Finally, to

impose a sentence of 42 to 84 months in Prison for crimes where the victim

was barely injured was, and is, an abuse of discretion by the Lower Court.”

Bendik’s briefs at 7. This argument is so woefully undeveloped that we deem

it waived.    “Finally, we note appellant’s argument on the issue is utterly

undeveloped. Undeveloped claims are waived.” Commonwealth v. Snyder,

870 A.2d 336, 342 (Pa. Super. 2005) (citation omitted).



____________________________________________


7 Additionally, during a hearing on post-sentence motions, the judge noted
that Mr. Bell “was balled up and his arms over his head” during the attack in
an attempt to shield himself from the blows. N.T., 5/24/17, at 23.

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     Judgments of sentence affirmed.

     Judge Ott joins the memorandum.

     Judge Nichols concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/05/2019




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