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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                        :
STANLEY FOSTER BOWERSOX,                :         No. 1283 WDA 2013
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, June 24, 2013,
               in the Court of Common Pleas of Erie County
             Criminal Division at No. CP-25-CR-0002503-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 30, 2015

      Appellant, Stanley Foster Bowersox, appeals from the judgment of

sentence of June 24, 2013, following his convictions for aggravated assault,

criminal conspiracy, and robbery. We affirm.

      The trial court summarized the relevant factual history of this case as

follows:

                  On August 12, 2012, Appellant and a
           co-defendant viciously beat and robbed Brent Allen.
           The      two    then    assaulted   and    stabbed
           Derrick Elverton, a Good Samaritan who had come to
           Allen’s aid.

                  The genesis of these crimes was a malicious
           plot to resolve a common dispute with violence.
           Appellant and Ashley Smith were in a romantic
           relationship.  Smith reported to Appellant that
           Brent Allen   was    making    unwanted  romantic
           overtures to her on Facebook. Appellant, Andrew
           Loomis and Smith then concocted a cold-blooded


* Retired Senior Judge assigned to the Superior Court.
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          plan to assault Allen.     Smith lured Allen to a
          potentially romantic encounter by enticing him
          through Facebook into meeting her at midnight in a
          park and to bring marijuana.

                Allen appeared at the appointed time and
          place. En route, Allen found an old golf club which
          he brought with him. Consistent with their plan,
          Smith coaxed Allen to walk up a street where
          Appellant    and   Loomis     were    lying   in   wait
          unbeknownst to Allen.         As their prey neared,
          Appellant and Loomis jumped out from the bushes
          and assaulted Allen. Appellant and Loomis wrested
          the golf club from Allen and hit him with such force
          the golf club broke. Appellant and Loomis rifled
          through Allen’s clothing demanding marijuana and
          his cell phone. While Allen was on the ground,
          Appellant and Loomis continued to kick and beat him
          about the head and body. Allen is much smaller
          than Appellant and Loomis. Allen removed his pants
          and hoodie in an attempt to escape from his
          assailants. Allen suffered a host of injuries including
          a concussion as a result of the attack.

                These events occurred in the vicinity of
          Derrick Elverton’s home. Elverton observed part of
          the assault on Allen from his front porch. Elverton
          appealed to Appellant and Loomis to stop beating up
          Allen. The two assailants did not stop. Fortunately,
          Allen was able to run to Elverton’s porch and find
          refuge inside Elverton’s house.

                Appellant and Loomis left momentarily but
          returned with a butcher knife. Elverton, not knowing
          the two assailants had returned, went down the
          sidewalk to retrieve Allen’s clothing. Appellant and
          Loomis surrounded Elverton. Loomis was behind him
          with a knife and Appellant was face-to-face with
          Elverton.    Appellant and Loomis began verbally
          assaulting Elverton for stopping the assault on Allen.

                The verbal assault escalated into a physical
          assault when Loomis pulled the butcher knife on
          Elverton. Appellant implored Loomis to “stick him,


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            stick him.” Loomis stabbed Elverton in the back.
            Despite the stab wound, Elverton was able to fight
            back.    Elverton took the knife from Loomis and
            stabbed Appellant. Thereafter, Appellant and Loomis
            fled the scene.

                  Allen was transported to the Hamot Hospital
            Emergency Room where he was treated for a
            concussion and numerous bruises and abrasions.
            Allen missed three days of work due to the head
            injury. His medical bills totaled $8340.20. Elverton
            was treated for the stab wound in the back. The
            butcher knife entered Elverton’s back to a depth of
            two inches. The knife did not puncture Elverton’s
            lung because of his musculature.

Trial court opinion, 9/19/13 at 1-3.

      A bench trial was held on May 15, 2013, and appellant was convicted

of aggravated assault, criminal conspiracy, and robbery. On June 24, 2013,

appellant was sentenced to an aggregate term of 13½ to 27 years’

imprisonment to be followed by 10 years of probation.          A post-sentence

motion to reconsider sentence was filed and denied.         This timely appeal

followed.   Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,

and the trial court has filed an opinion. On November 12, 2013, appellant

filed a motion to waive counsel and proceed pro se. The trial court granted

the motion by order dated January 26, 2014.

      Appellant raises the following issue for this court’s review:

            THERE WAS INSUFFICIENT [EVIDENCE] TO SUPPORT
            THE TRIAL COURT’S FINDING OF GUILT AS TO THE
            CHARGES OF AGGRAVATED ASSAULT, 18 PA.C.S.
            § 2702(A)(1); CRIMINAL CONSPIRACY, 18 PA.C.S.
            § 903(C) AND ROBBERY, 18 PA.C.S. § 3701.



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Appellant’s brief at 17.

      Before we begin to address the substance of appellant’s argument, we

note that appellant is proceeding pro se. As such, appellant is not excused

from following the rules of appellate procedure. Commonwealth v. Maris,

629 A.2d 1014, 1017 n.1 (Pa.Super. 1993). The issue raised in appellant’s

brief differs from the issue raised in appellant’s counseled Rule 1925(b)

statement.    The specific issue raised in the Rule 1925(b) statement, and

addressed by the trial court, is as follows:

             9.    There was insufficient evidence submitted at
                   trial to support the jury’s [sic] finding the
                   Appellant guilty of the Serious Bodily Injury
                   enhancement to the Robbery and Aggravated
                   Assault charges.         Further, there was
                   insufficient evidence to support the jury’s [sic]
                   finding the Appellant guilty of Criminal
                   Conspiracy to Commit Aggravated Assault
                   where no clear evidence was shown.

Statement of Matters Complained of on Appeal, Document #28.                  Thus,

based on the above, we first discuss only whether the evidence was

insufficient to support the finding of the “Serious Bodily Injury enhancement

to the Robbery and Aggravated Assault charges.”

      In   reviewing   a   sufficiency    challenge,   we   apply   the   following

well-settled principles:

             The standard we apply in reviewing the sufficiency of
             the evidence is 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. In applying the above


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            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we
            note that the facts and circumstances established by
            the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact may be
            drawn from the combined circumstances.           The
            Commonwealth may sustain its burden of proving
            every element of crime beyond a reasonable doubt
            by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be considered. Finally, the trier of fact
            while passing upon the credibility of witnesses and
            the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),

quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.

2008).

      Appellant was convicted of aggravated assault under 18 Pa.C.S.A. §

2702(a)(1), which provides, “A person is guilty of aggravated assault 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.” “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.”

Commonwealth v. Stevenson, 894 A.2d 759, 774 (Pa.Super. 2006). “The

intent to cause serious bodily harm may be shown by circumstances



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surrounding the incident.”         Commonwealth v. Caterino, 678 A.2d 389,

391 (Pa.Super. 1996). “[T]he conduct giving rise to the inference that the

defendant intended to inflict serious bodily harm need not in itself be life

threatening.” Id.

       Moreover,    to   sustain    a   conviction   for   aggravated   assault,   the

Commonwealth need not show that serious bodily injury actually occurred,

but only that the defendant attempted to cause serious bodily injury to

another person. Stevenson, 894 A.2d at 774. An “attempt” exists when

“the accused intentionally acts in a manner which constitutes a substantial

or significant step toward perpetrating serious bodily injury upon another.”

Id. (citation and quotation omitted).

       Appellant contends the injuries sustained by Brent Allen (“Allen”) did

not amount to the requisite degree of “serious bodily injury” necessary to

sustain appellant’s conviction for aggravated assault.          (Appellant’s brief at

19.)   According to appellant, Allen’s injuries were not as severe as Allen

claimed and “were far less significant” than found in other cases where this

court determined serious bodily injury had not been sustained.             (Id.)    In

support of his argument, appellant cites Commonwealth v. Alexander,

383 A.2d 887, 889 (Pa. 1978), where our supreme court found that a broken

nose and facial lacerations did not rise to the level of serious bodily injury.

Appellant’s reliance on Alexander is misplaced.                In Alexander, our

supreme court held that a single blow to the face of the victim, without



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more, resulting only in a fractured nose was not sufficient to constitute

aggravated assault. Id. (emphasis added).

      Here, the record reveals Allen was hit with a golf club so hard that the

club broke.     Allen, who was physically smaller than appellant, was

repeatedly    kicked   in   the   head     and   body       by   both   appellant   and

Andrew Loomis     (“Loomis”).      Allen    suffered    a    concussion    along    with

numerous bruises and lacerations, and missed three days of work. Clearly,

breaking a golf club on Allen and repeatedly kicking him in the head and

body establish an intent to commit serious bodily injury.

      The instant facts are more akin to Commonwealth v. Glover, 449

A.2d 662 (Pa.Super. 1982), affirmed, 458 A.2d 935 (Pa. 1983), where this

court held that the testimony of the victim that three men repeatedly hit him

in the head with their fists and kicked him was sufficient to warrant an

inference that the defendant attempted to cause serious bodily injury to the

victim. Had Allen not been able to escape by wiggling out of his pants and

hoodie, the beating inflicted by appellant and Loomis would have been even

more severe with worse consequences.1            Accordingly, we find appellant’s

argument that the evidence was insufficient to support the serious bodily

injury enhancement to aggravated assault to be without merit.


1
  Allen testified he was afraid for his life. When describing the beating he
endured, Allen stated, “I was prepared to die that night.”         (Notes of
testimony, 5/15/13 at 73.) Derrick Elverton testified that he heard appellant
and Loomis state, “Let’s take him [Allen] somewhere and kill him.” (Id. at
100.)


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      In his next argument, appellant claims the injuries sustained by Allen

did not amount to the requisite degree of “serious bodily injury” necessary to

sustain appellant’s conviction for robbery. Appellant also claims there was

no evidence he committed a theft. (Appellant’s brief at 30-32.) Appellant

was convicted of robbery under 18 Pa.C.S.A. § 3701(a)(1)(i) which provides,

“A person is guilty of robbery if, in the course of committing a theft, he: (i)

inflicts serious bodily injury upon another.”   We have already determined

that the beating Allen endured satisfied the “serious bodily injury” prong.

      Allen testified, “they [appellant and Loomis] started running through

my pockets asking me where all my stuff was, you know, give me

everything.” (Notes of testimony, 5/15/13 at 72.) He further stated, “They

were putting their hands in my pockets trying to take everything I had.”

(Id.) Whether appellant actually succeeded in removing property from Allen

is immaterial. According to the robbery statute, “An act shall be deemed ‘in

the course of committing a theft’ if it occurs in an attempt to commit theft or

in flight after the attempt or commission.”        18 Pa.C.S.A. § 3702(a)(2).

Clearly, we can infer appellant and Loomis were looking to take anything, for

instance, appellant’s cellphone or money, they could find in his pockets.

Accordingly, there is no merit to this argument.

      In his last argument, appellant claims there was insufficient evidence

to sustain his conviction for criminal conspiracy to commit aggravated




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assault against Elverton, the Good Samaritan, who ended up being stabbed

in the back with a 12-inch butcher knife. (Appellant’s brief at 24-29.)

            To sustain a conviction for criminal conspiracy, the
            Commonwealth must establish that the defendant
            (1) entered into an agreement to commit or aid in an
            unlawful act with another person or persons, (2) with
            a shared criminal intent and (3) an overt act was
            done in furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.Super. 2006); see also

18 Pa.C.S.A. § 903(a). We recognize that:

            [c]ircumstantial evidence may provide proof of the
            conspiracy.   The conduct of the parties and the
            circumstances surrounding such conduct may create
            a “web of evidence” linking the accused to the
            alleged conspiracy beyond a reasonable doubt.
            Additionally:

                  An agreement can be inferred from a
                  variety of circumstances including, but
                  not limited to, the relation between the
                  parties, knowledge of and participation in
                  the crime, and the circumstances and
                  conduct of the parties surrounding the
                  criminal episode.    These factors may
                  coalesce to establish a conspiratorial
                  agreement beyond a reasonable doubt
                  where one factor alone might fail.

Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007), quoting

Commonwealth v. Jones, 874 A.2d 108, 121-122 (Pa.Super. 2005)

(citation omitted).   “Circumstances like an association between alleged

conspirators, knowledge of the commission of the crime, presence at the

scene of the crime, and/or participation in the object of the conspiracy, are

relevant when taken together in context, but individually each is insufficient


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to prove a conspiracy.” Id. (citation omitted). Furthermore, we recognize

that, “[o]nce there is evidence of the presence of a conspiracy, conspirators

are liable for acts of co-conspirators committed in furtherance of the

conspiracy.”      Commonwealth       v.   Lambert,   795   A.2d    1010,   1016

(Pa.Super. 2002) (internal citations omitted).

        Instantly, the fact that appellant did not wield the knife is of no

moment.      The record indicates appellant acted in concert with Loomis.

Elverton testified that he was standing on his porch and heard someone

screaming. (Notes of testimony, 5/15/13 at 99.) Elverton saw Allen being

beaten with a golf club by two men. (Id. at 100.) He watched Allen escape,

get caught, and break loose a second time. (Id.) Allen ran onto Elverton’s

porch, and Elverton told him to go into his house.         (Id.)   According to

Elverton, Allen asked him to retrieve his shirt and shoes, which Elverton

agreed to do.     (Id.)   Elverton then described how appellant and Loomis

cornered him in an alleyway: “one got in front and one got in back.” (Id. at

101.)     Elverton described the “tussle” that ensued as he fought both

appellant and Loomis. (Id. at 104-109.)

        Additionally, appellant contends he did not tell Loomis to “stick him,”

but rather, said “get him.”     Appellant also claims that Loomis’ actions of

stabbing Elverton were beyond those which appellant intended.              First,

appellant’s choice of words is inconsequential here.          Second, even if

appellant did not anticipate Elverton getting stabbed, as a co-conspirator, he



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is liable for the actions of Elverton. Upon review of the evidence presented

in the light most favorable to the Commonwealth, as the verdict winner, we

conclude there was ample evidence to sustain appellant’s conviction for

criminal conspiracy to commit aggravated assault.

     Appellant’s judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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