J. A10045/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
FREDERICK F. BROWN,                       :          No. 3503 EDA 2015
                                          :
                          Appellant       :


            Appeal from the Judgment of Sentence, October 6, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0009721-2013


BEFORE: DUBOW, J. SOLANO, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 10, 2017

        Frederick F. Brown appeals from the October 6, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction in a waiver trial of aggravated assault, simple

assault, and recklessly endangering another person (“REAP”).1          The trial

court imposed an aggregate term of imprisonment of 3½ to 10 years,

followed by 2 years of reporting probation. We affirm.

        The trial court summarized the factual history of the case as follows:

                     At trial, the complainant, Carmen Cook,
              testified that she had lived with Appellant in an
              intimate relationship, but left in February 2013 due
              to Appellant’s abusive behavior. Ms. Cook testified
              that on one prior occasion, Appellant had tried to
              stomp her face and that he had choked her on
              another occasion. On the afternoon of June 1, 2013,

1
    18 Pa.C.S.A. §§ 2702(a)(4), 2701(a)(1), and 2705, respectively.
J. A10045/17


          Ms. Cook left a friend’s house where she had gotten
          high on crack cocaine and beer and walked to a
          nearby Hoagie City. When she turned the corner,
          Ms. Cook saw Appellant sitting outside the store on a
          rock. As Ms. Cook then spoke with a man named
          Warren who was sweeping up the outside of the
          store, Appellant got up, took something from his
          pocket and charged at her, swinging and hitting her
          in the head. Ms. Cook was unable to see the object
          Appellant removed from his pocket because it was
          wrapped in a paper napkin or towel. When Ms. Cook
          then ran into Hoagie City, Appellant followed and hit
          her again in the head. Ms. Cook realized she had
          been hurt when she saw blood coming down the side
          of her face.

                Ms. Cook immediately went across the street
          to the police station where she reported the assault.
          Philadelphia Police Officer Charles Nelson who was at
          the station at the time testified that Ms. Cook was
          very upset, screaming and covered in blood. He
          further testified she stated that her ex-boyfriend had
          assaulted her. Police transported Ms. Cook to the
          emergency room at Temple Hospital where she
          received six stitches for the gash in the front of her
          head and four stitches for the laceration in the back
          of her head.

                While in the emergency room, Ms. Cook
          observed Appellant enter and immediately told
          police. Appellant also called her several times in the
          hospital. Although at trial Appellant denied ever
          coming to the hospital or calling Ms. Cook there, he
          admitted to police after his arrest that he had indeed
          gone to the hospital and had called Ms. Cook three
          or four times while she was in the emergency room.

                Appellant testified at trial that he did not
          assault Ms. Cook. He stated that he was eating
          some food outside Hoagie City when Ms. Cook
          walked up with a man with whom she was living and
          asked Appellant for a cigarette and some money.
          Appellant claimed that when he pulled out his
          money, the male hit him in the chest while Ms. Cook


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            snatched the money from him and ran into the store.
            Appellant followed them into the store and a tussle
            ensued as he tried to get his money back. Appellant
            theorized that Ms. Cook probably got hurt in the
            tussle over the money and denied having any object
            in his hand. Appellant did not report the alleged
            robbery to police, and admitted on cross-
            examination to having hit a former girlfriend in the
            head with a master lock in 2009.

Trial court opinion, 6/3/16 at 2-3 (citations to notes of testimony omitted).

      The trial court summarized the procedural history, as follows:

                   On July 30, 2013, Appellant[] was arrested and
            charged with aggravated assault (F2), simple
            assault, [REAP], and other related charges. Prior to
            trial, the Commonwealth brought a Motion to Admit
            Other Bad Acts Evidence, which following a hearing,
            the Court granted on February 10, 2014. Appellant
            then proceeded to trial before this Court sitting
            without a jury on August 3, 2015. On that date the
            Court found Appellant guilty of aggravated assault
            (F2), simple assault, and [REAP]. On October 6,
            2015, the Court sentenced Appellant to an aggregate
            term of 3 1/2 to 10 years [of] imprisonment followed
            by 2 years [of] reporting probation.

                   Appellant filed post-sentence motions on
            October 15, 2015, which were denied by the Court
            on November 17, 2015. Notice of Appeal was filed
            by Appellant on November 19, 2015.                On
            November 25, 2015, this Court ordered Appellant to
            file a concise statement of the matters complained of
            on appeal pursuant to [Pa.R.A.P. 1925(b)]. A timely
            1925(b) Statement of Matters Complained of on
            Appeal was filed by Appellant on December 14,
            2015. Because counsel for Appellant had not yet
            received all the notes of testimony at that time and
            requested      additional  time,   a    Supplemental
            Statement of Matters Complained of on Appeal was
            subsequently filed on April 21, 2016.




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Id. at 1-2.      The record further reflects that the trial court filed its

Rule 1925(a) opinion on June 3, 2016.

      Appellant raises the following issues for our review:

            1.     Because it was not proven that any particular
                   device used by appellant could be a deadly
                   weapon or that it was calculated to produce
                   death or serious bodily injury, was not the
                   evidence insufficient to convict appellant of
                   aggravated assault, graded as a felony of the
                   second degree?

            2.     Was not the intrinsic admission of evidence of
                   appellant’s prior crime of hitting a former
                   girlfriend in the head with a Master Lock an
                   abuse of the lower court’s discretion, where
                   the evidence tended to show only appellant’s
                   bad character and propensity to commit such
                   crimes and was not relevant to appellant’s
                   intent, common plan or scheme, modus
                   operandi, or other probative fact?

Appellant’s brief at 3.

      Appellant first complains that the evidence was insufficient to sustain

his aggravated assault conviction.

            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
            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


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            drawn from the combined circumstances.               The
            Commonwealth may sustain its burden of proof of
            proving every element of the crime beyond a
            reasonable doubt by means of wholly circumstantial
            evidence. Moreover, in applying the above test, the
            entire record must be evaluated and all the evidence
            actually received 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      Under the Crimes Code, a person may be convicted of aggravated

assault, graded as a second-degree felony, if he “attempts to cause or

intentionally or knowingly causes bodily injury to another with a deadly

weapon.”    18 Pa.C.S.A. § 2702(a)(4).     The Crimes Code defines “deadly

weapon” as:

            [a]ny firearm, whether loaded or unloaded, or any
            device designed as a weapon and capable of
            producing death or serious bodily injury, or any
            other device or instrumentality which, in the manner
            in which it is used or intended to be used, is
            calculated or likely to produce death or serious bodily
            injury.

18 Pa.C.S.A. § 2301.

      This court has recently explained that

            [t]he plain language of the Legislature’s definition of
            “deadly weapon” makes clear that the weapon need
            not be a “firearm . . . or any device designed as a
            weapon,” but may also be “any other device or
            instrumentality which, in the manner in which it is
            used or intended to be used, is calculated or likely to
            produce     death   or    serious    bodily    injury.”


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           18 Pa.C.S.[A.] § 2301. “Although deadly weapons
           are commonly items which one would traditionally
           think of as dangerous (e.g., guns, knives, etc.),
           there are instances when items which normally are
           not considered to be weapons can take on a deadly
           status.” Commonwealth v. Scullin, 414 Pa. Super.
           442, 607 A.2d 750, 753 (Pa.Super. 1992), appeal
           denied, 533 Pa. 633, 621 A.2d 579 (Pa. 1992).
           These items “take on such status based upon their
           use under the circumstances.” Commonwealth v.
           Rhoades, 2010 PA Super 204, 8 A.3d 912, 917
           (Pa.Super. 2010); appeal denied, 611 Pa. 651, 25
           A.3d 328 (Pa. 2011), cert. denied, 565 U.S. 1263,
           132 S. Ct. 1746, 182 L. Ed. 2d 536 (2012). See
           Commonwealth v. McCullum, 529 Pa. 117, 602
           A.2d 313, 323 (Pa. 1992) (holding “[a] deadly
           weapon need not be . . . an inherently lethal
           instrument or device”). Thus, “[a]n ax, a baseball
           bat, an iron bar, a heavy cuspidor, and even a
           bedroom slipper have been held to constitute deadly
           weapons        under        varying     circumstances.”
           Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d
           532, 533 (Pa. 1947); see Commonwealth v.
           Nichols, 692 A.2d 181, 184 (Pa.Super. 1997) (“[a]
           baseball bat, when swung at the head, can be a very
           deadly weapon”). Even an egg can be a deadly
           weapon when thrown from the roof of a building at
           the windshield of a vehicle. See Commonwealth v.
           Roman, 714 A.2d 440 (Pa.Super. 1998), appeal
           denied, 556 Pa. 707, 729 A.2d 1128 (Pa. 1998).
           See also Commonwealth v. Raybuck, 915 A.2d
           125 (Pa.Super. 2006) (holding that mouse poison
           became deadly weapon when included in sandwich
           for husband to consume; fact that amount was
           insufficient to cause serious bodily injury was
           irrelevant to classification as deadly weapon).

Commonwealth v. Chambers, 157 A.3d 508, 517-518 (Pa.Super. 2017).

     Here, the victim testified that as she walked to Hoagie City, she saw

appellant sitting on “the rock,” at which time he took something out of his

pocket and “came charging at [her] swinging at [her] head.”          (Notes of


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testimony, 8/3/15 at 12.) The victim further testified that the object that

appellant took out of his pocket was wrapped in brown paper, which she

described as “the paper that you dry your hands with”.           (Id. at 37.)

Although the victim was unable to see the object appellant had in his hand

that was wrapped in brown paper, she could see that appellant was holding

an object wrapped in brown paper and knew that he repeatedly struck her

on the head with that wrapped object. (Id. at 17, 20.)

      The record further reflects that following this assault, the victim went

to the police station where she arrived “covered with blood and screaming,

very hysterical.”   (Id. at 54.)   The victim was transported to the hospital

where she “presented with an open, bleeding, deep laceration to her left

temple.” (Id. at 52.) At trial, the Commonwealth and defense stipulated to

the victim’s medical records which revealed that “[t]he laceration was

irregularly shaped and approximately five centimeters in length.            [The

victim] also presented with a full thickness linear laceration to the back of

her head approximately four centimeters in length.”        (Id. at 52.)     The

“laceration to the left temple was closed with six sutures[, and] the

laceration to the back of the head was closed with [four] staples.” (Id.)

      Appellant now complains that the evidence was insufficient to convict

him of second-degree felony aggravated assault because “there is not a

‘scintilla of evidence’ about the identity or nature of what appellant used” to

strike the victim on her head and cause a deep laceration to the left temple



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that required six sutures to close, as well as a deep laceration to the back of

the head that required four staples to close.           (Appellant’s brief at 14.)

According to appellant, then, so long as a criminal defendant conceals the

device or instrumentality that he uses to repeatedly strike his victim on the

head, he cannot be convicted of second-degree aggravated assault.

Appellant is mistaken.

      By his own admission, appellant concedes that “the gash and

laceration on the [victim’s] head suggest something sharp caused [her]

injuries.”    (Appellant’s brief at 15.)   Appellant used that sharp object to

inflict multiple blows to the victim’s head that resulted in two deep head

lacerations    that   required   emergency    medical     intervention   to   close.

Therefore, because the record demonstrates that appellant attempted to

cause or intentionally or knowingly caused bodily injury to the victim by

repeatedly striking her on the head with a sharp object wrapped in brown

paper which was calculated or likely to produce death or serious bodily

injury, the evidence was sufficient to convict appellant of second-degree

aggravated assault.

      Appellant next complains that the trial court abused its discretion when

it admitted evidence that appellant struck his former girlfriend on the head

with a Master Lock because that evidence “tended to show only appellant’s

bad character and propensity to commit such crimes and was not relevant to




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appellant’s intent, common plan or scheme, modus operandi, or other

probative fact.” (Appellant’s brief at 3.)

      “On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited.    A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather 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.”   Id. at 1184-

1185 (citations omitted).

                  Generally, evidence of prior bad acts or
            unrelated criminal activity is inadmissible to show
            that a defendant acted in conformity with those past
            acts    or    to     show     criminal    propensity.
            Pa.R.E. 404(b)(1). However, evidence of prior bad
            acts may be admissible when offered to prove some
            other relevant fact, such as motive, opportunity,
            intent, preparation, plan, knowledge, identity, and
            absence of mistake or accident. Pa.R.E. 404(b)(2).[2]

2
            Rule 404. Character Evidence; Crimes or Other
            Acts

            ....

            (b)    Crimes, Wrongs or Other Acts.

                   (1)   Prohibited Uses. Evidence of a
                         crime, wrong, or other act is not
                         admissible to prove a person’s
                         character in order to show that on
                         a particular occasion the person
                         acted in accordance with the
                         character.


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            In determining whether evidence of other prior bad
            acts is admissible, the trial court is obliged to
            balance the probative value of such evidence against
            its prejudicial impact.

Id. at 1185 (citations to case law omitted). In order for prior bad acts to be

introduced under this particular exception, a close factual nexus must exist

to sufficiently demonstrate the connective relevance of the prior bad acts to

the criminal charge at issue.    Commonwealth v. Sitler, 144 A.3d 156,

163-164 (en banc) (Pa.Super. 2016) (citations omitted).

      At the outset, we note that in its opinion, the trial court explained that

it admitted the evidence because appellant’s 2009 simple assault conviction

for hitting his former girlfriend on the head with a Master Lock was highly

probative of intent, as appellant claimed that the victim in this case and her

male companion robbed him and that the victim likely sustained her injuries

during that robbery. (Trial court opinion, 6/3/16 at 6.) The trial court also




                  (2)    Permitted Uses. This evidence
                         may be admissible for another
                         purpose, such as proving motive,
                         opportunity, intent, preparation,
                         plan, knowledge, identity, absence
                         of mistake, or lack of accident. In
                         a criminal case this evidence is
                         admissible only if the probative
                         value of the evidence outweighs its
                         potential for unfair prejudice.

                  ....

Pa.R.E. 404(b)(1)-(2).


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found the evidence admissible to show a common plan, scheme, and design

based on the factual nexus between the assaults, which the trial court

determined to be relevant to the issue of intent. (Id. at 6-7).

      Here, a close factual nexus exists that sufficiently demonstrates the

connective relevance of the 2009 assault and the assault that is the subject

of this appeal. The record reflects that at the time of both assaults, both

victims had been in a romantic relationship with appellant that had ended.

Additionally, in both assaults, appellant pulled an object out of his pocket

and struck the victim on or about the head, causing the victim to sustain

injury.   Moreover, as noted by the trial court at the motion in limine

hearing, “the fact that there was violence in ending the relationship [seems

to be] the same thing here.” (Notes of testimony, 2/10/14 at 8.) Indeed,

defense counsel acknowledged that “it’s very similar.” (Id.) And although

defense counsel would not concede admissibility, she admitted to having

“little argument” against the admission of this evidence. (Id.)

      With respect to the balancing of the probative value of this evidence

against its prejudicial impact, we note that in its opinion, the trial court did

not balance the two.      We further note that appellant lodges numerous

complaints in his brief regarding the prejudicial impact that he suffered as a

result of the admission of this evidence. Because appellant was tried in a

waiver trial, however, we presume that the trial court, sitting as fact-finder,

ignored any potentially prejudicial evidence and remained objective in



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weighing all of the evidence in order to render a true verdict.      See

Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa.Super. 2001)

(reaffirming that “it has long been held that trial judges, sitting as

factfinders, are presumed to ignore prejudicial information in reaching a

verdict” (citation omitted)). We discern no abuse of discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




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