J-S57021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DEVON BILLINGSLEA                          :
                                               :
                       Appellant               :     No. 2922 EDA 2016


            Appeal from the Judgment of Sentence August 19, 2016
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos.: CP-51-CR-0001988-2015
                            CP-51-CR-0001989-2015


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                            FILED DECEMBER 10, 2018

       Appellant, Devon Billingslea, appeals from the judgment of sentence

imposed following his bench conviction of aggravated assault, possession of

an instrument of a crime (PIC), simple assault, recklessly endangering another

person (REAP), criminal trespass, and indirect criminal contempt (ICC).1 We

affirm.

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

             On January 16, 2015, [Appellant] was involved in an
       altercation with Felicia Parks (“Ms. Parks”) and her friend
       Daymond Baker (“Mr. Baker”) at 5811 Webster Street in
       Philadelphia, Pennsylvania. Prior to the incident, [Appellant] and
       Ms. Parks were in a relationship, which ended in 2014. After the
       dissolution of the relationship, Ms. Parks filed for a Protection from

____________________________________________


1 18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), 2705, 3503(a)(1)(ii), and 23
Pa.C.S.A. § 6114(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Abuse Order (“PFA”) against [Appellant]. However, at roughly 2
     [a.m.] on January 16, Ms. Parks and Mr. Baker were inside Ms.
     Parks’ house when they heard noises at the dining room window.
     At that time, Ms. Parks discovered that [Appellant] was standing
     outside the window saying something, but she could not hear what
     because he was outside [of] the locked window. At that time,
     [Appellant] went around to the kitchen window, which was open.
     When Ms. Parks attempted to slide the window closed, [Appellant]
     struck her in the face with a closed fist. In response to this, Mr.
     Baker pushed [Appellant] away. [Appellant] then walked to the
     front window, which was also locked; he threw a rock at the glass
     storm door, which shattered. After that, Ms. Parks and Mr. Baker
     testified that they saw [Appellant] walking down 60th Street Way,
     so they believed that he had left the area. However, roughly five
     minutes later, [Appellant] came “tiptoeing” down the steps from
     the upstairs area of the house, and told Mr. Baker to leave. (N.T.
     Trial, 4/26/16, at 23). Mr. Baker and [Appellant] had some “back
     and forth” while Ms. Parks searched for her cell phone in the
     kitchen. (Id. at 24). At that time, Ms. Parks’ 1[4]-year-old child,
     S.P., came downstairs; she stated that she put her hands up to
     show that she was not trying to hit [Appellant], and stood between
     him and Mr. Baker. At that time, S.P. saw [Appellant] make a
     quick motion with his hand. Mr. Baker then indicated that he had
     been stabbed by [Appellant]. Ms. Parks states that Mr. Baker
     pulled his shirt up and blood began gushing out. S.P. said that
     [Appellant] “darted out of the house” and she called 911. (Id. at
     159). At that point, Mr. Baker “started sliding down the couch
     and then he vomited,” while S.P. spoke to the dispatcher about
     what to do next. (Id.). She indicated that emergency personnel
     arrived within 5-10 minutes of the initial call.

           Mr. Baker also testified regarding the incident involving
     [Appellant]. He stated that [Appellant] lunged at him, and Ms.
     Parks’ daughter got between Mr. Baker and [Appellant]. At that
     time, [Appellant] stabbed Mr. Baker in the chest, which left a dime
     or nickel sized circular scar on the left chest area. After the
     stabbing occurred, [Appellant] walked out the front door and left.
     After being transported to the hospital, Mr. Baker underwent
     surgery within [a half-]hour of his arrival. He then spent 10 days
     in the hospital, and was instructed to continue seeing the doctors
     for follow-up appointments every two weeks [until August of
     2015]. Mr. Baker also stated that he continued to have trouble
     breathing and experienced chest pain as a result of his injuries.


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(Trial Court Opinion, 12/21/17, at unnumbered pages 1-3) (most record

citations omitted; record citation formatting provided).

       Appellant proceeded to a bench trial on April 26, 2016.            At the

continuation of trial on May 13, 2016, Appellant filed a motion to dismiss the

case, based on the Commonwealth’s alleged failure to provide discovery

materials.2 The trial court denied the motion, and found Appellant guilty of

the aforementioned offenses. On August 19, 2016, the court sentenced him

to an aggregate term of not less than two and one-half nor more than five

years’ incarceration, followed by five years’ probation.       This timely appeal

followed.3

       Appellant raises the following issues for our review:

       I. Whether the [c]ourt was in error in denying Appellant’s motion
       to dismiss for failure to provide the mandatory discovery
       requested and filed on May 13, 2016[?]

       II. The verdict was insufficient as a matter of law, due to the
       inconsistency of testimony and the omissions of the
       Commonwealth during trial, and elements of the crimes were not
       sufficiently proven for the following reasons:

              a. As to the PFA, the Commonwealth did not prove
              that the Appellant was aware of the PFA and therefore
              the Contempt conviction is contrary to law;
____________________________________________


2 The materials at issue were an arrest memorandum prepared by the lead
detective, and documentation regarding the possible existence of a security
system at Ms. Parks’ residence. (See Trial Ct. Op., at unnumbered page 5;
N.T. Trial, 5/13/16, at 6-10).

3Appellant filed a timely concise statement of errors complained of on appeal
on January 31, 2017. The court entered an opinion on December 21, 2017.
See Pa.R.A.P. 1925.

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              b. As to the Criminal Trespass, the Commonwealth did
              not prove that the Appellant entered into the premises
              by breaking into it;

              c. As to Aggravated Assault, the Commonwealth did
              not prove that the Appellant caused or intended to
              cause serious bodily injury;

              d. As to the PIC, Simple Assault, and REAP, the
              Commonwealth did not prove that the Appellant came
              at Mr. Baker, rather than the other way around.

(Appellant’s Brief, at 7).

        Appellant first argues that the trial court erred in denying his motion to

dismiss the case for the Commonwealth’s failure to provide discovery

materials, namely an arrest memorandum and documentation related to a

possible security system at the Parks’ property. (See Appellant’s Brief, at 12-

16; see also this Memorandum supra at *3 n.2). Appellant claims that the

Commonwealth’s failure to produce this evidence to defense counsel

constituted a Brady4 violation. (See Appellant’s Brief, at 12). This issue does

not merit relief.

        Pennsylvania Rule of Criminal Procedure 573 sets forth the basic

principles governing the Commonwealth’s discovery obligations in a criminal

case, and the sanctions the trial court may impose if the Commonwealth

violates those obligations. This Rule provides, in pertinent part:

        (B) Disclosure by the Commonwealth.

        (1) Mandatory. In all court cases, on request by the defendant,
        and subject to any protective order which the Commonwealth
____________________________________________


4   Brady v. Maryland, 373 U.S. 83 (1963).

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      might obtain under this rule, the Commonwealth shall disclose to
      the defendant’s attorney all of the following requested items or
      information, provided they are material to the instant case. The
      Commonwealth shall, when applicable, permit the defendant’s
      attorney to inspect and copy or photograph such items.

            (a) Any evidence favorable to the accused that is
            material either to guilt or to punishment, and is within
            the possession or control of the attorney for the
            Commonwealth[.]

                                   *   *     *

      (E) Remedy. If at any time during the course of the proceedings
      it is brought to the attention of the court that a party has failed to
      comply with this rule, the court may order such party to permit
      discovery or inspection, may grant a continuance, or may prohibit
      such party from introducing evidence not disclosed, other than
      testimony of the defendant, or it may enter such other order as it
      deems just under the circumstances.

Pa.R.Crim.P. 573 (B)(1)(a), (E).

             Rule 573 does not abridge or limit the Commonwealth’s duty
      to provide discovery pursuant to Brady [supra,] and its progeny.
      In Brady, the United States Supreme Court held that the
      suppression by the prosecution of evidence favorable to an
      accused upon request violates due process where the evidence is
      material either to guilt or to punishment irrespective of the good
      faith or bad faith of the prosecution. There are three components
      of a true Brady violation: The evidence at issue must be favorable
      to the accused, either because it is exculpatory, or because it is
      impeaching; that evidence must have been suppressed by the
      State, either willfully or inadvertently; and prejudice must have
      ensued.

Commonwealth v. Maldonodo, 173 A.3d 769, 774 (Pa. Super. 2017),

appeal denied, 182 A.3d 991 (Pa. 2018) (quotation marks and citations

omitted). Additionally, “[t]he trial court has broad discretion in choosing the




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appropriate remedy for a discovery violation[,]” and we apply a deferential

abuse of discretion standard of review to any employed remedy. Id.

      Here, the trial court explained its rationale in denying the motion to

dismiss as follows:

            . . . [I]t was established that the Commonwealth was not in
      possession of either item [at issue] until the start of trial, at which
      point both items were provided to defense counsel. Additionally,
      defense counsel did not allege any prosecutorial misconduct.
      After a lengthy discussion with counsel, the court found that the
      arrest memo was not exculpatory to [Appellant] and, therefore,
      did not constitute a Brady violation. Additionally, because the
      Commonwealth had already rested when the exhibit was
      presented, the court excluded the memo from evidence
      altogether. As far as the possible existence of security footage,
      the court found that it was unlikely that the tapes still existed
      nearly a year and a half later, and that it would be unproductive
      to engage in a search for non-existent tapes that would further
      delay the judicial process. Therefore, the court stated that it
      would take the missing discovery into consideration in rendering
      its decision, as it would likely go to the credibility of the specific
      charges. . . .

(Trial Ct. Op., at unnumbered page 5; see also N.T. Trial 5/13/16, at 38).

      After review of the record, and in light of the trial court’s express

statement that it, as factfinder, would take the discovery issues related to the

admitted evidence into consideration in rendering its decision, we discern no

abuse of discretion in its denial of Appellant’s motion to dismiss.             See

Maldonodo, supra at 774. Therefore, Appellant’s first issue merits no relief.

      Appellant next challenges the sufficiency of the evidence supporting all

of his offenses. (See Appellant’s Brief, at 16-21). Our standard of review is

as follows:



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            Because a determination of evidentiary sufficiency presents
      a question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted).

      Appellant first challenges the sufficiency of the evidence supporting his

ICC conviction for violation of the underlying PFA order.     (See Appellant’s

Brief, at 17-18). Appellant maintains that he was never served with proper

notice of the order. (See id. at 18).

            . . . Where a PFA order is involved, an indirect criminal
      contempt charge is designed to seek punishment for violation of
      the protective order. A charge of indirect criminal contempt
      consists of a claim that a violation of an order occurred outside
      the presence of the court.

             In order to establish indirect criminal contempt, the
      Commonwealth must prove: 1) the order was sufficiently definite,
      clear, and specific to the contemnor as to leave no doubt of the
      conduct prohibited; 2) the contemnor had notice of the order; 3)
      the act constituting the violation must have been volitional; and
      4) the contemnor must have acted with wrongful intent.

Commonwealth v. Felder, 176 A.3d 331, 334 (Pa. Super. 2017) (citations

and quotation marks omitted).

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       Here, as noted, Appellant disputes the second element regarding notice

of the order. The trial court explained:

             . . . At trial, the Commonwealth provided a copy of the final
       PFA order, which the court determined was a self-authenticating
       public document.          (See N.T. Trial, 4/26/16, at 34-35).
       Additionally, the Commonwealth presented a witness, Ms. Parks,
       who stated that she filed the PFA order with the police department
       and was told that [Appellant] had been properly served with the
       order, effectively activating the protections of the PFA. (See id.
       at 46-47).[5]       Based on these two points, it is clear that
       [Appellant] had proper notice of the order, and therefore, cannot
       claim that he was unaware of the PFA that led to his contempt
       charge.

(Trial Ct. Op., at unnumbered page 7) (record citations provided).

       Viewing the evidence admitted at trial in the light most favorable to the

Commonwealth as verdict winner, we agree with the trial court that the

evidence was sufficient to establish that Appellant had notice of the PFA order.

See Palmer, supra at 89.             Therefore, Appellant’s challenge to his ICC

conviction merits no relief.

       Appellant next challenges the sufficiency of the evidence supporting his

conviction for criminal trespass.              (See Appellant’s Brief, at 18-19).

Specifically, Appellant disputes that he entered Ms. Parks’ home by breaking

into it.   (See id. at 19).

       A person commits the offense of criminal trespass “if, knowing that he

is not licensed or privileged to do so, he . . . breaks into any building or

____________________________________________


5Specifically, Ms. Parks testified that she went to the police station as directed
and waited there until the police returned from serving Appellant with the
order. (See N.T. Trial, 4/26/16, at 46-47).

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occupied structure or separately secured or occupied portion thereof.”    18

Pa.C.S.A. § 3503(a)(1)(ii).   A person “breaks into” a building or occupied

structure if he “gain[s] entry by force, breaking, intimidation, unauthorized

opening of locks, or through an opening not designed for human access.” Id.

at § 3503(a)(3).

      Instantly, the record reflects that Appellant repeatedly attempted to

enter the kitchen of Ms. Parks’ home, despite her efforts to keep him out by

shutting and locking windows. (See N.T. Trial, 4/26/16, at 17-20). Appellant

used physical force by punching Ms. Parks in the face as she was leaning over

to close a window. (See id. at 18-21). Appellant then threw a rock at Ms.

Parks’ front storm door, shattering the pane of glass. (See id. at 21-22).

Eventually, Appellant entered the home through the upstairs area, and

“tiptoe[d]” down the steps. (Id. at 23; see id. at 22-23, 104).

      Based on the foregoing, we conclude that the evidence was more than

sufficient to establish that Appellant gained entry to Ms. Parks’ home by use

of force, intimidation, the unauthorized opening of locks, or through an

opening in the upstairs area not designed for human access. See 18 Pa.C.S.A.

§ 3503(a)(3). Therefore, Appellant’s sufficiency claim regarding his criminal

trespass conviction fails.




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       Finally, Appellant challenges the sufficiency of the evidence supporting

his aggravated assault conviction.             (See Appellant’s Brief, at 19-21).6

Appellant argues that the evidence failed to establish his intent, i.e., that he

knew or had reason to know that his conduct would result in substantial harm

to Mr. Baker. (See id. at 20).

       The offense of aggravated assault is set forth at section 2702 of the

Crimes Code, and provides in relevant part as follows:

       (a)    Offense defined.—A person is guilty of aggravated
              assault if he:

              (1) 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.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. We are also mindful that “[i]t is

well established in Pennsylvania that a fact finder may infer malice and a

specific intent to kill from the use of a deadly weapon upon a vital part of the

victim’s body.” Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super.

2018), appeal denied, 2018 WL 4776067 (Pa. 2018) (citation omitted).

____________________________________________


6 Appellant also purports to challenge his PIC, simple assault, and REAP
convictions in this same section of his brief, which spans one and one-half
pages. (See Appellant’s Brief, at 19-21). However, because he fails to
develop each of these individual claims with citation to pertinent legal
authority or the record, they are waived. See Pa.R.A.P. 2101, 2119(a)-(c).

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     Here, the evidence demonstrated that Appellant stabbed Mr. Baker in

the heart with a knife. (See N.T. Trial, 4/26/16, at 107-08, 158). Mr. Baker

testified that Appellant “stabbed my aorta” and that he “almost died.” (Id. at

107-08). This testimony sufficed to establish that Appellant knowingly caused

serious bodily injury to Mr. Baker.    Therefore, Appellant’s final claim lacks

merit. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/18




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