J-A07032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC ULYSSES DEAN

                            Appellant                   No. 980 WDA 2014


            Appeal from the Judgment of Sentence March 11, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016733-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                               FILED MARCH 13, 2015

        Appellant, Eric Ulysses Dean, appeals from the March 11, 2014

judgment of sentence of six to 12 years’ imprisonment imposed after being

found guilty following a bench trial of one count of aggravated assault.1

After careful review, we affirm.

        The trial court has set forth the relevant factual history of this case as

follows.

                    At trial, the evidence established that on
              October 30, 2012, [Appellant] went to Bob’s Tavern
              on Broadway Avenue in McKees Rocks with his
              friend, Willie Fuller. The pair arrived at 11:00 a.m.
              and drank and smoked marijuana throughout the
              day. The victim, Martin Dzubinski, arrived sometime
              that evening, as it was his custom to stop in at the
____________________________________________


1
    18 Pa.C.S.A. § 2702(a)(1).
J-A07032-15


            bar for a few beers after work. At 7:13 p.m., bar
            surveillance video showed Dzubinski leaving the bar,
            and [Appellant] following him 35 seconds later. One
            (1) minute and four (4) seconds later, [Appellant]
            returned and told Fuller that he had knocked
            somebody out.        Fuller and the bartender went
            outside and found Dzubinski unconscious, lying in
            the middle of Broadway Avenue. Paramedics and
            police were called and Dzubinski was transported to
            Ohio Valley General Hospital and then transferred to
            Allegheny General Hospital the same evening, where
            he remained for 19 days, before being transferred to
            a rehabilitation facility. Dzubinski suffered a severe
            head injury with loss of function and loss of memory.
            He was released to the rehabilitation [facility] with a
            feeding tube and was unable to care for himself. He
            has since regained some function, but will not return
            to his previous level of functioning.

Trial Court Opinion, 9/10/14, at 2 (citations omitted).

      On November 2, 2012, Appellant was charged with aggravated

assault.   On December 9, 2013, a two-day bench trial commenced.           On

December 10, 2013, the trial court found Appellant guilty of aggravated

assault. Thereafter, on March 11, 2014, Appellant was sentenced to six to

12 years’ imprisonment.

      On March 13, 2014, Appellant filed a timely post-sentence motion

asserting, inter alia, the evidence was insufficient to find him guilty of

aggravated assault, and the verdict was against the weight of the evidence.

Additionally, Appellant’s post-sentence motion requested the trial court grant

a 30-day extension to amend said motion upon receipt of the trial

transcripts. On March 28, 2014, the trial court granted Appellant’s request,




                                     -2-
J-A07032-15


and on April 28, 2014, Appellant filed an amended post-sentence motion.

On May 13, 2014, the trial court denied Appellant’s post-sentence motion.

       On June 11, 2014, Appellant filed a timely notice of appeal. Although

not ordered to do so, on June 17, 2014, Appellant filed a concise statement

of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b).2 Thereafter, on September 10, 2014, the trial court filed

its Rule 1925(a) opinion.

       On appeal, Appellant raises the following issues for our review.

              I. Whether the [t]rial [c]ourt erred by convicting []
              Appellant of [a]ggravated [a]ssault where the
              Commonwealth failed to present evidence that []
              Appellant acted with the requisite recklessness
              demonstrating extreme indifference to human life?

              II. Whether the [t]rial [c]ourt abused its discretion
              at sentencing where the [t]rial [c]ourt relied upon
              inaccurate information, specifically that [] Appellant
              had used a weapon in the incident and that []
              Appellant had previously been incarcerated in a state
              correctional institution, to arrive at the conclusion
              that [] Appellant was beyond rehabilitation[?]

Appellant’s Brief at 5.


____________________________________________


2
  Appellant’s Rule 1925(b) statement indicates that the trial court ordered
Appellant to file a concise statement on June 11, 2014. However, said order
is not included in the certified record, and the docket sheet indicates the
order cannot be located. Nevertheless, because Appellant’s Rule 1925(b)
statement was filed within six days of his notice of appeal and the trial
court’s purportedly filed order, we deem Appellant’s Rule 1925(b) statement
timely filed. Further, all issues Appellant raises on appeal were included in
his Rule 1925(b) statement.



                                           -3-
J-A07032-15


         In his first issue, Appellant argues the Commonwealth failed to present

sufficient evidence to convict Appellant of aggravated assault.      Id. at 12.

Specifically, Appellant argues that “the scope of the injuries of the victim

cannot serve as a basis to convict [] Appellant of [a]ggravated [a]ssault

absent any evidence of intent to cause serious bodily injury.”       Id. at 17.

Appellant further asserts, relying on our Supreme Court’s holding in

Commonwealth v. O’Hanlon, 653 A.2d 616 (Pa. 1995), that “mere

recklessness is insufficient to support a conviction for aggravated assault,

which requires a higher degree of culpability, i.e. that which considers and

then disregards the threat necessarily posed to human life by the offending

conduct.”     Appellant’s Brief at 14-15, quoting O’Hanlon, supra at 618.

Appellant argues the victim yelled a racial epithet at him, and that he

responded by inflicting “one open-fisted blow to [the victim’s] face, which

caused him to fall to the ground and strike the pavement.” Appellant’s Brief

at 18.

         We begin by noting our well-settled standard of review. “In reviewing

the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, viewed in a light

most favorable to the Commonwealth as the verdict winner, support the

jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.

Pennsylvania, --- S.Ct. ---, 2015 WL 731963 (2015). “The Commonwealth


                                       -4-
J-A07032-15


can meet its burden by wholly circumstantial evidence and any doubt about

the defendant’s guilt is to be resolved by the fact finder unless the evidence

is so weak and inconclusive that, as a matter of law, no probability of fact

can be drawn from the combined circumstances.”            Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation

marks and citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an

appellate court, we must review “the entire record … and all evidence

actually received[.]”   Id. (internal quotation marks and citation omitted).

“[T]he 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.”    Id. (citation omitted).    “Because evidentiary sufficiency is a

question of law, our standard of review is de novo and our scope of review is

plenary.”    Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013)

(citation omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145

(2014).

      Instantly, Appellant was convicted of aggravated assault.      A person

commits 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.”

18 Pa.C.S.A. § 2702(a)(1).     Further, “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


                                        -5-
J-A07032-15


function of any bodily member or organ.”         Id. § 2301.   Intent is usually

proven by inference through circumstantial evidence.      Commonwealth v.

Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc), appeal denied, 78

A.3d 1089 (Pa. 2013).      “In determining whether intent was proven from

such circumstances, the fact finder is free to conclude the accused intended

the natural and probable consequences of his actions to result therefrom.”

Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (quotation

marks and citation omitted), appeal denied, 932 A.2d 74 (Pa. 2007).

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict-winner, we agree with the trial court that the evidence

supports Appellant’s conviction for aggravated assault. In its Rule 1925(a)

opinion, the trial court concluded as follows.

                   This evidence is clearly sufficient to support
            the     conviction   for    [a]ggravated     [a]ssault.
            [Appellant] admitted that he had knocked [the
            victim] out immediately after it happened. At the
            time there was no discussion of what that beating
            entailed, although at trial, [Appellant] testified that
            he only punched [the victim] once. [The trial c]ourt
            found [Appellant]’s testimony in that regard to be
            not credible particularly given the nature and
            severity of the victim’s injuries and so [Appellant]’s
            sufficiency argument regarding the “one-punch” case
            law is simply inapplicable. Rather, the evidence
            demonstrates that the victim was beaten so severely
            in one (1) minute and four (4) seconds that he was
            not expected to survive. The evidence is more than
            sufficient to support the conviction for [a]ggravated
            [a]ssault.

Trial Court Opinion, 9/10/14, at 3.


                                      -6-
J-A07032-15


      Upon review of the record, we conclude the trial court’s conclusion is

supported.    Officer David English testified for the Commonwealth that on

October 30, 2012, he received a report of a man down on Broadway Avenue.

N.T., 12/9/13, at 5. Upon arriving at the scene Officer English observed an

unconscious male lying on the sidewalk.         Id.   Paramedics arrived and

transported the victim to the hospital. Id.

      On the following day, based on the condition of the victim, Detective

Mike Feeney of the Allegheny County Police, Homicide Section, was

contacted.   Id. at 9-10.   Detective Feeney testified that on November 2,

2012, the case was adopted by the Homicide Section as they “were notified

by staff at Allegheny General Hospital that it was unlikely that [the victim]

would survive the event.”     Id. at 10.      Upon investigation, the security

cameras show Appellant following the victim out of the bar and then

returning one minute and four seconds later. Id. at 18.

      Additionally, Willie Fuller testified that he had been drinking at the bar

with Appellant from approximately 11:00 a.m. until the incident occurred

slightly after 6:00 p.m. Id. at 26. Fuller testified that he was inside when

Appellant and the victim had the altercation but that Appellant came back

inside after and stated “I knocked somebody out.” Id. at 27-28.

      As previously noted, intent is usually proven by inference through

circumstantial evidence.    Fortune, supra.       Further, because Appellant

admitted he knocked the victim out, the trial court was free to conclude “the


                                     -7-
J-A07032-15


accused intended the natural and probable consequences of his actions[.]”

Bruce, supra. The evidence established the victim was gravely injured by

Appellant’s actions, and therefore, the circumstantial evidence was sufficient

to prove that Appellant caused serious bodily harm to the victim. Further,

the trial court was free to determine whether Appellant’s testimony that he

only struck the victim once was not credible. See Watley, supra. Based

on the totality of the evidence presented, particularly the evidence that the

victim was beaten so severely, the trial court found Appellant’s one-punch

theory not credible and therefore inapplicable. Trial Court Opinion, 9/10/14,

at 3. As a result, Appellant is not entitled to relief on his first issue. See

Diamond, supra.

      In his second issue, Appellant asserts the trial court abused its

discretion in sentencing him to six to 12 years’ incarceration.      Appellant’s

Brief at 20.   Specifically, Appellant asserts the pre-sentence investigation

(PSI) report, was based upon inaccurate information. Id.

      We begin by noting our well-settled standard of review.

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or
            arrived at a manifestly unreasonable decision.




                                    -8-
J-A07032-15


Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

             It is well settled that, with regard to the
             discretionary aspects of sentencing, there is no
             automatic right to appeal. [Therefore, b]efore we
             reach the merits of this issue, we must engage in a
             four part analysis to determine: (1) whether the
             appeal is timely; (2) whether Appellant preserved his
             issue; (3) whether Appellant’s brief includes a
             concise statement of the reasons relied upon for
             allowance of appeal with respect to the discretionary
             aspects of sentence; and (4) whether the concise
             statement raises a substantial question that the
             sentence is appropriate under the sentencing code.
             The third and fourth of these requirements arise
             because Appellant’s attack on his sentence is not an
             appeal as of right. Rather, he must petition this
             Court, in his concise statement of reasons, to grant
             consideration of his appeal on the grounds that there
             is a substantial question. [I]f the appeal satisfies
             each of these four requirements, we will then
             proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     Instantly, Appellant has met the first two requirements by filing a

timely notice of appeal and by raising his sentencing claim in his post-

sentence motion. However, Appellant’s brief does not include a Rule 2119(f)

statement.    In its brief, the Commonwealth notes this procedural error

stating that “[A]ppellant has failed to include in his brief a Statement of

Reasons for     Allowance   of Appeal,   pursuant   to   Rule   2119(f).   The

Commonwealth therefore submits that there is a basis for finding his

sentencing challenge in this respect to be waived.” Commonwealth’s Brief at

                                     -9-
J-A07032-15


16-17 (footnote omitted).3        “If a defendant fails to include an issue in his

Rule 2119(f) statement, and the Commonwealth objects … this Court may

not review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.

Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). Accordingly, because

Appellant has failed to comply with the technical requirements necessary to

challenge the discretionary aspects of his sentence, and the Commonwealth

has objected, we deny Appellant’s petition for permission to appeal the

discretionary aspects of his sentence. See Edwards, supra.

       Based on the foregoing, we conclude Appellant’s claims are either

waived or devoid of merit.         Accordingly, the trial court’s March 11, 2014

judgment of sentence is affirmed.

       Judgment of sentence affirmed.




____________________________________________


3
   In said footnote, the Commonwealth               correctly notes that although
Appellant has included a subsection in his         brief entitled “Argument for the
Appellant – Rule 2119,” Appellant’s “brief         contains neither a Rule 2119(f)
Statement requesting permission to appeal          his sentence, nor any analysis of
the Sentencing Code as is required                  by this Court’s case law.”
Commonwealth’s Brief at 17, n.3.



                                          - 10 -
J-A07032-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




                          - 11 -
