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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PRENTICE THOMAS

                            Appellant                  No. 3092 EDA 2014


             Appeal from the Judgment of Sentence June 27, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006992-2012


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED DECEMBER 02, 2015

        Prentice Thomas appeals from his judgement of sentence imposed by

the Court of Common Pleas of Philadelphia County following his conviction

for simple assault1 and recklessly endangering another person (REAP).2

After careful review, we affirm.

        The relevant facts of this case are as follows. M.K., a minor, lived in

Philadelphia with his mother, grandmother, and Thomas, who is his uncle.

When M.K. was five or six years old, he witnessed an argument between his

mother and Thomas, which upset him.            As a result, he went upstairs to

Thomas’s room and tried to hurt him by punching him in the face.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(b)(2).
2
    18 Pa.C.S. § 2705.
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      In response, before M.K. was able to hurt him, Thomas, who was 35

years old at the time, grabbed M.K. by the neck and put him face down on

the bed. Thomas squeezed M.K.’s neck, and as a result, M.K. had difficulty

breathing and his face turned red.

      Before trial, the trial court conducted a competency hearing pursuant

to Pa.R.E. 601, and determined that M.K. was competent to testify. At trial,

the court observed that Thomas would have been significantly larger and

stronger than M.K. would have been at the time of the incident.

      On March 14, 2014, at the conclusion of a non-jury trial, the court

convicted Thomas of simple assault and REAP.       At a hearing on June 27,

2014, the court sentenced Thomas to two to five years’ incarceration for

simple assault, followed by one day to twenty-four months’ incarceration for

REAP. At the conclusion of the hearing, counsel for Thomas made an oral

motion for reconsideration.

      On July 1, 2014, counsel filed a motion to reconsider sentence. The

sole basis for the motion is that “[at Thomas’s] June 27, 2014 sentencing,

[Thomas] indicated that he wished the [c]ourt to reconsider his sentence, as

he believed he would not live long enough to serve it in its entirety.” Motion

to Reconsider Sentence, 7/1/14, at 1. The court denied the motion, and this

timely appeal followed in which Thomas presents the following issues for our

review:

      1.   Whether the evidence was sufficient for the lower court to
      have found . . . Thomas to be guilty of the crimes of simple
      assault and recklessly endangering another person, or, in the

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      alternative, whether the verdict rendered against [Thomas] by
      the lower court was against the weight of the evidence.

      2.   Whether the lower court abused its discretion in denying
      [Thomas’s] Motion for Reconsideration of Sentence.

Brief of Appellant, at 5.

      In his first issue, Thomas argues that the Commonwealth failed to

present sufficient evidence to support his convictions.    This Court reviews

the sufficiency of the evidence according to the following standard:

      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 [this] 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 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 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. Chine, 40 A.3d 1239, 1241-42 (Pa. Super. 2012).

      At issue here is whether the Commonwealth proved the material

elements of the charged crimes. Simple assault is graded as a first-degree

misdemeanor when the crime is “against a child under 12 years of age by a

person 18 years of age or older.” 18 Pa.C.S. § 2701(b)(2).          To convict



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Thomas of simple assault, the Commonwealth was required to prove beyond

a reasonable doubt that Thomas attempted to cause or intentionally,

knowingly or recklessly caused M.K. bodily injury. 18 Pa.C.S. § 2701(a)(1)

(emphasis added).       Bodily injury is defined as an “impairment of physical

condition or substantial pain.” 18 Pa.C.S. § 2301.

      Here, there was sufficient evidence to find beyond a reasonable doubt

that Thomas had the requisite intent to commit simple assault.            Thomas

claims that he did not intend to harm M.K., and therefore he could not be

convicted of simple assault.        However, it was not necessary for the

Commonwealth to demonstrate an intent to harm in order to convict Thomas

of simple assault.      Rather, the mens rea of recklessness is defined as “a

conscious disregard of a known risk of death or great bodily harm to another

person.” Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super.

2006), will suffice.

      Viewing     the    evidence   in   the   light   most   favorable   to   the

Commonwealth, the trial court properly found that Thomas committed

simple assault.   Even if Thomas did not intend to injure M.K., at the very

least he acted recklessly when he grabbed his nephew’s neck and forced his

face into the bed. Thomas was significantly older, larger, and stronger than

M.K., thereby posing a significant risk of harming M.K. See Emler, supra

(defendant properly charged with simple assault where he forcefully choked

smaller man and used his much heavier body to pin victim to ground).

Moreover, Thomas inflicted bodily injury, as M.K. had difficulty breathing,

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turned red, and cried because of Thomas’s actions.             Thus, there was

sufficient evidence to find Thomas guilty of simple assault.

        To convict Thomas of REAP, the Commonwealth was required to prove

that Thomas recklessly engaged in conduct that placed or may have placed

M.K. in danger of death or serious bodily injury. 18 Pa.C.S. § 2705. 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. §

2301.

        The trial court properly found Thomas guilty of REAP.     As previously

noted, Thomas engaged in reckless conduct when he squeezed M.K.’s neck.

Further, this reckless conduct placed M.K. in danger of death or serious

bodily injury. It is of no moment that M.K. did not actually suffer serious

bodily injury, as the Commonwealth need only prove that Thomas placed

M.K. in danger of death or serious bodily injury. See Commonwealth v.

Cordoba, 902 A.2d 1280, 1289 (Pa. Super. 2006) (defendant properly

charged with REAP when he placed victim in danger of contracting HIV).

Accordingly, there was sufficient evidence to support Thomas’s convictions.

        Thomas next argues that the verdict was against the weight of the

evidence. Before reaching the merits of that question, we must determine

whether the weight claim has been properly preserved for consideration on

appeal. Commonwealth v. Mikell, 968 A.2d 779, 780 (Pa. Super. 2009).




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The relevant rule, Pennsylvania Rule of Criminal Procedure 607, provides as

follows:

      (A) A claim that the verdict was against the weight of the
      evidence shall be raised with the trial judge in a motion for a
      new trial:

            (1) orally, on the record, at any time before sentencing;

            (2) by written motion at any time before sentencing; or

            (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).

      Here, Thomas first raised his claim that the verdict was against the

weight of the evidence in his brief on appeal. Because he did not comply

with Rule 607, his claim is waived and we are precluded from engaging in

appellate review.

      Lastly, Thomas claims that the trial court abused its discretion by

imposing a consecutive sentence of one to five years’ incarceration for

simple assault and one day to two years’ incarceration for REAP. Thomas’s

allegation that his sentence was excessive is a challenge to the discretionary

aspect of his judgment of sentence.

      An appellate court must conduct a four-part analysis to reach the

merits of a discretionary sentencing issue to determine:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

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Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

      Here, Thomas filed a timely notice of appeal and preserved the issue in

his motion to reconsider. However, in his brief to this Court, he has failed to

include a statement of reasons relied upon regarding the discretionary

aspect of sentence, as required by Pa.R.A.P. 2119(f). The Commonwealth

objects to the defect, which ordinarily would result in waiver.             See

Commonwealth v. Titus, 816 A.2d 251 (Pa. Super. 2003).                 However,

because the Commonwealth filed its brief beyond the date set by this Court

in an order granting a second extension to file a brief, we decline to find

waiver on this basis.

      A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either:          (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which   underlie   the   sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      In his brief, Thomas asserts that the trial court abused its discretion by

failing to take sufficient account of: (1) his psychological disability; and (2)

the interfamily dynamics at play in this case.

      We find this claim is waived because Thomas failed to reference it in

his Rule 1925(b) statement, which simply notes, “[t]he court erred in

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denying [Thomas’s][m]otion for [r]econsideration of [s]entence.” Statement

of Errors Complained of on Appeal, 11/17/14, at 1.        As noted above, the

only issue raised in the motion for reconsideration is that “[at Thomas’s]

June 27, 2014 sentencing, [Thomas] indicated that he wished the [c]ourt to

reconsider his sentence, as he believed he would not live long enough to

serve it in its entirety.” Motion to Reconsider Sentence, 7/1/14, at 1.

        Rule 1925(b)(4)(ii) provides, in relevant part, that “[t]he [s]tatement

shall concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”

Failure to raise an issue in a Rule 1925(b) statement will result in waiver.

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (finding

waiver where Rule 1925(b) statement too vague).

        Because the sentencing issues included in Thomas’s appellate brief

were not raised at the sentencing hearing, or in a motion for reconsideration

or in a Rule 1925(b) statement, they are waived.

        Judgment of sentence affirmed.3




____________________________________________


3
    The Commonwealth’s motion to seal the certified record is granted.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




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