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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

IVAN BOLSHAKOV,                                      No. 1063 EDA 2018

                         Appellant


           Appeal from the Judgment of Sentence, March 5, 2018,
             in the Court of Common Pleas of Delaware County
              Criminal Division at No. CP-23-CR-0001834-2017


BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 23, 2019

      Ivan Bolshakov appeals from the March 5, 2018 judgment of sentence

entered in the Court of Common Pleas of Delaware County after a jury
convicted him of simple assault, retail theft, and possession of drug
paraphernalia.' The trial court sentenced appellant to a term of incarceration

of one day to two years less one day on the simple assault conviction, followed

by a two-year probationary term for the remaining convictions.2 We affirm.

      The trial court set forth the following:

            Ashai Mathurin had been employed by Rite Aid as a
            Loss Prevention agent for about four years at the time
            of the incident. On February 8, 2017, in the early

' 18 Pa.C.S.A. §§ 2701(a)(4) and 3929(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.

2 We note that at the time of sentencing, the trial court found appellant eligible
for parole and immediately paroled appellant.
J. S66045/18

          afternoon hours, he was working at the Rite Aid on
          69th Street in Upper Darby. On that day, he observed
          [appellant] come into the store with a backpack and
          conceal random items in his backpack in a cart. While
          still in the store, Mr. Mathurin confronted [appellant]
          and asked him why he was stealing. [Appellant]
          responded in English saying he was sorry and asking
          Mr. Mathurin not to call the police. Mr. Mathurin then
          escorted [appellant] to the loss prevention office to fill
          out an external loss prevention incident report.
          [Appellant] claimed to have no identification. As a
          result, Mr. Mathurin was not able to identify
          [appellant] to complete the report. As part of that
          process, Rite Aid generated a receipt for the items that
          were in [appellant's] backpack. The receipt came to
          a total of $109.13. Mr. Mathurin then called the Upper
          Darby Police to report the incident.

          Officer Francis Devine is employed by the Upper Darby
          Township Police Department as a patrolman. He
          received a call to respond to the Rite Aid store at
          123 South 69th Street. Officer Devine was informed
          that loss prevention had a cooperative subject in
          custody and they needed assistance with identifying
          the subject for their paperwork. When Officer Devine
          arrived at this Rite Aid, he made contact with a loss
          prevention officer who directed him to the manager's
          office. He advised Officer Devine they had a subject
          that passed all points of sale and took numerous
          items.    The Rite Aid employees were trying to
          complete their in-house paperwork and had no way of
          identifying the subject. So they asked Officer Devine
          if he could obtain the subject's identity through the
          police database. The loss prevention officer then
          directed Officer Devine to [appellant]. Officer Devine
          asked [appellant] his name, date of birth, and his
          address. [Appellant] apologized for taking the items.
          Officer Devine advised [appellant] that he was there
          to check on his identification and that it was his belief
          Rite Aid just was going to bar him from the store.
          [Appellant] provided Officer Devine with a name and
          date of birth. Officer Devine ran the information
          through NCIC[,] and it came back with no record
          found.     Officer Devine concluded that either


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          [appellant] has never been through the system or the
          information [appellant] provided was fraudulent.
          During their conversation, [appellant] was responding
          in English.     Officer Devine believed [appellant]
          understood everything he asked him. During the
          conversation[, appellant] indicated he was sorry and
          regretted committing a theft. He further stated he
          was from a different country. He also told the officer
          that he has a wife and a 6 -year -old daughter and that
          he was embarrassed he would do this to them. Their
          conversation in English lasted for a couple minutes.
          After Officer Devine determined he couldn't verify the
          identifying information [appellant] was providing him,
          he advised [appellant] he was going to be handcuffed
          and brought to the police station for purposes of
          identification. [Appellant] then stood up, put his
          hands behind his back and allowed Officer Devine to
          place handcuffs on him. Officer Devine observed that
          [appellant] was complying with everything he asked
          him to do. Officer Devine believed [appellant] fully
          understood everything being said to him.

          It is Upper Darby Township Police Department policy
          that everyone who      is placed into custody or is
          transported in a    police car is patted down for
          weapons. It is Officer Devine's practice every time he
          makes an arrest or transports an individual to ask
          them if they have anything on them he should worry
          about. He asks the same question each time; "Do you
          have any drugs, guns, bombs, bodies, any knives,
          weapons, anything that's going [to] poke me, stick
          me, or hurt me." Officer Devine asked [appellant] the
          same question in this case. [Appellant] replied that
          he had nothing on him that would hurt Officer Devine.
          Officer Devine then began a pat down of [appellant].
          [Appellant] had a large puffy down feather type jacket
          with two large pockets in the front that were buttoned
          together. Officer Devine could tell from the outside
          that something was in the pockets. Officer Devine
          started to undo the button to look inside the pocket.
          When Officer Devine grabbed the fabric of the jacket,
          he felt a puncture in his hand. Officer Devine looked
          down and saw an uncapped hypodermic needle
          sticking out of the fabric. Officer Devine then took a


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          knife out and cut the pocket open.          Inside the
          pocket[,] he recovered a used hypodermic needle, as
          well as a metal bottlecap that had an off-white residue
          and cotton inside of it. After being stabbed by the
          needle, Officer Devine sat [appellant] back down while
          he was handcuffed and went into the Rite Aid and took
          a bottle of rubbing alcohol and began cleaning his
          hands.    Officer Devine then requested additional
          officers to come to continue handling the scene.
          Officer Devine later took himself to the hospital for
          exposure treatment.

          Officer John Millison is employed by the Upper Darby
          Township Police Department as a Patrolman.
          Officer Millison responded to the Rite Aid to assist
          Officer Devine.    Officer Millison took custody of
          [appellant] while Officer Devine went to the hospital.
          Officer Millison was present while the loss prevention
          officer was talking to [appellant]. The loss prevention
          officer was asking [appellant] his name and all the
          other questions on the loss prevention form.
          [Appellant] responded to each question in English. At
          no time during the conversation did [appellant]
          indicate he didn't understand English or that he
          needed an interpreter.

          Officer Charles Peterson is employed by the Upper
          Darby Township Police Department as a Patrolman.
          He transported [appellant] to the police station. Prior
          to the transport, Officer Peterson explained to
          [appellant] what he was doing and that he was patting
          him down again. During this time[, appellant] was
          answering questions and talking to Officer Peterson in
          English. At no time did [appellant] indicate he could
          not understand.        At the [p]olice station[,]
          Officer Peterson continued to speak with [appellant]
          in English.  Officer Peterson asked [appellant] for
          biographical information.    [Appellant's] responses
          were appropriate and responsive to Officer Peterson's
          inquiries.  Officer Peterson had a back -and -forth
          conversation with [appellant] while he was in the
          holding   cell   about consenting to   a   blood   draw.
          [Appellant] responded he didn't think there was
          anything wrong with his blood but agreed to the blood


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            draw. Eventually[, appellant] was transported to the
            hospital for a blood draw. At the hospital[, appellant]
            stayed in Officer Peterson's custody the entire time.
            Officer Peterson witnessed the medical staff talking to
            [appellant] about his medical history. The medical
            staff spoke with [appellant] in English. [Appellant]
            responded to their questions in English. [Appellant]
            was in the hospital for an hour and a half. When the
            medical staff was not speaking with [appellant],
            Officer Peterson was. At no time did [appellant] ask
            for assistance with interpretation. At no time during
            their hour conversation did Officer Peterson believe
            [appellant] could not understand him or had trouble
            understanding the English language.

Trial court opinion, 5/30/19 at 2-7 (citations to notes of testimony omitted).

      The record reflects that following imposition of sentence, appellant did

not file post -sentence motions. Appellant did, however, file a timely notice of

appeal. The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       In lieu of filing a
Rule 1925(b) statement, and      in   accordance with Pa.R.A.P. 1925(c)(4),

counsel filed a statement of intent to file an Anders brief.3 The trial court
then filed a Rule 1925(a) opinion stating that it did not identify any issue of

arguable merit, but that in accordance with Anders procedure, it would await

this court's determination. (Trial court opinion, 6/26/18 at 2.)

      Following this court's review of counsel's Anders brief and petition to

withdraw, we concluded that counsel failed to comply with Anders and denied

counsel's petition.   Commonwealth v. Bolshakov, No. 1063 EDA 2018,


3 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).

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unpublished memorandum (Pa.Super. filed February 6, 2019). We instructed

counsel to file either a compliant Anders brief or an advocate's brief within

30 days, at which time we afforded the Commonwealth 30 days to respond.

Appellant's counsel timely filed an advocate's brief, and the Commonwealth

filed a timely response. In his brief, appellant raises the following issue:

            The Commonwealth failed to produce sufficient
            evidence that [appellant] committed the offense of
             Simple       Assault   pursuant   to   18   Pa.C.S.[A.]
             § 2701(a)(4) because the circumstances of the case
             and his limited understanding of the English language
             raises doubt that he had the requisite mens rea to
             intentionally or knowingly commit the acts charged.

Appellant's brief at 7.

      At the time this court received counsel's advocate's brief, we did not

have the benefit of the trial court's reasoning in relation to the sufficiency of

the evidence challenge that appellant raises. We, therefore, remanded this

case for the trial court's preparation of a Rule 1925(a) opinion. We have
received the trial court's Rule 1925(a) opinion and are now able to address

appellant's sufficiency challenge on the merits.

            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

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J. S66045/18

            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 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 is guilty of assault if he "conceals or

attempts to conceal a hypodermic needle on his person and intentionally or

knowingly penetrates a law enforcement officer        .   .   .   during the course of an

arrest or any search of the person." 18 Pa.C.S.A. § 2701(a)(4).

            A person acts knowingly with respect to a material
            element of an offense when:

            (i)       if the element involves the nature of his
                      conduct or the attendant circumstances,
                      he is aware that his conduct is of that
                      nature or that such circumstances exist;
                      and

            (ii)      if the element involves a result of his
                      conduct, he is aware that it is practically
                      certain that his conduct will cause such a
                      result.

18 Pa.C.S.A. § 302(b)(2).

      Appellant claims that the Commonwealth failed to prove that appellant

knowingly    penetrated         Officer   Devine   because          appellant's   "limited


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understanding of the English language suggest [sic]           that he did     not

understand what Officer Devine was saying to him" and "the fact the syringes

were on his person, even if recalled that they were, does not suggest
[penetration] was practically certain." (Appellant's brief at 20.)

      In addressing appellant's claim, the trial court explained that

            [f]our witnesses testified they interacted with
            [appellant] in English. Each witness stated that at no
            time did [appellant] ask for assistance with
            interpretation. Each witness believed [appellant]
            understood them and had no trouble responding
            appropriately to their questions in English. From this
            testimony the jury concluded [appellant] understood
            Officer Devine's instructions and made a knowing
            decision not to disclose to Officer Devine he had a
            hypodermic needle in his pocket.

Trial court opinion, 5/30/19 at 9-10.

      Clearly, the evidence was sufficient to demonstrate that appellant
understood the English language and knowingly decided against informing

Officer Devine that appellant had a hypodermic needle            in   his pocket.

Additionally, the evidence was sufficient to demonstrate that as a result of

appellant's knowing decision not to disclose to Officer Devine that appellant

had a hypodermic needle in his pocket immediately before Officer Devine

searched appellant's person, appellant was aware that it was practically

certain that his decision would result in Officer Devine being penetrated by

the hypodermic needle.

      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, it was sufficient to enable the fact -finder to find appellant

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guilty of assault beyond a reasonable doubt because it demonstrated that
appellant knowingly penetrated Officer Devine with a hypodermic needle

during the officer's search of appellant's person.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 7/23/19




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