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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    DERRICK WILLIAMS                           :
                                               :
                       Appellant               :   No. 220 EDA 2018

             Appeal from the Judgment of Sentence March 27, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010939-2013


BEFORE:      LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 08, 2019

        Derrick Williams appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction for

aggravated assault.1 On appeal, Williams claims his mandatory sentence is

illegal, his conviction rests on insufficient evidence, and the verdict is against

the weight of the evidence. After careful review, we affirm.

        On August 10, 2013, at Williams’s home, he and his romantic partner,

K.A., drank alcohol, smoked crack cocaine and engaged in consensual sex,

after which Williams became physically violent, slapping K.A. and slamming

her into a door. K.A. subsequently went downstairs, pretending to need a

glass of water, but, in truth, hoping to escape without provoking Williams’ ire.

After discovering that Williams kept his front door locked from the inside, K.A.
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1   18 Pa.C.S.A. § 2702.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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began screaming, hoping someone would call the police.            In response,

Williams forced K.A. into a chair and proceeded to choke her until she lost

consciousness. Williams then nudged K.A. When she moved, he reacted by

stating, “I thought you was dead.” N.T. Trial, 8/11/16, at 71. After being

assured she would be left alone, K.A. headed upstairs and pretended to sleep.

When Williams fell asleep, K.A. searched for the key to the front door and

found it hidden behind the television. K.A. left the house in her nightgown

and jeans, heading for the nearby First District Police Station. Officer Jeffrey

McGarvey spoke with her, later describing K.A. as distraught, with visible

bruising on her neck and arms. He escorted her to the Special Victims’ Unit,

which documented and photographed her injuries.

        On August 12, 2016, following a trial presided over by the Honorable

Carolyn H. Nichols, the jury convicted Williams of aggravated assault, while

acquitting him of rape, sexual assault, and indecent assault. On March 27,

2017, the court denied Williams’ motion for extraordinary relief, challenging

the weight and sufficiency of the evidence.            That same day, the

Commonwealth asserted the instant conviction represented Williams’ third

conviction for a crime of violence, thus requiring a mandatory minimum

sentence of twenty-five years of total confinement.2          In support, the



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2   42 Pa.C.S.A. § 9714(a)(2).




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Commonwealth entered evidence of Williams’ prior conviction for robbery3 and

of his prior guilty plea to burglary as a felony of the first degree.4 In addition

to docketing information, the Commonwealth also entered notes of testimony

from the preliminary hearing in Williams’ burglary case, indicating a family

was present in their own home when Williams attempted to steal their

television and VCR. The court found Williams committed two prior crimes of

violence, requiring a minimum sentence of twenty-five years of incarceration.

Williams timely filed his notice of appeal on January 2, 2018.5

       Williams presents the following issues for our consideration:

       (1)    Whether the trial court erred when the court ruled that
              Derrick Williams was previously convicted of two crimes of
              violence and pursuant to 42 Pa.C.S. § 9714(a)(1), imposed
              a sentence of 25 to 50 years of incarceration.

       (2)    Whether the evidence was sufficient as a matter of law to
              convict Derrick Williams of aggravated assault.

       (3)    Whether the verdict was against the weight of the evidence.
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3   Docket number CP-51-CR-0705841-1996.

4   Docket number CP-51-CR-0805631-1993.

5 Williams filed his original notice of appeal on March 31, 2017. On April 7,
2017 Williams petitioned to file post-sentence motions nunc pro tunc. On June
23, 2017, this Court dismissed his appeal for failing to comply with Pa.R.A.P.
3517. On August 28, 2017, he filed a petition pursuant to the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541–9546, resulting in reinstatement of direct
appeal rights on December 7, 2017. Williams filed the instant notice of appeal
on January 2, 2018. At that point Judge Nichols had already been elected to
the Superior Court of Pennsylvania. Consequently, we received Williams’
appeal without an opinion pursuant to Pa.R.A.P.1925(a).



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Appellant’s Brief, at 6.

        Williams contends the trial court erred in meting out a mandatory

minimum sentence of twenty-five years’ incarceration on the grounds that the

Commonwealth failed to prove his guilty plea to first-degree burglary6

constituted a predicate offense pursuant to 42 Pa.C.S.A. § 9714.

        Section 9714, in relevant part, mandates a twenty-five year minimum

sentence of incarceration under the following circumstance:

     (a)   Mandatory sentence.--

                                               ***

           (2) Where the person had at the time of the commission of the
           current offense previously been convicted of two or more such
           crimes of violence arising from separate criminal transactions,
           the person shall be sentenced to a minimum sentence of at
           least 25 years of total confinement, notwithstanding any other
           provision of this title or other statute to the contrary . . .

42 Pa.C.S.A. § 9714(a)(2).

        When an offender contests the accuracy of his criminal record, the

Commonwealth is required to prove the prior convictions warrant the

application of section 9714 by a preponderance of the evidence. 42 Pa.C.S.A.

§ 9714(d). The current version of section 9714(g),7 under which Williams was




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6 Williams does not contest the validity of viewing his robbery conviction as a
crime of violence under section 9714(g).

7   Effective April 28, 2014.

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sentenced, defines crimes of violence, in relevant part, as “burglary as defined

in 18 Pa.C.S. § 3502(a)(1) (relating to burglary) . . .” 42 Pa.C.S.A. § 9714(g)

      Section 3502 states a defendant commits burglary if, with the intent to

commit a crime therein, he:

      (1)   (i) enters a building or occupied structure, or separately
            secured or occupied portion thereof, that is adapted for
            overnight accommodations in which at the time of the
            offense any person is present and the person commits,
            attempts or threatens to commit a bodily injury crime
            therein;

            (ii) enters a building or occupied structure, or separately
            secured or occupied portion thereof that is adapted for
            overnight accommodations in which at the time of the
            offense any person is present;

      Section 9714(g) limits the definition of burglary as a crime of violence

to paragraph (1).    Taking these requirements in tandem, a first-degree

burglary conviction constitutes a crime of violence under section 9714(g)

when the sentencing court determines the defendant entered a building or

structure “adapted for overnight accommodation” when an individual was

“present at the time of entry.” See Commonwealth v. Guilford, 861 A.2d

365, 374–75 (Pa. Super. 2004) (defining circumstances where first-degree

burglary is crime of violence under section 9714(g); holding guilty plea for

second-degree burglary, even under conditions which could have constituted

first-degree burglary, insufficient for purposes of section 9714(g) as statute

requires conviction for crime of violence); see also Commonwealth v.

Samuel, 961 A.2d 57, 65 (Pa. 2008) (“we hold that . . . whether a defendant


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has been convicted of burglary of a structure adapted for overnight

accommodation in which at the time of the offense any person is present [] is

to be determined by the sentencing court.”) (quotations omitted).

       Williams was charged with and pleaded guilty to first-degree burglary

under a previous version of the burglary statute,8 which

       distinguished first-degree burglary from second-degree burglary
       based upon whether the building or structure entered was adapted
       for overnight accommodation and whether an individual was
       present at the time of entry. Only if neither of these conditions
       were true—i.e., that there was no risk of confrontation—was the
       entry a second-degree burglary.

Commonwealth v. Chester, 101 A.3d 56, 64–65 (Pa. 2014).




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8 The version of the burglary statute under which Williams was convicted
reads, in relevant part, as follows:

       (a) Offense defined.--A person is guilty of burglary if he enters
       a building or occupied structure, or separately secured or occupied
       portion thereof, with intent to commit a crime therein, unless the
       premises are at the time open to the public or the actor is licensed
       or privileged to enter.

                                          ***
       (c) Grading.--
            (1) Except as provided in paragraph (2), burglary is a felony
            of the first degree.

              (2) If the building, structure or portion entered is not
              adapted for overnight accommodation and if no individual is
              present at the time of entry, burglary is a felony of the
              second degree.

18 Pa.C.S.A. § 3502 (1990).

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      Therefore, Williams’ conviction under the 1990 burglary statute cannot,

on its own, be used to infer the presence of both requirements. See id. The

sentencing court, however, properly considered the transcripts of Williams’

preliminary hearing. See Commonealth v. Medley, 725 A.2d 1225, 1229

(Pa. Super. 1999) (“[T]he court may receive any relevant information for the

purposes of determining the proper penalty.”). The court found the defendant

knew he was pleading guilty to first-degree burglary, inter alia, on the basis

of the following testimony offered by the victim at Williams’ preliminary

hearing:

      Approximately between [1:00] and 1:15, I heard glass breaking
      on my front porch. There was a small window to the right-hand
      side of my door. I heard the glass break. As I was getting
      dressed, I heard my son’s voice coming up coming from outside.
      My wife and I came down the steps, saw the defendant on my
      front porch with the TV and the Nintendo system in his hand, with
      my son holding it, holding it at bay.

N.T. Sentencing, 3/27/17, at 24. In the eyes of the sentencing court, “the

testimony at the preliminary hearing establishe[d] that the victims were

present, and there was an encounter with the son of the victim.” Id. at 25.

We agree, and further concur, that these facts establish a proper basis for

concluding Williams was convicted for perpetrating a crime of violence as

defined by section 9714(g). See Guilford, supra at 374–75.

      Williams’ attempt to analogize his case to Guilford is unavailing. The

court in Guilford found it improper to classify a burglary conviction as a crime

of violence, though the underlying behavior met the requisite elements of


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first-degree burglary, when the defendant pleaded guilty to second-degree

burglary.   Guilford, supra at 374–75.     Unlike Guilford, the instant case

presents a conviction for first-degree burglary presented in tandem with prior

testimony indicating Williams entered a structure adapted for overnight

accommodation, and did so while the structure was occupied.

      Williams further submits the evidence was insufficient to sustain his

conviction for aggravated assault, arguing the Commonwealth failed to prove

the presence of a serious bodily injury or the necessary criminal intent.

      Our standard of review with regard to sufficiency claims is well-settled:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. . . . When performing this review, we
      may not reweigh the evidence or substitute our own judgment for
      that of the fact finder.

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation and

quotation omitted).

      The Crimes Code, in relevant part, defines aggravated assault as

follows:

      § 2702. Aggravated assault

      (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




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18 Pa.C.S.A. § 2702(a)(1). The Crimes Code defines serious bodily injury as

follows:

      “Serious bodily injury.” Bodily 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. § 2602.

      In order to provide evidence sufficient to sustain a conviction for

aggravated assault, “the Commonwealth does not have to prove that the

serious bodily injury was actually inflicted but rather that the Appellant acted

with the specific intent to cause such injury.” Commonwealth v. Holley,

945 A.2d 241, 247 (Pa. Super. 2008) (citation omitted). We have previously

explicated the Commonwealth’s burden as follows:

      The Commonwealth may prove intent to cause serious bodily
      injury by circumstantial evidence. In determining whether the
      Commonwealth proved the Appellant had the requisite specific
      intent, the fact-finder is free to conclude the accused intended
      the natural and probable consequences of his actions to result
      therefrom. A determination of whether an [A]ppellant acted with
      intent to cause serious bodily injury must be determined on a
      case-by-case basis.

      An intent is a subjective frame of mind, it is of necessity difficult
      of direct proof[.] We must look to all the evidence to establish
      intent, including, but not limited to, [A]ppellant’s conduct as it
      appeared to his eyes[.] Intent can be proven by direct or
      circumstantial evidence; it may be inferred from acts or conduct
      or from the attendant circumstances. Moreover, depending on the
      circumstances even a single punch may be sufficient.

Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006) (internal

citations    and     quotations     omitted).          This     logic    applies


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“with equal force to prove recklessness to a degree that one would reasonably

anticipate serious bodily injury as a likely and logical result” from one’s

actions. Commonwealth v. Bruce, 916 A.2d 657, 664 (Pa. Super. 2007)

(finding “four or five blows to the face and throat” sufficient for inferring

reckless intent to cause serious bodily injury, even in light of “minimal external

injury to [victim’s] face”).

      Alleging the Commonwealth failed to prove Williams possessed the

requisite intent is, quite simply, unreasonable in light of the record. K.A. tried

to escape Williams’ house after a sexual encounter transitioned into a physical

attack. After K.A. found herself trapped and made an attempt to extricate

herself, Williams used both of his hands to strangle K.A. into unconsciousness.

After nudging K.A.’s unconscious body, William’s reacted with surprise to see

her stir, stating, “I thought you was dead.” N.T. Trial, 8/11/16, at 71. K.A.’s

account of events was supported by Officer McGarvey’s testimony and

documentation of her injuries from the Special Victims’ Unit. The jury, acting

as finder of fact, drew a reasonable inference in determining that Williams

acted with, at least, a reckless intent to cause serious bodily injury in light of

the aforementioned attendant circumstances.        See Lewis, supra at 564;

Bruce, supra at 664.




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        Next, Williams claims that the verdict was against the weight of the

evidence.9     Given its unique vantage point, the trial court is ordinarily

obligated to rule on challenges to the weight of the evidence and explain its

reasoning through an opinion filed pursuant to Rule 1925(a),10 reserving for

the Superior Court the role of reviewing the trial court’s analysis for a palpable

abuse of discretion. Armbruster v. Horowitz, 813 A.2d 698, 702–703 (Pa.

2002) (citations and quotations omitted); cf. Commonwealth v. DeJesus,

868 A.2d 379, 383 (Pa. 2005) (requiring remand “where the trial court fails

to prepare an opinion that addresses the issues upon which it passed and

which are raised by a party on appeal”—a requirement, which under ordinary

circumstances, is not dependent “upon the reason for the absence of an

independent articulation by the court below of the reasons for its decisions.”).




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9 Williams preserved his weight claim by including it in a timely-filed post-
sentence motion. See Pa.R.Crim.P. 607.

10   Rule 1925(a) states:

        Except as otherwise prescribed by this rule, upon receipt of the
        notice of appeal, the judge who entered the order giving rise to
        the notice of appeal, if the reasons for the order do not already
        appear of record, shall forthwith file of record at least a brief
        opinion of the reasons for the order, or for the rulings or other
        errors complained of, or shall specify in writing the place in the
        record where such reasons may be found.

Pa.R.A.P.1925(a) (emphasis added).



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       Our Supreme Court created an exception for this Court to review timely-

filed weight claims in the first instance under circumstances where the trial

judge is permanently unavailable to do so, “including resignation, illness,

death, and retirement, appointment to another court and election defeat.”

Armbruster, supra at 704. In such situations, “the claim must be reviewed

by the appellate tribunal in the first instance” to avoid an untenable “burden

upon the judicial process that would be occasioned by a rule requiring a new

trial whenever the trial judge is unavailable to rule upon a post-verdict

motion.” Id.

       Though Judge Nichols denied Williams’ motion for extraordinary relief

and stated her reasoning for doing so during his sentencing hearing,11 the

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11 Judge Nichols denied Williams’ motion for extraordinary relief, which
contained both a sufficiency claim and a weight claim, on the following
grounds:

       All right. Looking at the Criminal Code Section 2702 for
       aggravated assault, a person is guilty of 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.

       The jury was so instructed by the Court on the law. As Mr. Tinari
       points out, the jury weighs credibility. The Court can't become a
       13th juror. So the fact that there's no DNA is of no moment. They
       weigh credibility. And there was testimony by the complainant
       that the defendant, as Commonwealth counsel brings out, that he
       choked her, she passed out, and he made a comment like, thought
       you were dead. So, certainly, choking and the other physical
       striking that went on. The jury heard that testimony and weighed
       the credibility of the complainant and rendered their verdict.



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procedural delays in the instant case prevented her from authoring a Rule

1925(a) Opinion before she assumed her current seat on the Superior Court.

Though Armbruster did not specifically state election to a new court as

grounds for finding a judge permanently unavailable, the non-exhaustive list

it provided, including “resignation . . . retirement, appointment to another

court and election defeat,” indicates voluntarily vacating one’s position on a

court renders that judge permanently unavailable.         See id.    (emphasis

added).    Accordingly, we find Judge Nichols’ election to this Court left her

permanently unavailable to provide this court with a Rule 1925(a) opinion,

requiring this Court to review Williams’ weight claim in first instance. Id.

       Under such circumstances, our review is plenary, though we are

confined to the “cold record of the trial proceedings” in conducting our review.




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       Because the jurors are the judges of the facts. The Judge is the
       judge of the law. It's not for me to go back and second guess the
       facts or the credibility determinations of the jury.

       Certainly, if there's a misstep in the law, obviously, that's where
       the Court needs to step in. But the jury heard that testimony,
       they weighed the credibility, they judged the weight of the
       evidence, and they convicted the defendant of aggravated assault
       in the first degree. There is no basis based on a preponderance
       of the evidence to grant a motion for extraordinary relief. The
       verdict of the jury should stand; and, therefore, the motion is
       denied.

N.T. Sentencing 3/27/17, 8–9.


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Commonwealth v. Izurieta, 171 A.3d 803, 809–10 (Pa. Super. 2017)

(citation and quotation omitted). We, therefore, apply the following standard:

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.
      It has often been stated that a new trial should be awarded when
      the jury's verdict is so contrary to the evidence as to shock one's
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (citations and quotations

omitted). Moreover, when adjudicating weight claims based solely on a cold

record, we must do so:

      with an eye to the delicate balance that exists between the jury's
      exclusive role in assessing credibility, and our longstanding
      recognition of the power in courts to allow justice another
      opportunity to prevail when a verdict nevertheless shocks the
      judicial conscience.

Armbruster, supra, at 705.

      Williams specifically highlights K.A.’s inconsistent testimony and her

prior crimin falsi convictions as the principal factors that resulted in a verdict

against the weight of the evidence.      Brief of Appellant at 22.    We review

Williams’ weight claim in first instance using the cold record of the trial

proceedings. Izurieta, supra at 809–10.

      The trial record reveals the jury heard evidence of K.A.’s open felony

cases in addition to her crimin falsi convictions. N.T. Trial, 8/11/16, at 77,

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87–95. On cross-examination, counsel thoroughly challenged K.A.’s version of

events, specifically highlighting the differences among her statements given

at trial, during the preliminary hearing, and to the police the day of the

incident. Id. at 87–124. In the presence of inconsistencies and a blemished

record, the jury was free to evaluate K.A.’s statements and “believe all, part,

or none of . . . [her] testimony.” Commonwealth v. Mitchell, 902 A.2d 430,

444 (Pa. 2006). The jury’s split verdict—finding Williams guilty of aggravated

assault, but not guilty of rape, sexual assault, or indecent assault—evinces a

conscientious process used in evaluating K.A.’s testimony.         N.T. Trial,

8/12/16, at 54.     Nothing in the full record, which contains substantial

corroborating evidence from Officer McGarvey and the Special Victims’ Unit,

renders the jury's verdict so contrary to the evidence as to shock one's sense

of justice. See Armbruster, supra at 705 (outlining standard by for

adjudicating weight claims on cold record). We, therefore, find Williams’ claim

meritless.

      Judgment of sentence affirmed.

      Judge Olson joins this Memorandum.

      Judge Strassburger files a Concurring Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/8/19




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