J-S53008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCUS JONES                               :
                                               :
                       Appellant               :   No. 3020 EDA 2017

            Appeal from the Judgment of Sentence August 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001100-2016


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 13, 2019

       Appellant, Marcus Jones, appeals from the judgment of sentence

entered on August 21, 2017, following his bench trial convictions for

attempted murder, aggravated assault, robbery, and theft by unlawful

taking.1   Upon review, we affirm.

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

       On August 18, 2015, around 1[:00] p.m., Appellant brutally
       assaulted [a transgender person (a biological male who identified
       as a female)] on the 900 block of North Watts Street in the city
       and county of Philadelphia, Pennsylvania.      The assault was
       recorded by a video camera mounted to a nearby wall. The video
       shows that Appellant punched the victim until she was
       unconscious and then repeatedly stomped on her head.

Trial Court Opinion, 8/7/2018, at 2 (footnotes and record citations omitted).

____________________________________________


1 18 Pa.C.S.A. §§ 2502/901, 2702(a)(1), 3701(a)(1)(i), and 3921(a),
respectively.
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      Thereafter,

      Officer [Patrick] Saba [of the Philadelphia Police Department] was
      on patrol and received a radio call regarding an assault at 900
      North Watts Street. Officer Saba responded to the location within
      three (3) to four (4) minutes and discovered the victim laying on
      the ground between two sets of exterior steps. Officer Saba
      initially thought the victim was a woman because “there was a wig
      … by the top of the head,” but upon approaching he observed male
      genitalia “sticking out of” the victim’s jeans. The victim was
      unconscious and had “extremely swollen” eyes. Her “left eyelid
      was slightly hanging off” and she bled profusely from her face.
      Emergency responders arrived shortly after Officer Saba and
      transported the victim to Hahnemann Hospital.

      [… T]he victim was unconscious for about two and one-half (2 ½)
      weeks following the assault and remained hospitalized for about
      one (1) month. After her hospitalization, the victim was taken to
      Moss Rehabilitation and then to Hopkins Nursing Home, where she
      resided at the time of trial. [… T]he victim is “wheelchair bound,”
      has not “been able to walk since the day of the accident,” now
      functions as a 16[-] or 17[-]year[-]old, and can no longer care for
      herself.

      […] Benjamin Levin (Mr. Levin), [] “a forensic scientist and []
      expert [] in the field of DNA processing and analysis[,]” []
      analyzed DNA taken from the inside of the victim’s wig and
      dentures, as well as DNA taken from Appellant’s bloody shoe. The
      DNA recovered from Appellant’s bloody shoe was consistent with
      the DNA recovered from the victim’s wig and dentures, and the
      DNA recovered from the victim’s dentures was consistent with
      Appellant’s DNA profile.

Id. at 6-7 (record citations omitted).

      The trial court also recounted:

      [On] August 19, 2015, Detective Ralph Domenic (“Detective
      Domenic”) and his partner, Detective Waring, searched the crime
      scene for evidence and visited a homeless shelter about one block
      from where the assault occurred.       There, a civilian, James
      Holloman (“Mr. Holloman”) told them Appellant was “around the
      corner.” Based on information received from Mr. Holloman, the


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       detectives arrested Appellant about one block from the homeless
       shelter.

       The detectives transported Appellant to [the police station] and
       read him his Miranda[2] rights. Appellant thereafter waived his
       Miranda rights and consented to an interview, during which he
       confessed to assaulting and robbing the victim during a sexual
       encounter [after Appellant realized the victim had male genitalia].

Id. at 2.

       Prior to trial, Appellant filed a motion to suppress his statements to

police, arguing that he did not make them voluntarily or intelligently. More

specifically, Appellant argued that he suffered from mental illness and lacked

the intellectual capacity to understand the rights he was waiving. On May 8,

2017, the trial court held a suppression hearing immediately prior to holding

a bench trial. Therein, the Commonwealth presented the report of Dr. Jillian

Blair, who conducted a mental health evaluation of Appellant on February 17,

2017. N.T., 5/8/2017, at 48. Dr. Blair opined that although Appellant had an

intelligence quotient (IQ) of 69, he presented as having “borderline intellect”

rather than “moderate mental retardation.” Id. at 76.      Dr. Blair opined that

Appellant was lucid, did not display psychotic symptoms, communicated

adequately, answered questions directly and with detail, was able to

appreciate his legal rights, and had the cognitive ability to work with his

attorney to prepare his defense. Id. at 57.




____________________________________________


2   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

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     Moreover, the Commonwealth presented the testimony of Detective

Ralph Domenic, who interviewed Appellant at the police station.         The trial

court summarized Detective Domenic’s testimony as follows:

     At the suppression hearing, Detective Domenic testified that
     Appellant signed [an acknowledgment that he received] Miranda
     warnings after having twice reviewed them; that Appellant had no
     questions regarding the warnings; that Appellant never requested
     to speak to a lawyer; that Detective Domenic applied no physical
     or psychological pressure on Appellant; that Appellant did not
     appear to be under the influence of drugs or alcohol; that
     Appellant was attentive and “looking at” Detective Domenic while
     being advised of his Miranda rights; and that Appellant was
     cooperative, responsive, and “very willing” to answer questions.
     Although Appellant advised the detectives that he was bipolar and
     received therapy and medications (including Klonopin) for his
     disorder, he assured [the detective] that neither his bipolar
     disorder nor his medications affected his ability to understand his
     situation or make decisions on his own behalf. According to
     Detective Domenic, Appellant exhibited no behavior indicating
     that he lacked the capacity to knowingly and voluntarily waive his
     Miranda rights. At the conclusion of the interview, moreover,
     Appellant read his entire statement and again reviewed the
     Miranda warnings.

Trial Court Opinion, 8/7/2018, at 4-5, citing N.T., 5/8/2017, at 9-26 and 41.

     Following the presentation of evidence regarding suppression, the trial

court ultimately concluded:

     Based on [Appellant’s] verbal responses [to the police],
     [Appellant’s] demeanor, [Appellant’s] ability to answer directly
     and in detail, there was no testimony about [Appellant] acting in
     any [] way that would [constitute] bizarre [] or unusual behavior.
     [Appellant] seemed cooperative, and there’s just no testimony or
     evidence that was elicited that would contradict that.

     So under the totality of the circumstances, and for all of the factors
     [] outlined, [the trial court found] that [Appellant] gave a
     knowing, intelligent, and voluntary waiver of his right to remain



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      silent [and] that the statement [to police] was voluntarily and
      knowingly given.

      So [Appellant’s suppression] motion [was] denied.

N.T., 5/8/2017, at 80-81.

      Following the suppression ruling, the parties agreed to proceed

immediately to a bench trial. The trial court colloquied Appellant regarding

his right to a jury trial, the charges he was facing, and the maximum penalties

involved. Id. at 88-94. Appellant waived his right to a jury trial. Id. at 94.

The Commonwealth called Officer Saba, the investigating Philadelphia police

officer, to testify. Id. at 97-111. The trial court held a second day of trial on

May 19, 2017, wherein the victim’s sister, two detectives, and a DNA expert

testified. N.T., 5/19/2017, at 1-111. The Commonwealth also presented the

trial court with a video surveillance recording of the incident. Id. at 103-110.

The trial court rendered a verdict on May 22, 2017, finding Appellant guilty of

the aforementioned charges.

      On August 21, 2017, the trial court held a sentencing hearing. The trial

court sentenced Appellant to 13 to 26 years of imprisonment for attempted

murder. The trial court further sentenced Appellant to a 10-year consecutive

term of probation for robbery. The convictions for aggravated assault and

theft by unlawful taking merged for sentencing purposes. Defense counsel

advised Appellant of his appellate rights.       Thereafter, upon Appellant’s




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request, the trial court allowed counsel to withdraw.3       This timely appeal

resulted.4
____________________________________________


3   Before allowing Appellant to proceed pro se, the trial court colloquied
Appellant, with applicable questions pursuant to Pa.R.Crim.P. 121, to ensure
that his waiver of the right to counsel was knowing, intelligent and voluntary.
N.T., 8/21/2017, at 30-33. Appellant was told that he had the right to counsel,
that he would be bound by rules of court, including the specifically delineated
timing deadlines for filing post-sentence motions and a notice of appeal, that
he could permanently lose his rights if he failed to assert them in a timely
fashion, and that counsel would be familiar with the rules. Id.

4  Appellant did not file pro se post-sentence motions, but filed a pro se notice
of appeal on August 31, 2017. Although the filing date of Appellant’s
subsequent pro se request for counsel is not entirely clear from the record,
the trial court entered an order on September 27, 2017 appointing Lee
Mandel, Esquire as counsel to represent Appellant on appeal. On January 18,
2018, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Attorney Mandel
complied on behalf of Appellant on February 2, 2018. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on August 7, 2018.

Additionally, we note that while represented by counsel, Appellant inundated
the trial court and this Court with a multitude of pro se filings and
correspondence. Most notably, on November 20, 2017, Appellant filed a
“Motion of New Counsel” with this Court requesting, once again, to proceed
pro se. On December 13, 2017, this Court entered an order directing the trial
court to conduct an on-the-record waiver of counsel determination pursuant
to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). Before the trial
court could conduct a Grazier hearing, however, Appellant filed another pro
se motion with this Court on February 8, 2019, seeking the appointment of
counsel. The trial court held a Grazier hearing on March 12, 2018. At the
conclusion of the hearing, the trial court permitted Appellant to proceed pro
se and allowed Attorney Mandell to withdraw. See N.T., 3/12/2018, at 9-10.
On the same day as the Grazier hearing, this Court entered an order granting
Appellant’s February 8, 2019 request for the appointment of counsel. As such,
on March 18, the trial court appointed John Belli, Esquire to represent
Appellant on appeal. On May 7, 2019, Attorney Belli filed an appellate brief
with this Court on behalf of Appellant. Appellant has not objected. Thus, we
will no longer allow Appellant to proceed pro se on appeal. While it is true



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       On appeal, Appellant presents the following issues for our review:

       1. Did the [trial] court err by denying Appellant’s motion to
          suppress his statement [to police]?

       2. Was the evidence insufficient          to   sustain   [Appellant’s]
          attempted murder conviction?

       3. Was the evidence insufficient to sustain [Appellant’s] robbery
          conviction?


Appellant’s Brief at 35 (complete capitalization omitted; issue numbers

supplied).



____________________________________________


that an “appellant has the right to proceed pro se at trial and through appellate
proceedings[,]” our Supreme Court has determined “that when an appellant
requests pro se status after his counsel has filed an appellate brief, the request
is untimely.” Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998); see
also Commonwealth v. Rogers, 645 A.2d 223, 224 (Pa. 1994) (“Allowing
[an appellant] to terminate counsel and proceed pro se on amended and
supplemented briefs would [] result in confusion and overburdening of the
court[.] [Our Supreme Court,] therefore [found] that it [was] appropriate to
prohibit such a tactic and to require an appellant to remain with counsel
through the appeal, once counsel has filed briefs.”).

Finally, we note that during the pendency of this direct appeal, on April 10,
2018, Appellant filed a pro se petition pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On July 17, 2018, the PCRA petition
was denied. On August 10, 2018, Appellant filed a pro se notice of appeal
that was docketed with this Court at 2512 EDA 2018. However, because
Appellant filed his pro se PCRA petition during the pendency of his direct
appeal, we are constrained to quash the appeal at 2512 EDA 2018. See
Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (“A PCRA
petition may only be filed after an appellant has waived or exhausted his direct
appeal rights.”).

5   We have reordered Appellant’s issues for clarity and ease of discussion.



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        In the first issue we review, Appellant claims that the trial court erred

by denying suppression because he “established that he suffered from mental

illness and intellectual deficits that rendered him incapable of voluntarily and

intelligently waiving his Miranda rights” before he made statements to the

police. Appellant’s Brief at 17. More specifically, Appellant contends that the

following factors, when considered together, rendered his waiver of Miranda

rights and his statements to the police involuntary:

       Appellant’s IQ of 69.

       Appellant suffered from depression, bi-polar disorder, schizoaffective
        disorder, schizophrenia, personality disorders, substance abuse, and
        mild mental retardation.

       [A]ppellant was not asked what he thought the right to remain silent or
        have counsel meant.

       Appellant was placed in an isolated room and handcuffed to a chair.[6]

       [A]lthough [A]ppellant said he had a mental illness during the interview,
        he was not asked when he last took his medication or underwent therapy
        or counseling for his various mental illnesses.
____________________________________________


6 While Appellant currently suggests that his waiver of Miranda rights was
the product of police coercion or undue government pressure, he did not raise
this contention in his Rule 1925(b) statement. In that statement, Appellant
merely asserted that his mental illness, diagnosed as mild mental retardation,
prevented him from understanding his Miranda rights. See Pa.R.A.P.
1925(b), 2/7/ 2018, at ¶ 1. Generally, issues not raised in a concise statement
of errors complained of on appeal are waived for purposes of appellate review.
See Pa.R.A.P. 1925(b)(4)(vii); see also Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”); see also Commonwealth v. Cline, 117 A.3d 922, 927 (Pa. Super.
2017) (“A new and different theory of relief may not be successfully advanced
for the first time on appeal.”). As such, we will not entertain Appellant’s
suggestion that his waiver of Miranda rights was coerced or subject to police
pressure.

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Id. at 23 (record citations omitted).

       We adhere to the following standard:

       Our standard of review in addressing a challenge to a trial court's
       denial of a suppression motion is whether the factual findings are
       supported by the record and whether the legal conclusions drawn
       from those facts are correct. When reviewing the ruling of a
       suppression court, we must consider only the evidence of the
       prosecution and so much of the evidence of the defense as
       remains uncontradicted when read in the context of the record....
       Where the record supports the findings of the suppression court,
       we are bound by those facts and may reverse only if the legal
       conclusions drawn therefrom are in error.          It is within the
       suppression court's sole province as factfinder to pass on the
       credibility of witnesses and the weight to be given their testimony.

Commonwealth v. Cephus, 208 A.3d 1096, 1098 (Pa. Super. 2019)

(internal citations omitted).

       This Court recently stated:

       When determining the validity of a Miranda waiver, we employ a
       two-step inquiry. We first ask whether the waiver was voluntary
       in the sense of being the result of an intentional choice on the part
       of a defendant who was not subject to undue government
       pressure. Commonwealth v. Mitchell, 105 A.3d 1257, 1268 (Pa.
       2014) (citing Commonwealth v. Logan, 549 A.2d 531, 537 (Pa.
       1988) (opinion announcing the judgment of the Court)). If we
       conclude the waiver was voluntary, we then ask if the defendant
       was aware of the nature of the choice that he made by giving up
       his Miranda rights, i.e., whether it was knowing and intelligent.[7]
       Id.

                               *               *     *


____________________________________________


7   Here, as mentioned previously, Appellant waived his challenge to the
voluntariness of his statement to police. Thus, we need only consider whether
his statement was knowing and intelligent.

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     The burden is on the Commonwealth to prove by a preponderance
     of the evidence that a Miranda waiver was knowing and
     intelligent. See Commonwealth v. Lukach, 163 A.3d 1003,
     1011 (Pa. Super. 2017). There is no per se rule that a defendant
     is incapable of knowingly and intelligently waiving his rights
     whenever he asserts a mental disability. See Commonwealth v.
     Sepulveda, 55 A.3d 1108, 1136 (Pa. 2012) (citing Logan, 549
     A.2d at 537).

     Our Supreme Court's decision in Logan is instructive. In Logan,
     the Court concluded that regardless of the appellant's mental
     illness, the circumstances surrounding his confession showed that
     the waiver was “the product of a free, unconstrained, and rational
     choice of its maker.” Logan, 549 A.2d at 537. The circumstances
     in Logan included that Logan was advised of his Miranda rights
     twice, he gave a full statement, which he reviewed and signed,
     and there was no evidence of police coercion. Id. at 536-537.
     Logan was able to do all of this even though he had a mental
     illness.

Commonwealth v. Knox, 2019 WL 4316128, at *3 (Pa. Super. filed

September 12, 2019).

     In denying suppression in the case sub judice, the trial court concluded:

     Here, the testimony of Detective Domenic, and the report of
     Appellant’s own medical expert, demonstrate that Appellant was
     sufficiently competent to waive his Miranda rights. Detective
     Domenic interviewed Appellant and testified that Appellant was
     cooperative and ‘very willing’ to give the interview. Appellant did
     not appear to be under the influence of drugs or alcohol, and
     Detective Domenic applied no physical or psychological pressure
     to induce Appellant’s statement. Moreover, Appellant assured
     Detective Domenic that neither his bipolar disorder nor his
     medications affected his ability to understand his situation or
     make decisions on his own behalf. Appellant’s overall behavior
     gave no indication that he lacked the capacity to knowingly and
     voluntarily waive his Miranda rights.

     Detective Domenic’s testimony is corroborated by Appellant’s
     statement itself, which Appellant read and signed. The verbatim
     statement confirms that Appellant voluntarily gave the interview,
     that he understood why he was in custody, that he was advised
     of his rights to counsel, that he was not under the influence of

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      drugs or alcohol, and that he was capable of making decisions for
      himself.

      Beyond that, Appellant’s expert, Dr. Blair, noted that Appellant
      demonstrated ample ability to comprehend his legal situation. Dr.
      Blair noted that during her evaluation, Appellant’s presentation
      did not suggest significant cognitive impairment. To the contrary,
      Appellant was able to articulate his thoughts clearly and process
      clearly and respond appropriately.

Trial Court Opinion, 8/7/2018, at 9-10 (record citations and quotations

omitted).

      Based upon our standard of review and the record before us, we discern

no trial court error in denying Appellant’s motion for suppression. We reject

Appellant’s challenge to the trial court’s ruling based solely on his I.Q. Our

Supreme Court has held there is no per se rule that a defendant is incapable

of knowingly and intelligently waiving his Miranda rights whenever he asserts

a mental disability. See Sepulveda, 55 A.3d at 1136.               Here, the

circumstances surrounding Appellant’s confession show that his waiver was

the product of a free, unconstrained, and rational choice.     Similar to our

Supreme Court’s decision in Logan, in this case, police advised Appellant

twice of his Miranda rights, he gave a statement that he reviewed and signed,

and there is no evidence that his mental illness prevented him from knowingly

waiving his rights.   As such, Appellant’s claim that the trial court erred in

denying suppression lacks merit.

      In his next two issues, Appellant claims that the Commonwealth failed

to produce sufficient evidence to support his convictions for attempted murder

and robbery, respectively.     Whether evidence is sufficient to support a


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conviction presents this Court with a question of law and, thus, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019) (citation omitted). This Court

examines:

      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to the
      Commonwealth as verdict-winner, is sufficient to establish all
      elements of the offense beyond a reasonable doubt. We may not
      weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to resolve
      any doubts regarding a defendant's guilt 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. When
      evaluating the credibility and weight of the evidence, the
      fact-finder is free to believe all, part or none of the evidence. For
      purposes of our review under these principles, we must review the
      entire record and consider all of the evidence introduced.

Id. at 300–301.

      With regard to his attempted murder conviction, Appellant contends that

he could not form the specific intent to kill because he has “an I.Q. of 69 and

suffered from many mental illnesses.”      Appellant’s Brief at 13.    Moreover,

Appellant argues that “his actions were not deliberate or well-reasoned and

stemmed from rage and anger caused by the fact that the victim was not a

woman[,] but a man.” Id.      As such, Appellant contends that, “it is clear that

he snapped and lost control of his faculties rather than coldly and calculatingly

deciding to kill the victim.” Id.

      We have stated:




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      Under the Crimes Code, “[a] person commits an attempt when
      with intent to commit a specific crime, he does any act which
      constitutes a substantial step towards the commission of the
      crime.” 18 Pa.C.S.A. § 901(a). “A person may be convicted of
      attempted murder ‘if he takes a substantial step toward the
      commission of a killing, with the specific intent in mind to commit
      such an act.’” Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.
      Super. 2003) (citation omitted). See 18 Pa.C.S.A. §§ 901, 2502.
      “The substantial step test broadens the scope of attempt liability
      by concentrating on the acts the defendant has done and does not
      any longer focus on the acts remaining to be done before the
      actual commission of the crime.” Commonwealth v. Gilliam,
      417 A.2d 1203, 1205 (Pa. Super. 1980). “The mens rea required
      for first-degree murder, specific intent to kill, may be established
      solely from circumstantial evidence.” Commonwealth v. Schoff,
      911 A.2d 147, 160 (Pa. Super. 2006). “[T]he law permits the fact
      finder to infer that one intends the natural and probable
      consequences of his acts[.]” Commonwealth v. Gease, 696 A.2d
      130, 133 (Pa. 1997).

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008).

      Moreover, we recognize that the “law does not require a lengthy period

of premeditation; indeed, the design to kill can be formulated in a fraction of

a second.”    Commonwealth v. Clemons, 200 A.3d 441, 463 (Pa. 2019)

(citation omitted).

      In this case, the trial court determined:

      Here, the Commonwealth’s video shows that Appellant repeatedly
      punched and kicked the victim in the head while she struggled to
      rise from the ground and escape. After enduring multiple strikes,
      the victim finally lost consciousness and laid motionless on the
      concrete. While [the victim] was unconscious, motionless, and
      defenseless, Appellant violently stomped on her head several
      times. Appellant was not acting in self-defense and had already
      beaten the victim into bloody unconsciousness by the time that he
      repeatedly bludgeoned her head with his foot. These acts
      themselves – i.e., Appellant’s vicious pounding on the head of the
      unconscious victim – establish a compelling inference that


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       Appellant intended to kill the victim and thus sustain Appellant’s
       conviction of attempted murder.

Trial Court Opinion, 8/7/2018, at 12 (emphasis in original).

       Upon review, we agree with the trial court’s assessment that there was

sufficient evidence to support Appellant’s conviction for attempted murder.

Initially   we   reject   Appellant’s   argument    there   was   no   evidence    of

premeditation.     Appellant concedes that “he snapped” when he recognized

that the victim had male genitalia. It was in that fraction of a second that

Appellant formulated an intent to kill the victim.          Appellant’s subsequent

actions of beating the victim unconscious with his fists and then continually

stomping on her head while she was defenseless on the ground showed an

intent to kill the victim.     The trial court properly inferred that Appellant

intended the natural and probable consequences of his acts. Accordingly, we

conclude there was sufficient evidence to support Appellant’s attempted

murder conviction.

       Regarding    his   robbery   conviction,    Appellant   contends   that    the

Commonwealth failed to prove that Appellant intended to commit a theft while

the assault was taking place and that the evidence established that the taking

of the victim’s purse was “an afterthought.” Id. at 14.           He further argues

“when [A]ppellant took the purse, the victim was already unconscious and

thus, the taking was not committed with force or the threat of violence.” Id.

at 16, citing Commonwealth v. Jones, 771 A.2d 796, 799 (Pa. Super. 2001).




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      Before examining the merits of this issue, we note that Appellant

provided a different legal theory to the trial court in support of his contention

that his robbery conviction lacked sufficient evidentiary support.     In his Rule

1925(b) statement, Appellant asserted:

      The trial court erred in finding [] Appellant guilty of robbery in that
      the [Commonwealth] failed to establish the existence of a specific
      complainant (victim). Further, the [Commonwealth] failed to
      introduce any evidence as to the existence of the subject of the
      theft requisite to the proof required to establish that a robbery
      had occurred.

Rule 1925(b) Statement, 2/7/2018, at ¶ 3.           In response, the trial court

recognized that although the victim did not testify because her head injuries

prevented her from doing do, the video surveillance and testimony from

Officer Saba and the victim’s sister established the victim’s identity and proved

it “was the same person shown being mercilessly beaten in the video and

referenced by Appellant in his confession.”    Trial Court Opinion, 8/7/2018, at

13. Moreover, the trial court noted that it saw, on the video surveillance, the

victim carrying her purse prior to the attack and Appellant reaching down,

taking a dark colored item from the vicinity and leaving after rendering the

victim unconscious. Id. at 14.

      For the first time on appeal, Appellant asserts that because the victim

was unconscious at the time her purse was taken, the taking was not

committed with force or the threat of violence.       Appellant has waived this

aspect of his appellate claim. See Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 302(a)

Cline, 117 A.3d at 927.

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      Regardless, we find Appellant’s sufficiency argument unavailing. Here,

Appellant was charged and convicted of robbery while inflicting serious bodily

injury upon the victim pursuant to 18 Pa.C.S.A. § 3701(a)(1)(i). Appellant

cites inapplicable case law dealing with a different subsection of the robbery

statute, 18 Pa.C.S.A. § 3701(a)(1)(v), which pertains to “physically tak[ing]

or remov[ing] property from the person of another by force however slight.”

This subsection of the robbery statute, however, pertains to pickpockets and

purse-snatchers and as we have explained:

      a taking by stealth alone is not as likely to result in injury to the
      victim as a taking by ‘force’; for ‘however slight’ the force may be,
      the victim may be prompted by it to resist, and injury may ensue.
      In recognition of this possibility, § 3701(a)(1)(v) has as its special
      purpose that greater punishment should be inflicted on those who
      use ‘force however slight’ than on those who by resort to stealth
      void of the use of force.

Commonwealth v. Williams, 550 A.2d 579, 582 (Pa. Super. 1988). Here,

Appellant completed the robbery after inflicting serious bodily injury upon the

victim. This was simply not a case where a defendant preyed upon an already

unconscious victim and surreptitiously took property. As such, Appellant was

convicted properly under § 3701(a)(1)(i).         Accordingly, his last issue,

although waived, is otherwise without merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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