J-S06006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

HILTON FREEMAN

                            Appellant                   No. 1060 EDA 2016


             Appeal from the Judgment of Sentence January 14, 2016
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0005830-2015


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                                FILED JULY 19, 2017

       Hilton Freeman appeals from the January 14, 2016 judgment of

sentence entered in the Delaware County Court of Common Pleas following

his convictions for two counts of simple assault and one count each of

criminal mischief and harassment.1 We affirm.

       The trial court set forth the facts of this case as follows:
               On November 24, 2013, Ms. Molly Wilwol, herein
            “victim” was living at 232 East Third Street in Media,
            Delaware County, Pa. At approximately 11:00p.m.[] that
            evening, the victim was returning home to her residence
            from work. Hilton Freeman, her ex-boyfriend[,] . . .
            arrived at the victim’s home to return some of her
            belongings after a recent breakup.    When the victim
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
        18 Pa.C.S. §§ 2701(a)(1), 2701(a)(3), 3304(a)(5), and 2709(a)(1),
respectively.
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       arrived home, [Freeman] had some of her belongings with
       him and she let him into her home. [The victim] went
       upstairs to shower.

           As the victim was in the shower, [Freeman] angrily
       entered the bathroom, demanding to know why another
       man was calling her phone, and demanding to know if she
       was cheating on him while they were together.
       Simultaneous with the yelling, [Freeman] punched through
       the glass shower, shattering the glass all over the floor
       and ripping down the shower curtain.            The victim
       attempted to leave the shower but [Freeman] was
       standing directly in her way, forbidding her passage. The
       victim eventually freed herself from the shower and went
       into her room to get dressed, arguing back and forth with
       [Freeman]. As the two reached the first floor of the house,
       [Freeman] picked up the victim by her jacket pockets and
       threw her onto the ground, still demanding to know the
       identity of the male caller. The victim landed on her back
       but was still able to get up. The victim was scared and
       tried to scream; however, [Freeman] put his hand over her
       mouth.      The victim attempted to leave the house;
       however, [Freeman] would not let her, physically holding
       her back from doing so. [Freeman] did not stop until he
       noticed headlights out front.         Although they were
       headlights from a cab, [Freeman] accused the victim of
       contacting the police, and he ran out the back door.

           The victim contacted 911 and Officer Eric Gavin of the
       Media Borough Police Department responded to her home.
       Officer Gavin has been a police officer for the past twenty-
       one years. When Officer Gavin arrived at the home, the
       victim came to the front door, looked through the glass,
       and unlocked the door once she realized it was a police
       officer. Officer Gavin immediately noticed that she was
       sobbing and out of breath and that her hair was soaking
       wet and she was wearing a winter jacket with no shoes.
       As the victim explained what had occurred, she took
       Officer Gavin upstairs to the bathroom. Officer Gavin
       observed broken glass and other debris all over the
       bathroom floor as well as small pieces of glass inside the
       shower stall area. Officer Gavin also observed a large hole
       in the glass shower pane and that the shower curtain was
       lying in and out of the bathtub area.


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              The victim told Officer Gavin that she was experiencing
           some pain but refused an ambulance. As he did not have
           his camera with him, Officer Gavin had [the victim] take
           photographs of the bathroom in his presence.

              The victim provided Officer Gavin with [Freeman’s]
           name and a description, which Officer Gavin provided to
           other officers so they could begin searching for [Freeman].
           Officer Gavin filed a criminal complaint against [Freeman];
           however, Officer Gavin was also aware from prior contact
           with [Freeman] that he uses many different aliases.

              Officer Gavin attempted to locate [Freeman] by his
           social security number for employment, to no avail.
           Officer Gavin was finally able to locate [Freeman], who
           was going by a different name, in August of 2015, on the
           400 block of West Jefferson Street in Media, PA.

Opinion, 5/10/16, at 2-4 (“1925(a) Op.”) (internal citations omitted).

       Following a non-jury trial on December 14, 2015, the trial court

convicted Freeman of the aforementioned offenses. On January 14, 2016,

the trial court sentenced Freeman to 12 to 24 months’ incarceration for

simple assault—attempt to cause bodily injury and a consecutive term of 9

to 18 months’ incarceration for simple assault by physical menace.       The

court imposed a $300 fine plus $300 in restitution for criminal mischief and

imposed no further penalty for harassment.

       Freeman timely filed post-sentence motions on January 25, 2016.2

The trial court heard argument on the motions on February 19, 2016. By


____________________________________________


       2
        Because the 10-day deadline for filing post-sentence motions fell on
Sunday, January 24, 2016, Freeman had until Monday, January 25, 2016 to
timely file his motions.



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orders dated February 22, 2016 and March 3, 2016, the trial court denied

the post-sentence motions. Freeman timely appealed to this Court.

       Freeman presents two questions for our review:
              [W]hen the testimony from the victim is that she was
           picked up off the ground by a 225[-]pound [man] and
           thrown to the floor, and the glass of her shower door was
           shattered around her, and an attendant circumstance is
           that she suffer[ed] no injury whatsoever, did the
           [C]ommonwealth prove beyond a reasonable doubt that
           [Freeman] attempted to inflict bodily injury or intended to
           place the victim in fear of imminent serious bodily injury?

               All the elements of [18 Pa.C.S. §] 2701(a)(1) are
           included in [18 Pa.C.S. §] 2701(a)(3). Were this panel to
           affirm both simple assault sentences[,] then those
           sentences should merge whether or not the issue was
           litigated at trial because violation of the merger doctrine
           can’t be waived.[3]

Freeman’s Br. at 8 (trial court answers omitted).

       First, Freeman asserts that the evidence at trial was insufficient to

support both simple assault convictions. We disagree.

       Our standard of review of a sufficiency of the evidence claim 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.”


____________________________________________


       3
        Although Freeman did not raise this issue in his Pennsylvania Rule of
Appellate Procedure 1925(b) statement, and the trial court did not address it
in its opinion, we may review it because a merger challenge is a non-
waivable challenge to the legality of the sentence. See Commonwealth v.
Robinson, 931 A.2d 15, 24 (Pa.Super. 2007).



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Commonwealth v. Britton, 134 A.3d 83, 86 (Pa.Super. 2016) (quoting

Commonwealth v. Caban, 60 A.3d 120, 132 (Pa.Super. 2012)). Further:
          [W]e may not weigh the evidence and substitute our
          judgment for the fact-finder. In addition . . . 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.

Id. (quoting Caban, 60 A.3d at 132).

        Freeman contends that because the victim did not suffer bodily injury,

the evidence does not support his conviction for simple assault—attempt to

cause bodily injury. Section 2701(a)(1) of the Crimes Code provides that a

person is guilty of simple assault if he or she “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another.”     18

Pa.C.S. § 2701(a)(1).      “Bodily injury” is defined as an “[i]mpairment of

physical condition or substantial pain.”    Id. § 2301.    The Commonwealth

need not prove that the victim actually suffered bodily injury; rather, it must

prove that the defendant intended to inflict bodily injury on the victim by his

conduct. Commonwealth v. Klein, 795 A.2d 424, 428 (Pa.Super. 2002).

        Here, the evidence established that Freeman intentionally picked the

victim up by her jacket and threw her to the floor, where she landed on her

back.    As the trial court observed, “a grown 225[-]pound man picking up

and tossing the victim onto the floor is the very definition of simple assault.”

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1925(a) Op. at 7. Moreover, Freeman’s own testimony was that “I am 225

pounds, [the victim] is like paper compared to my weight.” N.T., 12/14/15,

at 57.   The fact that the victim did not suffer actual bodily injury is

immaterial. Viewed in the light most favorable to the Commonwealth, the

evidence supports the trial court’s finding that Freeman intended to cause

bodily injury to the victim by his conduct.

      Freeman also contends that the evidence does not support his

conviction for simple assault by physical menace because the victim’s

testimony did not establish that she feared serious bodily injury.    Section

2701(a)(3) of the Crimes Code provides that a person is guilty of simple

assault if he or she “attempts by physical menace to put another in fear of

imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3).    “Serious bodily

injury” is defined as an injury that “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.”      Id. § 2301.

Our Court has stated:
         The elements which must be proven [for simple assault by
         physical menace] are intentionally placing another in fear
         of imminent serious bodily injury through the use of
         menacing or frightening activity. Intent can be proven by
         circumstantial evidence and may be inferred from the
         defendant’s conduct under the attendant circumstances.

Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super. 2003)

(internal citations omitted) (quoting Commonwealth v. Repko, 817 A.2d

549, 554 (Pa.Super. 2003)); see also Commonwealth v. Diamond, 408



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A.2d 488, 489 (Pa.Super. 1978) (“Whether in fact [the victim] was put in

fear is irrelevant; the question is what [the defendant] intended.”).

      Here, the victim’s testimony, which was credited by the trial court, was

sufficient to prove the elements of simple assault by physical menace. While

the victim was in the shower, Freeman charged into the bathroom, punched

his fist through the glass shower, ripped down the shower curtain, and

demanded to know who was calling the victim’s cell phone. When the victim

tried to leave the shower, Freeman stood directly in her way.           Once the

victim freed herself from the bathroom, where shards of glass were strewn

on the floor, Freeman followed her, still screaming at her. We conclude that

Freeman’s actions established his intent to put the victim in fear of imminent

serious bodily   injury.    Viewed   in   the   light   most   favorable   to   the

Commonwealth, the evidence demonstrated the elements of simple assault

by physical menace beyond a reasonable doubt.

      Second, Freeman asserts that his sentence is illegal because the two

simple assault sentences should have merged for sentencing purposes.

Freeman contends that he committed a single criminal act with one goal –

intimidation – and that all of the elements of section 2701(a)(1) are included

in section 2701(a)(3).

      A challenge to the legality of a sentence is a question of law for which

our scope of review is plenary.    Commonwealth v. Robinson, 931 A.2d

15, 24 (Pa.Super. 2007). The merger statute provides:




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           No crimes shall merge for sentencing purposes unless the
           crimes arise from a single criminal act and all of the
           statutory elements of one offense are included in the
           statutory elements of the other offense. Where crimes
           merge for sentencing purposes, the court may sentence
           the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.4

       In considering whether the offenses should merge, we must determine

whether Freeman’s incidents of assault constituted a single criminal act or

multiple criminal acts.        “[W]here a defendant commits multiple distinct

criminal acts, concepts of merger do not apply.”          Commonwealth v.

Petterson, 49 A.3d 903, 911-12 (Pa.Super. 2012) (quoting Robinson, 931

A.2d at 24). Our Court has explained:
              When considering whether there is a single criminal act
           or multiple criminal acts, the question is not “whether
           there was a ‘break in the chain’ of criminal activity.” The
           issue is whether “the actor commits multiple criminal acts
           beyond that which is necessary to establish the bare
           elements of the additional crime, then the actor will be
           guilty of multiple crimes which do not merge for
           sentencing purposes.”

Id. at 912 (citations omitted).

       The trial court correctly determined that Freeman committed two

distinct criminal acts – punching through the glass shower while screaming

at the victim and picking the victim up and throwing her to the floor – and


____________________________________________


       4
        In its brief, the Commonwealth does not address whether all of the
statutory elements of section 2701(a)(1) are included in the statutory
elements of section 2701(a)(3). Because we conclude that Freeman’s
offenses arose from two criminal acts, we need not reach this question.



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that each act independently fulfilled the elements of subsections (a)(1) and

(a)(3). Freeman committed the two assaults in different areas of the house

and by different methods.      Although both assaults occurred within a

relatively short time period, we conclude that Freeman committed two

distinct criminal acts, each of which constituted simple assault. Freeman “is

not entitled to a volume discount for these crimes simply because he

managed to accomplish all the acts within a relatively short period of time.”

Petterson, 49 A.3d at 912. Therefore, the simple assault sentences did not

merge.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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