J-S43039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

DERIACE STONE

                             Appellant                   No. 1677 MDA 2015


            Appeal from the Judgment of Sentence August 3, 2015
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002876-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED JULY 15, 2016

       Appellant Deriace Stone appeals from the judgment of sentence

entered on August 3, 2015 in the York County Court of Common Pleas

following his bench trial convictions for aggravated assault (serious bodily

injury), aggravated assault (with a deadly weapon), robbery, and conspiracy

to commit robbery.1 We affirm.

       The trial court sets forth the following factual and procedural history:

          After midnight on March 20, 2014, James Paul Shickley
          (the “victim”) went to the Sheetz convenience store on
          South Queen Street, York County. (N.T. Trial, at 6.) The
          victim was carrying $800 to $900 in cash and paperwork
          from the department of transportation.1 Id. at 15. While
          at the Sheetz store, the victim briefly conversed with
          [Appellant] and his [girlfriend] Jessica Steininger. Id. at
____________________________________________


1
   18 Pa.C.S.       §§      2702(a)(1),   2702(a)(4),   3701(a)(1),   and   903(c),
respectively.
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       78. The victim left the store and went home. Id. at 53.
       Shortly thereafter, a white Honda pulled up to the victim’s
       house and beeped its horn. Id. at 7-8, 54[-55], 82. The
       victim identified the passenger as [Appellant]. Id. at 8[-
       9]. The driver of the vehicle was Jessica Steininger. Id.
       at 80.    The victim exited the house and spoke with
       Steininger. Id. at 9. [Appellant] then exited the vehicle
       and approached the victim. Id. [Appellant] testified that
       he handed the victim a twenty-dollar bill in an effort to buy
       drugs, however, the victim contests that the encounter
       involved drugs. Id. at 15, [146-]147. The victim’s wife,
       Vonnie    Shickley,   testified  that   [Appellant]     made
       statements indicating he was “going to roll” the victim.
       Id. at 55. [Appellant] then jumped on top of the victim.
       Id.     The victim recalled kicking at [Appellant] as
       [Appellant] was cutting the victim’s jeans with a knife.2
       Id. at 10. The victim’s wife attempted to call 9-1-1, but
       was unable to unlock her phone. Id. at 55-56. She then
       ran outside and told [Appellant] that the police were
       responding. Id. at 56. [Appellant] jumped onto the back
       of the vehicle and instructed Steininger to drive away. Id.
       While the vehicle drove away, [Appellant] attempted to
       cover the license plate of the vehicle. Id. However, the
       victim’s wife was able to read a portion of the license plate
       and later provided that evidence to police. Id. at 57.
       During an interview the following day, she told police that
       she saw [Appellant] take the victim’s CDL paperwork. Id.
       at 75.
          1
           This paperwork was referred to throughout the trial
          as “CDL paperwork.”
          2
            Testimony conflicts with regard to the extent to
          which the victim’s jeans were cut or torn during the
          struggle.

       Steininger testified at trial that after the attack, she
       observed [Appellant] holding a knife that was about seven
       to seven-and-a-half inches in length. [(N.T. Trial,] at 85-
       86. She also testified that [Appellant] discarded the knife
       in a field somewhere between the scene of the incident
       and Windsor [B]orough in York County.          Id. at 86.
       Steininger also saw [Appellant] possessing the victim’s
       CDL paperwork. Id.


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        Ultimately, due to some confusion as to the location of the
        incident, police responded to the Sheetz store where they
        met the victim and his wife. Id. at 11, 57-58, 116.
        Officer Laura Wilson, who responded to the scene,
        photographed a stab wound on the victim’s back that was
        about two inches in length. Id. at 117. The wound was
        actively bleeding “rivers of blood.” Id. Officer Wilson
        testified that she noticed the back pocket on the victim’s
        jeans was torn. Id. at 122. The victim was then taken to
        an area hospital to receive treatment. Id. at 11.

        Upon arrival at WellSpan York Hospital, the victim was
        presented to hospital staff as a “trauma alert” due to the
        “life threatening complications” of his injury. [(N.T. Trial]
        at 39-40. The victim was treated for a single stab wound
        just below the right scapula measuring about three
        centimeters in length.      Id. at 40.      The victim was
        diagnosed with a “traumatic hemopneumothorax” or “a
        traumatic hemorrhage within the chest.” Id. at 40, 42.
        Such an injury is caused by injury to the lung “due to a
        tear” in [the] chest cavity. Id. at 40-41. The victim was
        hospitalized and treated over the subsequent 48 to 72
        hours. Id. at 46-47. Possible complications of the victim’s
        injury included hemorrhagic shock, empyema, blood
        clotting, respiratory distress or failure, septic shock, and
        permanent nerve damage.          Id. at 44-45.       Possible
        complications stemming from treatment include infection,
        additional bleeding, and further damage to the lung. Id.
        at 46.

        After three days of hospitalization, the victim remained out
        of work for three weeks, and continued to suffer from pain
        caused by the injury. [(N.T. Trial)] at 13-14.

        [Appellant] was arrested and charged with two counts of
        aggravated assault and one count each of robbery and
        criminal conspiracy to commit robbery.

1925(a) Opinion, 12/8/2015, at 1-5 (some internal footnotes omitted).




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       Following a non-jury trial, the trial court found Appellant guilty of the

aforementioned crimes.          On August 3, 2015, the trial court sentenced

Appellant to an aggregate term of 9 to 18 years’ incarceration.2

       On August 13, 2015, Appellant filed post-sentence motions challenging

the weight of the evidence and the sufficiency of the evidence for his

aggravated assault (serious bodily injury) conviction and robbery conviction.

Following a September 3, 2015 hearing, the trial court denied the motion.

       On September 29, 2015, Appellant filed a timely notice of appeal.

Both Appellant and the trial court complied with Pennsylvania Rule of

Appellate Procedure 1925.

       Appellant raises the following issue on appeal:

          1. Whether the Commonwealth failed to present sufficient
          evidence to convict Appellant of aggravated assault and
          robbery when the evidence presented at trial failed to
          establish beyond a reasonable doubt that Appellant caused
          or attempted to cause serious bodily injury to the victim.

Appellant’s Brief at 4.

       We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether viewing all the evidence admitted at trial in the

light most favorable to the verdict winner, there is sufficient evidence to
____________________________________________


2
   The trial court sentenced Appellant to 9-18 years’ incarceration for the
aggravated assault (serious bodily injury) conviction, 33 to 66 months’
incarceration for the aggravated assault (with a deadly weapon) conviction,
9 to 18 years’ incarceration for the robbery conviction, and 9-18 years’
incarceration for the conspiracy to commit robbery conviction. All sentences
were imposed concurrently.



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enable the fact-finder to find every element of the crime beyond a

reasonable doubt.”      Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003),      affirmed,    870     A.2d   818     (Pa.2005)      (quoting

Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we

apply this standard, “we may not weigh the evidence and substitute our

judgment for the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”       Lehman, 820 A.2d at

772 (quoting DiStefano, 782 A.2d at 574).            Moreover, “[a]ny 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.”                 Id.   “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Id.

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

Further, “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.” Id.

      A defendant 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

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indifference to the value of human life.”         18 Pa.C.S. § 2702(a)(1).       “For

aggravated assault purposes, an ‘attempt’ is found where the accused, with

the required specific intent, acts in a manner which constitutes a substantial

step   toward      perpetrating     a   serious   bodily   injury   upon   another.”

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super.2012)

(quoting Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa.Super.2003)).

“Serious bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S. § 2301.

       Appellant argues the Commonwealth failed to present sufficient

evidence that serious bodily injury occurred.          Appellant’s Brief at 8.    He

argues there is nothing to indicate the victim suffered a substantial risk of

death.3     Id.    Appellant further claims the victim suffered no serious,
____________________________________________


3
  Appellant claims that Dr. Amy Rushing, a former staff surgeon at WellSpan
York Hospital, testified that: although the victim presented for trauma alert,
his blood pressure and heart rate were stable; that the victim suffered a
single puncture wound that that was 3 centimeters in length and was not
bleeding at the time of her assessment; that a chest tube was placed to
assist with breathing, but that it was a stable situation; and that this type of
injury presents as a stable situation. Appellant’s Brief at 8-9. He claims Dr.
Rushing testified that there were “really . . . no other organs. It was far
enough away from the spine where a spinal cord injury was highly unlikely.
It was underneath the scapula, or the shoulder blade, so it entered a soft
tissue and multiple layers of muscle.” Id. at 9 (citing N.T., 6/4/2015, at
43). Appellant further notes that Dr. Rush testified that the type of injury
was not likely to cause significant harm, life-threatening bleeding or shock
unless left untreated. Id.



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permanent disfigurement or protracted loss or impairment of the function of

any bodily member or organ.4 Id. at 9.

       Contrary to Appellant’s contention, the Commonwealth presented

sufficient evidence that the victim suffered serious bodily injury.     The trial

court concluded:

          As a result of the attack, the victim suffered a three-
          centimeter stab wound to the back near the right scapula,
          or shoulder blade, and was diagnosed with a “traumatic
          hemopneumothorax” injury, or hemorrhaging within the
          chest cavity. Such injury, if left untreated, could lead to
          shock, respiratory distress or failure, sepsis, or organ
          failure. These complications are life-threatening. Thus,
          [the trial c]ourt found beyond a reasonable doubt that
          [Appellant] intentionally caused bodily injury that created
          a substantial risk of death to the victim.

1925(a) Opinion, 12/8/2015, at 9 (internal citations to record omitted). The

victim received help, and was spared the more serious complications to his

injury.   However, the Commonwealth presented sufficient evidence from

which the fact-finder could conclude the         injury inflicted “create[d] a

substantial risk of death.”5
____________________________________________


4
  Appellant argues the victim was hospitalized for three days, had no need
for any breathing treatments once he left the hospital, had two follow-up
appointments with his physicians, has two small scars, and returned to his
full-time work as a truck driver three weeks after the incident. Appellant’s
Brief at 9.
5
  Further, the Commonwealth presented sufficient evidence that Appellant
intended to cause serious bodily injury. He used a knife during a robbery,
and inflicted a stab wound. See, e.g., Gruff, 822 A.2d at 780 (finding
sufficient evidence that appellant attempted to cause serious bodily injury
where he placed a deadly weapon (loaded rifle with an attached bayonet),
(Footnote Continued Next Page)


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      Moreover, we agree with the trial court’s conclusion that the

Commonwealth presented sufficient evidence of robbery.           The robbery

statute provides:

          (a) Offense defined.--

          (1) A person is guilty of robbery if, in the course of
          committing a theft, he:

          (i) inflicts serious bodily injury upon another[.]

18 Pa.C.S. § 3701(a)(1)(i).             As discussed above, the Commonwealth

presented sufficient evidence that Appellant inflicted serious bodily injury

upon another.          Further, the Commonwealth presented evidence that

Appellant and Steininger discussed stealing the victim’s money and that

Appellant actually took the victim’s CDL paperwork. Opinion, 12/8/2015, at

10.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016



                       _______________________
(Footnote Continued)

against victim’s throat and said, “I just ought to kill you . . . . Do you want
to die today or tomorrow?”).



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