J-S50040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

TYREEK WILSON

                            Appellant                No. 3079 EDA 2015


          Appeal from the Judgment of Sentence September 17, 2015
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014996-2013


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                      FILED SEPTEMBER 08, 2017

        Appellant, Tyreek Wilson, appeals from the judgment of sentence of

twenty-two to forty-four years of incarceration, imposed September 17,

2015, following a jury trial resulting in his conviction for robbery, attempted

burglary, recklessly endangering another person, and simple assault. 1     We

affirm.

        On November 15, 2013, at 7:00 p.m., Mary Ellen Kelly went to Holly

Turner’s apartment at 29th Street and Girard Avenue in Philadelphia,

Pennsylvania. See Notes of Testimony (N.T.), 6/9/15, at 55-58, 67, 101-

103. Ms. Kelly rang the buzzer for Ms. Turner’s apartment. Id. at 103. Ms.

Turner, who was using crutches as a result of a broken foot, unlocked the

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1
    See 18 Pa.C.S. §§ 3701, 901, 2705, 2701, respectively.
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inner vestibule door and the outside door of the apartment building. Id. at

57-58, 103-04. Appellant was standing a few feet behind Ms. Kelly. Id. at

62-63, 103-08. As she entered the vestibule, Appellant pushed his way in

behind her. Id. at 63, 103-04, 110-11. The two women attempted to push

Appellant out while he tried to force his way into the apartment proper. Id.

at 63, 68-71, 104, 110-11. Ms. Turner kicked the apartment door shut while

screaming for help. Id. at 69-72, 104, 113-14. During the struggle, both

women were able to see Appellant’s face; Ms. Kelly noted he was wearing a

black coat with a brand tag reading “Zero.” Id. at 125.

     Appellant punched Ms. Kelly in the face and body, pulled her hair and

her scarf, and shoved her against the wall. Id. at 64, 73, 115-16. Ms. Kelly

screamed and fell to the ground while Appellant kicked her. Id. at 64, 72-

73, 104, 115-17. Ms. Turner kicked Appellant in the groin. Id. at 64, 118.

Appellant grabbed Ms. Kelly by the hair and dragged her three to four feet

from the vestibule. Id. at 64, 121-23. The cross-body bag she was wearing

snapped, and Appellant fled with the purse northbound on 30th Street. Id.

at 77, 104, 123; N.T., 6/10/15, at 19-20.    During the struggle, Appellant

dropped his phone. Id. at 77.

     Ms. Turner’s neighbors arrived on the scene and told her they had

called 911; Ms. Turner spoke to the dispatcher and gave a description of

Appellant.   See N.T., 6/9/15, at 76-77, 125-26.    An unmarked police car

arrived within a few minutes: Ms. Kelly got in the car with officers, and Ms.

Turner remained at the apartment and picked up Appellant’s phone. Id. at

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77; N.T., 6/10/15, at 19-20, 23-24, 49-51. Ms. Kelly had an iPhone with a

tracking application installed on it, so the police were able to follow

Appellant’s location.   See N.T., 6/9/15, at 125-26; N.T., 6/10/15, at 24.

Based on Appellant’s westbound trajectory on Girard Avenue, officers

concluded Appellant was on a trolley.   See N.T., 6/9/15, at 128-29; N.T.,

6/10/15, at 24-25.

      Officers stopped two trolleys at 34th Street and Girard Avenue; on the

second trolley, Ms. Kelly identified Appellant as the assailant.   See N.T.,

6/9/15, at 129-131; N.T., 6/10/15, at 25-26. Officers recovered Ms. Kelly’s

iPhone from Appellant, who was then arrested.       Id.   As a result of the

assault, Ms. Kelly suffered a burn across the neck due to Appellant’s pulling

the bag; a black eye; and bruises on her arms and legs. See N.T., 6/9/15,

at 134; N.T., 6/10/15, at 61-62. Police officers obtained a search warrant

for Appellant’s phone, which was logged into his Facebook account.       See

N.T., 6/10/15, at 65-70.

      Prior to trial, Appellant cut the strap of his electronic monitoring

bracelet and fled; a bench warrant was issued for his arrest.      See N.T.,

6/8/15, at 20-22, 25-26; N.T., 6/9/15, at 13-20, 26; N.T., 6/10/15, at 104-

08, 114-133, 135-39.     Appellant was subsequently tried in absentia.   See

N.T., 6/8/15, at 4, 21-22, 25-26; N.T., 6/9/15, at 13-20, 26. After the jury

found Appellant guilty on all charges, Appellant was sentenced in absentia to

twenty-two to forty-four years of incarceration. See N.T., 6/11/15, at 116-

18; N.T., 9/17/15, at 4-6.

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       On September 22, 2015, while Appellant was still a fugitive, counsel

filed a post-sentence motion on his behalf, which the court denied.        On

October 8, 2015, counsel filed a notice of appeal on Appellant’s behalf,

again, while he was still a fugitive. Appellant was taken into custody on new

charges in October 2015. Following a bench warrant hearing on October 16,

2015, three days prior to the thirty-day appeal period running,2 the court

ordered Appellant to file a Pa.R.A.P. 1925(b) statement. Instead, Appellant

filed a second post-sentence motion. Appellant was allowed the opportunity

for allocution, but the court denied his motion for reconsideration. Appellant

filed two Pa.R.A.P. 1925(b) statements. The trial court issued a responsive

opinion.

       On appeal, Appellant raises two issues for our review:

       A. Appellant was erroneously convicted of simple assault as to
       the complainant Holly Turner as there was insufficient evidence
       that he either attempted to cause her bodily injury or attempted
       by physical menace to put her in fear of imminent serious bodily
       injury.

       B. The lower court violated the sentencing code by imposing an
       excessive and disproportionate sentence of twenty-two to forty-
       four years’ incarceration, comprised of consecutive statutory
       maximum sentences on each charge, and by failing to state any
       reasons for the sentence or for exceeding the sentencing
       guidelines.

Appellant’s Brief at i-ii (unnecessary capitalization omitted).
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2
  Appellant was sentenced on September 17, 2015. Thirty days from that
date was October 17, 2015, a Saturday. Thus, the time period for appeal
ran October 19, 2015. See Pa.R.A.P. 903; 1 Pa.C.S. § 1908.



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      Prior to addressing Appellant’s claims we must first determine whether

we have jurisdiction to hear the instant appeal.       Regarding a fugitive’s

appellate rights, our Supreme Court has stated that

      a fugitive who returns to court should be allowed to take the
      system of criminal justice as he finds it upon his return; if time
      for filing has elapsed, he may not file; if it has not, he may.

Commonwealth v. Doty, 997 A.2d 1184, 1187 (Pa. Super. 2010) (quoting

Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa. 1997)).               On direct

appeal, therefore, a defendant’s status during the 30-day appeal period

controls whether an appellate court will hear his appeal. Id. at 1188. In the

instant matter, Appellant was returned to the custody of the court three

days before the appeal period ran. During that time, counsel preserved his

appellate rights.   Accordingly, we decline to find that Appellant waived his

appellate rights due to flight. Id. at 1187-88; see also Deemer, 705 A.2d

at 829 (holding that if a fugitive returns before the appeal deadline, he

regains the appellate right and may, therefore, file a timely appeal).

      Thus, because Appellant was returned to custody prior to the

expiration of the thirty-day time period, we will deem his appeal timely filed.

See, e.g., Deemer, 705 A.2d at 829.        However, because the time to file

post-sentence motions had long expired by the time he was returned to

custody, he has waived any issues raised therein. See Deemer, 705 A.2d

at 829; Doty, 997 A.2d at 1187. Accordingly, Appellant’s challenge to the

discretionary aspects of his sentence is waived.      See Commonwealth v.

Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (noting Appellant must

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preserve a challenge to the discretionary aspects of his sentence in a timely

post sentence motion); see also Pa.R.A.P. 2119(f).

      We turn now to the sole issue Appellant has preserved for appeal.

Appellant claims that the evidence was insufficient to support his conviction

for simple assault. See Appellant’s Brief at 14. He contends that because

Ms. Turner did not suffer an impairment of her physical condition or

substantial pain, and because the evidence did not establish that Appellant

specifically intended to cause Ms. Turner injury, the Commonwealth failed to

prove all elements of the crime beyond a reasonable doubt. Id.

      We review a challenge to the sufficiency of the evidence as follows.

      In determining whether there was sufficient evidentiary support
      for a jury’s finding [], the reviewing court inquires whether the
      proofs, considered in the light most favorable to the
      Commonwealth as a verdict winner, are sufficient to enable a
      reasonable jury to find every element of the crime beyond a
      reasonable doubt.        The court bears in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court’s rulings thereon were correct; and the trier of
      fact, while passing upon the credibility of witnesses and the
      weight of the evidence, is free to believe all, part, or none of the
      evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

      The elements of simple assault are defined, in relevant part, as

follows:




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        (a) Offense defined.-- Except as provided under section 2702
        (related to aggravated assault), a person is guilty of assault if
        he:

             (1) attempts to cause or intentionally, knowingly or
             recklessly causes bodily injury to another; . . .

             (3) attempts by physical menace to put another in fear of
             imminent serious bodily injury . . .

See 18 Pa.C.S. § 2701.       “Bodily injury” is defined by the crimes code as

“impairment of physical condition or substantial pain.”     See 18 Pa.C.S. §

2301.     “The Commonwealth need not establish that the victim actually

suffered bodily injury; rather, it is sufficient to support a conviction if the

Commonwealth establishes an attempt to inflict bodily injury.      This intent

may be shown by circumstances which reasonably suggest that a defendant

intended to cause injury.” Commonwealth v. Richardson, 636 A.2d 1195,

1196 (Pa. Super. 1994).

        We have previously observed that

        in considering the spectrum of assaultive behavior, convictions
        for simple assault have been upheld where the behavior is more
        clearly criminal. See, e.g., Commonwealth v. Jorgenson,
        341 Pa.Super. 550, 492 A.2d 2 (1985) (affirming conviction for
        simple assault where victim was struck twice across the face
        while refusing sexual advances); Commonwealth v. Adams,
        333 Pa.Super. 312, 482 A.2d 583 (1984) (affirming conviction
        for simple assault where victim was struck in the head with an
        object hard enough to almost knock her unconscious);
        Commonwealth v. Richardson, 431 Pa.Super. 496, 636 A.2d
        1195 (1994) (affirming conviction for simple assault for punching
        police officer in the face).




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In re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000) (finding evidence

sufficient to support simple assault for grabbing the victim’s arm and

pushing her against a wall, resulting in bruises).

      Here, the evidence was sufficient to sustain Appellant’s conviction.

Although Ms. Turner was not injured, Appellant pushed her during an

attempt to force his way into her home and in the process of committing a

robbery.   Had his attention not been distracted by Ms. Kelly, who was

injured, it is likely that Ms. Turner would have been injured as well; the

circumstances reasonably suggest that Appellant intended to cause injury to

Ms. Turner. See, e.g., Commonwealth v. Brown, 822 A.2d 83, 84 (Pa.

Super. 2003) (finding evidence sufficient to support conviction for simple

assault where parent entered classroom unannounced, yelled threats at

teacher, and pushed teacher, who was able to escape by closing a door and

would have likely suffered injury but for her escape); cf. In re J.L., 475

A.2d 156, 157-58 (Pa. Super. 1984) (finding insufficient evidence of simple

assault where sixteen-year-old defendant pushed two-year-old nephew with

elbow during interfamilial dispute and nephew neither cried nor sustained

any injury). Accordingly, the evidence was sufficient to sustain Appellant’s

conviction for simple assault in that the circumstances reasonably suggest

that Appellant intended to cause injury to Ms. Turner. See Diggs, 949 A.2d

at 877; Richardson, 636 A.2d at 1196.

      Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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