J-S35005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEVIN KING

                            Appellant                  No. 991 WDA 2016


              Appeal from the Judgment of Sentence May 25, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007915-2015


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 11, 2017

        Devin King appeals from his judgment of sentence, entered in the

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

aggravated assault – serious bodily injury1, unlawful restraint – serious

bodily injury2, terroristic threats3, two counts of simple assault4, and false

imprisonment.5 Upon review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a)(1).
2
    18 Pa.C.S.A. § 2902(a)(1).
3
    18 Pa.C.S.A. § 2706(a)(1).
4
    18 Pa.C.S.A. § 2701(a)(1).
5
    18 Pa.C.S.A. § 2903(a).
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      Margaret Blow testified that on the morning of May 20, 2015, she

approached King after seeing that he had messages from other women on

his cell phone. At the time, Blow was living with King, although the lease

was solely in King’s name. The two got into an argument, and eventually,

King came into her bedroom from the living room and head-butted her in the

mouth.   King then grabbed Blow by her hair, dragged her into the dining

room, and stepped on her face. King put one hand around her throat, and

when Blow started calling to her children for help, he placed one hand down

her throat. King started repeatedly screaming at Blow, saying “I’m going to

f-ing kill you and make you leave the house today.” N.T. Trial, 3/7/2016, at

8. At this point, Blow tried to walk out of the dining room, but King brought

her to the floor, wrapped his legs around her stomach, and choked her.

When Blow got off of the floor, King threw her against the wall and she hit

her head against the wall. Blow then picked up her phone and went to the

bathroom, where she video-chatted with her sister-in-law, asking her to call

a taxi. King came into the bathroom, keeping the door open but blocking it

with his body, and continued screaming at Blow, saying that he was going to

kill her. King would not let her leave the bathroom for several minutes, until

her brother appeared on the voice chat, and yelled through the phone that

he was going over to King’s house, causing King to leave the bathroom.

Blow then left the house, and went to her sister-in-law’s house.         Blow

testified that the entire incident took 10 or 15 minutes.




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      After stopping at her sister-in-law’s house, Blow went to the

McKeesport Hospital to receive medical treatment. There, Blow received two

sutures to her upper lip, and was told she might have a sprained wrist.

Since Blow’s left eye was swollen to the point of being nearly shut, the staff

also performed a CAT scan, but found no other damage. Shortly afterwards,

Blow contacted the police about the incident.       Officer Smith testified that

when he spoke to Blow, he noticed that her lip had stitches and that her left

eye was swollen.

      On March 7, 2016, King was convicted on all counts at a non-jury trial,

and on May 25, 2016, he was sentenced to two to five years’ incarceration.

On June 2, 2016, King filed post-sentence motions challenging the weight of

the sentence and a seeking reconsideration of his sentence. These motions

were denied on June 9, 2016.      On July 16, 2016, King filed a notice of

appeal, followed by a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal on September 1, 2016. The trial court filed its Rule

1925(a) opinion on October 19, 2016.

      King raises the following issues on review:

      1. Was the evidence insufficient to sustain the conviction for
         aggravated assault as no serious bodily injury occurred and
         Mr. King did not intent to cause such injury?

      2. Was the evidence insufficient to sustain the conviction for
         unlawful restraint as Mr. King did not expose Blow to risk of
         serious bodily injury?




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      3. Was the evidence insufficient to sustain the conviction for
         false imprisonment as Mr. King did not unlawfully restrain
         Blow so as to substantially interfere with her liberty?


Brief of Appellant, at 4.

      King first claims that there was insufficient evidence to support his

conviction for aggravated assault. Our standard of review of a challenge to

the sufficiency of the evidence is well settled:

      The standard we apply in reviewing the sufficiency of the
      evidence 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. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that 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.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, 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.


Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001),

quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super

2000) (citations and quotation marks omitted).

      Aggravated assault is defined, in relevant part, as:

      (a) Offense defined. — A person is guilty of aggravated
      assault if he:


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            (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;


18 Pa.C.S.A. § 2702(a)(1) (bold and italics in original).        Additionally, the

following terms are defined in 18 Pa.C.S.A. § 2301:

      “Bodily injury.” —Impairment of physical condition or substantial
      pain.

      “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.

“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. Gruff, 822 A.2d 773, 776 (Pa. Super. 2003). To find

intent, we look at the totality of the circumstances to determine whether a

defendant   possessed    the   intent   to   inflict   serious     bodily   harm.

Commonwealth v. Matthews, 909 A.2d 1254, 1256 (Pa. 2006).                     We

examine the defendant’s words and conduct to determine whether the

requisite intent exists. Gruff, 822 A.2d at 779.

      In Commonwealth v. Burton, 2 A.3d 598 (Pa. Super. 2010), our

Court upheld a conviction of aggravated assault when the defendant, Darryl

Burton, caused serious bodily injury to the victim, William Price, Jr., with a

single punch.    In that case, we were able to determine that Burton

possessed the requisite intent because Burton was significantly larger and


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stronger than Price, and Burton aggressively initiated a confrontation with

Price by demanding that Price pay the money he owes. Id. at 603. We also

found that, despite an initial aggressive confrontation, the fact that Burton

suddenly struck Price while Price was unprepared for an attack was an

indicator of Burton’s intent to inflict serious bodily harm. Id. Additionally,

we found that Burton’s conduct of smiling and saying, “I got you” while

watching Price bleeding on the ground after the attack, was evidence of

Burton’s intent. Id.

     Upon review of the record and viewing all evidence in a light most

favorable to the Commonwealth, DiStefano, supra, we find that, regardless

of whether Blow’s injuries constitutes serious bodily harm, King possessed

the intent to inflict serious bodily harm to Blow, and attempted to do so by

continuously attacking her.   Blow described King as being taller than her.

N.T. Trial 3/7/2016, at 16. Additionally, King entered her room following an

argument, and started yelling at her and then head-butted her.         This is

comparable to Burton, supra, as both cases involved a larger attacker

suddenly initiating a physical attack. While attacking Blow, King repeatedly

yelled that he was going to “f-ing kill her,” and continued to yell similar

language while Blow was in the bathroom.       Like the statements made by

Burton, King showed his intention to inflict serious bodily injury with his

words and actions. Id. at 603; see also Commonwealth v. Hall, 830 A.2d

537, 542 (Pa. 2003) (stating intent can be found where one verbalizes

reasons for his actions). We find the attempt element of aggravated assault

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also satisfied by King’s unrelenting physical assaults.    Commonwealth v.

Rodriguez, 673 A.2d 962, 966-67 (Pa. Super. 1996).          While King argues

that the lack of a weapon during the attack, despite the opportunity to get

one, was evidence that he had no intent to inflict serious bodily injury, we

have never held that a weapon is necessary to find intent to inflect serious

bodily injury.   Therefore, we find that there was sufficient evidence to

support the conviction of aggravated assault.

       King next claims that the evidence was insufficient to support his

conviction for unlawful restraint. Unlawful restraint is defined as:

         (a)     Offense defined. — Except as provided under
         subsection (b) or (c), a person commits a misdemeanor of the
         first degree if he knowingly:

             (1) restrains   another     unlawfully    in   circumstances
             exposing him to risk of serious bodily injury;


18 Pa.C.S.A § 2902(a)(1) (bold and italics in original).

      King’s challenge to his unlawful restraint conviction relies on the

theory that he did not place the defendant in a situation where she was at

risk of serious bodily harm. As we have discussed above, King’s continuous

attacks on Blow did indeed expose her to the risk of serious bodily harm.

Since King prevented Blow from leaving the house at various times during

the attack, we find that the evidence supports the conviction of unlawful

restraint.




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     Finally, King claims that there was insufficient evidence to support his

conviction of false imprisonment. False imprisonment is defined as:

     (a) Offense defined. — Except as provided under subsection
     (b) or (c), a person commits a misdemeanor of the second
     degree if he knowingly restrains another unlawfully so as to
     interfere substantially with his liberty.


18 Pa.C.S.A. § 2903.      In determining whether the restraint at issue

“substantially” interfered with a person’s liberty, we must give the word

substantially its plain meaning. See 1 Pa.C.S.A. § 1903 (words in statute

construed according to common and approved usage);         In re M.G., 916

A.2d 1179, 1182 (Pa. Super. 2007).

     Upon review of the record and viewing all evidence in a light most

favorable to the Commonwealth, DiStefano, supra, we must determine

whether King significantly or considerably deprived Blow of her liberty when

he prevented her from leaving the house. We conclude that he did. King

argues that he never deprived Blow of her liberty because Blow was never

trapped in any room of the home. King additionally claims Blow went into

the bathroom of her own volition, and the door to the bathroom was left

open during the incident. However, Blow’s testimony clearly indicates that

King did not allow Blow to leave the bathroom by inserting himself between

Blow and the door. Blow testified that she was trapped in the bathroom with

King for more than a minute. It was not until Blow’s brother communicated

to her via video chat that he was coming over that King left the bathroom,

enabling Blow to escape.       We have previously found a substantial

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interference of a victim’s liberty when the victim was unable to leave her

room for over a minute due to the defendant standing between the victim

and her closed door. M.G., 916 A.2d at 1182. Given the similarity between

this holding and the facts of this case, we find that King substantially

deprived Blow of her liberty.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2017




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