J-S02006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
BRAULIO LEBRON                          :
                                        :
                  Appellant             :   No. 97 EDA 2017

         Appeal from the Judgment of Sentence December 16, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0008590-2015


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                              FILED JUNE 27, 2018

     Braulio Lebron appeals from the judgment of sentence of ten to twenty

years incarceration imposed following his non-jury trial convictions for inter

alia, aggravated assault with a deadly weapon and burglary. We affirm.

     The trial court set forth the facts underlying these convictions in its

Pa.R.A.P. 1925(a) opinion, which we adopt herein:

     On August 7, 2015, at about 8:12 p.m., Mr. Robert Hampton
     entered his residence[.] As he did so, Appellant, who lived a
     ☺couple of houses away, was standing to the side of Mr.
     Hampton's residence. Appellant followed Mr. Hampton inside his
     ☺residence, called him a rapist, and then punched him in the
     face. Appellant then picked up a stick that was in Mr. Hampton's
     living-room and struck Mr. Hampton with the stick, which had
     nails protruding out of it, about three times. During the assault,
     Appellant also bit Mr. Hampton. Mr. Hampton did not give
     Appellant permission to enter his residence.

     A second person entered Mr. Hampton's residence when he and
     Appellant entered. The other male, who[m] Mr. Hampton knew


* Retired Senior Judge Assigned to the Superior Court.
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      by the name Chris, ran from the residence after hitting Mr.
      Hampton in the face.

      Mr. Hampton fought back against Appellant's assault. In doing
      so, Appellant pulled him to the ground and kicked Mr. Hampton
      in the ribs three or four times. At or about that time, a friend of
      Mr. Hampton's named Megan Ross, who was present in the
      residence when the incident began, tried to break up the fight. It
      ended when Appellant fled the residence.

      Shortly thereafter, the police arrived and Mr. Hampton pointed
      out and identified Appellant, who was sitting on the steps of his
      residence.    Mr. Hampton went to a nearby hospital, was
      admitted and spent seven days recuperating from the injuries
      suffered during the attack, which included broken ribs and a
      collapsed lung. Appellant was arrested and charged.

Trial Court Opinion, 4/25/17, at 2-3.

      The trial court sentenced Appellant to a mandatory sentence of ten to

twenty years incarceration at the burglary conviction, due to Appellant’s

prior conviction for a crime of violence. See 42 Pa.C.S. § 9714(a)(1).

Appellant filed post-sentence motions and a timely notice of appeal following

their denial, and complied with the order to file a concise statement of

matters complained of on appeal.        The trial court penned an opinion in

response, and the matter is ready for review of Appellant’s two claims:

      I.    Is the evidence sufficient as a matter of law to sustain
            [Appellant]’s conviction for the crime of aggravated assault
            . . . where the evidence of record does not establish that
            the item allegedly used by defendant; (i) caused bodily
            injury, and/or, (ii) is a "deadly weapon" as that term is
            defined in 18 Pa.C.S.A. § 2301?

      II.   Should the mandatory minimum sentence imposed by the
            trial court with respect to the charge of burglary under 42
            Pa.C.S.A. § 9714 be vacated, and this matter remanded


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            for a new sentencing hearing, due to the fact that § 9714
            is unconstitutional as currently drafted?

Appellant’s brief at 5.

      Appellant’s first claim challenges the sufficiency of the evidence

supporting the verdict of the crime of aggravated assault with a deadly

weapon. Our standard of review 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 finder 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. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)

(citation omitted).

      The statutory language states that a person is guilty of aggravated

assault with a deadly weapon if he “attempts to cause or intentionally or

knowingly causes bodily injury to another with a deadly weapon[.]”          18

Pa.C.S. § 2702(a)(4). “Deadly weapon” is defined as:



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      Any firearm, whether loaded or unloaded, or any device
      designed as a weapon and capable of producing death or serious
      bodily injury, or any other device or instrumentality which, in the
      manner in which it is used or intended to be used, is calculated
      or likely to produce death or serious bodily injury.

18 Pa.C.S. § 2301.

      Appellant’s argument is twofold.     First, he notes that the trial court

acquitted him of the separate charge of aggravated assault under §

2702(a)(1), which required proof that Appellant attempted to cause serious

bodily injury or caused such injury intentionally, knowingly, or recklessly.

According to Appellant, that finding definitively establishes for purposes of

our review that he neither attempted to cause nor caused serious bodily

injury for purposes of aggravated assault with a deadly weapon under §

2702(a)(4).

      In turn, Appellant emphasizes the following language of the deadly

weapon definition: “or any other device or instrumentality which, in the

manner in which it is used or intended to be used, is calculated or likely to

produce death or serious bodily injury.” Appellant asserts that the acquittal

“constrains this reviewing court to find that [Appellant] did not use, attempt

to use, or intend to use, the stick in a manner that was calculated or likely to

produce serious bodily injury.” Appellant’s brief at 16-17.

      Before examining the particulars of Appellant’s argument, we first note

that § 2702 defines deadly weapon in three discrete ways.             The first

definition is: “Any firearm, whether loaded or unloaded[.]” Thus, a firearm

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qualifies as a deadly weapon per se, regardless of how the firearm was used.

Obviously, the stick does not fall under this definition.      Therefore, the

Commonwealth was required to prove that the stick fell under one of the

remaining two definitions.

      The second definition reads: “any device designed as a weapon and

capable of producing death or serious bodily injury.”       Finally, the third

definition is: “any other device or instrumentality which, in the manner in

which it is used or intended to be used, is calculated or likely to produce

death or serious bodily injury.”

      Thus, for these two definitions, the first question is whether the

weapon was “designed as a weapon” and is “capable of producing death or

serious bodily injury.” If so, like a firearm, the weapon qualifies as a deadly

weapon per se without analyzing its actual or intended use.        If not, the

weapon may fall under the generic “any other device or instrumentality”

description.   That definition requires proof that “the manner in which it is

used or intended to be used is calculated or likely to produce death or

serious bodily injury.”

      In Commonwealth v. Blake, 605 A.2d 427 (Pa.Super. 1992), we

examined the § 2301 language to determine if a knife qualified as a deadly




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weapon for purposes of the deadly weapon enhancement.1 Therein, Blake,

while committing a burglary, encountered the homeowners.           During the

ensuing struggle, the victim was stabbed in the thigh by an open pocket

knife, which was in Blake’s pocket. That knife had been used to cut through

a screen door to gain access to the home; however, there was no evidence

that Blake wielded the knife as a weapon, nor did the record contain a

description of the knife. We stated:

       Our first inquiry is to determine whether the pocket knife was
       designed as a weapon. If the pocket knife is designed as a
       weapon, then the mere possession of the knife during the crime
       is sufficient to apply the deadly weapon enhancement. The word
       designed is defined as “contrived or taken to be employed for a
       particular purpose.” Blacks Law Dictionary 533 (4th ed. 1968).
       Since there is no evidence of record that the pocket knife was
       extraordinary in any way, we find that there is insufficient
       evidence to find that it was designed as a weapon.[fn] 1 Pa.C.S.A.
       § 1921(b) (“When the words of a statute are clear and free from
       ambiguity, the letter of it is not to be disregarded under the
       pretext of pursuing its spirit”). To hold otherwise would mandate
       the application of the weapon enhancement for the commission
       of any crime while the perpetrator was in possession of nearly
       any instrument capable of producing serious bodily injury. This
       result permits an unreasonable interpretation of the
       phrase, designed as a weapon. Commonwealth v. Gatto, 236

____________________________________________


1 At the time, the deadly weapon enhancement statute referred to 18
Pa.C.S. § 2301 for definition of that term. See Commonwealth v. Blake,
605 A.2d 427, 428 (Pa.Super. 1992) (“When the court determines that the
defendant . . . possessed a deadly weapon, as defined in 18 Pa.C.S.A.
§ 2301 . . .”) (quoting former 204 Pa.Code § 303.4(a)). The definition of
deadly weapon for the enhancement was later modified.                See
Commonwealth v. Brougher, 978 A.2d 373, 379 (Pa.Super. 2009) (“[T]he
deadly weapons enhancement has been modified, and now defines deadly
weapon differently than section 2301[.]”).



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      Pa.Super. 92, 344 A.2d 566 (1975) (all statutory law must be
      given a reasonable interpretation).


      [fn]We do not hold that a pocket knife can never be considered
      to be designed as a weapon under all circumstances. However,
      in the present case, the prosecution does not provide a
      description of the size and shape of the knife or blade to enable
      the court to make a determination. See Annot. 100 A.L.R.3d 287
      (discussing whether a pocket knife is a deadly weapon).

Id. at 428 (emphasis in original).

      Arguably, there was sufficient evidence to find that the stick qualified

under the “designed as a weapon” possibility.      We think that a stick with

nails protruding from it is clearly capable of producing death or serious

bodily injury.    Moreover, the stick appears to have been designed as a

weapon.      Unlike a pocket knife, which has obvious utility for a “particular

purpose,” id., beyond weaponry, there is no readily discernible use for the

stick except as an instrument of violence.     In any event, we find that the

evidence suffices to warrant a finding that “the manner in which [the stick]

[was] used or intended to be used, [was] calculated or likely to produce

death or serious bodily injury.” 18 Pa.C.S. § 2301.

      Our standard of review asks whether there is sufficient evidence to

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

reasonable doubt. We find that standard met, as the evidence establishes

that Appellant initially attacked Mr. Hampton by punching him in the face,

then kicking him in the ribs after Mr. Hampton fell to the ground. Appellant

then elected to continue the attack by picking up the stick and striking Mr.

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Hampton three times. The fact-finder could determine that Appellant used

the stick in a manner that was calculated or likely to produce serious bodily

injury. Blake, supra at 428 (“While there is no requirement that the victim

actually     be    in   immediate   danger   of   serious   injury,   the   device   or

instrumentality must be used in a manner that could cause serious bodily

injury.”).

      In response, Appellant emphasizes that the trial court acquitted him of

the additional charge of aggravated assault under 18 Pa.C.S. § 2702(a)(1).

That crime required proof that Appellant “attempt[ed] to cause serious

bodily injury to another” or caused such injury intentionally, knowingly, or

recklessly.       Appellant submits that the finding of not guilty means, in the

language of § 2301, that his employment of the stick was not calculated or

likely to produce serious bodily injury.          Accordingly, he is not guilty of

aggravated assault with a deadly weapon under § 2702(a)(4).

      We reject Appellant’s attempt to attach significance to the acquittal.

As our Supreme Court has observed, inconsistent verdicts are permissible.

Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014).                           In

Moore, our High Court reiterated that “Federal and Pennsylvania courts

alike have long recognized that jury acquittals may not be interpreted as

specific factual findings with regard to the evidence, as an acquittal does not

definitively establish that the jury was not convinced of a defendant's guilt.”

Id. at 1246.        Moore references jury acquittals; however, our precedents


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apply the same rule to bench trials. See Commonwealth v. Yachymiak,

505 A.2d 1024, 1026 (Pa.Super. 1986) (citing Commonwealth v. Harris,

360 A.2d 728 (Pa.Super. 1976)).2               Therefore, to the extent that the trial

court’s acquittal of aggravated assault at 18 Pa.C.S. § 2702(a)(1) is

inconsistent with its verdict at the separate charge of aggravated assault

with a deadly weapon at § 2702(a)(4), we agree with the Commonwealth

that the inconsistency does not preclude affirmance.

       Additionally, we note that the verdicts are not necessarily inconsistent.

First, the trial court could have determined that the weapon qualified under




____________________________________________


2 Harris rejected the view expressed in United States v. Maybury, 274
F.2d 899 (2d Cir. 1960), which criticized extending the rationale for
accepting inconsistent verdicts in jury trials to non-jury trials.        In
Commonwealth v. Gonzalez, 892 N.E. 2d 255 (Ma. 2008), the Supreme
Court of Massachusetts cited and discussed the differing approaches to this
issue, and highlighted that “A common concern expressed by courts
adopting the Maybury rule is the fear that inconsistent findings on separate
charges by a judge might represent confusion or mistake on the part of the
judge, and thus call into question the soundness of the guilty finding.” Id.
at 152-53.

At any rate, the wisdom of accepting or rejecting Maybury has been viewed
as an exercise of supervisory powers over the administration of criminal
justice. See Harris v. Rivera, 454 U.S. 339, 344-45 (1981) (“[T]he Court
of Appeals erred when it directed the state trial judge to provide an
explanation of the apparent inconsistency . . . without first determining
whether an inexplicably inconsistent verdict would be unconstitutional.”)
(footnotes omitted). Thus, the ultimate question of whether our courts
should tolerate inconsistent verdicts is reserved to our Supreme Court.




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the “designed as a weapon” standard examined by Blake, supra.3 Second,

the crime of aggravated assault under § 2702(a)(1) required proof that

Appellant specifically attempted to cause serious bodily injury, or, caused

such actual injury, inter alia, intentionally.     While it would seem that Mr.

Hampton suffered serious bodily injury, we note that Appellant argued to the

trial court in a motion for judgment of acquittal that Mr. Hampton had a

preexisting medical condition, and that the Commonwealth failed to establish

causation.     “There is no proof that [the attack] actually caused what

happened to Mr. Hampton, especially when the medics transported him and

noted that everything with his breathing sounded clear. The Commonwealth

has some burden of showing a causal connection, especially when there is a

preexisting medical condition.” N.T., 10/6/16, at 57. Thus, the trial court

could have simply accepted Appellant’s argument and determined that he

did not specifically intend to inflict serious bodily injury, nor actually caused

such injury.




____________________________________________


3 We note that the trial court’s opinion is unclear on this point, as the writing
refers to precedents interpreting the definition of deadly weapon for
purposes of the sentencing enhancement as currently enacted. That statute
supplies a separate definition of the term “deadly weapon” that is met by a
lesser degree of “use.” See 204 Pa.Code § 303.10(a)(2)(iii) (an offender
has used a deadly weapon where the weapon was employed “in a way that
threatened or injured another individual”).



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     Appellant’s   remaining   claim   concerns   the   mandatory     minimum

sentence of ten to twenty years incarceration, imposed at the burglary

charge. That statute reads, in pertinent part:

     (a) Mandatory sentence.--

           (1) Any person who is convicted in any court of this
           Commonwealth of a crime of violence shall, if at the
           time of the commission of the current offense the
           person had previously been convicted of a crime of
           violence, be sentenced to a minimum sentence of at
           least ten years of total confinement, notwithstanding
           any other provision of this title or other statute to
           the contrary. . . .

           ....

     (d) Proof at sentencing.--Provisions of this section shall not
     be an element of the crime and notice thereof to the defendant
     shall not be required prior to conviction, but reasonable notice of
     the Commonwealth's intention to proceed under this section
     shall be provided after conviction and before sentencing. The
     applicability of this section shall be determined at sentencing.
     The sentencing court, prior to imposing sentence on an offender
     under subsection (a), shall have a complete record of the
     previous convictions of the offender, copies of which shall be
     furnished to the offender. If the offender or the attorney for the
     Commonwealth contests the accuracy of the record, the court
     shall schedule a hearing and direct the offender and the attorney
     for the Commonwealth to submit evidence regarding the
     previous convictions of the offender. The court shall then
     determine, by a preponderance of the evidence, the previous
     convictions of the offender and, if this section is applicable, shall
     impose sentence in accordance with this section. Should a
     previous conviction be vacated and an acquittal or final
     discharge entered subsequent to imposition of sentence under
     this section, the offender shall have the right to petition the
     sentencing court for reconsideration of sentence if this section
     would not have been applicable except for the conviction which
     was vacated.

           ....

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42 Pa.C.S. § 9714.

       Appellant conceded that he had previously been convicted of a crime

of violence, and likewise did not dispute that the conviction for burglary

qualified as a crime of violence.         42 Pa.C.S. § 9714(g) (defining crime of

violence as, inter alia, burglary as defined in 18 Pa.C.S. § 3502(a)(1)).

Appellant argues, however, that the statute is unconstitutional under

Alleyne v. United States, 570 U.S. 99 (2013), which held that any fact

that increases the penalty for a crime is considered an element of the crime,

and must be found beyond a reasonable doubt by the factfinder.               The

existence of a prior conviction, however, has been understood as an

exception. In Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016),

we stated:

       [T]he Supreme Court has recognized a narrow exception to this
       rule for prior convictions.  [Alleyne, supra at 111 n. 1]
       (citing Almendarez–Torres v. United States, 523 U.S. 224,
       118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). In Commonwealth
       v. Reid, 117 A.3d 777, 785 (Pa.Super.2015), this Court
       specifically found that Section 9714 is not rendered
       unconstitutional under Alleyne as it provides for mandatory
       minimum sentences based on prior convictions.

Id. at 332–33. On August 22, 2017, our Supreme Court affirmed our order.

Commonwealth v. Bragg, 169 A.3d 1024 (Pa. 2017).4                      See also

Commonwealth v. Resto, 179 A.3d 18, 21 (Pa. 2018) (OAJC) (“This case
____________________________________________


4Appellant filed his brief one week after our Supreme Court affirmed Bragg,
and his brief acknowledges our decision in Bragg.



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does   not   concern previous convictions   considered   as   aggravation   at

sentencing. Notably, under prevailing federal jurisprudence, such prior

convictions are not treated as a type of fact implicating Alleyne.) (citation

omitted). Therefore, we reject Appellant’s challenge to his sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/18




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