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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
              v.

STEPHEN L. MASTEN,

                        Appellant                         No. 917 EDA 2016

            Appeal from the Judgment of Sentence February 22, 2016
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No(s): CP-51-CR-0005766-2014

BEFORE:      OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 05, 2017

         Stephen   L.   Masten ("Masten") appeals from the judgment of sentence

imposed after       a    jury convicted him of attempted murder, aggravated
assault, criminal conspiracy, and burglary.' We affirm.

         The trial court set forth the relevant facts underlying this appeal as

follows:

               On May 6, 2012, David Phillips (herein   "[the] victim") was
         assaulted by [Masten] and his co-conspirator, Frank Cassiano
         [("Cassiano")], [while the victim was asleep in his residence,
         located at] 5928 Shisler Street [in Philadelphia]. Around 10:30
         p.m. [], [the victim] awoke to the sound of footsteps and saw
         [Masten] and Cassiano turn on his bedroom lights and say,
         "We're going to kill you motherfucker." Cassiano hit the victim's
         head with a foot -long military shovel. [Masten] then strangled
         the victim, while Cassiano went through the victim's belongings.
         Afterwards, [Masten] again strangled the victim with a piece of
         cloth, then smothered him with a pillow. During the tussle, the
         victim heard [Masten] ask Cassiano for help.          The victim
         resisted, using a blackjack on [Masten]. [Masten] yanked the
         blackjack out of the victim's hand while Cassiano held the victim


1-   See 18 Pa.C.S.A. §§ 901(a), 2702, 903, 3502.
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        down.    [Masten] then placed his thumbs into the victim's eyes
        and said "... we're going to kill you." The victim testified that his
        "eye -balls popped and the fluid popped out of [his] eyes." He
        heard [Masten] say, "I blinded that fucking bastard." [Masten]
        and Cassiano then laughed[,] and [Cassiano] screamed as they
        left, "Remember who did this to you motherfucker ... we hope
        you die motherfucker." The victim eventually felt his way out of
        the house and asked a neighbor to call the police.

               The victim sustained substantial injuries. He received 52
        staples on his head at Einstein Hospital, lost his pupil in his right
        eye, and his left eye's color changed from green to blue. He is
        permanently blinded in both eyes and sustained a permanent
        scar from the top center of his head to his eyebrows. The victim
        received treatment at Wills Eye Institute for two months before
        he was released to a nursing home in Montgomery County for
        two months. He then attended Colorado Center for the Blind for
        ten months and consulted a psychologist for his depression for a
        period of time.

              The Commonwealth called several witnesses to testify.
        Joseph Hamer [("Hamer")], Cassiano's second cousin, testified
        that [Masten] told him that "your cousin have nothing to worry
        about ... if anything, I'll take the rap." [According to Hamer,
        Masten] had also mentioned "wanting to do something to [the
        victim]" for weeks. Furthermore, Wilbert Lauer, the victim's
        roommate and landlord, testified that there had been ongoing
        problems between the victim and [Masten]. On the night of the
        incident, he testified that he came home to a "kicked -in or
        pushed -in" front door. Detective Erika Griffin also testified that
        the front door was kicked in[,] and investigators found the front
        door bolt "jimmied" open.

               Michael Cook [("Cook")], an acquaintance to both the
        victim and [Masten], testified that [Masten] and Cassiano stayed
        at his house approximately two weeks after this incident.
        [Masten] told Cook that he "poked [the victim's] eye out" and
        felt his late wife "looking down on him and smiling." Cook
        immediately asked [Masten] to leave his house. Within two
        weeks, Cook found a black bag stashed in his closet that
        belonged to [Masten], which [contained] a bomber jacket with a




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        distinctive white supremacy patch,[2] boots, and pants. Forensic
        investigators found DNA evidence matching the victim, Cassiano,
        and [Masten] on the bomber jacket. The jacket also matched
        the description of [that which Masten had been wearing on the
        date of the attack] provided by the victim.

Trial Court Opinion, 7/8/16, at 2-4 (footnote added, citations to record

omitted).

        The police arrested Masten at his residence             a   few weeks after the

attack.     The Commonwealth thereafter charged                 him with the above -

mentioned offenses.         The matter proceeded to    a    jury trial, at the close of
which the jury convicted Masten of all counts.         On February 22, 2016, the

trial court sentenced Masten to an aggregate prison term of 40 to 80 years.

Masten timely filed     a   Notice of Appeal, followed by   a   court -ordered Pa.R.A.P.

1925(b) Concise Statement of Errors Complained of on Appeal.                   The trial

court then issued   a   Pa.R.A.P. 1925(a) Opinion.

        Masten now presents the following issue for our review:            "Is [Masten]

entitled to an arrest of judgment on the charge of attempted murder and




2The victim testified at trial that he, Masten, and Cassiano were all
members of groups associated with white supremacist views.

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burglary,[3] where the evidence was insufficient to sustain the verdict?" Brief

for Appellant at    3   (footnote added).

        Our standard of review of      a    sufficiency of the evidence claim   is   well

settled:

        Our standard of review is whether the evidence admitted at trial,
        and all reasonable inferences drawn from that evidence, when
        viewed in the light most favorable to the Commonwealth as
        verdict winner, w[as] sufficient to enable the fact[ -]finder to
        conclude that the Commonwealth established all of the elements
        of the offense beyond a reasonable doubt.

Commonwealth v. Cruz,             71 A.3d 998, 1006 (Pa. Super. 2013) (citation

and brackets omitted).

        This Court has outlined what the Commonwealth must prove in order

to sustain   a   conviction for attempted murder as follows:

        Under the Crimes Code, "[a] person commits an attempt when[,]
        with intent to commit a specific crime, he does any act which
        constitutes a substantial step towards the commission of the
        crime." 18 Pa.C.S.A. § 901(a). A person may be convicted of
        attempted murder if he takes a substantial step toward the
        commission of a killing, with the specific intent in mind to
        commit such an act. The substantial step test broadens the
        scope of attempt liability by concentrating on the acts the
        defendant has done[,] and does not any longer focus on the acts
        remaining to be done before the actual commission of the crime.
        The mens rea required for first -degree murder, specific intent to
        kill, may be established solely from circumstantial evidence. The

3 Though Masten's Statement of Questions Involved section purports to
challenge the sufficiency of the evidence supporting his burglary conviction,
his Argument section challenges only the attempted murder conviction.
Accordingly, Masten has waived any challenge to his burglary conviction.
See, e.g., Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(stating that "where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.")

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        law permits the fact[ -]finder to infer that one intends the natural
        and probable consequences of his acts[.]

Commonwealth v. Jackson, 955 A.2d 441, 444                          (Pa.   Super.    2008)

(quotation marks and some citations omitted).

        In the context of          a    sufficiency of the evidence claim concerning

attempted murder, this Court has explained that

        [as] intent is a subjective frame of mind, it is of necessity
        difficult of direct proof. We must look to all the evidence to
        establish intent, including, but not limited to, [the] appellant's
        conduct as it appeared to his eyes. ... Moreover, depending on
        the circumstances[,] even a single punch may be sufficient.

Commonwealth v. Holley, 945 A.2d 241, 247                    (Pa. Super. 2008) (citation

and brackets omitted); see             also Commonwealth v. Chambers, 980 A.2d
35, 47 (Pa. 2009) (stating that "the specific intent to kill can be formed in            a


fraction of   a   second ....").       "Specific intent to kill can be proven where the

defendant knowingly applies deadly force to the person of another."

Commonwealth v. Stokes, 78 A.3d 644, 650                    (Pa. Super. 2013) (citation

omitted).

        Here, Masten challenges only the specific intent element of attempted

murder, asserting that although he "had fully formed the intent to attack the

victim[], [] from the record itself,             he did not have the intent to kill the

victim[,] and we know that from the things that             he said at the scene of the

offense."     Brief for Appellant at 8.            Specifically, Masten emphasizes the

victim's testimony that, when Masten and Cassiano were leaving the victim's

house     after the brutal         attack, the victim "heard        [Cassiano]      scream


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'Remember who did this to you motherfucker,' and [Masten] laughing[f] and

they said as they were leaving, 'We hope you die motherfucker.' Id. at 10

(quoting N.T., 10/15/15, at 22). According to Masten,

        if [Masten and Cassiano] wanted [the victim] to remember who
        did this to him, then [the victim] would have to survive and live.
        [The victim] was conscious and alive at the time that [Masten
        and Cassiano] left. That is completely inconsistent with having
        an intent to kill.

Brief for Appellant at 10.      Finally, Masten argues that "even though the

actions taken were gross and heinous, it does not follow, a fortior[]i, that

anyone was trying to kill [the victim] by popping his eyes out."            Id. at   11;

see also id. (asserting that "[t]here    ...   was   a   shovel or pipe present[,] and

the attack with either of those weapons, [] if kept up, would have split open

the skull of [the victim] and he would have bled out at the scene. However,

[Masten and Cassiano] did not undertake those actions.").

        In its Opinion, the trial court determined that the Commonwealth

presented "ample evidence" that Masten possessed specific intent to kill the

victim, reasoning as follows:

        [Masten] used his bare hands, a piece of cloth, and a pillow to
        strangle and smother the victim.       He also gouged out the
        victim's eyes, leaving the victim to bleed profusely. Cassiano's
        use of a shovel as a deadly weapon is also imputed to [Masten]
        as well.   See Commonwealth v. Phillips, 946 A.2d 103, 114
        (Pa. Super. 2008) (holding that conspirator's use of deadly
        weapon[] was imputable to co[-]conspirator because the weapon
        was in the defendant's immediate vicinity and accessible during
        the crime). Further, a shovel is considered a "deadly weapon"
        under 204 Pa. Code § 303.10, which defines a deadly weapon to
        include "any device, implement, or instrumentality ... capable of
        producing death or serious bodily injury[,] where the court


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           determines that the offender intended to use the weapon to
           threaten or injure another individual." Here, Cassiano hit the
           victim's head, an indisputably vital part of the body, with a
           shovel.    This evidences a specific intent to kill.      See
           Commonwealth v. Blakeney, 596                510, 946 A.2d 645
                                                           Pa.
           (2008) (holding the finder of fact in [a] prosecution for first -
           degree murder may infer that the defendant had the specific
           intent to kill the victim based on the defendant's use of a deadly
           weapon upon a vital part of the victim's body.)

Trial Court Opinion, 7/8/16, at 6 (footnote citations moved to body, citations

to     record    omitted).    We    agree with the trial court's                reasoning and

determination.

           Masten's using his thumbs to gouge the victim's eyeballs out,

strangling him, and then leaving him seriously injured, permanently blind,

and bleeding profusely, was independently sufficient to prove that Masten

intended to kill the victim.          See, e.g., Chambers, 980 A.2d at 47-48

(holding that the evidence was sufficient to establish specific intent to kill

where the defendant repeatedly beat the three -year -old victim, threw her

into   a    metal radiator, which struck her head, and leaving her to suffocate);

Commonwealth v. Shank, 883 A.2d 658, 665                          (Pa. Super. 2005) (stating

that there was sufficient evidence to establish specific intent to kill where the

unarmed defendant participated with other men in severely beating the

victim about the head and face numerous times, which fractured his skull

and caused brain hemorrhaging).

           Moreover,    Masten's     statements           to     the   victim    unequivocally

communicated           Masten's    intent    to   kill.          See   Commonwealth         v.



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Hornberger, 270 A.2d 195, 198            (Pa. 1970) (stating   that   a   jury may find
specific intent to kill from   a   defendant's words, conduct of the defendant,

and the attendant circumstances).           Specifically, the victim testified that,

while Masten was gouging his eyeballs, Masten had said "we're going to kill

you." N.T., 10/15/15, at 18; see also id. at         11   (wherein the victim stated

that Masten and Cassiano, upon first entering the victim's room, had both

stated "we're going to kill you motherfucker.").

        Finally, contrary to Masten's claim, the jury was under no obligation to

(1) accept that Cassiano purportedly stated to the victim upon leaving the

scene, "Remember who did this to you motherfucker," N.T., 10/15/15, at

22; or (2) find Cassiano's purported statement in this regard to be indicative

of Masten's intent to kill the victim, which was clearly established by

Masten's brutal conduct and express words.

        Accordingly, viewing the trial evidence in the light most favorable to

the Commonwealth as verdict winner, there was ample evidence allowing

the jury to conclude that Masten had acted with the specific intent to kill the

victim, and to convict him of attempted murder. Thus, Masten's challenge to

the sufficiency of the evidence fails.

        Judgment of sentence affirmed.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary

Date: 5/5/2017




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