J-S70008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MAURICE J. FREEMAN,

                            Appellant                  No. 2944 EDA 2013


              Appeal from the Judgment of Sentence May 24, 2013
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0004510-2012


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 11, 2015

        Appellant, Maurice J. Freeman, appeals from the judgment of sentence

imposed following his bench conviction of robbery, theft by unlawful taking,

receiving stolen property, two counts of possession of an instrument of

crime, terroristic threats, simple assault, recklessly endangering another

person, aggravated assault, burglary, criminal trespass, and unlawful

restraint.1   Appellant challenges the sufficiency of the evidence supporting

his aggravated assault conviction. We affirm.

        The trial court aptly summarized the facts of this case as follows:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 3925, 907, 2706, 2701, 2705,
2702, 3502(a)(1), 3503(a)(1)(ii), and 2902, respectively.
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           On the night of February 26, 2012, at about 9:15 p.m., Mr.
     Tyreek Upshur brought his friend, Zachary (hereinafter “the
     victims”), to the home in which he lives with his mother, Ms.
     Tamekia Upshur, 2915 New Hope Street Philadelphia, PA. . . .
     After Mr. Upshur unlocked the front door to his home, he and
     Zachary entered.     Mr. Upshur immediately saw [Appellant]
     standing at the top of the stairs to the second floor.
     [Appellant]—wearing a navy blue plastic face mask that revealed
     only his eyes—ran down the stairs and pointed a black pistol BB
     gun resembling a Crossman model revolver in Mr. Upshur’s face.

           Though Mr. Upshur put his hands up in the air, [Appellant]
     ordered Mr. Upshur and Zachary to lie face down on the floor.
     Standing over Mr. Upshur and pointing the gun at Mr. Upshur’s
     head, [Appellant] asked Mr. Upshur whether anyone else was in
     the house; where Mr. Upshur’s mother was; where Mr. Upshur’s
     mother worked; and whether Mr. Upshur had any money. Mr.
     Upshur indicted where his mother worked and the time at which
     she would come home from work, and stated that he did not
     have any money.       Though Mr. Upshur obeyed [Appellant],
     [Appellant] struck Mr. Upshur in the back of his head with the
     gun, rifled through Mr. Upshur’s pockets, and stole Mr. Upshur’s
     wallet and some cash. The attack on Mr. Upshur caused him to
     bleed and go to the hospital.

           Thereafter, [Appellant] tied Mr. Upshur’s hands with a
     scarf, asked Zachary a few questions, and ordered Mr. Upshur
     and Zachary upstairs.        Upstairs in Ms. Upshur’s room,
     [Appellant] again ordered the victims to lie down. [Appellant]
     began to search Ms. Upshur’s room, shifting his attention away
     from the victims. During that moment, Mr. Upshur jumped up to
     grab [Appellant] and the front of [Appellant’s] gun.      While
     holding the front of [Appellant’s] gun, Mr. Upshur and Zachary
     began to fight [Appellant].     During this fight, which lasted
     approximately five minutes, a screwdriver fell out of Ms.
     Upshur’s nightstand. Mr. Upshur grabbed the screwdriver and
     stabbed [Appellant] in the eye, causing [Appellant] to release
     the gun.

           Picking up [Appellant’s] gun, Zachary then assisted Mr.
     Upshur drag [Appellant] downstairs and out of Mr. Upshur’s
     house. At this point, Mr. Upshur and Zachary started yelling,
     causing Mr. Upshur’s neighbor to call the police. Mr. Upshur and
     Zachary held [Appellant] down until the police arrived. While

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        waiting for the police, Zachary threw [Appellant’s] gun to the
        ground fifteen to thirty feet away from [Appellant].

              Shortly thereafter, numerous officers arrived at the scene.
        Police Officer Christopher Warwick observed his fellow officer,
        Officer Oliveri[2], arrest [Appellant]. Assisting Officer Oliveri,
        Officer Warwick searched [Appellant] incident to arrest. From
        this search, Officer Warwick recovered: one black glove, one
        partial role of duct tape, one set of metal cutter wires with a
        black handle, one navy . . . face mask, and Mr. Upshur’s wallet,
        which contained Mr. Upshur’s identification, birth certificate,
        social security card, bank cards, and access cards. Aside from
        the face mask, which was recovered from [Appellant’s] head,
        Officer Warwick recovered each of these items from [Appellant’s]
        front [right pants] pocket.      Officer Warwick also observed
        [Appellant’s] gun on the sidewalk, fifteen to thirty feet away
        from [Appellant].

              Subsequent to this arrest, Mr. Upshur noticed that the
        back window to his house had been kicked in. Throughout the
        entire encounter, [Appellant] repeatedly told Mr. Upshur that he
        would kill him. Ms. Upshur did not know [Appellant], and she
        did not give him permission to enter her home.

(Trial Court Opinion, 12/11/14, at 3-5) (record citations omitted).

        On May 24, 2013, the trial court sentenced Appellant to an aggregate

term of not less than nine nor more than eighteen years’ imprisonment.

Appellant’s timely post-sentence motion was denied by operation of law on

October 2, 2013.         See Pa.R.Crim.P. 720(b)(3)(a).      This timely appeal

followed.3
____________________________________________


2
    Officer Oliveri’s first name is not apparent from the record.
3
  An electronic filing error apparently prevented Appellant from filing a timely
concise statement of errors complained of on appeal. See Pa.R.A.P. 1925;
(see also Rule 1925(b) Statement, 7/29/14, at unnumbered page 2, ¶ 3).
On July 8, 2014, this Court, in response to a motion filed by Appellant,
(Footnote Continued Next Page)


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      Appellant raises one question for our review:

            Was not the evidence insufficient to support the verdict of
      guilty of aggravated assault, graded as a felony of the first
      degree, inasmuch as the [A]ppellant’s conduct did not establish
      the intent to cause serious bodily injury?

(Appellant’s   Brief,     at   3).      Specifically,   Appellant   argues   that   the

Commonwealth failed to prove that he intended to cause serious bodily

injury to the victim where he struck him only once in the back of the head

with a BB gun causing a small cut, and the record is unclear as to when

Appellant threatened to kill him. (See id. at 8-16).

      However, before we may address the merits of Appellant’s issue, we

must determine whether he properly preserved it for our review. This Court

has held:

      [W]hen challenging the sufficiency of the evidence on appeal,
      the Appellant’s 1925[(b)] statement must specify the element or
      elements upon which the evidence was insufficient in order to
      preserve the issue for appeal. Such specificity is of particular
      importance in cases where, as here, the Appellant was convicted
      of multiple crimes each of which contains numerous elements
      that the Commonwealth must prove beyond a reasonable doubt.
      Here, Appellant . . . failed to specify which elements he was
      challenging in his [Rule] 1925[(b)] statement . . . . While the
      trial court did address the topic of sufficiency in its opinion, we
      have held that this is of no moment to our analysis because we
      apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in
                       _______________________
(Footnote Continued)

entered a per curiam order: remanding the case to the trial court; permitting
Appellant to file Rule 1925(b) statement within twenty-one days; and
directing the court to prepare an opinion in response to the statement. (See
Order, 7/08/14). Appellant filed a timely Rule 1925(b) statement on July
29, 2014, and the trial court filed an opinion on December 11, 2014.



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      a selective manner dependent on [a party’s] argument or a trial
      court’s choice to address an unpreserved claim.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010) (citations and quotation marks omitted).

       Here, Appellant’s Rule 1925(b) statement does not identify which

element of aggravated assault the Commonwealth allegedly failed to prove.

(See Rule 1925(b) Statement, 7/29/14, at unnumbered page 2, ¶ 5(a)).

Instead, the statement raises the following generic issue:      “The evidence

was insufficient as a matter of law to support a conviction for aggravated

assault.” (Id.). Although the trial court addressed the sufficiency issue in

its opinion, “this is of no moment to our analysis because we apply Pa.R.A.P.

1925(b) in a predictable, uniform fashion[.]” Gibbs, supra at 281 (citation

omitted). Accordingly, we conclude that Appellant’s sufficiency challenge is

waived. See id.; see also Commonwealth v. Garland, 63 A.3d 339, 344

(Pa. Super. 2013) (determining that appellant waived sufficiency claim

where his “Pa.R.A.P. 1925(b) statement simply provided a generic statement

stating ‘[t]he evidence was legally insufficient to support the convictions’”)

(record citation omitted).

      Moreover, even if Appellant did not waive his sufficiency claim, it

would still not merit relief.

             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

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      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. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015)

(citations omitted).

      The Pennsylvania Crimes Code defines the offense of aggravated

assault as follows:

           (a) Offense defined.—A person 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 indifference to the value of
      human life[.]

18 Pa.C.S.A. § 2702(a)(1). The Crimes Code defines “serious bodily injury”

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.A. § 2301.

      In the instant case, while the victim did not sustain actual, serious

bodily injury, the trial court determined that Appellant attempted to cause

such injury. (See Trial Ct. Op., at 5-6).




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            Where the victim does not suffer serious bodily injury, the
     charge of aggravated assault can be supported only if the
     evidence supports a finding of an attempt to cause such injury.
     A person commits an attempt when, with intent to commit a
     specific crime, he does any act which constitutes a substantial
     step toward the commission of that crime. 18 Pa.C.S.A. §
     901(a). An attempt under Subsection 2702(a)(1) requires some
     act, albeit not one causing serious bodily injury, accompanied by
     an intent to inflict serious bodily injury. A person acts
     intentionally with respect to a material element of an offense
     when . . . it is his conscious object to engage in conduct of that
     nature or to cause such a result[.] As intent is a subjective
     frame of mind, it is of necessity difficult of direct proof. The
     intent to cause serious bodily injury may be proven by direct or
     circumstantial evidence.

Commonwealth v. Fortune, 68 A.3d 980, 985 (Pa. Super. 2013) (en

banc), appeal denied, 78 A.3d 1089 (Pa. 2013) (case citation and quotations

marks omitted).

           [I]n instances where the defendant draws a weapon,
     threatens to use it on the victim and is prevented from doing so
     by the physical intervention of another actor, we have found that
     the Commonwealth presented sufficient evidence to demonstrate
     that the appellant took a substantial step, with the required
     specific intent, to perpetrate a serious bodily injury upon
     another.

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super. 2005), aff’d

sub nom. Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006)

(citations omitted). Furthermore, “a BB gun [qualifies] as a deadly weapon”

because   it is capable   of producing death or       serious bodily   injury.

Commonwealth v. Ramos, 920 A.2d 1253, 1260 (Pa. Super. 2007),

appeal denied, 932 A.2d 1288 (Pa. 2007).

     Here, the trial court addressed this issue as follows:




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             In the course of the robbery in this case, [Appellant] drew
       his gun, pointed the gun at his victims, ordered his victims to lie
       on the ground, tied-up one of his victims, caused one of his
       victims to bleed by striking that victim on the back of the head,
       threatened to kill one of his victims multiple times, escorted his
       victims to an upstairs bedroom, and searched one of his victim’s
       mother’s bedrooms with a gun in his hand. This assault only
       stopped when the victims managed to grab [Appellant’s] gun
       and force the gun out of [Appellant’s] hands by fighting with
       [him] for five minutes. In the light most favorable to the
       Commonwealth, [Appellant] in this case therefore drew his
       weapon, threatened to use it on the victims, and was only
       prevented from doing so by physical intervention by his victims.
       Accordingly, the Commonwealth presented sufficient evidence to
       demonstrate that [Appellant] committed aggravated assault by
       attempting to cause serious bodily injuries to his victims.

(Trial Ct. Op., at 6) (citations omitted).

       After review, we agree with the trial court, and we would conclude that

Appellant’s challenge to the sufficiency of the evidence lacks merit.        The

Commonwealth presented sufficient evidence of record for the court to infer

that   Appellant   possessed the     intent to   inflict serious bodily   injury.

Accordingly, Appellant’s sole issue on appeal would not merit relief, even if it

were not waived.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015



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