J. A10039/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
FREDERICK BROOKS,                         :          No. 1190 EDA 2016
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, April 8, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0003383-2015


BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 20, 2017

        Frederick Brooks appeals from the April 8, 2016 aggregate judgment

of sentence of three to six years’ imprisonment, followed by two years’

probation, imposed after he was found guilty of aggravated assault, simple

assault, and recklessly endangering another person (“REAP”).1 After careful

review, we affirm the judgment of sentence.

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

                    On August 24, 2014, [appellant] was a hotel
              guest at the Crowne Plaza Hotel in Philadelphia.
              Capri Grice, a housekeeper at the hotel, knocked on
              [appellant’s] door to clean the room, announcing
              “housekeeping” before entering.      When no one
              responded, Ms. Grice opened the door only to find
              Brooks and a woman asleep on the bed. Grice
              closed the door without entering and continued down
              the hallway to clean the next room.

1
    18 Pa.C.S.A. §§ 2702, 2701, and 2705, respectively.
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                     A short time afterwards, Brooks and his female
              companion exited their room and followed Grice
              down the hallway, angrily demanding that she return
              his money. [Appellant] then grabbed the maid by
              the throat pinned her against the wall lifting her off
              the ground choking her and rendering her unable to
              breathe while she and her cart were searched by the
              woman who was with [appellant]. Ms. Grice testified
              that the choking lasted for approximately fifteen
              minutes. The housekeeper told [appellant] that she
              did not have his money and she never entered his
              room. When another hotel guest came out of their
              room and into the hallway to intervene, Ms. Grice
              escaped to call security. [Appellant] followed her
              into the room to which she had fled and continued to
              angrily demand she return his money. [Appellant]
              left to go search his room for the money which he
              found behind the dresser. [Appellant] thought this
              was funny, laughing as he told the housekeeper
              “Just let it go[]” and trying to give her some money.
              Ms. Grice refused the money, and hotel management
              called the police. When the police arrived on the
              scene, [appellant] had fled and Ms. Grice was still
              crying and visibly shaking. The housekeeper was
              suffering from severe head pain as a result of the
              choking, spent the night in the hospital and missed a
              full week of work.

Trial court opinion, 7/12/16 at 2-3 (citations to notes of testimony omitted).

        Appellant was subsequently arrested and charged with aggravated

assault, REAP, simple assault, and making terroristic threats. 2            On

December 16, 2015, appellant waived his right to a jury and proceeded to a

bench trial that same day.3 Following a one-day bench trial, the trial court


2
    18 Pa.C.S.A. § 2706, respectively.
3
  We note that although the cover page to the notes of testimony indicates
that appellant’s waiver trial was held on October 16, 2015, the docket
correctly notes that trial was held December 16, 2015.


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found appellant guilty of aggravated assault, simple assault, and REAP. As

noted, appellant was sentenced to an aggregate term of three to six years’

imprisonment, followed by two years’ probation, on April 8, 2016.4

Appellant did not file any post-sentence motions.         This timely appeal

followed on April 14, 2016.   On April 15, 2016, the trial court entered an

order directing appellant to file a concise statement of errors complained of

on appeal, in accordance with Pa.R.A.P. 1925(b).      Appellant filed a timely

Rule 1925(b) statement on May 6, 2016, and the trial court filed its

Rule 1925(a) opinion on July 12, 2016.

      On appeal, appellant raises the following issue for our review:

            Was not appellant erroneously convicted of
            aggravated assault, graded as a felony of the
            first-degree, where he neither caused serious bodily
            injury to the complainant nor had the specific intent
            to do so?

Appellant’s brief at 3.

      Our standard of review in assessing whether there was sufficient

evidence to sustain appellant’s conviction for aggravated assault is well

settled.

                  In reviewing the sufficiency of the evidence,
            we must determine whether the evidence admitted
            at trial and all reasonable inferences drawn
            therefrom, viewed in the light most favorable to the
            Commonwealth as verdict winner, is sufficient to

4
  The charge of simple assault is a lesser included offense of REAP, and thus
the two crimes merge for sentencing purposes. See Commonwealth v.
Thomas, 879 A.2d 246, 263 (Pa.Super. 2005), appeal denied, 989 A.2d
917 (Pa. 2010).


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               prove every element of the offense beyond a
               reasonable doubt. As an appellate court, we may
               not re-weigh the evidence and substitute our
               judgment for that of the fact-finder. Any question of
               doubt is for the fact-finder unless the evidence is so
               weak and inconclusive that as a matter of law no
               probability of fact can be drawn from the combined
               circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

       A person will be found guilty of aggravated assault if he “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

term “serious bodily injury” is defined by statute 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. Where the victim does not sustain

serious bodily injury, the Commonwealth must prove that the defendant

attempted to cause such injury. See Commonwealth v. Martuscelli, 54

A.3d    940,     948   (Pa.Super.    2012)     (stating,   “[a]n   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.”),

citing Commonwealth v. Matthew, 909 A.2d 1254, 1257-1258 (Pa. 2006).

                     For aggravated assault purposes, an “attempt”
               is found where an accused who possesses the
               required, specific intent acts in a manner which


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           constitutes a substantial step toward perpetrating a
           serious bodily injury upon another.       An intent
           ordinarily must be proven through circumstantial
           evidence and inferred from acts, conduct or
           attendant circumstances.

Commonwealth       v.    Fortune,    68    A.3d    980,   984   (Pa.Super.    2013)

(en banc) (citations and some internal quotation marks omitted), appeal

denied, 78 A.3d 1089 (Pa. 2013).

     Viewing    the     evidence    in    the   light   most    favorable    to   the

Commonwealth, the verdict winner, we find that there was sufficient

evidence from which the trial court could conclude that appellant possessed

the requisite intent to cause serious bodily injury to Grice (hereinafter,

“the victim”). We further find there was sufficient evidence from which the

trial court could conclude that appellant took a substantial step towards

inflicting serious bodily injury upon the victim. The testimony presented at

trial established that appellant grabbed the victim by the throat, slammed

her against the wall, and lifted her off the ground with one hand while

choking her for an extended period of time. (Notes of testimony, 12/16/15

at 9-10, 14-15.)   This attack left the victim visibly shaken and unable to

breathe or speak and only ended after another hotel guest heard the

commotion in the hallway and intervened. (Id. at 10-12, 15.) The victim

testified that appellant subsequently laughed about the attack after locating

the money that he had accused her of stealing behind a dresser in his room.

(Id. at 11-12.)    As a result of this attack, the victim was hospitalized



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overnight for a severe headache and difficulty breathing and received

intravenous fluids. (Id. at 12, 15-16.) The record further indicates that the

victim missed a week of work from this incident and suffered lasting

headaches. (Id. at 16-17.)

     Based on the foregoing, appellant’s claim that there was insufficient

evidence to sustain his conviction for aggravated assault must fail.       See,

e.g., Commonwealth v. Russell, 460 A.2d 316, 320-321 (Pa.Super. 1983)

(finding sufficient evidence for attempt to cause serious bodily injury where

defendant choked victim “until she could no longer breathe, gagged, and felt

faint.”). Accordingly, we affirm the April 8, 2016 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2017




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