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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
CHRISTOPHER JOSEPH SMITH,                  :
                                           :
                   Appellant               :          No. 363 WDA 2014

      Appeal from the Judgment of Sentence entered on February 5, 2014
               in the Court of Common Pleas of Allegheny County,
                 Criminal Division, No. CP-02-CR-0003875-2013

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 30, 2015

        Christopher Joseph Smith (“Smith”) appeals from the judgment of

sentence imposed following his convictions of Aggravated Assault and

Robbery—Threatening Immediate Bodily Injury.1 We affirm.

        In March 2013, Smith was drinking and playing pool at a bar, where

the victim, Michael Wlazinski (“Wlazinski”), was also drinking.   At closing

time, Smith took Wlazinski’s coat from his chair and began to leave. When

Wlazinski tried to recover his coat, Smith punched Wlazinski in the face.

Wlazinski lost consciousness and fell to the floor, where Smith continued to

punch him several times.       Wlazinski suffered broken orbital bones, and

underwent emergency surgery to insert 3 metal plates and 11 screws to hold

his face and eye socket together.



1
    18 Pa.C.S.A. §§ 2702(a)(1), 3701(a)(1)(iv).
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      After a bench trial, Smith was convicted of Aggravated Assault and

Robbery—Threatening Immediate Bodily Injury.       The trial court sentenced

Smith to 4 to 8 years in prison for each offense, to be served concurrently,

with credit for time served.   Smith filed a timely Notice of Appeal and a

timely court-ordered Pennsylvania Rule of Appellate Procedure 1925(b)

Concise Statement of Matters Complained of on Appeal.

      On appeal, Smith raises the following question for our review: “Did the

Commonwealth present sufficient evidence, as a matter of law, for []

Aggravated Assault?” Brief for Appellant at 4.2

      Smith argues that the evidence was insufficient to establish that

Wlazinski suffered serious bodily injury, and that Smith specifically intended

to cause serious injury. Id. at 8. Smith also contends that injuries from a

punch are not permanent, and are not serious enough to constitute serious

bodily injury. Id. at 8-9. Smith argues that even if the Commonwealth had

proven serious bodily injury, the Commonwealth did not present sufficient

evidence to establish that Smith acted intentionally, knowingly, or recklessly

because the punches occurred in quick succession, without an opportunity to

contemplate stopping. Id. at 9-10.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:



2
  Smith does not raise any claims related to the Robbery—Threatening
Immediate Bodily Injury conviction.


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      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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      Under 18 Pa.C.S.A. § 2702(a)(1), Aggravated Assault is defined 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).    Serious bodily injury is defined 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



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any bodily member or organ.” 18 Pa.C.S.A. § 2301. “The intent to cause

serious bodily injury may be proven by direct or circumstantial evidence.”

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006).                         Intent

may be determined using a totality of the circumstances test, to be applied

on a case-by-case basis.        Id. (citing Commonwealth v. Alexander, 383

A.2d 887, 889-90 (Pa. 1978)).

        Upon our review of the record, we conclude that the evidence was

sufficient    to   sustain   Smith’s   Aggravated     Assault    conviction.     Smith

repeatedly punched Wlazinki, continuing even as Wlazinski lay helplessly on

the ground.        N.T., 8/29/13, at 35-36.     Wlazinski suffered injuries causing

serious and permanent disfigurement, and protracted impairment of the

function of his eye and mouth.          Id. at 18-19. Wlazinski had metal plates

and screws placed in his face to repair his fractured orbital socket. Id. at

17. Wlazinski also suffers a persistent flinching in his left eye, and loss of

feeling in parts of his mouth. Id. at 18-19.

        Under the totality of the circumstances, the evidence was sufficient to

prove      that    Smith   intended    to   cause   serious   bodily   injury.     See

Commonwealth v. Davis, 406 A.2d 1087, 1089 (Pa. Super. 1979) (holding

that a single punch causing multiple jaw fractures constituted serious bodily

injury).     Smith’s delivery of the punches, in rapid succession, does not

disprove his intent to cause serious bodily harm.               Further, the fact that

Wlazinski fell to the floor after the first punch suggests that in the time it



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would have taken for Smith to kneel down to continue punching Wlazinski,

Smith could have contemplated stopping. See Commonwealth v. Dailey,

828 A.2d 356, 360-61 (Pa. Super. 2003) (affirming the trial court’s holding

that evidence showing that the defendant intended to strike again after

rendering the victim “dazed” was sufficient to establish intent to inflict

serious bodily injury and aggravated assault).        Thus, the evidence is

sufficient to sustain Smith’s conviction for Aggravated Assault.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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