J-S69010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

FRANCIS ANTHONY MILLIARD

                          Appellant                No. 1948 WDA 2016


           Appeal from the Judgment of Sentence July 20, 2016
               In the Court of Common Pleas of Elk County
           Criminal Division at No(s): CP-24-CR-0000284-2012


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 30, 2017

     Francis Anthony Milliard appeals from the aggregate judgment of

sentence of twenty to forty years incarceration imposed following his

convictions for attempted homicide, aggravated assault, and recklessly

endangering another person. We affirm.

     On June 24, 2011, Tony Asti came to the Ridgway Police Department

to report that his son, Todd Asti, had been seriously injured. Officer Shawn

Geci proceeded to Todd’s home, where he saw Todd on the floor, naked from

the waist down and covered in blood and some fecal matter. N.T., 2/2/16,

at 43. Todd was transported to the hospital as he was unconscious and his

breathing labored.    Id.    Doctor George Castellano, the emergency room

physician, deemed the injuries to be life threatening and sent Todd to


* Former Justice specially assigned to the Superior Court.
J-S69010-17



Pittsburgh for emergency neurosurgery. Id. at 115-16. Todd had sustained

a traumatic brain injury, and needed several surgeries, including cutting a

hole in his head to relieve the swelling of the brain. N.T., 2/3/16, at 63-66.

      The crime remained unsolved until July of 2012, when the authorities

received a tip from Matthew Glass. Michael Asti, the victim’s son, told Mr.

Glass that his father had implicated Appellant, the victim’s distant cousin, as

the responsible party.   N.T., 2/2/16, at 135.    Mr. Glass was friendly with

Pennsylvania State Police Corporal Greg Agosti, and called him on July 18,

2012, with that information.    Id. at 147.    Corporal Agosti contacted the

Ridgway Police Department and learned of the open investigation.

      Based on this information, Corporal Agosti and Officer Geci went to

visit the victim on July 23, 2012, at the NeuroRestorative Center in Fairview,

Pennsylvania, where he was recovering from his injuries. Id. at 155. Todd

was eager to talk and agreed to give a recorded statement. He related that

he often bought marijuana from Appellant and owed him about $300. N.T.,

2/3/16, at 32. Todd recalled being hit in the head two or three times, but

had difficulty remembering what happened. Id. at 31.         When asked who

attacked him, Todd stated, “The only person I can think of is [Appellant].”

Id. Todd believed that Appellant’s son may have been present.




                                     -2-
J-S69010-17



        Meanwhile, that same day Officer Bridgette Asti1 went to the Elk

County jail, where Appellant’s son Anthony was incarcerated on an unrelated

matter. Id. at 114. Anthony agreed to speak to Officer Asti, and gave a

recorded statement which was later played at trial and admitted as

substantive evidence.2 Therein, Anthony stated that Appellant regularly sold

marijuana to Todd.          Id. at 77.         On the day of the attack, Anthony

accompanied Appellant on a trip to collect money owed. Anthony thought

the transaction was taking too long, so he walked inside and observed a lot

of blood. The victim was hunched over, and Anthony saw Appellant strike

the victim in the head with an object he described as a baseball bat-like

club. Id. at 81, 84.

        On July 23, 2012, Officer Asti visited Anthony a second time to take

another statement, which, like the first, was played to the jury.         On the

tape, Officer Asti informs Anthony that Todd Asti indicated that Anthony was

present when the attack started.          At this point, Anthony admitted that he

went to the door to get the money. When Todd did not pay, Anthony called

his father. Anthony stated that Appellant was high on cocaine and enraged.


____________________________________________


1
    The record does not indicate whether the officer is related to the victim.
2
  Anthony agreed that he spoke to the police, but claimed that he was in
detox while incarcerated, that the statements were coerced, and in any
event were untruthful in all respects.



                                           -3-
J-S69010-17



      Appellant was convicted of the aforementioned crimes and received his

sentence    on   July     20,   2016.   At    sentencing,   Appellant   expressed

dissatisfaction with counsel, who was permitted to withdraw. The trial court

appointed new counsel by order docketed July 25, 2016.            In the interim,

Appellant mailed a pro se post sentence motion, which was timely filed.

Additionally, new counsel filed post-sentence motions on August 4, 2016,

which were untimely. However, the trial court treated the counseled motion

as amending the pro se motions, as Appellant was representing himself

when he filed his motions due to counsel’s withdrawal, and denied them.

Appellant filed a timely appeal. Appellant and the trial court complied with

Pa.R.A.P. 1925, and the matter is now ready for our review.             Appellant

presents the following two questions.

      I.    Whether the lower court erred in entering a verdict based
            on insufficient evidence to show an intent to kill in regard
            to attempted homicide?

      II.   Whether the lower court erred in entering verdicts against
            the weight of the evidence as to all charges?

Appellant’s brief at 5.

      Appellant’s first claim attacks the sufficiency of the evidence to support

the charge of attempted homicide.       Whether the evidence was sufficient to

sustain the charge presents a question of law. Our standard of review is de

novo and our scope of review is plenary. Commonwealth v. Walls, 144




                                        -4-
J-S69010-17



A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting our

inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      Appellant’s sufficiency challenge is limited to the quality of the

Commonwealth’s evidence to establish, as is required, that Appellant acted

with the specific intent to kill. Commonwealth v. Geathers, 847 A.2d 730,

734 (Pa.Super. 2004). It is well-settled that the specific intent to kill may

be inferred from the use of a deadly weapon on a vital part of the body.

Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007).

      Appellant argues that cases applying that presumption commonly

involve firearms, which markedly differ from the use of a club.       Appellant

suggests that something more than the use of the club is required, citing

Commonwealth v. Terry, 521 A.2d 398 (Pa. 1987), a case where a murder

resulted from the beating of the victim in the head with a baseball bat. Our

Supreme Court’s opinion, after discussing whether that fact could support an

inference of intent to kill, stated, “In addition, appellant admitted committing

the crime to State Trooper Joseph Moran. He told Trooper Moran that he

took a baseball bat and started looking for someone to kill.”      Id. at 412.



                                     -5-
J-S69010-17



Appellant suggests that Terry should be construed as requiring the presence

of additional evidence establishing an intent to kill when a firearm was not

involved.

        We disagree. First, Appellant overlooks the fact that “deadly weapon”

is specifically defined by 18 Pa.C.S. § 2301, which applies to all offenses

involving danger to a person:

        “Deadly weapon.” 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.      Therefore, Appellant’s parsing of Terry is untenable.

Obviously, statements made by a perpetrator indicating an intent to kill are

relevant and indicative of an intent to kill; however, it does not follow that

the absence of such statements prevents a finding of an intent to kill.

        Viewing all the evidence admitted at trial in the light most favorable to

the verdict winner, we conclude that Appellant’s claim must fail.            The

Commonwealth introduced, as substantive evidence, the prior recorded

statement of Appellant’s son who walked in during the attack and saw

Appellant strike the victim in the head with an object similar to a baseball

bat. This evidence, combined with the substantial injuries suffered by the

victim, suffices to support a finding that the severe beating was intended to

kill.



                                       -6-
J-S69010-17



      Additionally, we note that Appellant had a motive to kill, which

constituted circumstantial evidence of the intent to kill. In Commonwealth

v. Fitzpatrick, 159 A.3d 562 (Pa.Super. 2017), we found that an intent to

kill was established by purely circumstantial evidence. Therein, Fitzpatrick

was convicted of first-degree homicide. Emergency personnel responded to

a reported accident scene, where Fitzpatrick’s wife was found unresponsive

next to a creek.    She later died of drowning. Foul play was not initially

suspected.   However, authorities soon began to investigate Fitzpatrick due

to notes in the victim’s effects which indicated that her husband should be

suspected if something were to happen to her. Additionally, Fitzpatrick was

having a non-sexual affair with another woman, and stood to gain $1.7

million in insurance proceeds if his wife were to die. Finally, the victim had

injuries inconsistent with Fitzpatrick’s story of an ATV mishap.

      A jury found appellant guilty of first-degree homicide, but the trial

court granted Fitzpatrick’s post-sentence motion for judgment of acquittal.

The Commonwealth appealed. We found sufficient evidence to sustain the

conviction, and reversed. With respect to intent, we stated:

      Regarding the element of intent, our Supreme Court has long
      explained that “murder may be committed without a motive,
      either actual or apparent, but an established motive may go
      to prove the related intent[,] just as an absence of motive
      may be used to deny the existence of intent.” Commonwealth
      v. Jones, 355 Pa. 522, 50 A.2d 317, 321 (1947) (citations
      omitted) (emphasis added). In addition, we observe the
      following:



                                     -7-
J-S69010-17



               When there is no direct evidence of intent to kill, the
               fact-finder may glean the necessary intent from the
               act     itself  and      from     all    surrounding
               circumstances. Specific intent to kill can be
               proven where the defendant knowingly applies
               deadly force to the person of another. Death
               caused by strangulation is sufficient to infer the
               specific intent required for a conviction of first
               degree murder.

      Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 500
      (1997) (citations omitted) (emphasis added).

Id. at 567-68 (emphases in original).

      Applying these principles, we find that the testimony establishing that

the victim owed Appellant money for a drug debt supplied circumstantial

evidence from which the jury could infer an intent to kill.              While the

circumstantial evidence in Fitzpatrick was doubtlessly stronger than this

case, herein there was direct evidence of Appellant’s use of a deadly weapon

on the victim’s head.       Taken together, the evidence supports the jury’s

finding that Appellant had a specific intent to kill.      Therefore, Appellant’s

claim fails.

      Appellant’s second claim challenges the weight of the evidence.           In

order to preserve this issue, “a defendant must present his challenge to

the weight of the evidence to the trial court for a review in the first

instance.” Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016).

As noted supra, the trial court treated counsel’s post-sentence motion, which

included a weight claim, as a motion amending the earlier post-sentence



                                        -8-
J-S69010-17



motions timely filed by Appellant pro se.        We therefore conclude that this

claim was preserved for our review.

       Our standard of review was explained in Commonwealth v. Konias,

136 A.3d 1014, 1022 (Pa.Super. 2016), as follows:

       When we review a weight-of-the-evidence challenge, we do not
       actually examine the underlying question; instead, we examine
       the trial court's exercise of discretion in resolving the
       challenge. Commonwealth v. Leatherby, 116 A.3d 73, 82
       (Pa.Super. 2015). This type of review is necessitated by the fact
       that the trial judge heard and saw the evidence presented. Id.
       Simply put, “One of the least assailable reasons for granting or
       denying a new trial is the lower court's conviction that the
       verdict was or was not against the weight of the evidence and
       that a new trial should be granted in the interest of
       justice.” Id. A new trial is warranted in this context only when
       the verdict is “so contrary to the evidence that it shocks one's
       sense of justice and the award of a new trial is imperative so
       that    right   may     be    given   another    opportunity   to
       prevail.” Commonwealth v. Morales, 625 Pa. 146, 91 A.3d 80,
       91 (2014).

Id. at 1022.

       First, Appellant’s weight claim includes a challenge to identity, as he

argues that the Commonwealth failed to produce physical evidence tying him

to the scene of the crime, such as DNA or the recovery of the actual weapon.

That is, in truth, a sufficiency argument, and the lack of a weapon is not

fatal to the Commonwealth’s case.3


____________________________________________


3
 In any event, Appellant’s son’s statement indicated his belief that Appellant
would have destroyed the weapon.



                                           -9-
J-S69010-17



      Appellant’s alternative argument extensively challenges the victim’s

testimony, highlighting inconsistencies in Todd’s statements and his inability

to firmly state that Appellant was the perpetrator.        Additionally, Appellant

challenges the credibility of his son’s recorded statements, which clearly

implicated   Appellant    as   the   perpetrator,   by   arguing   that   Anthony’s

statements were coerced and involuntary.

      These latter arguments properly attack the weight of the evidence;

however, the jury was free to credit or discredit these statements as it saw

fit. The trial court determined that the jury’s verdict did not shock its sense

of justice. We find no abuse of discretion in that ruling.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




                                       - 10 -
