J-S51033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRANDON TURNER,

                            Appellant                  No. 1745 EDA 2014


             Appeal from the Judgment of Sentence May 30, 2014
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0002120-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED AUGUST 18, 2015

        Appellant, Brandon Turner, appeals from the judgment of sentence

imposed after his bench conviction of aggravated assault, simple assault,

recklessly endangering another person, possession of an instrument of

crime, and two violations of the Uniform Firearms Act.1              Specifically,

Appellant challenges the sufficiency of the evidence to support his

aggravated assault conviction. We affirm.

        The trial court aptly set forth the factual background of this case in its

August 1, 2014 opinion, as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, 907(a), 6105(a)(1), and
6106(a)(1), respectively.
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            On January 13, 2013, Sergio Reyes, the Complainant, was
     working on the 1000 block of Cambria Street as part of a
     demolition crew. At approximately 10:20 a.m. Mr. Reyes had
     stepped away from the other workers to call his boss.
     [Appellant, a stranger,] approached Mr. Reyes on the street and
     began yelling at him. Mr. Reyes does not speak English, and
     was unable to understand what [Appellant] was saying.
     [Appellant] punched Mr. Reyes, causing his cell phone to be
     knocked from his hand, and in turn, Reyes hit him back.
     [Appellant] then pulled a gun and pointed it at Mr. Reyes’
     chest.[a] Mr. Reyes grabbed the gun and pushed it above his
     head. [Appellant] pulled the trigger and Mr. Reyes heard a
     clicking noise, but the gun did not fire. Mr. Reyes ran back
     towards the rest of his coworkers. [Appellant] followed him and
     again pointed the gun at his chest and pulled the trigger, but
     once again the gun did not discharge. [Appellant] then took off
     running. A short distance away, he was seen adjusting the
     gun.[b] He then fired five or six shots into the air [before
     handing the gun to another individual].
          [a]
             The Complainant’s original statement to police
          noted that [Appellant] had pointed the gun at his
          stomach, not his chest. This statement was taken in
          Spanish by a Spanish-speaking detective, but written
          in English. Mr. Reyes was unable to read it over,
          though he did sign and adopt it. During cross-
          examination, however, Mr. Reyes emphasized
          repeatedly that he equated his stomach and chest.
          (See N.T. Trial, 10/25/13, at 40 (“I’ll repeat it again.
          To me the front part of the body includes my chest
          and stomach. To me it’s the same thing.”).
          [b]
             The eyewitness, Jose Espinoza, a co-worker of the
          Complainant, testified to this, though it was not in
          the original statement to police. The statement was
          taken in English by a detective and written in
          English, although the eyewitness is not primarily an
          English speaker. Mr. Espinoza did, however, testify
          at the preliminary hearing and at trial through a
          Spanish-speaking interpreter.      During trial, he
          confirmed the accuracy of his preliminary hearing
          testimony. . . .




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              [Appellant] was arrested by Philadelphia Police at 1033
        West Cambria Street, a few minutes later. Twelve fired cartridge
        casings belonging to a .40-caliber Smith & Wesson semi-
        automatic handgun were recovered. All twelve casings came
        from the same firearm. Additionally, [Appellant’s] sweatshirt
        tested positive for gunshot residue.

(Trial Court Opinion, 8/01/14, at 2-3) (quotation marks and most record

citations omitted; record citation formatting provided).

        On February 22, 2013, the Commonwealth filed an information against

Appellant charging him with the aforementioned crimes.             The court

conducted a bifurcated waiver trial on October 25, 2013, and January 31,

2014.    On January 31, 2014, the court convicted Appellant of aggravated

assault and related charges.           On May 30, 2014, the court imposed an

aggregate sentence of not less than six nor more than twelve years’

incarceration. The court denied Appellant’s post-sentence motion on June 9,

2014, and Appellant timely appealed.2


____________________________________________


2
  On June 18, 2014, the court issued an order directing Appellant to file a
Rule 1925(b) statement within twenty-one days, i.e., by July 9, 2014. (See
Order, 6/19/14). On July 9, 2014, Appellant filed a motion for an extension
of time to file his Rule 1925(b) statement. On July 17, 2014, before the
court ruled on the motion, Appellant filed his untimely Rule 1925(b)
statement. See Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion
on August 1, 2014, in which it addressed Appellant’s claims of error. See
Pa.R.A.P. 1925(a); (see also Trial Ct. Op., at 3-7). Therefore, we will
address Appellant’s appellate claim on its merits. See Commonwealth v.
Veon, 109 A.3d 754, 762 (Pa. Super. 2015) (Observing that “where . . . the
trial court has addressed the issues raised in an untimely Rule 1925(b)
statement, we . . . may address the issues on their merits.”) (citation
omitted).



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      Appellant raises one issue for our review: “Was the evidence

insufficient as a matter of law to support [his] conviction for aggravated

assault?”     (Appellant’s   Brief,   at   4)   (some   capitalization   omitted).

Appellant’s issue lacks merit.

      Our standard of review of a challenge to the sufficiency of the evidence

is well-settled:

             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. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation

omitted) (emphases added).

      Here, Appellant argues that “[t]he Commonwealth failed to prove

beyond a reasonable doubt that [he] was equipped with a loaded firearm

when he pointed it at Reyes. Rather, the Commonwealth proved that [he]




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had an unloaded gun during his interaction with Reyes.” (Appellant’s Brief,

at 10). We disagree.

     Section 2702 of the Crimes Code provides, in pertinent part that “[a]

person is 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). “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 any bodily member or organ.” 18 Pa.C.S.A. § 2301.

           For aggravated assault purposes, an ‘attempt’ is found
     where the accused, with the required specific intent, acts in a
     manner which constitutes a substantial step toward perpetrating
     a serious bodily injury upon another.       As our Court has
     previously stated:

                  As intent is a subjective frame of mind, it is of
           necessity difficult of direct proof[.] [W]e must look
           to all the evidence to establish intent, including, but
           not limited to, appellant’s conduct as it appeared to
           his eyes[.]     Intent can be proven by direct or
           circumstantial evidence; it may be inferred from acts
           or conduct or from the attendant circumstances.

                                    *     *   *

           . . . Aggravated assault can be demonstrated with proof of
     such intent regardless of whether it was impossible to actually
     cause serious bodily injury. . . .

Commonwealth v. Gruff, 822 A.2d 773, 776-78 (Pa. Super. 2003), appeal

denied, 863 A.2d 1143 (Pa. 2004) (citations omitted).           In fact, “the


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defendant’s words and conduct are critical to a finding of the intent to cause

serious bodily injury.” Id. at 778.

      In this case, Mr. Reyes was working on a Philadelphia street where he

and his co-workers were employed to demolish a home.            (See N.T. Trial,

10/25/13, at 7-8). While on his break, Mr. Reyes was attempting to make a

cell phone call when Appellant approached him, yelled at him, and knocked

the device out of his hand.    (See id. at 8).     Mr. Reyes had never seen

Appellant before that day. (See id. at 10). After Appellant struck him, Mr.

Reyes “smacked him” back, and Appellant then pulled out a firearm and

pointed it at his chest. (Id.; see also id. at 10-11). While the two men

struggled for control of the firearm, Appellant repeatedly pulled the trigger,

causing the gun to click several times, although it did not fire. (See id. at

11-12).   When Mr. Reyes turned from Appellant and re-joined his co-

workers, Appellant moved toward them.        (See id. at 12-13).      Appellant

again pointed the gun at Mr. Reyes and “told [him] that because [he] had

smacked [him], he was going to kill him.”        (Id. at 13).   When Appellant

again pulled the trigger, the gun failed to fire, and only emitted a clicking

sound. (See id. at 13-14). Appellant then ran across the street, adjusted

the gun, and fired five to six shots into the air before handing the weapon to

another individual.   (See id. at 15, 44).   “Five minutes later, the police

arrived and stopped [Appellant].” (Id. at 44).




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        Based on the foregoing, we conclude that the trial court properly found

that the evidence was sufficient to prove aggravated assault where the

Commonwealth established that Appellant “act[ed] in a manner which

constitute[d] a substantial step toward perpetrating a serious bodily injury

upon another.”       Gruff, supra at 776 (citation omitted); see also

Commonwealth v. Bond, 396 A.2d 414, 416 n.2 (Pa. Super. 1978)

(concluding evidence sufficient to prove aggravated assault where gun

clicked several times while pointed at victim during defendant’s struggle with

him).    Accordingly, Appellant’s claim does not merit relief.   See Harden,

supra at 111.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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