J. S33014/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
TROY GILLIS,                              :          No. 774 EDA 2014
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, February 7, 2014,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0002924-2013


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 10, 2015

      Troy Gillis appeals from the judgment of sentence of February 7, 2014,

following his conviction of aggravated assault -- attempt to cause serious

bodily injury, and carrying a firearm without a license in violation of the

Uniform Firearms Act (“VUFA”). We affirm.

      The trial court has aptly summarized the facts of this matter as

follows:

                   The evidence admitted at trial established that
             on    January    28,   2013,    Appellant    fired   a
             semi-automatic handgun at the complainant,
             Eric Santiago, at the corner of Luzerne and Glendale
             streets.    The shooting stems from an earlier
             disagreement between Appellant and Mr. Santiago.
             Appellant sought to purchase Mr. Santiago’s pit bull
             for dog fighting; however, Mr. Santiago was not
             prepared to make the sale.             During their
             conversation, Appellant accused Mr. Santiago of
             using PCP and threatened him saying:             “Don’t
J. S33014/15


          disrespect me. I’ll bust you in your fucking mouth
          with this gun.”       Throughout their argument,
          Appellant manipulated the gun he had in his pants
          pocket; the gun was making a clicking sound. The
          interaction lasted for approximately five to ten
          minutes, after which Mr. Santiago returned to his
          parent’s [sic] house.

                 While there, Mr. Santiago’s parents urged him
          to remain home and not to go back out onto the
          street. He did not heed this advice, and returned to
          Glendale Street to visit his girlfriend.          As
          Mr. Santiago walked, he observed Appellant standing
          outside in all black clothing. Mr. Santiago laughed,
          and told Appellant that he resembled Count Dracula.
          Afterwards, Mr. Santiago walked to Sam’s Deli
          located on the corner of Luzerne and Glendale.
          [Footnote 2] Appellant and his brother were calling
          out “where is ‘E’?”      (Mr. Santiago’s nickname).
          Appellant and his brother approached Mr. Santiago
          and were standing less than three feet away from
          him. Appellant was holding a silver, semi-automatic
          pistol. Appellant grabbed Mr. Santiago around the
          shoulder with his left arm. As Appellant raised the
          gun and pointed it at Mr. Santiago, Santiago pushed
          the gun down, turned, and ran in the opposite
          direction. As he fled, Mr. Santiago heard a gunshot
          behind him. He immediately ran to his parent’s [sic]
          house, where he sought refuge.

               [Footnote 2]     The street address for
               Sam’s Deli is 1344 East Luzerne Street,
               Philadelphia, PA 19124.

                 Officer Maureen Burns and her partner
          Officer McAdams (first name not given) of the
          Philadelphia Police Department responded to a radio
          call for a gun shot at the corner of Luzerne and
          Glendale. Upon arrival, Officer Burns observed no
          victims or witnesses at the scene.        She then
          accessed the video surveillance system at Sam’s
          Deli. A review of the video depicted the shooting
          taking place on the southeast corner of Luzerne and
          Glendale. Officer Burns recovered a 9 millimeter


                                 -2-
J. S33014/15


            fired cartridge case and located a nearby Buick
            minivan with a bullet hole above the wheel well. The
            owner of the vehicle was questioned and reported
            that the damage was not there when he parked the
            vehicle earlier in the day.

                  The day after the shooting, Mr. Santiago was
            standing outside on Luzerne Street. Appellant rode
            past in a car and made a gun gesture with his hand
            and said, “I’m going to kill you.” Mr. Santiago’s
            parents insisted he report the shooting, against his
            own inclination. He was also being called a “snitch”
            and a “rat” by Appellant, threats Mr. Santiago took
            seriously as he felt such a label endangered his life.
            Eventually, Mr. Santiago did report the shooting to
            police and cooperated, positively identifying a
            photograph of Appellant during interviews with
            Detective Jeffery Daly.

                    When Appellant was being taken into custody
            by police, he was yelling at Mr. Santiago (who was
            standing across the street on the steps of his
            girlfriend’s house) “You a rat; you a rat. I’m going
            to blow your house up. Your girl and your kid, I’m
            going to kill them and blow the house up.” Appellant
            then blew a kiss to Mr. Santiago and smiled.

                   Additionally, there    was a stipulation to the
            certification from the          Commissioner of the
            Pennsylvania State Police     that on January 28, 2013
            -- the date of the incident   -- Appellant did not have a
            license to carry a firearm.    [Footnote 3]

                  [Footnote    3]       Admitted            as
                  Commonwealth’s exhibit C-24.

Trial court opinion, 10/3/14 at 2-4 (citations to the transcript omitted).

      Following a jury trial held September 11-12, 2013, appellant was

found guilty of VUFA and aggravated assault, attempt to cause serious bodily

injury. Appellant was found not guilty of attempted murder. On February 7,



                                     -3-
J. S33014/15


2014, appellant received an aggregate sentence of 10½ to 25 years’

imprisonment.    A timely post-sentence motion was filed on February 14,

2014, and denied on February 18, 2014.         This timely appeal followed.

Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial

court has filed an opinion.1

      On appeal, appellant raises a single issue, challenging the sufficiency

of the evidence to support his conviction of aggravated assault. (Appellant’s

brief at 4.) Appellant argues that the Commonwealth failed to prove specific

intent to cause serious bodily injury.    Appellant argues that the victim,

Santiago, was not actually injured, and that there was no evidence he was

pointing the gun in Santiago’s direction when he fired. (Id. at 10.)




1
   The trial court issued its Rule 1925 order on March 13, 2014, directing
appellant to file a Rule 1925(b) concise statement of errors complained of on
appeal within 21 days. (Docket #10.) On April 7, 2014, appellant requested
a 30-day extension, stating that the notes of testimony from trial were not
yet available. (Docket #11.) On April 9, 2014, the trial court granted an
extension of 30 days “from the receipt of all required notes of testimony,”
within which to file a concise statement.          (Docket #12.)     Appellant
eventually filed the statement on August 19, 2014, and the trial court filed a
Rule 1925(a) opinion on October 3, 2014. (Docket #13, 14.) The docket
does not indicate when the notes of testimony were transcribed, so it is
impossible to discern whether appellant’s Rule 1925(b) statement was timely
filed within 30 days thereof; regardless, the trial court addressed the issues
raised in its Rule 1925(a) opinion and it is unnecessary to remand. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012) (“When
counsel has filed an untimely Rule 1925(b) statement and the trial court has
addressed those issues we need not remand and may address the merits of
the issues presented.”), citing Commonwealth v. Burton, 973 A.2d 428,
433 (Pa.Super. 2009) (en banc).           Filing an untimely Rule 1925(b)
statement no longer results in automatic waiver in a criminal case.


                                    -4-
J. S33014/15


          We review Appellant’s challenge to the sufficiency of
          the evidence under the following, well-settled
          standard of review:

               A claim challenging the sufficiency of the
               evidence presents a question of law.
               Commonwealth v. Widmer, 560 Pa.
               308, 744 A.2d 745, 751 (2000). We
               must determine “whether the evidence is
               sufficient to prove every element of the
               crime beyond a reasonable doubt.”
               Commonwealth v. Hughes, 521 Pa.
               423, 555 A.2d 1264, 1267 (1989). We
               “must view evidence in the light most
               favorable to the Commonwealth as the
               verdict winner, and accept as true all
               evidence and all reasonable inferences
               therefrom upon which, if believed, the
               fact finder properly could have based its
               verdict.” Id.

          Our Supreme Court has instructed:

               [T]he      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.
               Moreover, in applying the above test, the
               entire record must be evaluated and all
               evidence actually received must be
               considered. Finally, the trier 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.
               Ratsamy, 594 Pa. 176, 934 A.2d 1233,
               1236 n. 2 (2007).




                                  -5-
J. S33014/15


Commonwealth v. Fortune, 68 A.3d 980, 983-984 (Pa.Super. 2013)

(en banc),     appeal     denied,    78   A.3d   1089    (Pa.   2013),   quoting

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).

              A person may be convicted of Aggravated Assault
              graded as a first degree felony 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”
              has been 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 an
              “accused who possesses the required, specific intent
              acts in a manner which constitutes a substantial step
              toward perpetrating a serious bodily injury upon
              another.” Commonwealth v. Gray, 867 A.2d 560,
              567 (Pa.Super.2005), appeal denied, 583 Pa. 694,
              879 A.2d 781 (2005). An intent ordinarily must be
              proven through circumstantial evidence and inferred
              from acts, conduct or attendant circumstances.
              Thomas, 65 A.3d at 944, 2013 WL 1319796, at *4.

Id. at 984.

              The       Pennsylvania      Supreme        Court    in
              Commonwealth v. Alexander, 477 Pa. 190, 383
              A.2d 887 (1978) created a totality of the
              circumstances test to be used to evaluate whether a
              defendant acted with the necessary intent to sustain
              an     aggravated      assault    conviction.       In
              Commonwealth v. Matthew, 589 Pa. 487, 909
              A.2d 1254 (2006), that Court reaffirmed the test and
              articulated the legal principles which apply when the
              Commonwealth seeks to prove aggravated assault
              by showing that the defendant attempted to cause
              serious bodily injury. Specifically, the Court stated,
              in relevant part, that:


                                       -6-
J. S33014/15



                Alexander created a totality of the
                circumstances test, to be used on a
                case-by-case       basis,   to    determine
                whether a defendant possessed the
                intent to inflict serious bodily injury.
                Alexander provided a list, albeit
                incomplete, of factors that may be
                considered in determining whether the
                intent to inflict serious bodily injury was
                present,     including    evidence    of   a
                significant difference in size or strength
                between the defendant and the victim,
                any     restraint    on    the    defendant
                preventing him from escalating the
                attack, the defendant’s use of a weapon
                or other implement to aid his attack, and
                his statements before, during, or after
                the attack which might indicate his intent
                to inflict injury.    Alexander, at 889.
                Alexander made clear that simple
                assault combined with other surrounding
                circumstances may, in a proper case, be
                sufficient to support a finding that an
                assailant attempted to inflict serious
                bodily    injury,    thereby    constituting
                aggravated assault.

          Matthew, 909 A.2d at 1257 (citation and quotation
          marks omitted). The Court indicated that our case
          law does not hold that the Commonwealth never can
          establish a defendant intended to inflict bodily injury
          if he had ample opportunity to inflict bodily injury
          but did not inflict it. Rather, the totality of the
          circumstances must be examined as set forth by
          Alexander. Id.

Id.

          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


                                   -7-
J. S33014/15


            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.
            Commonwealth v. Matthew, 589 Pa. 487, 909
            A.2d 1254 (2006). “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[.]” Id. at 1257-58
            (quotation omitted). “As intent is a subjective frame
            of mind, it is of necessity difficult of direct proof.”
            Id. (citation omitted). The intent to cause serious
            bodily injury may be proven by direct or
            circumstantial evidence. Id.

Id. at 985, quoting Commonwealth v. Martuscelli, 54 A.3d 940, 948

(Pa.Super. 2012).

      Here, appellant threatened Santiago that he would “bust you in your

fucking mouth with this gun.”     Later, outside the deli, appellant grabbed

Santiago while brandishing a firearm.       When Santiago turned and ran,

appellant fired.    Appellant missed Santiago but struck a nearby vehicle.

Appellant claims that there was no evidence he was actually aiming the gun

at Santiago. It is true that Santiago’s back was turned towards appellant so

he could not testify that he saw where appellant was pointing the gun.

However, as the Commonwealth points out, appellant ignores the evidence

of the surveillance tape from the store which shows appellant pointing the

gun in Santiago’s direction when he fired. (Commonwealth’s brief at 8; trial

court opinion, 10/3/14 at 7 n.4.) The jury could also fairly infer appellant’s




                                     -8-
J. S33014/15


intent from his words and actions, including threatening to kill Santiago and

blow his house up.

      Appellant claims that he had ample opportunity to inflict serious bodily

injury upon Santiago and did not. Appellant’s argument misses the mark.

The fact that Santiago fortuitously was not struck by appellant’s bullet as he

ran away does not negate intent. This is not a case where the defendant

merely pointed a firearm in the victim’s direction.      Commonwealth v.

Alford, 880 A.2d 666, 671 (Pa.Super. 2005), appeal denied, 890 A.2d

1055 (Pa. 2005) (“It is well settled that merely pointing a gun at another

person in a threat to cause serious bodily injury does not constitute an

aggravated assault.”), citing Commonwealth v. Savage, 418 A.2d 629,

632 (Pa.Super. 1980).        Appellant repeatedly threatened the victim,

physically assaulted him, and actually discharged his weapon in the victim’s

direction. These constituted substantial steps toward perpetrating a serious

bodily injury upon Santiago.    See Commonwealth v. Woods, 710 A.2d

626, 631 (Pa.Super. 1998), appeal denied, 729 A.2d 1129 (Pa. 1998) (“the

jury was certainly entitled, although not required, to find the necessary

intent to support an aggravated assault charge from the fact that appellant

fired his weapon into [the victim’s] vehicle while he occupied it”).      The

evidence was sufficient to support appellant’s conviction of aggravated

assault.

      Judgment of sentence affirmed.



                                    -9-
J. S33014/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




                          - 10 -
