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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                     v.                :
                                       :
JORDAN ALEXANDER SCHRAUGER,            :         No. 1475 MDA 2017
                                       :
                          Appellant    :


         Appeal from the Judgment of Sentence, August 14, 2017,
              in the Court of Common Pleas of Berks County
            Criminal Division at No. CP-06-CR-0002888-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 03, 2018

     Jordan Alexander Schrauger appeals from the August 14, 2017

judgment of sentence of 5 to 10 years’ imprisonment imposed plus 5 years’

probation following his convictions in a jury trial of aggravated assault,

simple assault, false imprisonment, recklessly endangering another person,

and harassment.1 The Court of Common Pleas of Berks County determined

that the simple assault, recklessly endangering another person, and

harassment merged into the aggravated assault conviction.         After careful

review, we affirm.

     The trial court summarized the relevant facts, as follows:




1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2903, 2705, and 2709(a)(1),
respectively.
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            On June 5, 2016, Elizabeth Beaulac had an
            altercation with her fiancé, [appellant], who
            physically assaulted her. They were out drinking and
            when they got home, [appellant] wanted to have sex
            with Ms. Beaulac. She said no. [Appellant] slapped
            her with an open hand across the back of the head.
            While Ms. Beaulac was trying to get away from
            [appellant], he grabbed her hair and pulled her back
            onto the bed. He then kept her confined to the
            bedroom for up to a half an hour [sic], during which
            time Ms. Beaulac asked him to let her go.
            [Appellant] eventually relented and let her out of the
            bedroom. When she got into the living room, she
            tried to leave the apartment, but [appellant] stopped
            her and put his hands over her face and nose until
            she was unable to breathe. He released her but he
            then punched her about six times in the right eye
            causing a laceration under her eye, a lump, and a
            contusion. At some point[,] he stopped and called
            911. [Appellant] then fled the apartment. When the
            police arrived, Ms. Beaulac gave a short account of
            what happened to Officer Hoppes and then she was
            taken to the hospital by her father.

Trial court opinion, 11/16/17 at 2.

      At sentencing, appellant moved for extraordinary relief and sought

acquittal for aggravated assault.     The trial court denied the motion and

sentenced appellant.   On August 24, 2017, appellant filed a post-sentence

motion that the trial court denied on August 28, 2017.      Appellant filed a

notice of appeal on September 21, 2017.      On October 24, 2017, the trial

court ordered appellant to file a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied with the order

on November 9, 2017.       On November 20, 2017, the trial court filed its

opinion pursuant to Pa.R.A.P. 1925(a).



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      Appellant raises the following issues for this court’s review:

            A.     Whether the evidence presented at trial was
                   insufficient to support a guilty verdict on the
                   F-1 Aggravated Assault charge, where the
                   Commonwealth, when proceeding on the
                   theory that [a]ppellant attempted to cause
                   serious bodily injury to Elizabeth Beaulac,
                   failed to establish, beyond a reasonable doubt,
                   that [a]ppellant engaged in conduct that
                   constituted a substantial step toward causing
                   serious bodily injury and that [a]ppellant had
                   specific intent to cause serious bodily injury to
                   Ms. Beaulac[?]

            B.     Whether the [trial] [c]ourt erred by not
                   granting a new trial on the basis that the guilty
                   verdict F-1 Aggravated Assault charge was
                   contrary to the weight of the evidence
                   presented at trial, where Ms. Beaulac’s
                   testimony was inconsistent and incredible, as
                   she testified to several significant aspects of
                   the incident at the time of trial, but failed to
                   report them when speaking to the police, and
                   she also testified that she was hit with a closed
                   fist at least 6 times, with most blows to the
                   right eye, but the injuries were limited to a
                   laceration under her eye and bruising[?]

Appellant’s brief at 7.

      Appellant’s first issue challenges to the sufficiency of the evidence

presented by the Commonwealth.

                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact-finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to a


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            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, the Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

                  Moreover, when 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
            the witnesses and the weight of the evidence
            produced, is free to believe all, part, or none of the
            evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).

      The Crimes Code defines aggravated assault as when a person

“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 “bodily 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.




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      The parties and the trial court all agree that Elizabeth Beaulac

(“Beaulac”) did not suffer serious bodily injuries. A lack of serious injuries

sustained by a victim, however, does not necessarily preclude the

Commonwealth from charging a defendant with aggravated assault and

being able to present sufficient evidence to warrant a conviction.    “Where

the injury actually inflicted did not constitute serious bodily injury, the

charge of aggravated assault can be supported only if the evidence supports

a finding that the blow delivered was accompanied by the intent to inflict

serious bodily injury.” Commonwealth v. Alexander, 383 A.2d 887, 889

(Pa. 1978); see also Commonwealth v. Martuscelli, 54 A.3d 940, 948

(Pa.Super. 2012) (“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.”).2

      In order to determine intent, the Alexander court established a

totality of the circumstances test.     Some of the factors that may be

considered include (1) whether there was a disparity in size and strength

between the defendant and the victim; (2) whether the defendant would

have escalated the attack had he or she not been otherwise restrained;

(3) whether the defendant was in possession of a weapon; and (4) whether




2 “A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.”   Alexander, 383 A.2d at 889, quoting
18 Pa.C.S.A. § 901(a).


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the defendant made any statements indicative of his or her intent to “inflict

further injury upon the victim.”    Alexander, 383 A.2d at 889; see also

Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (reaffirming

the Alexander test);

      In order to determine whether appellant acted with the intent to inflict

serious bodily injury upon the victim, we shall consider the circumstances of

the attack.    First, the evidence of record established that appellant was

much larger than Beaulac. Beaulac testified that appellant was “a lot bigger

than me.”     (Notes of testimony, 8/8/17 at 54).3   Appellant escalated the

attack because he initially used force by pushing Beaulac back on a bed to

keep her from leaving the room they occupied, later he moved on to

suffocating and punching Beaulac. (Id. at 52-56). In fact, when appellant

covered Beaulac’s nose and mouth so that she could not breathe, Beaulac

“thought that was it.” (Id. at 54.) Appellant did not stop the onslaught until

Beaulac was bleeding profusely and said, “You broke my face; what did you

do?” (Id. at 56.)

      After considering the totality of the circumstances, we determine that

the Commonwealth presented sufficient evidence to support appellant’s

conviction of aggravated assault.




3In the Police Criminal Complaint, appellant is listed at 5 feet 11 inches and
240 pounds.


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      Appellant next contends that the guilty verdict on the aggravated

assault charge was contrary to the weight of the evidence.

                  [T]he weight of the evidence is
                  exclusively for the finder of fact who is
                  free to believe all, part, or none of the
                  evidence and to determine the credibility
                  of the witnesses.       An appellate court
                  cannot substitute its judgment for that of
                  the finder of fact . . . thus, we may only
                  reverse the lower court’s verdict if it is so
                  contrary to the evidence as to shock
                  one’s sense of justice. Moreover, where
                  the trial court has ruled on the weight
                  claim below, an appellate court’s role is
                  not to consider the underlying question
                  of whether the verdict is against the
                  weight of the evidence . . . rather,
                  appellate review is limited to whether the
                  trial court palpably abused its discretion
                  in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      Here, appellant argues that the verdict was contrary to the weight of

the evidence because Beaulac’s testimony was inconsistent and incredible as

she testified to several significant aspects of the incident at the time of trial

but failed to report them when speaking to the police and she also testified

that she was hit with a closed fist at least six times, with most blows to the

right eye, but the injuries were limited to a laceration and bruising.



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      Appellant invites us to assess witness credibility and reweigh the

evidence to convince us to reach a different result than the jury reached.

We decline to do so. The jury, as fact-finder, had the duty to determine the

credibility of the testimony and the evidence at trial.   Commonwealth v.

Talbert, 129 A.3d at 536 (Pa.Super. 2015), appeal denied, 138 A.3d 4

(Pa. 2016). Appellate courts cannot and do not substitute their judgment for

that of the fact-finder.

      Our review of the record supports our conclusion that the trial court

properly exercised its discretion in denying appellant’s weight claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2018




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