J-S93020-16

                                   2017 PA Super 58

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD A. CHAMBERS

                            Appellant                 No. 2389 EDA 2015


           Appeal from the Judgment of Sentence dated June 4, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006404-2014


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

OPINION BY SOLANO, J.:                                FILED MARCH 07, 2017

        Appellant, Richard A. Chambers, appeals from the judgment of

sentence imposed by the trial court after it convicted him at a bench trial of

aggravated assault, conspiracy, possession of an instrument of crime (PIC),

terroristic threats, simple assault, and recklessly endangering another

person.1 Appellant challenges the sufficiency of the evidence supporting his

convictions, and specifically contends that the trial court erred in its

characterization of mace as a deadly weapon. Upon review, we affirm.

        Appellant’s convictions arose from a physical altercation with Mr.

Calvin Wilson that occurred on the evening of May 15, 2014, at North 15th

Street in Philadelphia. Mr. Wilson was in his car, returning to his apartment
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702, 903, 907, 2706, 2701 and 2705.
J-S93020-16



with his girlfriend and her two grandchildren, when he observed a white Jeep

blocking the driveway.     Mr. Wilson saw Appellant standing by the driver’s

door of the Jeep. He explained:

         As I approached the driveway, I blew my horn and I
         wanted to turn into the driveway. But you couldn’t turn in
         because the white jeep was sitting there. So I rolled my
         window down and I asked [Appellant] can he – why are
         you blocking the driveway?     Can you move from the
         driveway?

N.T., 3/23/15, at 13.    Appellant and the white Jeep did not move, so Mr.

Wilson attempted to drive around them.

      Mr. Wilson then exited his car and exchanged words with Appellant.

He noticed two women inside the Jeep.        Then Mr. Wilson saw Appellant

“raise his arm” and “throw the first punch,” which resulted in “fists flying”

between the two men. N.T., 3/23/15, at 18, 34, 39. Next, an individual or

individuals, including one or more of the women, pulled off Mr. Wilson’s

eyeglasses and sprayed him with mace. Id. at 19, 39 (“people were around

macing”), 43 (“a girl with floral shoes sprayed me with mace”). As a result

of being sprayed with mace, Mr. Wilson no longer could see clearly, but

Appellant, who had pushed him flat onto the street and knelt on him, kept

punching and kicking Mr. Wilson while someone “kept spraying” him. Id. at

43. Mr. Wilson described “feeling everything” and being punched and kicked

until police arrived.   Id. at 20-22, 58-59, 62-63.   Appellant kept shouting

that he was “going to kill” Mr. Wilson. Id. at 59.




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       Afterwards, Mr. Wilson was transported to the hospital, where he was

treated for three hairline rib fractures, a concussion, a laceration requiring

stitches, and “a burnt retina in my eye from mace.” N.T., 3/23/15, at 23.

He stated that his eye “drooled” as a result of being sprayed with mace. Id.

at 24.      At trial, the Commonwealth introduced into evidence three

photographs of Mr. Wilson after the altercation, as well as Mr. Wilson’s

medical records. Id. at 71.

       Mr. Wilson’s girlfriend, Carol Mitchell, confirmed that the altercation

began when “words started flying” and Mr. Wilson and Appellant “got to

fighting,” although “it wasn’t just [Appellant].” N.T., 3/23/15, at 47. Ms.

Mitchell said that “everybody jumped in” including “one male and a bunch of

thick women.” Id. at 48-49. She saw someone spray mace, but she did not

know who it was because she just saw the person’s hand.             Id. at 49-50.

She described Mr. Wilson afterwards as bleeding, and recalled him spending

a day or two in the hospital.

       Philadelphia Police Officer Henry Schoch2 was called to the scene of the

altercation.    He observed “a pile of people on top” of Mr. Wilson, and “a

number of females out there.”           N.T., 3/23/15, at 60-61.   He stopped the




____________________________________________


2
 The officer’s name is spelled “Schoch” in the notes of testimony from the
March 23, 2015 bench trial, although the trial court in its February 19, 2016
opinion spells the officer’s name “Schock.”



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J-S93020-16



altercation, and “was left with [Appellant] on top of [Mr. Wilson].” Id. at 61.

He arranged for Mr. Wilson to be transported to the hospital. Id. at 67.

       One of the neighborhood residents, Jeffrey Jones, witnessed the

encounter from his apartment window and saw Appellant talking with his

girlfriend in the white Jeep.          He noticed that Appellant’s attention was

diverted “towards the driveway.”               N.T., 3/23/15, at 75-76.   A “yelling

conversation” ensued, and he saw Appellant “go down” and both men “fall

into the street.” Id. at 76. Mr. Jones went outside and saw “everybody in

the middle of the street.” Id. at 77. He also saw “[Appellant’s] girlfriend

and whoever, she was – they seen – they had spray. Trying to pepper spray

this guy because he’s a pretty big guy.” Id.

       Following the testimony presented at trial and the trial court’s verdicts,

Appellant was sentenced to 1½ to 3 years of incarceration, followed by 3

years of reporting probation.3        Appellant filed a post-sentence motion that

the trial court denied. He then filed this timely appeal.

       Appellant states his three issues for review as follows:

       [1.] Was not the evidence insufficient to convict appellant of
       aggravated assault with a deadly weapon in that 1) appellant,
       who was involved in a fist-fight with the complainant, was not
       criminally liable as an accomplice for another person’s conduct of
       spraying the complainant with mace; and 2) mace was not
       proven to constitute a deadly weapon?
____________________________________________


3
  The trial court sentenced Appellant to 1½ to 3 years’ incarceration for
aggravated assault and 3 years’ probation for PIC; the trial court imposed no
further penalty for the other convictions.



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J-S93020-16


      [2.] Was not the evidence insufficient to convict appellant of
      conspiracy to commit aggravated assault with a deadly weapon
      where the Commonwealth failed to prove that: 1) mace was a
      deadly weapon; 2) appellant had a shared intent to commit an
      assault with a deadly weapon; or 3) appellant was a party to a
      prior agreement to commit such an assault?

      [3.] Was not appellant erroneously convicted of possessing an
      instrument of crime where the bill of information specified a
      knife, and the trial court explicitly found the evidence insufficient
      to prove the crime as charged, but nevertheless convicted him of
      possessing an uncharged instrument of crime, a can of mace?

Appellant’s Brief at 3.

      Each of these issues challenges the sufficiency of the evidence

supporting Appellant’s aggravated assault, conspiracy, and PIC convictions.

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. . . . When reviewing a sufficiency claim the
      court is required to view the evidence in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa. Super. 2003) (citation

omitted), appeal denied, 833 A.2d 143 (Pa. 2003). As a reviewing court,

we many not weigh the evidence or substitute our judgment for that of the

fact-finder, who is free to believe all, part, or none of the evidence.

Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003).

      In his first two issues, Appellant claims that the Commonwealth failed

to prove the elements of aggravated assault and conspiracy to commit

aggravated assault. The relevant assault statute states:



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     § 2702. Aggravated assault

     (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 . . . .

              (4) attempts to cause or intentionally or knowingly causes
              bodily injury to another with a deadly weapon;

18 Pa.C.S. § 2702.

     Criminal conspiracy is governed by Section 903 of the Crimes Code:

     (a) Definition of conspiracy.--A person is guilty of
     conspiracy with another person or persons to commit a crime if
     with the intent of promoting or facilitating its commission he:

              (1) agrees with such other person or persons that they or
              one or more of them will engage in conduct which
              constitutes such crime or an attempt or solicitation to
              commit such crime; or

              (2) agrees to aid such other person or persons in the
              planning or commission of such crime or of an attempt or
              solicitation to commit such crime.

     (b) Scope of conspiratorial relationship.--If a person guilty
     of conspiracy, as defined by subsection (a) of this section, knows
     that a person with whom he conspires to commit a crime has
     conspired with another person or persons to commit the same
     crime, he is guilty of conspiring with such other person or
     persons, to commit such crime whether or not he knows their
     identity.

18 Pa.C.S. § 903.

     In his third issue, Appellant challenges his conviction for PIC, which is

defined as:

     (a) Criminal instruments generally.--A person commits a
     misdemeanor of the first degree if he possesses any instrument
     of crime with intent to employ it criminally.

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J-S93020-16


        ...

     (d) Definitions.--As used in this section, the following words
     and phrases shall have the meanings given to them in this
     subsection:

           ...

           “Instrument of crime.” Any of the following:

                    ...

           (2) Anything used for criminal purposes and possessed by
           the actor under circumstances not manifestly appropriate
           for lawful uses it may have.

18 Pa.C.S. § 907.

                    Accomplice and Conspirator Liability

     The trial court determined that “under the circumstances of this case

. . . Appellant and a group of others, by way of their relationship to each

other, agreed to commit a crime, and with shared intent, committed overt

acts in furtherance of the conspiracy to physically assault the Complainant

through the use of mace.” Trial Court Opinion, 2/19/16, at 22. Since the

evidence is uncontroverted that Appellant did not spray the mace,

Appellant’s convictions rest upon a theory of accomplice liability.    See

Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003).

The Crimes Code provides:

     Liability for conduct of another; complicity

     (a) General rule.--A person is guilty of an offense if it is
     committed by his own conduct or by the conduct of another
     person for which he is legally accountable, or both.

     (b) Conduct of another.--A person is legally accountable for
     the conduct of another person when:


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J-S93020-16


               (1) acting with the kind of culpability that is sufficient for
               the commission of the offense, he causes an innocent or
               irresponsible person to engage in such conduct;

               (2) he is made accountable for the conduct of such other
               person by this title or by the law defining the offense; or

               (3) he is an accomplice of such other person in the
               commission of the offense.

        (c) Accomplice defined.--A person is an accomplice of
        another person in the commission of an offense if:

               (1) with the intent of promoting or facilitating the
               commission of the offense, he:

                     (i) solicits such other person to commit it; or

                     (ii) aids or agrees or attempts to aid such other
                     person in planning or committing it; or

               (2) his conduct is expressly declared by law to establish his
               complicity.

        (d) Culpability of accomplice.--When causing a particular
        result is an element of an offense, an accomplice in the conduct
        causing such result is an accomplice in the commission of that
        offense, if he acts with the kind of culpability, if any, with
        respect to that result that is sufficient for the commission of the
        offense.

18 Pa.C.S. § 306.

        The trial court correctly held that the evidence in this case, viewed in a

light   most    favorable     to    the   Commonwealth     as   the   verdict-winner,

demonstrates Appellant’s active participation in the physical altercation, in

which he was aided by the unidentified person or persons who sprayed the

mace     and    facilitated   the   aggravated   assault   of   Mr.   Wilson.    See

Commonwealth v. Vining, 744 A.2d 310, 321 (Pa. Super. 2000)

(transcending mere association, accomplice liability requires active and



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J-S93020-16



purposeful participation in criminal activity with others), appeal dismissed

as improvidently granted, 774 A.2d 1246 (Pa. 2001). Appellant, when he

began punching Mr. Wilson, prompted one or more of his unidentified

cohorts to spray mace at Mr. Wilson, and is therefore criminally liable as an

accomplice for their acts. 18 Pa.C.S. § 306.

      Appellant also is liable as a co-conspirator.         Accomplice liability and

conspiracy are not one and the same crime.                       Commonwealth v.

McClendon, 874 A.2d 1223, 1229 (Pa. Super. 2005). Conspiracy requires

proof of an additional factor which accomplice liability does not: the

existence of an agreement.          Commonwealth v. Murphy, 795 A.2d 1025

(Pa. Super. 2002), aff’d, 844 A.2d 1228 (Pa. 2004). To sustain a conviction

for criminal conspiracy, the Commonwealth must establish that 1): the

defendant entered into an agreement to commit or aid in an unlawful act

with another person or persons; 2) he did so with a shared criminal intent;

and   3)    an    overt    act   was   done   in   furtherance   of   the   conspiracy.

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011), citing

Commonwealth v. Barnswell Jones, 874 A.2d 108, 121 (Pa. Super.

2005) (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1037–38 (Pa.

Super. 2002), aff’d, 844 A.2d 1228 (Pa. 2004)). However, an “explicit or

formal agreement to commit the crimes can seldom, if ever, be proved and

it need not be, for proof of a criminal partnership is almost invariably

extracted        from     the    circumstances      that   attend     its   activities.”

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008) (emphasis

                                          -9-
J-S93020-16



added), quoting Commonwealth v. Swerdlow, 636 A.2d 1173, 1177 (Pa.

Super. 1994). Therefore —

     Circumstantial evidence may provide proof of the conspiracy.
     The conduct of the parties and the circumstances surrounding
     such conduct may create a web of evidence linking the accused
     to the alleged conspiracy beyond a reasonable doubt.
     Additionally:

           An agreement can be inferred from a variety of
           circumstances including, but not limited to, the relation
           between the parties, knowledge of and participation in the
           crime, and the circumstances and conduct of the parties
           surrounding the criminal episode.       These factors may
           coalesce to establish a conspiratorial agreement beyond a
           reasonable doubt where one factor alone might fail.

Commonwealth v. Greene, 702 A.2d 547, 554 (Pa. Super. 1997) (internal

citations and quotation marks omitted). With respect to the overt act:

        “This overt act need not be committed by the defendant; it
        need only be         committed by     a co-conspirator.”
        [Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.
        Super. 2000)].        “The intent required for criminal
        conspiracy is identical to that required for accomplice
        liability. In both crimes a defendant must act with the
        intent of promoting or facilitating the offense.”
        Commonwealth v. Davenport, 307 Pa. Super. 102, 452
        A.2d 1058, 1062 (1982).

Commonwealth v. Murphy, 795 A.2d at 1038.

     The trial court referenced the “web of evidence” in this case and stated

that Appellant did not need to commit an “overt act; a co-conspirator may

commit the overt act.”     Trial Court Opinion, 2/19/16, at 19-20, citing

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),

appeal denied, 805 A.2d 521 (Pa. 2002).              The court continued:



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J-S93020-16



“circumstances such as an association between alleged conspirators,

knowledge of the commission of the crime, presence at the scene of the

crime, and/or participation in the object of the conspiracy, are relevant to

prove a conspiracy, when ‘viewed in conjunction with each other and in the

context in which they occurred.’” Id. at 20 (citing Lambert, supra). The

trial court concluded:

      Here, the evidence is sufficient to support a finding that
      [Appellant] was a co-conspirator in assaulting the Complainant
      with mace.     [Appellant] (1) entered into an agreement to
      commit or aid in an unlawful act with the woman or women who
      sprayed the mace when he engaged in a fight with the
      Complainant; (2) with a shared criminal intent to assault the
      Complainant following a heated argument between the
      Complainant and [Appellant] over moving his co-conspirators[‘]
      vehicle to unblock the driveway; and (3) the use of mace on the
      Complainant was done in furtherance of the conspiracy to blind
      him so that the Complainant could not defend himself and
      [Appellant] could physically assault him further.

Id. We agree with the trial court’s analysis and conclude that the court did

not err in holding Appellant liable as both an accomplice and a conspirator.

                    Possession of Instrument of Crime

      As to Appellant’s PIC conviction, the trial court explained:

             In the present case, the bill of information states that
      [Appellant] was charged with Possession of an Instrument of
      Crime specifying a knife as the instrument. However, this court
      concluded there was not enough evidence to establish that a
      knife was possessed and used by [Appellant] to assault the
      Complainant. Still, Defense made no argument at trial about the
      bill of information specifying the knife as the instrument for
      Possession of an Instrument of Crime. Moreover, there was
      ample evidence that [Appellant] was involved in a conspiracy to
      assault [Mr. Wilson] with mace as the facts established the
      necessary elements of the charges as stated above.

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J-S93020-16


             Additionally, the criminal complaint and the discovery
      materials presented to [Appellant] adequately placed him on
      notice that mace was allegedly used in the incident. From the
      institution of the proceedings, [Appellant] and his counsel were
      aware that the Complainant alleged that mace was used against
      him by [Appellant’s] co-conspirators. The affidavits of probable
      cause supporting the criminal complaints are sources of the
      Commonwealth’s factual allegations alerting [Appellant] to the
      alleged use of mace on the Complainant. As such, adequate
      notice was provided to [Appellant] and no violation of state and
      federal due process and the rules of criminal procedure occurred.

            Moreover, if the bills of information were defective in any
      way, [Appellant] could have raised that claim at any stage of the
      proceedings. Rather, no claim was raised that the court erred in
      naming mace as the instrument of crime in lieu of the knife
      named in the bills of information until now. Accordingly, under
      examination of the facts, it was proper for this court to find that
      the [Appellant] had notice that the mace used in the assault may
      be considered an instrument of crime regardless of whether or
      not it was specified in the bill of information. Any additional
      claim is waived.

            [Appellant] argues in the third part of his third issue on
      appeal that he was not proven to be an accomplice or a co-
      conspirator to the possession of mace. As discussed earlier in
      this opinion, this court found that there was sufficient evidence
      that [Appellant] was a co-conspirator to the assault using mace
      on the Complainant. Additionally, [Appellant] may be found
      guilty of both Possession of an Instrument of Crime and
      Conspiracy. See Commonwealth v. Bullock, 2009 WL 7325775
      (Pa. Com. Pl. 2009), aff’d, 998 A.2d 1025 (Pa. Super. Ct. 2010)

Trial Court Opinion, 2/19/16, at 23-24.       We agree with the trial court’s

analysis, which disposes of the bulk of Appellant’s third issue.

      Although it is uncontroverted that Appellant did not spray the mace at

Mr. Wilson, Appellant is criminally liable for the actions of his cohorts

because he was a full participant in a conspiracy, and conspirators are

responsible for one another’s actions. Commonwealth v. Saunders, 946


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J-S93020-16



A.2d 776, 781 (Pa. Super. 2008) (the actions of one co-conspirator may be

imputed to another conspirator, and a conspirator is criminally responsible

for those actions of his co-conspirator that are accomplished in furtherance

of the common design). Responding to Appellant’s argument that he “was

not proven to be an accomplice or co-conspirator to the possession of

mace,” the trial court expressly disagreed, stating that it “found that there

was sufficient evidence that [Appellant] was a co-conspirator to the assault

using mace on the Complainant [and] may be found guilty of both

Possession of an Instrument of Crime and Conspiracy.” Trial Court Opinion,

2/19/16, at 24.   We see no error in the trial court’s holding.

       Mace as a “Deadly Weapon” and “Instrument of Crime”

     We now turn to gravamen of Appellant’s three issues:         that the trial

court erred in finding mace to be a deadly weapon and an instrument of a

crime. We hold that under the facts presented, mace was a deadly weapon

and an instrument of a crime. Appellant assails the trial court’s treatment

and characterization of the mace sprayed at Mr. Wilson, asserts that the

Commonwealth failed to prove the mace was a deadly weapon, and argues

that the trial court merely “erroneously deemed” the can of mace [to be] a

deadly weapon.” Appellant’s Brief at 8. We disagree.




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       Mace is a type of pepper spray that is commonly used as a self-

defense agent.4 Appellant characterizes it as “[a]n instrument which is not

inherently a deadly weapon and which . . .         [is] intended to temporarily

incapacitate the victim of [an] assault,” and observes that no evidence was

presented at trial regarding the nature of mace or its chemical composition.

Appellant’s Brief at 15-16. The trial court did not say that mace is inherently

a deadly weapon, but that mace qualified as a deadly weapon in this case

because of the way it was used:

       [M]ace is an instrument which is likely to cause serious bodily
       injury if used in a manner such as that used against the
       Complainant, Mr. Wilson. If one sprays mace directly into the
       eyes of another person there is a high probability that the victim
       will be seriously hurt especially while being simultaneously
       stomped on the ground on a driveway, a place where motor
       vehicles frequent, by multiple individuals. It may blur vision to
       cause temporary blindness, burn the eyes, cause redness and
       swelling. Thus, the mace used to blind the victim became a
       deadly weapon at the moment [Appellant’s] accomplices used it
       on the Complainant, Mr. Wilson, during the altercation between
       him and [Appellant]. Here, mace temporarily blinded Mr. Wilson.
       As a result, Mr. Wilson was unable to defend himself against his
       attackers.

Tr. Ct. Op. at 18.        The court therefore characterized mace as a deadly

weapon under the final clause of the definition of “deadly weapon” in Section
____________________________________________


4
  “Mace” is claimed as a trademark of Mace Security International, which
describes it as “the original trusted brand for personal defense sprays.” See
About Mace®, http:‌//www.mace.com/about/?SID=ard2l7p07ntknr12mk512g
2n33 (2015). The name has acquired a dictionary meaning that refers
generally to any such disabling spray product. See “Mace,” Merriam-
Webster.com,              https://www.merriam-webster.com/dictionary/mace
(Merriam-Webster 2017).



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2301 of the Crimes Code:

      “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 (emphasis added).          We agree with the trial court’s

characterization.

      No reported Pennsylvania appellate decision addresses this issue, but

in Commonwealth v. Spruill, 80 A.3d 453, 454-455 (Pa. 2013), the

Supreme Court of Pennsylvania, while not directly presented with this

question, recognized the rationale by which mace may be characterized as a

deadly weapon.      The defendant in Spruill, with ten other women,

threatened to kill her three victims and repeatedly punched, kicked, and

maced them until bystanders interceded to stop the attack. The trial court

convicted the defendant of multiple charges that included aggravated

assault, conspiracy to commit aggravated assault, and PIC. In upholding the

convictions, the Supreme Court observed:

      In its Rule 1925 opinion, the trial court addressed the sufficiency
      of the evidence by noting that the evidence showed that appellee
      and her ten cohorts repeatedly punched and kicked Derrell after
      appellee had used mace to render Derrell defenseless. The trial
      court concluded that appellee had “used the mace in such a
      manner that it became a device which was likely to produce
      serious bodily injury,” and that appellee’s use of the mace
      satisfied the “deadly weapon element” of F2 aggravated assault.




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80 A.3d at 456 (citation and footnote omitted).       The Supreme Court in

Spruill was not asked to rule on the correctness of the trial court’s analysis

of the deadly-weapon issue, but its summary dovetails with the analysis that

applies here.

      The plain language of the Legislature’s definition of “deadly weapon”

makes clear that the weapon need not be a “firearm . . .       or any device

designed as a weapon,” but may also be “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.

“Although   deadly   weapons    are    commonly   items   which   one   would

traditionally think of as dangerous (e.g., guns, knives, etc.), there are

instances when items which normally are not considered to be weapons can

take on a deadly status.” Commonwealth v. Scullin, 607 A.2d 750, 753

(Pa. Super. 1992), appeal denied, 621 A.2d 579 (Pa. 1992). These items

“take on such status based upon their use under the circumstances.”

Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa. Super. 2010); appeal

denied, 25 A.3d 328 (Pa. 2011), cert. denied, 565 U.S. 1263, 132 S.Ct.

1746, 182 L.Ed.2d 536 (2012).     See Commonwealth v. McCullum, 602

A.2d 313, 323 (Pa. 1992) (holding “[a] deadly weapon need not be ... an

inherently lethal instrument or device”). Thus, “[a]n ax, a baseball bat, an

iron bar, a heavy cuspidor, and even a bedroom slipper have been held to

constitute deadly weapons under varying circumstances.” Commonwealth

v. Prenni, 55 A.2d 532, 533 (Pa. 1947); see Commonwealth v. Nichols,

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692 A.2d 181, 184 (Pa. Super. 1997) (“[a] baseball bat, when swung at the

head, can be a very deadly weapon”). Even an egg can be a deadly weapon

when thrown from the roof of building at the windshield of a vehicle. See

Commonwealth v. Roman, 714 A.2d 440 (Pa. Super. 1998), appeal

denied, 729 A.2d 1128 (Pa. 1998).            See also Commonwealth v.

Raybuck, 915 A.2d 125 (Pa. Super. 2006) (holding that mouse poison

became deadly weapon when included in sandwich for husband to consume;

fact that amount was insufficient to cause serious bodily injury was

irrelevant to classification as deadly weapon).

      Therefore, even if mace is not an inherently deadly instrumentality, its

use in this case played a critical role in the assault of Mr. Wilson, and it

became a deadly weapon because it was used to render Mr. Wilson

defenseless against Appellant’s sustained attack. See Scullin, 607 A.2d at

753 (the definition of deadly weapon does not demand that the person in

control of the object intend to injure or kill the victim; instead, it gives

objects deadly weapon status on the basis of their use under the

circumstances).    Appellant’s actions in this case — his stated intent,

repeated punching, infliction of physical injuries, and, until Officer Schoch

physically intervened, unrelenting attack of Mr. Wilson — support the trial

court’s determination that the mace sprayed by Appellant’s unidentified

cohort or cohorts was a deadly weapon as that classification pertains to

Appellant’s convictions of aggravated assault and conspiracy.




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       Mr. Wilson testified that during the fight, his “eyes started burning”

and, because of his military background, he “knew it was mace.”                N.T.,

3/23/15, at 19. He said that he “didn’t see nothing after that.”         Id.    Mr.

Wilson’s girlfriend, Carol Mitchell, testified that she tried to stop the fight,

but was unsuccessful because “everybody jumped in.”            Id. at 48.       She

stated that she saw “the spray but I didn’t know who did it” and that “they

were constantly spraying his face . . . [and when Mr. Wilson] stood up, he

was bleeding.” Id. at 50. Officer Schoch testified that when he arrived at

the scene, he saw Appellant “kneeling on [Mr. Wilson’s] chest and punching

him in the face.” Id. at 58. Officer Schoch stated:

       [Appellant] was enraged, Your Honor. He might have said he
       was going to kill that mother-fucker five or six times just in my
       presence. I had the opportunity to secure [him]. . . . And
       when I came back to the [Appellant], he reiterated that if that
       guy is going to come at me, I’m going to kill that mother-fucker.

Id. at 59. This evidence demonstrates that mace was used to incapacitate

Mr. Wilson while Appellant repeatedly punched him and threatened his life,

an attack that stopped only when Officer Schoch intervened. Because the

mace was used to render Mr. Wilson defenseless, it was integral to

Appellant’s criminal actions.          Accordingly, we hold that, under these

circumstances, the mace was a deadly weapon under 18 Pa.C.S. § 2301, for

the use of which the trial correctly court found Appellant criminally liable. 5
____________________________________________


5
  Our holding that mace is a deadly weapon when used in circumstances like
those here is consistent with numerous decisions across the United States.
(Footnote Continued Next Page)


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      For similar reasons, we also hold that mace was an “instrument of

crime” for purposes of the PIC conviction. The mace was “used for criminal

purposes” and it was possessed and used “under circumstances not

manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907(d).

See, e.g., Commonwealth v. Brown, 23 A.3d 544 (Pa. Super. 2011) (toy

gun was an instrument of crime where defendant employed it criminally by

pointing it at the robbery victim and demanding money); Commonwealth

v. Lester, 722 A.2d 997 (Pa. Super. 1998) (clothes iron was an instrument

of crime where defendant broke off its plastic handle and used its plate on

the victim’s head); Commonwealth v. Vida, 715 A.2d 1180 (Pa. Super.

1998) (paint stick was an instrument of crime where it was used to write

graffiti inconsistent with its intended lawful use), appeal denied, 736 A.2d

604 (Pa. 1999).

      Because the trial court’s verdicts are supported by the record, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

Some of the cases are collected in People v. Blake, 11 Cal.Rptr.3d 678,
688-90 (Cal. App. 2004). Although we are not bound by decisions from
other jurisdictions, we may consider them for their persuasive value. Trach
v. Fellin, 817 A.2d 1102, 1115 (Pa. Super. 2003) (recognizing that while we
are not bound by the decisions of other jurisdictions, we may “use them for
guidance to the degree we find them useful and not incompatible with
Pennsylvania law”).



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J-S93020-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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