J-S53029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RANDALL LEE ALLOWAY, JR.

                            Appellant                  No. 1982 MDA 2014


             Appeal from the Judgment of Sentence June 24, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007927-2013


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED OCTOBER 06, 2015

        Randall Lee Alloway, Jr., appeals from the judgment of sentence

entered June 24, 2014, in the York County Court of Common Pleas. The trial

court imposed an aggregate sentence of seven to 14 years’ imprisonment

after Alloway was convicted, by a jury, of two counts each of aggravated

assault and simple assault.1        On appeal, Alloway argues the evidence was

insufficient to demonstrate he intended to cause serious bodily injury to the

victims. For the reasons that follow, we affirm.

        The facts underlying Alloway’s convictions are aptly summarized by

the trial court as follows:


____________________________________________


1
    18 Pa.C.S. §§ 2702(a)(1) and 2701, respectively.
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            In the instant case, the jury heard that a witness, Melissa
     Hess, was awoken by a loud noise around 1:30 in the morning
     and, after hearing people yelling, this witness proceeded outside
     to smoke. The witness then observed three individuals heckling
     two men as they walked to their home, which was diagonally
     across the street from the witness’ home. While those hurling
     epithets about a child molester continued their verbal barrage,
     one of the victims was heard to say something to the effect of
     “it's not me; he just lives here” before stepping off his porch to
     inquire what his interlocutors were going to do about it. The
     witness testified that it was at this point when three men
     proceeded to the victims’ location and began throwing punches
     and kicking the victims when they collapsed. The jury heard
     that all three aggressors crossed the street together.

            The witness testified that [Alloway] threw the punches that
     felled the victims.      Once the victims dropped, the witness
     testified that all three of the assailants kicked the victims. After
     the initial onslaught, which the witness testified lasted some
     minutes, the assailants proceeded home before one of the
     assailants returned to dump refuse on the victims’ bodies. It
     was then testified that, at this point, all three assailants resumed
     kicking the victims. The witness told the jury that there was a
     streetlight right outside her home and that she was able to see
     the events very clearly. The witness also stated that the victims
     were never aggressive.

           The witness to the events told the jury that she was able
     to inform law enforcement which home the assailants had
     relocated to and their general descriptions. Moreover, as far as
     the codefendants on trial, the jury heard that the witness was
     able to positively identify them on the evening of the event.

            The only victim who appeared at trial, George Williams,
     testified that he recalled telling the assailants he could not hear
     them and then he saw boots and sneakers kicking him. During
     trial, Mr. Williams identified both codefendants as being
     assailants.

           Officer Glatfelter testified that upon his arrival, he found
     the victims partially lying atop one another and covered in large
     amounts of trash. Both victims appeared to be unconscious.
     Officer Glatfelter told the jury that there was so much blood he
     had to be careful not to step in any of it. Mr. Williams told
     Officer Kling that one of the suspects lived across the street.


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      Officer Kling found [one suspect] pacing the kitchen in the
      residence pointed out by Mr. Williams. As the suspect found in
      the kitchen was led away, [Alloway] and another individual
      appeared in the residence and were seen by Officer Ebersole
      through the windows. It was immediately apparent that the
      [Alloway] matched the description given of one of the assailants.
      Officer Calahan testified that the [Alloway’s] knuckles on his
      right hand were bloody and scraped and that there was blood on
      [Alloway’s] right pant cuff.

             The doctor who treated Jack Corbin[, the other victim,]
      and who was aware of George Williams being in the emergency
      room told the jury that Mr. Corbin had a swollen face and was
      incontinent at the time of treatment. CT scans of Mr. Corbin
      revealed a possible subdural hematoma and, though this was
      later found not to be the case, the doctor testified that such an
      injury could have occurred with these injury patterns. The
      doctor testified that Mr. Corbin did sustain facial fractures in the
      frontal sinus, a complex nasal fracture, and a maxillary fracture.
      The jury heard that these sorts of injuries can result in
      numbness and loss of motor function. Moreover, Mr. Corbinss
      injuries cause worry about damage to the eye and the nasal
      injuries could result in loss of smell. The doctor also testified
      that there was a possibility of a closed-head injury, which could
      affect Mr. Corbin’s memory, mood, and thought processing. The
      jury was informed that the bones broken in Mr. Corbin are some
      of the more durable ones in the face and that they would result
      from either the impact of a large object or multiple blows.

             As far as Mr. Williams’ injuries, the doctor informed the
      jury that Mr. Williams suffered a broken mandible with
      associated hematoma. The doctor stated that the jaw is a very
      strong bone. In the doctor’s experience, he has seen injuries
      like those Mr. Williams suffered associated with significant and
      insignificant head injuries; but, that, ultimately, the concern is
      underlying brain injury. Mr. Williams also had a gash stitched in
      the back of his head. Mr. Williams testified that he has lasting
      effects of the broken jaw, because he cannot afford to have it
      fixed. The jury heard from Mr. Williams that his speech has
      been affected a little and that he experiences pain when eating
      hard foods.

Trial Court Opinion, 2/11/2015, at 3-6 (record citations omitted and

emphasis in original).

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        Alloway was subsequently charged with two counts each of aggravated

assault, simple assault and harassment.2 His case proceeded to a jury trial

with co-defendant, Thomas Davis.3              At the close of the Commonwealth’s

case-in-chief, both Alloway and Davis moved for a judgment of acquittal on

the charge of aggravated assault-causing serious bodily injury.         The court

granted the motions with respect to victim Corbin, but denied the motions

with respect to victim Williams. See N.T., 5/5/2014-5/7/2014, at 233, 239.

On May 7, 2014, the jury found both co-defendants guilty of two counts of

aggravated assault-attempt to cause serious bodily injury, and two counts of

simple assault.     The jury, however, found Alloway and Davis not guilty of

aggravated assault-causing serious bodily injury with respect to victim

Williams.4

        On June 24, 2014, Alloway was sentenced to two concurrent terms of

seven to 14 years’ imprisonment on the aggravated assault counts. He did

not file a timely direct appeal. On November 10, 2014, however, Alloway




____________________________________________


2
    See 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), and 2709(a)(1), respectively.
3
  Although charges were originally filed against a third defendant, Felipe
Rodriguez, Jr., those charges were dismissed after a witness could not
identify Rodriguez at the preliminary hearing. See Alloway’s Brief at 4.
4
  Additionally, the trial court dismissed the charges of harassment, finding
that they merged into the more serious offenses. See N.T., 5/5/2014-
5/7/2014, at 326-327.



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filed a petition seeking permission to file a notice of appeal nunc pro tunc.

The trial court granted the petition, and this timely appeal followed.5

       Alloway’s sole issue on appeal challenges the sufficiency of the

evidence supporting his conviction of aggravated assault.    Our    review    is

guided by the following:

       In reviewing a sufficiency challenge, a court determines, whether
       the evidence, viewed in the light most favorable to the
       Commonwealth as verdict winner, is sufficient to enable the fact-
       finder to find every element of the crime beyond a reasonable
       doubt. In this sufficiency challenge we are asked to determine
       what constitutes aggravated assault under 18 Pa.C.S. §
       2702(a)(1). Thus, this is a question of law. For questions of
       law, our scope of review is plenary and our standard of review is
       de novo.

Commonwealth v. Matthew, 909 A.2d 1254, 1256-1257 (Pa. 2006)

(citations omitted).

       Here, Alloway was charged with aggravated assault under Section

2702(a)(1). As such, the Commonwealth was required to prove that Alloway

“attempt[ed] to cause serious bodily injury to another, or cause[d] such

injury intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1).

Serious bodily injury is defined as “[b]odily injury which creates a substantial
____________________________________________


5
  On November 26, 2014, the trial court ordered Alloway to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Alloway complied with the court’s directive, and filed a concise statement on
December 19, 2014. Although the court recognized the statement was filed
two days late, it nevertheless treated the statement as timely filed. See
Trial Court Opinion, 2/11/2015, at 2.



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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. § 2301.          Where, as here, the victim did not suffer

serious bodily injury,6 the Commonwealth must prove the defendant

attempted to cause such injury.

       “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.” An attempt under §
       2702(a)(1) requires a showing of some act, albeit not one
       causing serious bodily injury, accompanied by an intent to inflict
       serious bodily injury.

              “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....”
       “As intent is a subjective frame of mind, it is of necessity difficult
       of direct proof.” The intent to cause serious bodily injury may be
       proven by direct or circumstantial evidence.

Matthew, supra, 909 A.2d at 1257 (internal citations omitted).

       In Matthew, the Pennsylvania Supreme Court reaffirmed the totality

of the circumstances test, first utilized in Commonwealth v. Alexander,

383 A.2d 887 (Pa. 1978), to determine whether a defendant possessed the

requisite specific intent to inflict serious bodily injury necessary to support a

conviction of aggravated assault, when the victim did not, in fact, suffer

serious bodily injury as a result of the assault.           The Matthew Court

explained:
____________________________________________


6
  As noted above, the jury found Alloway not guilty of aggravated assault-
causing serious bodily injury. See N.T., 5/5/2014-5/7/2014, at 321.



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      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, supra, 909 A.2d at 1257, citing Alexander, supra.

      Here, Alloway contends the evidence did not establish he had the

specific intent to cause serious bodily injury to the victims. Specifically, he

asserts none of the Alexander factors were present:        “[n]o threats were

made, nor were any deadly weapons threatened or used in this assault.”

Alloway’s Brief at 13.      Rather, Alloway argues, the Commonwealth’s

evidence demonstrated that he punched each victim only one time, “which

was followed by assorted kicks” and another assailant dumping trash on the

victims.   Id. at 13.   Although he concedes the assault “was by no means

justified and the dumping of trash upon the two men was undignified and

disgraceful,” Alloway contends “there was no evidence presented that [he]

intended to cause serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” Id. at 13-14.

      The trial court, however, concluded the evidence was sufficient to

establish Alloway intended to cause serious bodily injury to the victims. The

court opined:


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     The yelling and accusations regarding child molestation evidence
     how heated [Alloway] and the other assailants were. All of the
     assailants crossed the street to attack the victims and all three
     assailants were involved in the kicking of the victims. [Alloway],
     as the only perpetrator who threw punches, seems to have been
     the major aggressor. After the initial incident had ended, all
     three perpetrators returned to the victims and resumed kicking
     them. That the victims never responded[,] yet were continually
     kicked[,] evidences the level of aggression at which [Alloway]
     operated, which speaks to intent.           Moreover, [Alloway’s]
     bloodied and scraped knuckles, in conjunction with the blood on
     [Alloway’s] pant leg, indicates intent to cause significant harm.

            The jury heard that when the police arrived there was so
     much blood that care had to be taken not to step in the blood.
     The expert medical witness testified that there were numerous
     fractures of bones in Mr. Corbin’s face. The expert opined that
     injuries of the sort Mr. Corbin sustained could lead to numbness,
     loss of motor function, damage to the eye, and loss of smell.
     Mr. Corbin’s memory, mood, and thought processing could have
     been altered by the injuries inflicted upon him. All of these
     dangers occurred after the assailants broke what the expert
     testified were durable bones requiring a large object or multiple
     blows to damage.

           As for Mr. Williams, the medical expert testified that Mr.
     Williams sustained a broken jaw and that the mandible is a
     strong bone. That Mr. Williams also had a gash to the back of
     his head to go with his broken jaw shows the indiscriminate
     frenzy of blows directed at Mr. Williams[’] head. And, while the
     jury did not find that serious bodily injury occurred to Mr.
     Williams, Mr. Williams did testify that his speech had been
     affected and he suffers pain when eating hard foods.

            We believe the circumstantial evidence presented shows
     that in their attempt, [Alloway] and his cohorts must have had a
     conscious object to engage in conduct that created a substantial
     risk of death or that would cause serious, permanent
     disfigurement, or protracted loss or impairment of function of
     any bodily member or organ. There can be little doubt but that
     when one continues to engage a downed opponent in fisticuffs
     and kicking and that opponent is not responding in kind then the
     objective is to cause serious bodily injury.




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Trial Court Opinion, 2/11/2015, at 8-9 (record citations omitted and

emphasis in original).

       We agree with the conclusion of the trial court.     While we recognize

that none of the factors listed in Matthew are present here,7 a review of the

totality of the circumstances surrounding the unprovoked, violent attack,

supports the jury’s determination that Alloway had the specific intent to

cause serious bodily injury to the victims. See Commonwealth v. Dailey,

828 A.2d 356, 360 (Pa. Super. 2003) (“It is clear … that a determination of

whether an appellant acted with intent to cause serious bodily injury must

be determined on a case-by-case basis” and “depending on the other

circumstances, even a single punch may be sufficient.”).

       Here, Alloway initiated the attack after he and his cohorts called one of

the victims a child molestor.         See N.T., 5/5/2014–5/7/2014, at 82.   His

single blow to the victims’ heads knocked each to the ground.        See id. at

84. However, rather than retreat, Alloway and his cohorts began kicking the

victims while they lay helpless on the front porch. See id. 85. This barrage

lasted three to five minutes. See id. at 85. The three culprits then fled to a

house across the street. However, they returned shortly thereafter to dump

a bag of trash on the victims, who remained lying on the porch, and then


____________________________________________


7
  We note that although Hess described each victim as an “older gentleman,”
there was no testimony regarding the relative size or age of the victims as
compared to the assailants. N.T., 5/5/2014–5/7/2014, at 82.



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began kicking the victims again.8          See id. at 86. The police, who arrived

“seconds” after the assault, found the two men partially “laying on top of

each other … [b]oth [] badly bleeding from the face and arms and other

multiple scrapes and cuts.” Id. at 88, 162-163. York Police Officer Clayton

Glatfelter testified that when he saw Corbin, the victim was “bleeding from

his face profusely” and his dentures were hanging out of his mouth. Id. at

163. He explained “[y]ou had to watch where you stepped to avoid stepping

in blood.” Id. at 164. Because Alloway and his cohorts left only seconds

before the police arrived, it is reasonable to assume they observed the same

scene as the police, and continued kicking the victims despite their beaten,

bloody    condition.       Compare       Alexander,    supra   (single   punch   to

unsuspecting victim’s head was insufficient to find defendant possessed

requisite intent to cause serious bodily injury).

       Accordingly, under the totality of the circumstances, we agree with the

conclusion of the trial court that the evidence presented at trial was

sufficient for the jury to find that Alloway possessed the specific intent to




____________________________________________


8
  Based upon the injuries sustained by the victims, as well as the
observations of the crime scene, it is evidence that at least some of the kicks
were aimed at the victims’ heads. See N.T., 5/5/2014-5/7/2014, at 142,
144 (testimony of expert trauma surgeon that Corbin’s broken facial bones
were caused by either “a very large object str[iking] him over the whole
area, or it was multiple blows” and Williams suffered from a broken jawbone
and “associated hematoma”).



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cause serious bodily injury to the victims.   Therefore, Alloway is entitled to

no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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