J-S62040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MICHAEL G. FERKO

                                                       No. 177 EDA 2014


               Appeal from the Order Dated December 13, 2013
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000943-2013


BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED APRIL 15, 2015

        The Commonwealth appeals from the order entered December 13,

2013, in the Chester County Court of Common Pleas granting the motion for

judgment of acquittal made by Appellee, Michael G. Ferko, on one count of

aggravated assault.1        After Ferko was convicted by a jury of terroristic

threats, simple assault (two counts), and aggravated assault – attempts to

cause serious bodily injury,2 he moved for a judgment of acquittal on the

charge of aggravated assault, which the trial court granted. On appeal, the

Commonwealth contends the court erred in granting Ferko’s motion because
____________________________________________


1
    18 Pa.C.S. § 2702(a)(1).
2
   18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1), (a)(3), and 2702(a)(1),
respectively. The trial court also found Ferko guilty of the summary offense
of harassment. 18 Pa.C.S. § 2709(a)(1).
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the evidence clearly supported the jury’s determination that Ferko attempted

to cause serious bodily injury to the victim. For the reasons set forth below,

we are compelled to reverse the order of the trial court, reinstate the jury’s

verdict, and remand for further proceedings.

       The trial court summarized the testimony presented at Ferko’s trial as

follows:

       During the early morning hours of January 21, 2013, [Ferko] and
       his victim, J.M., were living together at the Pickering Inn, a hotel
       in Phoenixville, PA. They had been together 4 or 5 months as
       boy[friend] and girl[friend]. On that day, they had been drinking
       all day long – beer and vodka. J.M. was intoxicated, as was
       [Ferko]. J.M. testified that she wanted to party in the next
       apartment, but that [Ferko] wanted to go to bed. [Ferko]
       became agitated, which sparked the disagreement that led to
       J.M.’s assault by [Ferko]. J.M. resisted and tried to get out of
       the apartment. She clawed at his arms to get him to let her go.
       [Ferko] backed away eventually, and the pair started drinking
       again.    When [Ferko] went in [the] bathroom,[3] J.M. ran
       upstairs, but [Ferko] followed her and took her back to their
       apartment. During the course of the argument and physicality
       that morning, reported to have lasted from 45 minutes to 3
       hours, J.M. dialed 911 on her cell phone. While she did not
       speak to the 911 operator, the operator heard the melee and
       notified police, who were able to triangulate J.M.’s location, and
       responded to the hotel at 5:18 A.M. “for a report of a domestic.”
       There, police confronted both [Ferko] and J.M. and, as reported
       in the police affidavit, observed minor cuts and abrasions on
       J.M.’s face and chest, who reported [Ferko] had punched her
       numerous times and threatened to kill her.             [Ferko] was
       arrested, and J.M. was taken to Phoenixville Hospital, where she
       was seen in the emergency room by a Physician’s Assistant, and
       diagnosed with a pressure-punctured left [eardrum], a fractured
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3
  The rooms in the hotel shared a bathroom, which was located in the
hallway, “[r]ight next door” to Ferko’s room. N.T., 12/2/2013, at 30.



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       rib and a broken tooth. The diagnosis was verified by the PA’s
       supervising physician, who did not examine J.M. The evidence
       at trial was that the punctured eardrum was consistent with a
       blow to the side of the face. The injuries, with the exception of
       the broken tooth, were photographed and shown to the jury.
       During the assault, [Ferko] suffered scratches on his arms,
       which were photographed and shown to the jury. J.M. did not
       seek follow-up care for her injuries.

Trial Court Order, 1/9/2014 at n.1.

       At the conclusion of the testimony, the jury was instructed on the

following charges:        aggravated assault - causing serious bodily injury;

aggravated assault – attempts to cause serious bodily injury; simple assault

– attempts to cause bodily injury; simple assault – attempts by physical

menace to put another in fear of serious bodily injury; and terroristic

threats. As noted above, on December 4, 2013, the jury returned a verdict

of guilty on one count of aggravated assault – attempts to cause serious

bodily injury, as well as both counts of simple assault, and terroristic

threats.4 The jury, however, found Ferko not guilty of aggravated assault –

causing serious bodily injury.         Following the verdict, Ferko made an oral

motion for judgment of acquittal on the charge of aggravated assault –

attempts to cause serious bodily injury.5 On December 13, 2013, the trial

____________________________________________


4
  In addition, the trial court found Ferko guilty of the summary offense of
harassment, but not guilty of the summary offense of disorderly conduct.
See 18 Pa.C.S. §§ 2709(a)(1) and 5503(a)(1), (4).
5
  Ferko originally moved for judgment of acquittal on this charge at the close
of the Commonwealth’s case-in chief. See N.T., 12/3/2013, at 171. After
taking the matter under advisement, the trial court denied the motion the
(Footnote Continued Next Page)


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court granted Ferko’s motion. Thereafter, the Commonwealth filed a motion

for reconsideration, which the trial court denied on January 9, 2014. This

timely appeal followed.6

      On appeal, the Commonwealth argues the trial court erred in granting

Ferko’s motion for judgment of acquittal.         Specifically, the Commonwealth

contends the trial court applied an incorrect standard of review, and viewed

the evidence in a light most favorable to Ferko, rather than a light most

favorable to the Commonwealth, as verdict winner.          See Commonwealth’s

Brief at 23.   In support of this argument, the Commonwealth asserts the

court overlooked the testimony of a neighbor who witnessed the assault.

Moreover, it claims the trial court improperly considered Ferko’s voluntary

intoxication as a factor that “militate[d] against [his] formation of a specific

intent to commit aggravated assault[.]” Id. at 29.

                       _______________________
(Footnote Continued)

next day, stating “I think under the facts of this case this is a jury
question.” N.T., 12/4/2013, at 4 (emphasis supplied).
6
  The Commonwealth certified in its notice of appeal that the trial court’s
order “effectively terminates the prosecution with respect to the charge of
Aggravated Assault.” Notice of Appeal, 1/10/2014. See Pa.R.A.P. 311(d);
Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985).

      The trial court did not direct the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
nor did the court file an opinion pursuant to Pa.R.A.P. 1925(a). Rather, the
reasons for the trial court’s ruling are reflected in a footnote in its January 9,
2014, order denying the Commonwealth’s motion for reconsideration.




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     Our review of a ruling granting a motion for judgment of acquittal is

guided by the following:

     “A motion for judgment of acquittal challenges the sufficiency of
     the evidence to sustain a conviction on a particular charge, and
     is granted only in cases in which the Commonwealth has failed
     to carry its burden regarding that charge.” As we have stated:

        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 [that of] 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 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.

     “It is well recognized, however, that a criminal conviction cannot
     be based upon mere speculation and conjecture.”

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citations

omitted), appeal denied, 93 A.3d 462 (Pa. 2014).

     At issue in the present case is Ferko’s jury conviction of aggravated

assault – attempting to cause serious bodily injury.       See 18 Pa.C.S. §

2702(a)(1).


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            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. §
     2702(a)(1). “Serious bodily injury” means “[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. §
     2301. “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.” 18
     Pa.C.S. § 901(a). 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.
     Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887,
     889 (1978).

           “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....”
     18 Pa.C.S. § 302(b)(1)(i). “As intent is a subjective frame of
     mind,   it  is  of   necessity    difficult  of   direct    proof.”
     [Commonwealth v. ]Gruff, [822 A.2d 773, 776 (Pa. Super.
     2003), appeal denied, 863 A.2d 1143 (Pa. 2004)] (quoting
     Commonwealth       v.     Roche,      783    A.2d     766,     769
     (Pa.Super.2001)). The intent to cause serious bodily injury may
     be    proven   by     direct   or      circumstantial    evidence.
     Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 542
     (2003).

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

     In Matthew, supra, 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




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not, in fact, suffer serious bodily injury as a result of the assault.      The

Matthew Court explained:

      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. All we hold is that the evidence in the
      instant case is insufficient to support such a finding.” Id., at
      889-90.

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

      In Matthew, the Court determined that the defendant’s actions in

placing a loaded gun to the throat of the victim, then repeatedly pointing the

gun at the victim while threatening to kill him, was sufficient to establish the

defendant intended to inflict serious bodily injury, although the victim, was

not, in fact, injured at all. Id. at 1258-1259. The Court opined:

            Regarding the intent element, there was sufficient
      evidence for the fact-finder to conclude appellant possessed the
      requisite intent to inflict serious bodily injury upon [the victim]
      since he repeatedly threatened to kill [the victim]. See
      [Commonwealth v.] Hall, [830 A.2d 537, 542 (Pa. 2003)]
      (intent can be found where one verbalizes reasons for his
      actions). If the threats alone were not enough to establish his
      intent, the fact-finder could determine his intent from pushing
      the loaded gun against [the victim’s] throat and otherwise
      pointing it at him. See id. (“Where the intention of the actor is
      obvious from the act itself, the [fact-finder] is justified in


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      assigning the intention that is suggested by the conduct.”
      (citation omitted)).

Id. at 1259.

      Here, the trial court distinguished Matthew from the facts of this case

because Ferko “employed no weapon and made no repeated threats against

[the victim].” Order, 1/9/2014, at n.1. Rather, the trial court concluded:

      [T]he angry encounter between [Ferko] and [the victim] during
      which the assault occurred was variously described as having
      lasted from 45 minutes to 3 hours.          It defies credulity to
      conclude under the factual circumstances of this case, had
      [Ferko] harbored the specific intent to cause serious bodily injury
      to [the victim], he could not have accomplished that purpose
      and intent at any time during this protracted domestic incident.
      Instantly, [the] Commonwealth was required to prove beyond a
      reasonable doubt from the circumstances surrounding the
      assault that [Ferko] had the specific intent to cause the type of
      harm that in fact did not occur in this instance. As to [Ferko’s]
      malicious conduct, []where malice is based on a reckless
      disregard of consequences, it is not sufficient to show mere
      recklessness; rather, it must be shown the defendant
      consciously disregarded an unjustified and extremely high risk
      that his actions might cause death or serious bodily injury. A
      defendant must display a conscious disregard for almost certain
      death or injury such that it is tantamount to an actual desire to
      injure or kill; at the very least, the conduct must be such that
      one could reasonably anticipate death or serious bodily injury
      would likely and logically result. Commonwealth v. O’Hanlon,
      653 A.2d 616, 618 (1995).             The trial evidence clearly
      demonstrated that both [Ferko] and [the victim] were
      intoxicated, a factor that militates against [Ferko’s] formation of
      a specific intent to commit aggravated assault under all of the
      instant facts.

Id.

      Therefore, the trial court determined the Commonwealth presented

insufficient evidence of Ferko’s specific intent to cause serious bodily injury

to the victim because: (1) Ferko did not use a weapon to assault the victim;

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(2) the assault occurred over a long period of time so that Ferko could have

inflicted serious bodily injury upon the victim if he had intended; and (3)

both Ferko and the victim were intoxicated at the time of the assault.

      The Commonwealth counters, however, that in reversing the jury’s

verdict, the trial court viewed the evidence in a light most favorable to

Ferko, rather than the light most favorable to the Commonwealth, as verdict

winner.   Moreover, in doing so, the court “overlooked” the testimony of

Ferko’s   neighbor,    Terri   Bearden,    who     witnessed    the      assault.

Commonwealth’s Brief at 29.

      A review of the trial testimony supports the Commonwealth’s claims.

The victim testified that when she attempted to leave the apartment in the

early morning hours of January 21, 2013, Ferko “[t]old [her] he didn’t want

[her] to leave, that [she] belonged in bed with him.” N.T., 12/2/2013, at

20. The argument soon turned physical, when Ferko “smacked [her] upside

[her] head a couple of times,” and, after she fell back onto the couch, he

“started punching [her] in [her] ribs and … upper body area.”         Id.    She

claimed Ferko was “straddled over top” of her, and that she began “clawing

at his arms” to get him off. Id. at 22-23. The victim further testified that

while Ferko was hitting her, “he said he was going to kill [her].” Id. at 32.

      When Ferko finally relented, the victim went in search of a male

neighbor who lived upstairs. When she could not find him, she headed back

downstairs where she encountered Ferko who was “coming up the stairs to

get [her] and bring [her] back down.” Id. at 24. The victim testified that

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they started arguing again, and Ferko began “smacking [her] around.” Id.

at 25. She stated that when Ferko went to the bathroom in the hallway, she

dialed 911 on her cell phone and left the line open in the apartment so that

the police would come. She testified, “I was afraid [Ferko] was going to kill

me. He was hitting me over and over again and wasn’t stopping.” Id. The

victim kept Ferko out of their apartment until the police arrived.

       A neighbor, Terri Bearden, testified that she was in her apartment next

door with her door closed when she heard the victim screaming, “stop it,

leave me alone, get off of me.”                N.T., 12/3/2013, at 39.   She started

banging on the victim’s door to see if the victim was OK. Ferko answered

the door, and Bearden saw the victim crying. She asked the victim to go to

the store with her so that Ferko could calm down.              Bearden testified that

Ferko responded, “she is not going anywhere and took [the victim] and

threw her into this … dresser[-]like thing that was in their room, and

slammed the door.” Id. at 40. Bearden was able to “peek[] through” the

door because the hinge was broken.7 Id. at 41. She witnessed Ferko with

his hands on the victim’s throat, screaming, “I’m just going to kill you,” as

he was choking the victim.         Id.   Bearden testified that Ferko then started

punching the victim in her face with a closed fist. Id. at 43.



____________________________________________


7
  Bearden testified that although she could see in the room, she could not
open the door. N.T., 12/2/2013, at 43.



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       Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, the testimony reveals that Ferko threatened to kill the

victim, while he slapped, punched, and choked her over a prolonged period

of time. Further, with regard to the Alexander factors, we note that while

Ferko did not use any weapon during the assault, the record reveals that he

was much larger than the 5’2”, 125-pound victim,8 and that he continued to

assault the victim, on and off, until the police finally arrived.

       Moreover, we note the Matthews Court rejected the argument that

specific intent is lacking when a defendant “does not avail himself of the

opportunity to follow through with threats” to harm the victim. Matthews,

supra, 909 A.2d at 1258.           Here, the jury was properly instructed on the

elements of the crime of aggravated assault – attempts to cause serious

bodily injury. See N.T., 12/4/2013, at 98-102. Furthermore, the trial court

instructed the jury on the totality of the circumstances test set forth in

Alexander, and told them that Ferko’s intent “may be proven by the totality

of the defendant’s conduct and any threats made during the encounter with

the victim.”    Id. at 101.      Therefore, the jury, as fact finder, was left to

determine whether the testimony of the victim and Bearden was credible,

and if so, whether Ferko’s words and actions demonstrated his intent to


____________________________________________


8
  N.T., 12/2/2013, at 23. See Criminal Complaint, 1/21/2013, at 1 (listing
Ferko’s height and weight as 6’1” and 175 pounds).




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inflict serious bodily injury upon the victim. We conclude that the evidence

presented, which the jury did find credible, was sufficient for them to return

a verdict of guilty on that charge.

        Lastly, with regard to the trial court’s statement that the intoxication

of both Ferko and the victim “militates against [Ferko’s] formation of specific

intent,”9 we note that such a consideration is improper under the law. It is

axiomatic that voluntary intoxication is not a defense to a criminal charge,

nor may evidence of intoxication be introduced to negate the intent element

of an offense.      18 Pa.C.S. § 308.10        Therefore, the fact that Ferko was

intoxicated at the time of the assault was irrelevant to the question of

whether he possessed the specific intent to inflict serious bodily injury on the

victim.

        Accordingly, because we agree with the Commonwealth that the jury

was presented with sufficient evidence to support a verdict of aggravated

assault – attempts to cause serious bodily injury, we are compelled to

reverse the order of the trial court granting Ferko’s motion for judgment of

acquittal on that charge, reinstate the jury’s verdict, and remand for further

proceedings.
____________________________________________


9
    Trial Court Order, 1/9/2014, at n.1.
10
   The only exception to this rule is for a charge of first degree murder,
where evidence of intoxication may be introduced “whenever it is relevant to
reduce murder from a higher degree to a lower degree of murder.” 18
Pa.C.S. § 308.



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     Order reversed. Jury’s verdict reinstated. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2015




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