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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    ROBERT HAYWARD                             :
                                               :
                       Appellant               :   No. 3035 EDA 2018


         Appeal from the Judgment of Sentence Entered June 18, 2018,
             In the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0004934-2017.


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED DECEMBER 12, 2019

        Robert Hayward appeals from the judgment of sentence imposed after

the trial court convicted him of aggravated assault (F2), simple assault,

recklessly endangering another person (REAP), and possession of an

instrument of crime (PIC).1 On appeal, Hayward challenges the sufficiency of

the evidence to support his convictions for aggravated assault and REAP. After

careful review, we affirm.

        Briefly, the relevant facts leading to Hayward’s convictions follow. On

May 23, 2017, Hayward failed to stop at a stop sign and rear-ended Lakisha

Bethea near the intersection of 25th and Huntingdon Streets in Philadelphia.

Hayward and Bethea got out of their cars to assess the damage. Hayward

was irate and started yelling at Bethea in a threatening manner. In the victim’s
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1   18 Pa.C.S.A. §§ 2702(a)(4), 2705, 2701(a), and 907(a).
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words, Hayward said, “B, you hit my car. You don’t know who you f’ing with.”

He then grabbed her by her hair and started punching her in the face.

Although Bethea tried to get him off of her, Hayward overpowered her; Bethea

was only about 150 pounds and 5’ 2”. He continued to yell at her, “B[], you

don’t know me. I will kill you.” Hayward then grabbed a stick, which was 3

feet long and about 1 ½ inches in diameter and wrapped in black tape, from

his vehicle and rammed it into Bethea’s head twice. As traffic approached and

onlookers yelled at Hayward to stop, he took off in his car. Shortly thereafter,

the police apprehended Hayward and recovered the stick he used to hit

Bethea.

      As a result of Hayward’s attack, Bethea’s face was swollen and cut; her

tooth also was chipped. At the hospital, Bethea was given liquid stitches for

the cut and an ice pack for the swelling. She sustained no other head injury

or fractures.   Following the attack, Bethea suffered from back pain, which

required physical therapy, and panic attacks.

      The court conducted a bench trial and found Hayward guilty of

aggravated assault with a deadly weapon, a felony of the second-degree,

simple assault, REAP, and PIC; he was acquitted of aggravated assault, a

felony of the first-degree. Hayward was sentenced to 32 to 120 months of

incarceration on the aggravated assault charge and 15 to 60 months of

incarceration on the PIC charge, to run concurrently. No additional penalty

was imposed on the REAP charge; the simple assault conviction merged.



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      Hayward filed a post-sentence motion, which was denied by

operation law. Hayward timely appealed. Both Hayward and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Hayward raises the following two issues for our review:

      A. Was not the evidence insufficient to convict [Hayward] of
      aggravated assault as a felony of the second degree where the
      stick employed by [Hayward] to strike [Bethea] was not used to
      produce death or serious bodily injury, and thereby did not
      constitute a deadly weapon?

      B. Was not the evidence insufficient to convict [Hayward] of
      recklessly endangering another person where [Hayward] did not
      place [Bethea] in fear of death or serious bodily injury?

Hayward’s Brief at 3.

      In both of his issues, Hayward challenges the sufficiency of the evidence.

When analyzing whether the evidence was sufficient to support a conviction,

this Court must “view the evidence in the light most favorable to the

Commonwealth as the verdict winner in order to determine whether the jury

could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence

established at trial need not preclude every possibility of innocence and the

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

Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012).                 “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.” Commonwealth



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v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc). Additionally, this

Court cannot “re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id. A challenge to the sufficiency of the evidence presents

a pure question of law and, as such, our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065,

1076 (Pa. 2017).

       Hayward first contends that the evidence was insufficient to support his

conviction for aggravated assault (F2). Specifically, he argues that his assault

of Bethea did not involve a deadly weapon. According to Hayward, because

the stick he used to hit Bethea did not cause death or serious bodily injury,

the trial court erred in classifying it as a deadly weapon.      Therefore, his

conviction should be vacated. Hayward’s Brief at 8. We disagree.

       A person is guilty of aggravated assault (F2) if he attempts to cause or

intentionally or knowingly causes bodily injury2 to another with a deadly

weapon. 18 Pa.C.S.A. § 2702(a)(4). A deadly weapon as it pertains to assault

offenses is “[a]ny 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.A. § 2301 (emphasis added).
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2Bodily injury is “[i]mpairment of physical condition or substantial pain.” 18
Pa.C.S.A. § 2301.



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What constitutes a “dangerous weapon” depends not on the nature of the

object itself, but on its capacity given the manner of its use, to

endanger life or inflict great bodily harm.”                Commonwealth v.

McCullum, 602 A.2d 313 (Pa. 1992) (emphasis added). Thus, an ordinary

item may be considered a deadly weapon under certain circumstances.

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

Commonwealth v. Pepperman, 45 A.2d 35 (Pa. 1946) (holding that even

a bedroom slipper can constitute a dangerous or deadly weapon based upon

the force exerted to beat a man to death with it). Based upon our review of

the record, we conclude that the Commonwealth presented sufficient evidence

for the trial court to find that the stick which Hayward hit Bethea with

constituted a deadly weapon, given the manner in which it was used.

     Here, the evidence showed that Hayward was irate after he rear-ended

Bethea. He yelled at her and threatened to kill her. He grabbed Bethea by

the hair and repeatedly punched her, leaving her dazed and confused.

Hayward then took a stick, which was substantial in size, and forcefully

rammed it against Bethea’s head. Thus, considering Hayward’s demeanor,

his statements, and his forceful use of the stick on a vital part of Bethea’s

body, the stick constituted a deadly weapon.

     This conclusion is warranted even though Bethea did not actually sustain

serious bodily injury as Hayward contends.        Whether a particular object

actually causes serious injury or death is irrelevant.      Instead, the critical

consideration is whether the object as used had the capacity to cause serious

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bodily injury or death.        See McCullum, supra; Commonwealth v.

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

in a sandwich was a deadly weapon even though the amount was insufficient

to cause serious bodily injury). Under the circumstances, as discussed above,

Hayward’s use of the stick to hit Bethea in the head, in his state of mind,

certainly was capable of causing much more serious injuries, even death,

which is sufficient to establish that the stick was a deadly weapon.

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

Commonwealth, we conclude that there was sufficient evidence to sustain

Hayward’s conviction for aggravated assault (F2).     Accordingly, Hayward’s

first issue entitles him to no relief.

      Hayward next contends that the evidence was insufficient to support his

conviction for REAP.      Specifically, he argues that the evidence failed to

establish that Bethea was in danger of death or seriously bodily injury.

Primarily, he bases this contention on the fact that he did not swing the stick

at Bethea or use great force. Consequently, his conviction for REAP should be

vacated. Hayward’s Brief at 14. Again, we disagree.

      The Pennsylvania Crimes Code defines recklessly endangering another

person as follows:

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place
      another person in danger of death or serious bodily injury.




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18 Pa.C.S.A. § 2705 (emphasis added). When making this determination, we

are mindful of the following:

      Our law defines “serious bodily injury” 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.” To sustain a conviction
      under section 2705, the Commonwealth must prove that the
      defendant had an actual present ability to inflict harm and not
      merely the apparent ability to do so. Danger, not merely the
      apprehension of danger, must be created. The mens rea for
      recklessly endangering another person is “a conscious disregard
      of a known risk of death or great bodily harm to another person.”

Commonwealth v. Hopkins, 747 A.2d 910, 915–916 (Pa. Super. 2000)

(internal citations omitted). Based on our review of the record, we conclude

that the Commonwealth presented sufficient evidence for the trial court to

conclude that Hayward’s actions created a situation which placed or could

have placed Bethea in danger of serious bodily injury or death as

contemplated by this offense.

      As noted above, Hayward was angry after the accident. He repeatedly

punched Bethea in the face, and then rammed a substantial stick into the side

of her head. The head is a vital part of the body, susceptible to severe, even

life threatening, trauma, particularly when force, such as Hayward used, is

exerted on it. Under these circumstances it is evident that Hayward had the

actual ability to harm Bethea. We therefore conclude that by hitting Bethea

in the head, Hayward placed, or certainly may have placed, Bethea in danger

of death or serious bodily injury. Again, the fact that Bethea only sustained

minor injuries and did not sustain “serious bodily injury” does not ipso facto

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establish that Hayward’s actions did not place her in danger of such injury.

See Commonwealth v. Lawton, 414 A.2d 658, 662 (Pa. Super. 1979). To

the contrary, by hitting Bethea in the head with a stick, when in a state of

rage, Hayward put Bethea in danger of death or serious bodily injury.

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

Commonwealth, we conclude that there was sufficient evidence to sustain

Hayward’s conviction for recklessly endangering another person. Accordingly,

Hayward’s second issue also entitles him to no relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/19




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