J-S13037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    LEEON ANTONIO FRASIER                           :
                                                    :
                       Appellant                    :   No. 1453 MDA 2019

          Appeal from the Judgment of Sentence Entered April 22, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005489-2018


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                FILED MARCH 27, 2020

        Leeon Antonio Frasier (Frasier) appeals from the judgment of sentence

imposed in the Court of Common Pleas of Dauphin County (trial court) after

his bench conviction of Aggravated Assault, Strangulation and Theft by

Unlawful Taking.1 We vacate Frasier’s judgment of sentence for Theft and

affirm as to the remaining convictions.

                                               I.

        We take the following factual background and procedural history from

our independent review of the certified record and the trial court’s September

25, 2019, opinion. Jessica Oren (Oren) and Frasier were in a long-term extra

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2702(a)(1), 2718(a)(1), and 3921, respectively.
J-S13037-20


marital relationship. On June 19, 2018, there was an incident between Oren

and Frasier at the Congress Inn Hotel in Harrisburg, Pennsylvania, resulting

in the filing of the underlying charges against Frasier.     (See N.T. Trial,

4/22/19, at 9-10).

      On July 12, 2018, Detective Robert Appleby of the Lower Swatara

Township Police Department conducted a follow-up investigation of the

incident and took a recorded statement from Oren at that time.         In that

statement, Oren told the detective that on June 19, 2018, Frasier texted Oren,

accusing her of having sex with another man and demanding that she come

outside to talk to him, texting, “Get out here now, or I’m bustin’ all your

windows out of your car.” (Id. at 6). When Oren went outside to meet Frasier,

he grabbed her by the neck and said, “oh, you’re fuckin’ another guy,” and

then began choking and yelling at her. (Id. at 8). Oren told Detective Appleby

that she was scared for her life and thought she was “gonna die,” but that she

could not remember if Frasier threatened to kill her. (Id. at 9).

      After choking her, Oren said that Frasier let go and started striking her

in the face with what she believed was a closed fist. (See id. at 10). She

was knocked out for at least a minute after being hit. (See id.). When she

woke, Frasier was “halfway up the hill” with Oren’s cell phone, which

previously had been either on her person or in her purse. (See id. at 13).

      As a result of this incident, Oren suffered a black eye that took two

weeks to heal. (See id. at 24). Officer Patrick Ribec, the initial responding


                                     -2-
J-S13037-20


officer, testified that immediately after the incident, Oren was frantic, with a

big welt above her left eye. (See N.T. Trial, at 62). Detective Appleby testified

that during the interview, “she had showed [him] a picture . . . the day after

of the injury to her eye which was very black and shut.” (Id. at 43). He

remembered that when he saw the picture, he was “taken back by the severity

of [Oren’s] black eye”.      (Id. at 43-44).    The Commonwealth provided

photographic evidence that showed bruising and redness around Oren’s neck.

(See Commonwealth’s Exhibit 4).

      Oren was a resistant trial witness. She stated that she did not want to

press charges against Frasier or testify against him, that she was on drugs on

the night of June 19, 2018, and that she could not remember many of the

events that transpired.     However, Officer Ribec testified that based on his

experience, she did not appear to be on drugs that night and she gave

Detective Appleby a detailed account of the incident and the events leading

up to it nearly a month after it occurred. (See id. at 62; Audio Statement, at

3-33). Furthermore, at trial, Oren stated for the first time that Frasier swung

at her in reaction to her swinging at him first.      (See N.T. Trial, at 13).

However, Detective Appleby said that in the three to four times he had spoken

with Oren previously, she never told him that she took the first swing at

Frasier. (See id. at 46).

      Frasier testified on his own behalf at trial. At the time of the incident,

he was on state parole for robbery. He admitted to having an affair with Oren,


                                      -3-
J-S13037-20


and that on the night in question, he waited until his wife was asleep before

leaving the house to track her down. He stated that he wanted to confront

her about lying, and that he “mugged her in her face, like slapped her [and]

she fell to the ground,” but that he did not strangle her. (Id. at 73; see id.

at 77). He testified that after picking up Oren’s cell phone and taking it, he

put it on the pavement of a nearby parking lot and called her aunt to tell her

where to find it, and that Oren’s aunt retrieved the cell phone from where

Frasier had left it and gave it back to her.    On cross-examination, Frasier

admitted that he threatened to break Oren’s windows if she did not come out

to talk to him because he thought she was either with another man or doing

drugs, that he was 5’7” and 300 pounds, and that he grabbed her cell phone

and walked away with it after she mentioned calling the police. (See id. at

78-81).

      At the conclusion of trial, the trial court convicted Frasier of the

previously mentioned charges.      The trial court noted in its opinion that

evidence suggested that Oren was terrified of retaliation by Frasier. (See Trial

Court Opinion, 9/25/19, at 5 n.7). On April 22, 2019, it sentenced him to a

term of not less than 54 nor more than 108 months’ incarceration on the

Aggravated Assault conviction. It sentenced him to serve not less than 12 nor

more than 24 months’ incarceration on the Theft by Unlawful Taking count, to

run concurrently with the Aggravated Assault, and to a term of not less than

54 nor more than 108 months’ incarceration on the Strangulation conviction,


                                     -4-
J-S13037-20


also to run concurrently.        The court denied his post-sentence motion and

Frasier timely appealed. Both he and the court complied with Rule 1925. See

Pa.R.A.P. 1925.

                                               II.

                                               A.

        On appeal, Frasier argues that the evidence was insufficient to sustain

his conviction for Aggravated Assault, Strangulation and Theft.2 (See Frasier’s

Brief, at 15-30).

____________________________________________


2   We apply the following standard of review:

        The standard we apply . . . 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 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.

Commonwealth v. Edwards, ___ A.3d ___, 2020 WL 702571, at *5 (Pa.
Super. filed Feb. 12, 2020) (citation omitted).




                                           -5-
J-S13037-20


       As to his Aggravated Assault conviction, Frasier argues that he should

have only been convicted of simple assault because the evidence was

insufficient to establish that he intended to cause serious bodily injury when

he placed his hands around Oren’s neck and punched her in the face that was

needed to make out the aggravated assault.3 (See Frasier’s Brief, at 15, 19-

23).

       Section 2702 of the Crimes Code provides, in pertinent part, that “A

person is guilty of aggravated assault if he . . . attempts to cause serious

bodily injury to another . . . intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life[.]”

18 Pa.C.S. § 2702(a)(1). “For aggravated assault purposes, an ‘attempt’ is

found where the accused, with the required specific intent, acts in a manner

which constitutes a substantial step toward perpetrating a serious bodily injury

upon another.” Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super.

2005), appeal denied, 879 A.2d 781 (Pa. 2005) (citation omitted).

       In this case, the Commonwealth provided evidence of a text message

exchange between Frasier and Oren that occurred immediately before the

assault. In those text messages, Frasier was angry, accused Oren of seeing

other men, and told her that if she did not immediately answer the door, he

was going to break all of her car’s windows. In her audio statement, Oren


____________________________________________


3 The Commonwealth conceded at trial that Oren did not actually sustain
serious bodily injury. (See N.T. Trial, at 89).

                                           -6-
J-S13037-20


said that Frasier grabbed her by the neck until she could not breathe and

indicated that she thought Frasier was going to kill her. Frasier cut off Oren’s

air to the point where she thought she was going to black out. Further, he

punched her in the face until she passed out, and the pictures submitted by

the Commonwealth show that her face was black and blue and “was not

merely a ‘slap’ by [Frasier].” (Trial Ct. Op., at 5). The court also noted the

size difference between Frasier and Oren, and that Frasier “grossly outweighed

[her].” (Id.).

      Although it noted that Oren stated that she did not want to press

charges against Frasier as well as downplaying the relevant events, the trial

court found her more descriptive statement to Detective Appleby to be more

credible and relied on the version of events recounted therein because, at

trial, “[t]here was evidence to suggest that [Oren] was terrified of retaliation

from [Frasier].” (Id. at 5 n.7).

      Based on the foregoing, we conclude there is sufficient evidence to

support Frasier’s conviction for Aggravated Assault when he “intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference

to the value of [Oren’s] life,” threatened, choked and punched her, resulting

in her passing out and suffering a severe black eye. 18 Pa.C.S. § 2702(a)(1);

Gray, supra at 567; see also Edwards, supra at *5. Because this was

sufficient to establish his intent to cause severe bodily injury to Oren, Frasier’s




                                       -7-
J-S13037-20


challenge to the sufficiency of the evidence to establish the crime of

Aggravated Assault lacks merit.

                                      B.

      As to his challenge to his conviction of Strangulation, Frasier maintains

that the evidence was insufficient because the Commonwealth provided no

eyewitness, medical testimony or any video surveillance to support the charge

of Strangulation. He also contends the degree to which he impeded Oren’s

breathing when he had his hands around her neck was minimal, if at all. (See

Frasier’s Brief, at 25-28).

      Section 2718 of the Crimes Code provides, in pertinent part, “[a] person

commits the offense of strangulation if the person knowingly or intentionally

impedes the breathing or circulation of the blood of another person by . . .

applying pressure to the throat or neck[.]” 18 Pa.C.S. § 2718(a)(1).

      We first observe that Frasier’s claim that there was no evidence provided

of the Strangulation is belied by the record. The Commonwealth introduced

and the court admitted Oren’s statement to the police in which she stated that

Frasier grabbed her by the neck and choked her. (See Trial Ct. Op., at 6; see

also Audio Statement, at 8-9). She stated that she was scared for her life

and thought she was going to die because she could not breathe and her air

was cut off. (See Audio Statement, at 8-9). The Commonwealth provided

photographic evidence that showed bruising and redness around Oren’s neck.

(See Commonwealth’s Exhibit 4).


                                     -8-
J-S13037-20


      Moreover, there is no requirement that the Commonwealth provide

either medical testimony or surveillance footage to support a charge of

Strangulation. The fact that Oren told Detective Appleby that her breathing

was impeded to the point that she thought she was going to pass out and she

was afraid for her life also contradicts Frasier’s claim that he did not

intentionally or knowingly impede her breathing and that the degree of the

impediment was minimal.       While we acknowledge that Oren testified that

Frasier only impeded her breathing “a little bit,” as stated previously, the court

observed that, at trial, Oren appeared extremely fearful of Frasier and of his

possible retaliation against her, but it found her statement to Detective

Appleby, which provided a much more detailed account of the incident, to be

credible.   Finally, although Frasier claims that “a little bit” of breathing

impediment is not sufficient to establish Strangulation, there is nothing in the

statute that sets the degree of breathing that is required to be impeded before

Strangulation has occurred.

      Based on the foregoing, the Commonwealth provided sufficient evidence

to establish the crime of Strangulation making Frasier’s challenge to the

sufficiency of the evidence meritless.

                                         C.

      Finally, Frasier maintains that the evidence was insufficient to support

his Theft conviction because it showed that he did not intend to keep Oren’s

cell phone permanently but instead, placed the undamaged property in a safe


                                      -9-
J-S13037-20


location from which it was retrieved by Oren’s aunt. (See Frasier’s Brief, at

29-30).

      Pursuant to Section 3921 of the Crimes Code, “[a] person is guilty of

theft if he unlawfully takes, or exercises unlawful control over, movable

property of another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a)

(emphasis added.). The Crimes Code defines “deprive” as:

      (1) To withhold property of another permanently or for so
      extended a period as to appropriate a major portion of its
      economic value, or with intent to restore only upon payment of
      reward or other compensation; or

      (2) to dispose of the property so as to make it unlikely that the
      owner will recover it.

18 Pa.C.S. § 3901.    To make out the offense then, the person taking the

property must do so either permanently or an extended period and/or dispose

of the property with little likelihood that the owner will get the property back.

      In this case, Oren told police that she had her cell phone before she

blacked out, and that when she woke up, Frasier had taken it and was walking

away in possession of it. It is undisputed that Frasier then left the cell phone

on the ground in a parking lot, called Oren’s aunt to retrieve it, and she did

so, returning the cell phone to Oren. As can be seen, Frazier did not intend

to keep the property permanently or for an extended period and did dispose

of it, making it unlikely Oren would recover it. Accordingly, the trial court

erred in finding that there was sufficient evidence to establish that he

committed Theft by Unlawful Taking.


                                     - 10 -
J-S13037-20


     Accordingly, we reverse the court’s conviction of Frasier for Theft by

Unlawful Taking and vacate that portion of Frasier’s judgment of sentence as

to Theft. Remand for resentencing is not necessary, however, because the

Theft sentence was imposed to run concurrently with the sentence for

Aggravated Assault. Hence, vacating the judgment of sentence for Theft does

not affect the overall sentencing scheme. See Commonwealth v. Lomax,

8 A.3d 1264, 1268-69 (Pa. Super. 2010) (remand is not required when

vacating a judgment of sentence will not disturb overall sentencing scheme).

     Judgment of sentence for Theft vacated. Judgment of sentence affirmed

as to remaining convictions.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020




                                   - 11 -
