J-S50015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ZACK CLAYTON DOVE

                           Appellant                  No. 2224 MDA 2015


             Appeal from the Judgment of Sentence August 26, 2015
       in the Court of Common Pleas of Lebanon County Criminal Division
                        at No(s): CP-38-CR-0001661-2014

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 30, 2016

        Appellant, Zack Clayton Dove, appeals from the judgment of sentence

entered in Lebanon County Court of Common Pleas after a jury found him

guilty of aggravated assault attempting serious bodily injury and causing

bodily injury with a deadly weapon.1 His sole challenge on appeal is that the

evidence was insufficient to establish he intended to cause serious bodily

injury. We affirm.

        The trial testimony, when read in the light most favorable to the

Commonwealth, established the following. Appellant had been staying with

his longtime friend Brandon Batz at the home Batz shared with his girlfriend,

Brittany Straub, and their children.        During that stay, Appellant had


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1), (4).
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demonstrated increasing paranoid and suspicious behavior. Appellant, who

testified at trial, admitted to smoking “meth” or “bath salts” before the

altercation in question. N.T. Trial, 7/8/15, at 183.

      On August 31, 2014, Appellant accused Batz of poisoning him. Later,

Appellant took Batz’s cell phone and ran out the kitchen door to the

backyard and around the house. Batz ran after Appellant, but stopped his

pursuit in the backyard, where he was joined by Straub.            After several

minutes, Appellant emerged from the bushes and accused Batz of poisoning

him. Appellant then charged at Batz with a knife. Appellant jumped at Batz,

who crouched down in a defensive position in an attempt to tackle Appellant.

Appellant stabbed Batz in the back and fled.           Batz did not realize that

Appellant had stabbed him and thought that he had only been punched. The

Commonwealth, on a map of the area (“Exhibit 1”), marked the location of

this incident with the number one (“Location 1”).2 Id. at 27.

      Batz and Straub then followed Appellant to an area near the

intersection of Mill Avenue and Route 422, marked on Exhibit 1 with the

number two (“Location 2”). Id. at 29. Both Batz and Straub attempted to

calm Appellant, but Appellant continued to accuse Batz of poisoning him.

Batz then realized he had been stabbed. Appellant lunged at Batz with the

knife and came within inches of striking him.


2
  This Court was not provided with the exhibits referred to in the trial
transcript.



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      Appellant then fled back toward Batz’s residence. Straub went inside

the home and locked the doors. Batz intercepted Appellant in his backyard,

near a clothesline, marked on Exhibit 1 with the number three (“Location

3”), where Appellant lunged at Batz’s stomach or chest area with the knife.

Id. at 29.   Kevin Gee, an assistant chief of the local ambulance company

and Batz’s neighbor, radioed in an emergency and interceded at Location 3.

Appellant fled, placed the knife on an air conditioning unit, and ran across

the street to a church parking lot. After checking Batz to ensure his lung

was not punctured, Gee followed Appellant.

      Numerous witnesses observed the altercation at Location 2, near the

intersection of Route 422 and Mill Avenue, and notified authorities.     Gee

observed the altercation at Location 2 from his home, as noted above,

confronted Appellant at Location 3, and followed him to the church parking

lot. An off-duty Maryland Police officer, Noah Grubic, was a passenger in his

girlfriend’s car.   Grubic witnessed Appellant lunging at Batz at Location 2.

He told his girlfriend to stop in the church parking lot and call 911. After

reaching the parking lot, Grubic observed Appellant duck behind an air

conditioner and cross the street to the church parking lot. Chris Cartagena,

an employee at a McDonald’s restaurant, also witnessed the altercation at

Location 2 from the drive-through window.        Both Grubic and Cartegena

testified they believed Appellant stabbed Batz at Location 2.




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      Police officers were dispatched at approximately 12:42 p.m.         Grubic

flagged down the responding officers at the church parking lot and assisted

in   Appellant’s   arrest.   Officers    recovered   a   baggie   of   suspected

methamphetamine from Appellant and two empty knife sheaths. Appellant

was uncooperative and appeared to be under the influence of a controlled

substance. He tried to walk away several times and attempted to kick out

the windows of the cruiser while the door was open. Appellant believed he

saw Batz, although Batz was not present at the scene of the arrest. Officers

later recovered one knife from the air conditioning unit, but did not find a

second knife.

      Batz was treated at Hershey Medical Center for the stab wound. The

wound was six to seven centimeters long and required six internal and eight

external sutures to close.

      Several days after the incident, Appellant’s mother delivered a letter to

Batz from Appellant as well as a television for Batz’s children.        At trial,

Appellant, in relevant part, admitted to stabbing Batz in the backyard of his

home and then running into the street. Appellant continued to accuse Batz

of poisoning him and asserted Batz previously attacked him inside Batz’s

home. He did not recall lunging at Batz at Locations 2 and 3. In his letter

addressed to Batz, he stated:

         I was tweaking on meth and thought everyone was trying
         to kill me. I could of [sic] put that knife anywhere. I know
         all the vital spots, but I chose the back because it just
         seemed fitting. My point is I didn’t try to kill you. I,


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         however, almost died at the hospital vis-à-vis meth
         overdose.

N.T. at 162.

      On September 3, 2014, Appellant was charged with two counts of

aggravated assault.3 A jury trial was held on July 8, 2015. The jury found

Appellant guilty on both counts.       The trial court, on August 28, 2015,

sentenced Appellant to seven to twenty years’ incarceration in a state

correctional institution.4   Appellant filed a timely post-sentence motion on

September 3, 2015, which the court denied on November 20, 2015.

      Appellant filed a timely notice of appeal to the Superior Court on

December 16, 2015.       On December 17, 2015, the trial court entered an

order for Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant timely

complied, and the trial court entered its Rule 1925(a) opinion on January 7,

2016.5 This appeal followed.

      Appellant raises the following issue for our review: “Did the trial court

err in denying [A]ppellant’s motion for the judgment of acquittal as to count


3
  Appellant was also charged with possession of a controlled substance and
possession of drug paraphernalia. The Commonwealth withdrew the drug
offenses before filing the information.
4
 The separate count of aggravated assault (bodily injury with a deadly
weapon) was merged at sentencing.
5
  Appellant’s Rule 1925(b) statement is dated January 5, 2016, but was
docketed on January 15, 2016. Because the trial court filed its Rule 1925(a)
opinion on January 7th, the twenty-first day after its order for the Rule
1925(b) statement, we deem Appellant’s statement to be timely filed.



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one . . . where the Commonwealth’s evidence failed to establish that

[A]ppellant acted with the required specific intent to cause serious bodily

injury?” Appellant’s Brief at 6. In support, Appellant argues he inflicted a

single knife wound that was “easily cured” and which was “so minimal” that

Batz did not initially realize he had been stabbed.      Id. at 10.     Further,

Appellant contends that “only the initial stabbing could be used as possible

proof of Appellant’s intent,” because two witnesses testified Batz appeared

to provoke him and he only made “little stabbing” motions at Location 2.

Id. at 10, 12-13.     Finally, Appellant argues that factors that constituted

sufficient evidence of an aggravated assault by attempt to cause serious

bodily injury in Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005),

specifically the presence of multiple stab wounds, the location of the stabs to

the head, and the use of restraints, are not present in the instant case. No

relief is due.

      This Court has stated: “A claim challenging the sufficiency of the

evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000).

             [T]he critical inquiry on review of sufficiency of the
          evidence to support a criminal conviction . . . does not
          require a court to ask itself whether it believes that the
          evidence at the trial established guilt beyond a reasonable
          doubt. Instead, it must determine simply whether the
          evidence believed by the fact-finder was sufficient to
          support the verdict . . . .

                                  *    *    *



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               When reviewing the sufficiency of the evidence, an
           appellate court must determine whether the evidence, and
           all reasonable inferences deducible from that, viewed in
           the light most favorable to the Commonwealth as verdict
           winner, as sufficient to establish all of the elements of the
           offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted). “In instances where there is

conflicting testimony, it is for the jury to determine the weight to be given

the testimony. The credibility of a witness is a question for the fact-finder.”

Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 1999) (citations and

quotation marks omitted).

         Under the Crimes Code, a person is guilty of aggravated assault if he

or she ”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). The Code 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 function of any bodily

member or organ.” 18 Pa.C.S. § 2301.

         “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. Gruff, 822 A.2d 773, 776 (Pa. Super. 2003) (citations




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omitted). “The intent to cause serious bodily injury . . . may be proven by

direct or circumstantial evidence.” Hall, 830 A.2d at 542.

     In the instant case, Appellant stipulated that Batz suffered a wound

that was six to seven centimeters long and required six internal and eight

external sutures to close. N.T. Trial, 7/8/15, at 53. Gee, an assistant chief

of the local ambulance company, testified that the wound was of such

severity that he was concerned that Batz’s lung was punctured. Id. at 99.

Additionally, Batz testified that Appellant lunged at his stomach and chest

area at Location 2 and Location 3, coming within inches of striking him. Id.

at 21-23, 41-43.   Multiple eyewitnesses testified that they saw Appellant

lunging at Batz with a knife at Location 2; Cartagena and Grubic saw

Appellant come so close to striking Batz that they believed he had actually

been stabbed. Id. at 84, 91, 117. Thus, the jury, as finder of fact, heard

evidence from which it could reasonably find that Appellant intended to

cause serious bodily injury.   See Hall, 830 A.2d at 542; see also Gruff,

822 A.2d at 776.

     Moreover, Appellant misconstrues the holding in Gray.        The Gray

Court held that the facts, which involved a restrained victim with multiple

puncture and stab wounds on the victim’s arm and a wound above her eye,

was sufficient to establish the defendant intended to inflict serious bodily

injury. Gray, 867 A.2d at 568. However, Gray did not hold that such an

extensive course of conduct was necessary to find sufficient evidence of a



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defendant’s attempt to inflict serious bodily injury.   See id.   Accordingly,

Appellant’s sufficiency claim fails, and we affirm the judgment of sentence.

See Ratsamy, 934 A.2d at 1235-37; see also Widmer, 744 A.2d at 751.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2016




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