J-S12035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :        IN THE SUPERIOR COURT OF
                                         :              PENNSYLVANIA
           v.                            :
                                         :
DARYL ALLEN DUBS,                        :
                                         :
                 Appellant               :             No. 992 MDA 2016

           Appeal from the Judgment of Sentence April 29, 2016
              in the Court of Common Pleas of York County,
            Criminal Division, No(s): CP-67-CR-0003057-2015

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 13, 2017

     Daryl Allen Dubs (“Dubs”) appeals from the judgment of sentence

imposed following his convictions of aggravated assault, simple assault, and

recklessly endangering another person.       See 18 Pa.C.S.A. §§ 2702(a)(1),

2701(a)(1), 2705. We affirm.

     On January 26, 2015, at approximately 8:00 p.m., Allyson James

(“James”), who was in an intimate relationship with Dubs, arrived at her

apartment. She found her front entrance open, two strangers sitting on her

couch, and empty bottles of liquor scattered throughout her living room.

James asked the two strangers where Dubs was located, and they told her

he was upstairs in the bedroom. James walked up to her room, saw Dubs

sleeping on her bed and tried to wake him.       On James’s first attempt to

wake Dubs, she tried pulling the sheets off him. Dubs responded by pulling
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them back on him. James became angry and slapped Dubs across the face.

Without getting up, Dubs told James to get away from him.

     James then went downstairs and asked the two strangers to leave her

residence. The strangers gathered their belongings and left the apartment,

after which James returned to her room. James stood at the foot of the bed

and tried to pull the sheets off of Dubs. Dubs again pulled the sheets back

on him. James then yelled at Dubs to get out of the bed.

     Dubs woke up, lunged at James, and threw her down on the bed.

Dubs straddled James and held her down by the neck. Dubs then began to

strike James across the face while squeezing her neck.      James found it

difficult to breathe and almost lost consciousness several times.   As Dubs

continued to choke James, he told her that he wanted to show her what it

felt like to be hit. James attempted to block Dubs’s blows with her hands,

and free herself from Dubs by kicking and pushing herself away from him.

     James eventually freed herself from Dubs and crawled to a corner of

the room. Dubs followed her, and again straddled her and grabbed her by

the neck. Dubs told James that he wanted to kill her. Due to the difference

in size, James found it impossible to defend against Dubs’s attack. James

begged Dubs not to kill her because she has a son and did not want to die.

Thereafter, Dubs stopped his attack, picked James up off the floor, walked

her over to a mirror and said, “look what you made me do.” James suffered

several bruises and abrasions to her face, neck, and wrists. James was also



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bleeding from her nose and had fingernail marks on her neck from being

choked.

      Eventually, James went to a friend’s house and called the police.

Officers arrived at James’s location, and observed the bruising and abrasions

that James had suffered.     James gave the officers consent to enter her

apartment and provided them with a key.       The officers arrived at James’s

apartment, and announced their presence.      Dubs attempted to flee out of

the second story window.       Officers prevented Dubs from escaping and

arrested him.

      On March 23, 2016, after a jury trial, Dubs was found guilty of the

above-mentioned crimes. On April 29, 2016, the trial court sentenced Dubs

to a term of 5 to 10 years in prison for aggravated assault.1

      On June 10, 2016, Dubs filed a Motion to File Notice of Appeal Nunc

Pro Tunc, which the trial court granted. Dubs thereafter timely filed a Notice

of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.

      On appeal, Dubs raises the following question for our review:

“Whether the Commonwealth failed to present sufficient evidence in order to

convict [Dubs] beyond a reasonable doubt of aggravated assault, because

the Commonwealth failed to prove that [he] intentionally, knowingly, or

recklessly caused or attempted to cause serious bodily injury to [James]?”

Brief for Appellant at 4.

1
 The simple assault and recklessly endangering another person convictions
merged for sentencing purposes.


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      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      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 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 received must be considered. Finally, the finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      Dubs argues that the evidence was insufficient to support his

aggravated assault conviction because choking and striking James with an

open hand fails to demonstrate that he attempted to cause serious bodily

injury. Brief for Appellant at 11. Dubs asserts that since he had complete

control of James in his intoxicated state, and did not strike her with a closed

fist or squeeze her neck as hard as he could, he did not have the intent to

cause serious bodily injury. Id. at 12-13. Dubs posits that, had he wanted




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to cause serious bodily injury to James, he would have struck her with a

closed fist, or choked her more forcefully with both hands. Id. at 13.

      A person is guilty of aggravated assault, in relevant part, “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.A.

§ 2702(a)(1).      Serious bodily injury is defined as “[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.” Id. § 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.”      Id.   §   901(a).   “An   attempt      under

[subsection] 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. Matthew, 909 A.2d 1254, 1257 (Pa.

2006). “The intent to cause serious bodily injury may be proven by direct or

circumstantial evidence.”       Id.     In determining whether a defendant

possessed the intent to inflict serious bodily injury, the court must look at

the totality of the circumstances,

      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


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       attack, and his statements before, during, or after the attack
       which might indicate his intent to inflict injury.

Id.

       Here, the record establishes that Dubs pinned James to the bed by

straddling her chest, while simultaneously choking her and striking her with

an open hand several times across the face. See N.T., 3/21/16, at 86-87,

127-28.    The force with which Dubs choked James was enough to leave

bruising and fingernail marks around her neck. See id. at 90, 91. James

also stated that, while Dubs was choking her, she had difficulty breathing,

almost to the point of losing consciousness several times.      See id. at 88,

129. Additionally, after James attempted to escape Dubs, he again choked

her. See id. at 89. James made several attempts to kick and push Dubs

away from her when they were both on the floor; however, Dubs was bigger

and stronger.    See id. at 133.     Further, Dubs stated to James that he

wanted to kill her while he straddled and choked her on the floor. See id. at

132.

       Viewing the evidence in a light most favorable to the Commonwealth,

we conclude that the record establishes that Dubs attempted to cause

serious bodily injury to James.    Regardless of whether Dubs struck James

with an open hand or closed fist, his actions of choking James and stating his

desire to kill her are sufficient to demonstrate that Dubs possessed the

necessary intent to cause serious bodily injury. See Matthew, 909 A.2d at

1259 (stating that threats to kill the victim are sufficient to establish intent


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to inflict serious bodily injury); see also Commonwealth v. Russell, 460

A.2d 316, 320 (Pa. Super. 1983) (noting that the choking of a victim may

permit an inference of an intent to cause serious bodily injury). 2   Thus, we

conclude that the evidence was sufficient to sustain Dubs’s conviction of

aggravated assault. See Matthew, 909 A.2d at 1259.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




2
  To the extent Dubs raises a defense of voluntary intoxication, such a
defense is not available, “nor may evidence of such condition[] be
introduced to negative the element of intent of the offense[.]” 18 Pa.C.S.A.
§ 308.


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