J-S53028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    SAMUEL COAXUM

                             Appellant                No. 3240 EDA 2018


       Appeal from the Judgment of Sentence Entered December 2, 2016
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0014278-2014


BEFORE: OLSON, STABILE, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 21, 2020

        Appellant, Samuel Coaxum, appeals nunc pro tunc from the December

2, 2016 judgment of sentence imposing an aggregate 160 to 320 months in

prison for aggravated assault, burglary, and criminal trespass.1 We affirm.

        The record reflects that Appellant lived for a time with his paramour,

Shirlene Myatt (“Shirlene”), in a house she owned, but was no longer living

with her as of the late summer or early fall of 2014. N.T. Trial, 7/22/15, a.m.

at 36. On September 3, 2014, Shirlene obtained a protection from abuse

(“PFA”) order protecting her from Appellant. Id. at 40, Exhibit C-3. Prior to

that, in October of 2013, in response to Shirlene’s emergency petition for relief

from abuse, the trial court ordered Appellant evicted from Shirlene’s home.


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1    18 Pa.C.S.A. §§ 2702, 3502, and 3503, respectively.
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Id. at 39, Exhibit C-2. Nonetheless, Appellant vandalized Shirlene’s home on

November 30, 2014. Id. at 10-14. Shortly thereafter, Shirlene exchanged

homes with her son, Eugene Myatt (“Eugene”).2 Id. at 9, 20, 29-31, 56-57.

Eugene changed the mechanical lock on Shirlene’s front door and changed the

code on the code lock. Id. at 19. On December 4, 2014, Eugene arrived at

Shirlene’s home with his seven-year-old son, M.M., to find the new mechanical

lock broken. Id. at 22-23. Later, Eugene discovered a damaged rear window

that no longer closed. Id. at 35. Upon entering the home, Eugene found

Appellant on the couch. Id. at 23. Appellant did not have permission to be

there. Id. at 31-32. After Eugene demanded that Appellant leave, Appellant

reached under the carpet and retrieved a knife from under the carpet and

“came at” Eugene and M.M. brandishing the knife. Id. at 23-26, 49, 58. The

knife was one of Shirlene’s kitchen knives, and it was 14 inches long with a

blue handle and an 8-inch blade. Id. at 73, 87-88. Eugene stood in front of

M.M., took M.M.’s baseball bat (Eugene and M.M. had been playing baseball

just prior to the incident), and raised it in the direction of Appellant. Id. at

20-21, 45. Appellant was approximately three feet from Eugene during the

incident. Appellant did not “lunge,” but he told Eugene he wanted to stab and

slice him up. Id. at 23-24, 26, 50-51, 79. Appellant then removed his cell


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2  Eugene was on probation for theft by deception at the time. Id. at 42. At
trial, the defense presented Eugene’s probation officer, who testified that
Eugene informed him only that he had been at his mother’s house on and off,
not that he exchanged homes with his mother. Id. at 92.

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phone from his pocket, called police, and told them a man was in his house

brandishing a bat. Id. at 24.

      When police arrived, Eugene was on the front porch holding a baseball

bat and arguing with Appellant, who was still inside. Id. at 82. Police directed

Eugene to drop the bat, which he did. Id. at 82-83. Eugene then produced

copies of the PFA and eviction orders, and police verified the existence of a

protective order via the National Crime Information Center (“NCIC”). Id. at

24-25, 28-29, 84-85. M.M. directed police to the knife Appellant brandished.

Id. at 75, 86-87.

      Testifying in his own defense, Appellant said that the house was his, and

that he got in by entering the code into the code lock. N.T. Trial, 7/22/15,

p.m., at 3-5. He said he did not brandish the knife and had never seen it

before. Id. at 11. Appellant produced an electric bill addressed to him at

Shrilene’s house covering the service period from July through December of

2014. Id. at 18-20, Exhibit D-5. He also said a third party, not Shirlene,

owned the house, and that Shirlene caused the damage that occurred on

November 30, 2014.      Id. at 23-24. Appellant denied that the mechanical

deadbolt locks were ever changed, and he claimed he left the deadbolt

unlocked earlier that day. Id. at 26. Appellant acknowledged making several

threatening phone calls to Shirlene telling her not to testify at the trial in this

matter. Id. at 40, Exhibit C-5. He claimed he did not want her to support

Eugene, her son, in his lies. Id.


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       On July 31, 2015, the trial court, sitting as fact finder, found Appellant

guilty of the aforementioned offenses.           The court imposed sentence on

December 2, 2016.3         On April 25, 2017, Appellant filed a counseled first

petition pursuant to the Post Conviction Relief Act (“PCRA”) seeking

reinstatement of his right to file a direct appeal.4 On November 2, 2018, the

PCRA court granted relief. Appellant filed this timely nunc pro tunc appeal

four days later. He claims the record contains insufficient evidence to support

each of his three convictions, and that the trial court erred in finding M.M.

competent to testify. We will address these arguments in turn.

       With regard to the sufficiency of the evidence arguments, our standard

of review is de novo and the scope of our review “is limited to considering the

evidence of record, and all reasonable inferences arising therefrom, viewed in

a light most favorable to the Commonwealth as the verdict winner.”

Commonwealth v. Rusing, 99 A.3d 416, 420-21 (Pa. 2014). The trial court,

sitting as fact finder, “can believe all or a part of or none of a defendant’s

statements, confessions, or testimony, or the testimony of any witness.” In

re J.B., 189 A.3d 390, 408 (Pa. 2018). We regard this deferential manner of

appellate review as according appropriate respect to the role of the jury or a


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3  The sentencing hearing was continued several times, due in part to
Appellant’s post-verdict motion for extraordinary relief.

4 The docket reflects that the trial court permitted Appellant’s trial counsel to
withdraw after sentencing, and appointed the public defender’s office to
handle Appellant’s appeal. The public defender did not file a timely appeal.

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trial judge sitting without a jury to make credibility determinations and factual

findings based on their weighing of the evidence which they hear firsthand.”

Id. at 408–09.

      The trial court found Appellant guilty of aggravated assault as defined

in 18 Pa.C.S.A. § 2702(a)(4), which applies where the defendant attempts to

cause bodily injury with a deadly weapon.          18 Pa.C.S.A. § 2702(a)(4).

Appellant does not dispute that the 8-inch blade he brandished is a deadly

weapon. He claims, however, he did not attempt to cause bodily injury. The

record, as set forth above, reflects that Appellant “came at” Eugene

brandishing the knife, stopping three feet away from Eugene as Eugene

brandished a baseball bat in response. Appellant claims those facts are not

sufficient evidence of an attempt to cause bodily injury, but he cites no law in

support of this argument.

      The governing case law provides as follows:

            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. 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. Accordingly, we recognize that “[i]ntent can be
      proven by direct or circumstantial evidence; it may be inferred
      from acts or conduct or from the attendant circumstances.

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super. 2005)

(internal citations and quotation marks omitted), affirmed, 909 A.2d 1254

(Pa. 2006). “The conduct giving rise to an inference that defendant intended



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to inflict serious bodily injury need not in itself be life-threatening.”

Commonwealth v. Elrod, 572 A.2d 1229,1231 (Pa. Super. 1990), appeal

denied, 592 A.2d 1227 (Pa. 1990).        A “crucial factor” in examining the

defendant’s intent is “whether he was stopped short of the objective signaled

by his words or conduct.” Id. at 1232. In Elrod, this Court held the evidence

of an attempt was sufficient where the defendant brandished a knife,

threatened to stab the victim, ran the knife along her body before a passerby

restrained him. Id. at 1231. Likewise, in Commonwealth v. Smith, 626

A.2d 614, 620 (Pa. Super. 1993), the defendant pointed an unloaded gun at

the victim’s head, grabbed her by the hair, and pushed her to the floor. The

assault ended when a third party intervened. Id. We concluded this was

sufficient evidence of an attempt to cause bodily injury under § 2702(a)(4).

Id.

      In both Elrod and Smith the defendants issued threats and brandished

a weapon, but were thwarted before they injured the victim. The same is true

here, as Appellant brandished an 8-inch blade and threatened to stab and slice

Eugene before Eugene brandished a baseball bat in defense. In other words,

Appellant “was stopped short of the objective signaled by his words or

conduct.” Elrod, 572 A.2d at 1232. Appellant, as noted, does not address

any pertinent case law, and he does not attempt to distinguish Elrod or

Smith. Based on all of the foregoing, we conclude that Appellant has failed

to establish a meritorious challenge to his aggravated assault conviction.


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      Next, Appellant argues his burglary conviction cannot stand because the

record contains no evidence that he entered Shirlene’s home with intent to

commit a crime therein. A burglary occurs where the offender, with intent to

commit a crime therein, enters a building or occupied structure adapted for

overnight accommodations in which no person is present at the time of the

offense. 18 Pa.C.S.A. § 3502(a)(2). “The specific intent to commit a crime

necessary to establish the intent element of burglary may be found in a

defendant’s words or conduct, or from the attendant circumstances together

with all reasonable inferences therefrom.” Commonwealth v. Eck, 654 A.2d

1104, 1108–09 (Pa. Super. 1995).

      The evidence, viewed in a light most favorable to the Commonwealth,

establishes that Shirlene obtained a PFA order against Appellant, and that he

subsequently vandalized her house. Several days later, Appellant returned,

disabled the mechanical lock on the front door, broke a window, entered the

house, retrieved a large knife from the kitchen, and lay in wait on the couch.

These facts support a reasonable inference that Appellant entered Shirlene’s

house with intent to commit a crime therein.

      Appellant also argues that he was privileged to enter in accord with 18

Pa.C.S.A. § 3502(b)(3) (defining privilege to enter as a defense to burglary).

He argues as follows: “[T]he Commonwealth offered no testimony to dispute

Appellant’s contention that he, being privileged to enter the home, typed a

code into another lock on the front door and gained entry into the home in


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this manner.”    Appellant’s Brief at 11.     The record does not support this

assertion. Eugene testified that he changed the mechanical lock and found it

broken; that he changed the code; and that he found a damaged window in

the rear of the home.     The trial court was entitled to believe Eugene and

disbelieve Appellant’s contention that he was privileged to enter the home and

did so by using a valid code. This evidence, viewed in a light most favorable

to the Commonwealth, supports a finding that Appellant was not privileged to

enter the home; that he was unable to enter through the front door because

he did not have the code; and that he broke in through a window. Appellant’s

challenge to his burglary conviction fails.

      Next, Appellant claims the record does not contain sufficient evidence in

support of his criminal trespass conviction. Criminal trespass occurs where,

among other circumstances, the defendant breaks into any building or

occupied structure knowing he is not privileged to do so.        18 Pa.C.S.A.

§ 3503(a)(1)(ii).   Once again, Appellant argues he was privileged to enter

Shirlene’s house. The argument fails for reasons we have already explained.

      Finally, we consider Appellant’s argument that the trial court erred in

finding M.M. competent to testify. M.M. was seven years old at the time of

the incident and eight years old at trial.

             Our standard of review recognizes that [a] child’s
      competency to testify is a threshold legal issue that a trial court
      must decide, and an appellate court will not disturb its
      determination absent an abuse of discretion. Our scope of review
      is plenary.


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            Every witness is presumed competent. Pa. R.E. 601(a). A
      party who challenges the competency of a minor witness must
      prove by clear and convincing evidence that the witness lacks the
      minimal capacity ... (1) to communicate, (2) to observe an event
      and accurately recall that observation, and (3) to understand the
      necessity to speak the truth.

Commonwealth v. Pena, 31 A.3d 704, 706–07 (Pa. Super. 2011).

      The record reflects that Eugene spoke to M.M. prior to trial and that

talking to Eugene helped him remember things. N.T. Trial, 7/22/15, a.m., at

65-66. Appellant argues that “[s]ince M.W. [sic] was apparently unable to

remember the incident on his own and allowed his testimony to be potentially

shaped by a fellow witness, his capacity to both observe and remember is in

doubt.” Appellant’s Brief at 18. The trial court overruled Appellant’s objection,

explaining as follows: “[M.M.] said that it helps him to remember, doesn’t say

that it forms his memory.” N.T. Trial, 7/22/15, a.m., at 65-66.

      Defense counsel’s examination of M.M. on this point went as follows:

            Q.    You talked to your dad about this man before today,
      correct?

            A.    Yes.

            Q.    Yes. A bunch of times, right?

            A.    Yes.

            Q.    You talked to your dad a lot?

            A.    Yes.

           Q.   Whatever happened with this man happened in
      December, right?

            A.    Yes.

            Q.    Little bit before Christmastime?

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            A.    Yes.

            Q.     When you talked to your dad it helps you remember
      things, right?

            A.    Yes.

            Q.    Your dad talked with you about what happened with
      this man, right?

            A.    Yes.

            Q.    And that helps you remember things, right?

            A.    Yes.

Id.

      Appellant’s argument, spanning less than two full pages of his brief, is

that M.M. was not a competent witness in light of the foregoing exchange.

Appellant’s Brief at 17-18. Though Appellant does not say so explicitly, he

apparently argues that M.M. was tainted. Our courts have defined taint as

“the implementation of false memories or distortion of actual memories

through improper and suggestive interview techniques.” Commonwealth v.

Tyrell, 177 A.3d 947, 953 (Pa. Super. 2018) (quoting Commonwealth v.

Delbridge, 855 A.2d 27, 30 (Pa. 2003)). It relates to the second prong of

competency analysis—accurate observation and recall. Id.

      As the trial court noted, defense counsel established that M.M. discussed

the matter with Eugene, not that M.M. had no independent recollection of an

event of an event that occurred seven months prior to trial. Likewise, there

is no clear and convincing evidence that Eugene distorted M.M.’s memory of

the events in question. We therefore discern no abuse of discretion in the trial

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court’s finding that Appellant failed to establish, by clear and convincing

evidence, that M.M. was tainted and not competent to testify.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/20




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