J-S71038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                      v.

MAURICE TAYLOR

                                Appellant                    No. 2521 EDA 2015


             Appeal from the Judgment of Sentence March 16, 2012
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s):CP-51-CR-0004838-2011
                                CP-51-CR-0004855-2011

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED FEBRUARY 23, 2017

        Appellant, Maurice Taylor, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas at

docket     number   4855-2011,1       following   his      bench   trial   conviction   for

aggravated     assault     (a   first-degree   felony),2    persons    not    to   possess

firearms,3 firearms not to be carried without a license,4 unlawful restraint,5


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant was convicted at three different dockets, each stemming from a
separate altercation between Appellant and the victim, Alisa Gardner. At
docket number 4838-2011, the trial court convicted Appellant of aggravated
assault (a second-degree felony), possessing an instrument of crime, simple
assault, and recklessly endangering another person. At docket number
4859-2011, the court convicted Appellant of theft and harassment.
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 6105(a)(1).
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carrying firearms in public in Philadelphia,6 possessing an instrument of

crime,7 simple assault,8 recklessly endangering another person,9 false

imprisonment,10 and possession of a weapon.11          Appellant challenges the

sufficiency of the evidence for aggravated assault. We affirm.

        The trial court’s opinion summarizes the relevant facts of this case as

follows:

              On April 8, 2011, at approximately 12:20 p.m., Police
           Officer David O’Connor responded to a call for a person
           with a gun at 848 East Chelten Avenue. The officer met
           with [the victim] a few houses away from that address.
           She had bruising to her face, and she was teary eyed. Her
           hair looked like it had been pulled, the bottom left corner
           of her lip was cut open, and her clothing was in disarray.
           A few moments later, Appellant was spotted walking down
           Locust Street and was identified by [the victim] as her
           assailant.   After a struggle with police, Appellant was
           arrested, and police confiscated a firearm from his
           belongings.

               According to [the victim], Appellant held her against her
           will inside the residence, held a firearm to her head, and

4
    18 Pa.C.S. § 6106(a)(1).
5
    18 Pa.C.S. § 2902(a)(1).
6
    18 Pa.C.S. § 6108.
7
    18 Pa.C.S. § 907(a).
8
    18 Pa.C.S. § 2701(a)(1).
9
    18 Pa.C.S. § 2705.
10
     18 Pa.C.S. § 2903(a).
11
     18 Pa.C.S. § 907(b).



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         threatened to kill her. He also slapped her, kicked her and
         stomped on her. During this incident, Gardner sustained
         two broken ribs, bruising to her face and a laceration to
         her liver.

Trial Ct. Op., 3/4/16, at 3 (record citations omitted).

      On January 30, 2012, the court convicted Appellant of the above

offenses at docket number 4855-2011.        The court sentenced Appellant at

this docket on March 16, 2012, to an aggregate sentence of six to fourteen

years’ imprisonment.12 Appellant did not file post-sentence motions.

      On September 24, 2012, Appellant timely filed a pro se Post Conviction

Relief Act (“PCRA”) petition, which alleged, inter alia, that trial counsel was

ineffective for failing to file a direct appeal.    PCRA counsel entered his

appearance and filed an amended petition and memorandum requesting that

Appellant’s direct appeal rights be reinstated nunc pro tunc.      Thereafter,

Appellant filed a pro se motion for the removal of PCRA counsel based on

ineffectiveness.13 Appellant filed a notice of appeal nunc pro tunc on August

18, 2015. On October 8, 2015, the court subsequently granted Appellant’s




12
   The court also sentenced Appellant to a concurrent two-and-one-half to
five years’ imprisonment at docket number 4838-2011, and a consecutive
five years’ probation at docket number 4859-2011.
13
  A review of the record reveals the court did not dispose of Appellant’s pro
se motion for removal, and PCRA counsel continues to represent Appellant
on this appeal.




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request to have his direct appeal rights reinstated nunc pro tunc.14      The

court ordered Appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

      On March 4, 2016, the court filed a responsive opinion, in which it

determined that it had erred in finding there was sufficient evidence that the

victim suffered serious bodily injury. Trial Ct. Op. at 4. Rather, the court

concluded there was sufficient evidence that Appellant attempted to cause

serious bodily injury to the victim. Id. at 5.

      Appellant raises the following issue for our review:

         Did the Commonwealth prove beyond a reasonable doubt
         that . . . Appellant had the specific intent to cause serious
         bodily injury to the complaining witness?

Appellant’s Brief at 8.

      Appellant argues there was insufficient evidence to convict him of

aggravated assault because the Commonwealth failed to prove he acted with

a specific intent to cause serious bodily injury to the victim.      Appellant

14
    As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).
Nevertheless, “[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”         Pa.R.A.P. 905(a)(5).
Instantly, Appellant filed his notice of appeal nunc pro tunc on August 18,
2015. However, the court did not reinstate his direct appeal rights until
October 8, 2015. Therefore, we will relate forward Appellant’s premature
notice of appeal to October 8, 2015, to resolve any jurisdictional
impediments. See id.




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claims the evidence did not indicate the victim sustained any serious injuries

or that Appellant used a firearm or any weapon on the victim.       Appellant

further contends that, even if he had used a firearm, merely pointing a gun

at the victim would have established no more than simple assault. Appellant

maintains the court erred in finding his actions constituted an attempt to

cause serious bodily injury.   Appellant concludes this Court should reverse

his aggravated assault conviction and remand for resentencing.            We

disagree.

      Our review of sufficiency of the evidence is governed by the following

principles:

         As this case involves a question of law, our scope of review
         is plenary. Our standard of review is de novo.

                                 *    *    *

         [T]he critical inquiry on review of the 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.      [A]ll of the evidence and any
         inferences drawn therefrom must be viewed in the light
         most favorable to the Commonwealth as the verdict
         winner.

                                 *    *    *

         In applying this standard, [the reviewing court must] bear
         in mind that: the Commonwealth may sustain its burden
         by means of wholly circumstantial evidence; the entire trial
         record should be evaluated and all evidence received
         considered, whether or not the trial court’s ruling thereon
         were correct; and the trier of fact, while passing upon the


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         credibility of witnesses and the weight of the proof, is free
         to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted).

      The Pennsylvania Consolidated Statutes define aggravated assault, in

relevant part, as follows:

         § 2702. Aggravated assault

         (a) Offense defined.―A person is guilty of aggravated
         assault if he:

            (1) 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). This Court has defined “serious bodily injury” 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.” Commonwealth v. Holley, 945

A.2d 241, 247 (Pa. Super. 2008) (citation and quotation marks omitted).

“The Commonwealth, in sustaining an aggravated assault conviction, need

only show the defendant attempted to cause serious bodily injury to

another, not that serious bodily injury actually occurred.” Commonwealth

v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001) (citations and footnote

omitted).

         Further,



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           [w]here the victim does not sustain serious bodily
           injury, the Commonwealth must prove that the
           appellant acted with specific intent to cause serious
           bodily injury. The Commonwealth may prove intent
           to cause serious bodily injury by circumstantial
           evidence.         In   determining     whether    the
           Commonwealth proved the [a]ppellant had the
           requisite specific intent, the fact-finder is free to
           conclude the accused intended the natural and
           probable consequences of his actions to result
           therefrom. A determination of whether an appellant
           acted with intent to cause serious bodily injury must
           be determined on a case-by-case basis.

           An intent is a subjective frame of mind, it is of
           necessity difficult of direct proof[.] We must look to
           all the evidence to establish intent, including, but not
           limited to, appellant’s conduct as it appeared to his
           eyes[.]     Intent can be proven by direct or
           circumstantial evidence; it may be inferred from acts
           or conduct or from the attendant circumstances.
           Moreover, depending on the circumstances even a
           single punch may be sufficient.

Holley, 945 A.2d at 247 (citations omitted).       Moreover, “[a]ttempt, for

aggravated assault purposes, is found where the accused intentionally acts

in a manner which constitutes a substantial or significant step toward

perpetrating serious bodily injury upon another.”     Galindes, 786 A.2d at

1012 (citation and quotation marks omitted).

     This Court has held that “we cannot sustain a conviction for

aggravated assault where the Commonwealth only demonstrates that the

defendant pointed a gun at someone.” Commonwealth v. Matthews, 870

A.2d 924, 929 (Pa. Super. 2005) (en banc) (citation omitted). Nevertheless,

in Matthews, a panel of this Court concluded, “a defendant’s failure to avail



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himself of an opportunity to inflict serious bodily injury is not dispositive but

merely     one   circumstance   to   be   considered    in   the   totality   of   the

circumstances.”     Id. at 932, 933 (holding there was sufficient evidence to

sustain    the   appellant’s conviction for    aggravated assault       where      the

appellant’s actions of shoving a loaded firearm into an unsuspecting

motorist’s throat, restraining the motorist by pointing the firearm at his

throat, and expressing an intent to kill the motorist constituted a substantial

step toward the infliction of serious bodily injury).

           While a defendant’s failure to follow through with a threat
           may permit the fact-finder to conclude that a defendant
           only intended to frighten, and never possessed the intent
           to commit serious bodily injury, it may also permit the
           fact-finder to infer that the defendant possessed the intent
           and, under the circumstances, changed his mind. If the
           remaining circumstantial evidence of record, when viewed
           in the light most favorable to the Commonwealth, would
           permit the fact-finder to reach the latter conclusion, we
           may not reweigh the evidence and substitute our judgment
           for the fact-finder.

Id.

        Instantly, after reviewing the record in the light most favorable to the

Commonwealth, we         conclude    there   is sufficient evidence      to   sustain

Appellant’s conviction of aggravated assault.      See Ratsamy, 934 A.2d at

1236.     An examination of Appellant’s conduct, which included kicking and

stomping the victim’s body and holding a loaded firearm to her head,

establishes Appellant’s intent to take a substantial step toward causing

serious bodily injury to the victim. See Holley, 945 A.2d at 247; Galindes,



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786 A.2d at 1012. Thus, considering the totality of the circumstances, which

includes the victim’s broken rib and lacerated liver, Appellant’s arguable

failure to avail himself of the opportunity to inflict more severe bodily injury

to the victim does not entitle him to relief.   See Matthews, 870 A.2d at

932; Galindes, 786 A.2d at 1012.           Accordingly, we affirm Appellant’s

conviction for aggravated assault.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2017




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