Com. v. Brown, J.

Opinion

J. S25004/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JOVAN BROWN, : No. 345 WDA 2015 : Appellant :

Appeal from the Judgment of Sentence, November 19, 2014, in the Court of Common Pleas of Clearfield County Criminal Division at No. CP-17-CR-0001007-2013

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 07, 2016

Jovan Brown appeals from the November 19, 2014 judgment of

sentence following his convictions of aggravated assault, simple assault,

recklessly endangering another person (“REAP”), and disorderly conduct.1

We affirm.

This case stems from an incident that took place at an off-campus

college party at a house not far from Penn State-DuBois. Isaac Peterson,

the victim, was involved in two altercations--one with Justin Ritzie and the

other with appellant. The record indicates that the victim and appellant had

a previous interaction in which the victim asked appellant to leave the

1 18 Pa.C.S.A. §§ 2702(a)(1), 2701 (a)(1) and (3), 2705, and 5503(a)(1), respectively. J. S25004/16

victim’s residence because the victim “did not want [any] problems.” 2

(Notes of testimony, 9/24/14 at 8.) Upon appellant’s arrival at the party,

the victim said to appellant, “I heard you’re looking for me, . . . everything

good, any problems.” (Id.) Appellant responded, “No, sir, no problems,

everything’s fine.” (Id.)

Later in the evening, the victim was on the porch having a discussion

with Mr. Ritzie and Kelsey Gulvas, a friend of the victim’s. (Id. at 9.)

Eventually, the victim started talking to a woman standing behind him, and

at that point, Mr. Ritzie punched him in the right side of his face. 3 (Id.)

After the initial hit from Mr. Ritzie, the victim claims to have “blacked out.”

(Id.) The victim did not testify regarding the altercation involving appellant.

Mr. Gulvas testified that he left the party for approximately five to

ten minutes, and that upon his return, the victim was lying in the yard with

his pants and underwear around his ankles. (Id. at 28.) The victim was

disoriented, had blood coming out of his ears, and his eyes were bloodshot.

(Id.) Mr. Gulvas and another person attending the party (“the unidentified

male”)4 assisted the victim to his feet, and at that point, appellant punched

2 The previous interaction allegedly originated from an incident in which one of appellant’s friends was physically assaulting his girlfriend. (Notes of testimony, 9/24/14 at 8.) 3 Mr. Ritzie pled guilty to one count of simple assault. 4 Mr. Gulvas was unable to identify the other person who assisted the victim at the party--he only knew that the other person was a basketball player.

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the victim in the right side of his head with a closed fist. (Id. at 29.)

Mr. Gulvas and the unidentified male tried to get the victim back on his feet

again, and appellant said, “I was looking for you,” to the victim and hit him

again in the right side of the head with a closed fist. (Id. at 29-30.) After

the second punch from appellant, Mr. Gulvas testified that the victim was

unconscious. (Id.) He also testified that after the second punch, appellant

said that “Ritzie was one of my small boys, that was one of my small boys.”

(Id.) Again, Mr. Gulvas and the unidentified male attempted to get the

victim on his feet, and appellant punched the victim on the right side of the

head with a closed fist. (Id. at 30-31.) At that point, Mr. Gulvas and the

unidentified male took appellant to a mutual friend’s residence. (Id. at 31.)

The victim did not seek medical attention for his injuries until the

following day when his father took him to the emergency room at the

DuBois Hospital. (Id. at 12.) The victim suffered from blurred vision that

lasted several weeks, and a strained shoulder that was still providing the

victim with discomfort at the time of the trial, approximately 11 months

after the incident. (Id. at 12-13.) The victim’s injuries included swelling of

the eyes and nose, scarring on his ears and nose, and his nose was

bleeding. (Id. at 14.)

The other person was identified as “the basketball player” at trial. (Id. at 29.)

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The Commonwealth charged appellant with the aforementioned crimes

on November 25, 2013. Additionally, the Commonwealth charged appellant

with harassment.5 Following a bench trial on September 24, 2014, the trial

court acquitted appellant of harassment and convicted on all remaining

charges. On November 19, 2014, the trial court sentenced appellant to an

aggregate sentence of 22-60 months’ imprisonment. Appellant filed a

motion for judgment of acquittal as it related to the aggravated assault

conviction on December 1, 2014, which the trial court denied on January 26,

2015.6

On February 11, 2015, appellant filed a notice of appeal. The trial

court, on February 26, 2015, ordered appellant to file a concise statement of

errors complained of on appeal within 21 days. On June 5, 2015, the

Commonwealth filed a motion to quash the appeal with this court on the

grounds that appellant failed to file a Rule 1925 statement as ordered. We

denied the Commonwealth’s motion to quash on July 21, 2015, while

simultaneously remanding the case for appellant to file a Rule 1925

statement nunc pro tunc. On October 5, 2015, appellant filed a concise

statement of errors complained of on appeal. The trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a) on October 28, 2015.

5 18 Pa.C.S.A. § 2709. 6 November 29, 2014, was a Saturday. Therefore, appellant’s filing deadline was extended to the next business day, which was December 1, 2014. See 1 Pa.C.S.A. § 1908.

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Appellant raises the following issues for our review:

I. Whether the Lower Court erred when, on September 24, 2014, it found the Appellant guilty on the charge of Aggravated Assault, a felony of the first degree, following a bench trial despite a lack of sufficiency [sic] of the evidence presented by the Commonwealth[?]

II. Whether the Lower Court erred when, on September 24, 2014, it found the Appellant was guilty of four counts of Simple Assault and one count of Recklessly Endangering Another Person following a bench trial despite a lack of sufficiency [sic] of the evidence presented by the Commonwealth[?]

III. Whether the sentence imposed by the Lower Court by order dated November 18, 2014 was manifestly excessive and failed to take into account mitigating factors[?]

IV. Whether the Appellant’s trial attorney, James Walsh, Esquire, was ineffective to the level that it undermined the truth-determining process that no reliable adjudication of guilt or innocence could take place, and whether said representation violated the Appellant’s rights under the Constitutions of the Commonwealth and of the United States[?]

Appellant’s brief at 6.

Appellant’s first two issues relate to the sufficiency of the evidence

presented by the Commonwealth.

In reviewing the sufficiency of the evidence, we view all evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable [the fact-finder] to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is

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circumstantial rather than direct so long as the combination of the evidence links the accused to a crime beyond a reasonable doubt. Although a conviction must be based on “more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of the evidence, the Court may not substitute its judgment for that of the fact finder; if the record contains support for the convictions, they may not be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

Moreover, when applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact, while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).

We first review appellant’s aggravated assault conviction. The statute

defines aggravated assault as when a person “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 “bodily 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.” 18 Pa.C.S.A. § 2301. Our

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supreme court has further defined aggravated assault as “the functional

equivalent of murder in which, for some reason, death fails to occur.”

Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995).

The Commonwealth avers that we are governed by two previous

decisions of this court: Commonwealth v. Burton, 2 A.3d 598 (Pa.Super.

2010) (en banc), appeal denied, 32 A.3d 1275 (Pa. 2011), and

Commonwealth v. Patrick, 933 A.2d 1043 (Pa.Super. 2007) (en banc),

appeal denied, 940 A.2d 364 (Pa. 2007). In Burton, the victim,

William Price, Jr., sustained significant permanent injuries following a single

punch from Mr. Burton. Burton, 2 A.3d at 599. The Burton court found

that the Commonwealth presented sufficient evidence to warrant an

aggravated assault conviction. Specifically, the court stated that Mr. Burton

intended to cause serious bodily injury to Mr. Price,7 based in part on

Mr. Burton’s “gleeful remarks upon viewing [Mr. Price]” unconscious with

“his eyes [] rolled back into his head, blood [] coming from his nose, his

head [was] bloody, and he was involuntarily twitching.” Id. at 603. The

court further found that Mr. Burton’s “gloating remarks” “clearly confirmed

his desire to severely hurt Mr. Price, regardless of whether those statements

7 Mr. Price sustained the following injuries: “subdural hemorrhage, subarachnoid hemorrhage to the right temporal lobe, a basal skull fracture, a left occipital depressed skull fracture, an intraparenchimal hemorrhage, bilateral inferior frontal lobel, dens fracture on C-2, and spinous fracture of T-4.” Id. at 600. Mr. Price required “aggressive physical and occupational therapy” and also lost his senses of taste and smell. Id.

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established that he wanted to continue the attack.” Id. at 604. As a result,

the court determined that Mr. Burton acted with the “requisite mens rea to

sustain a conviction for aggravated assault.” Id.

The victim in Patrick, Mark Shutkufski, left the line to enter the

Front Row bar following an exchange of words with Nicholas Patrick.

Patrick, 933 A.2d at 1044. Mr. Shutkufski decided to patronize a different

bar, and he and a friend walked toward an Irish pub. Id. Mr. Shutkufski

was walking with his hands in his pockets when Mr. Patrick approached him

and punched him in the side of the head. Id. The force of the blow caused

Mr. Shutkufski to fall to the sidewalk, hitting it head first. Id. Mr. Patrick

fled the scene immediately after hitting Mr. Shutkufski.8 Id.

Unlike Burton, where the court reviewed the sufficiency of the

evidence following a bench trial, Patrick was a review of the lower court’s

dismissal of an aggravated assault charge against Mr. Patrick. Id. This

court found that the above facts satisfied the Commonwealth’s burden of

establishing a prima facie case of aggravated assault at the preliminary

hearing. Id. at 1047.

A lack of serious injuries sustained by a victim, however, does not

necessarily preclude the Commonwealth from charging a defendant with

8 Mr. Shutkufski had to be life-flighted to St. Luke’s Hospital in Allentown where he spent approximately two days in a coma as a result of severe trauma to the brain. Thereafter, the victim spent several weeks in therapy. The victim “has not worked since the incident, as he cannot use his right arm or leg well.” Id. at 1044 n.3.

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aggravated assault and being able to present sufficient evidence to warrant

a conviction. “Where the injury actually inflicted did not constitute serious

bodily injury, the charge of aggravated assault can be supported only if the

evidence supports a finding that the blow delivered was accompanied by the

intent to inflict serious bodily injury.” Commonwealth v. Alexander, 383

A.2d 887, 889 (Pa. 1978); see also Commonwealth v. Martuscelli, 54

A.3d 940, 948 (Pa.Super. 2012) (“Where the victim does not suffer serious

bodily injury, the charge of aggravated assault can be supported only if the

evidence supports a finding of an attempt to cause such injury.”).9

In order to determine intent, the Alexander court established four

factors to consider upon review. When determining whether a defendant

acted with the requisite intent to inflict serious bodily injury, we must

consider the following: (1) whether there was a disparity in size and

strength between the defendant and the victim; (2) whether the defendant

would have escalated the attack had he or she not been otherwise

restrained; (3) whether the defendant was in possession of a weapon; and

(4) whether the defendant made any statements indicative of his or her

intent to “inflict further injury upon the victim.” Alexander, 383 A.2d at

889; see also Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa.

9 “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.” Alexander, 383 A.2d at 889, quoting 18 Pa.C.S.A. § 901(a).

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2006) (reaffirming the Alexander test); Commonwealth v. Fortune, 68

A.3d 980, 986 (Pa.Super. 2013) (en banc), appeal denied, 78 A.3d 1089

(Pa. 2013) (same).

In order to determine whether the Commonwealth presented sufficient

evidence to warrant a conviction of aggravated assault, we must first

determine if the victim suffered serious bodily injury. Should we find that

there is an absence of serious bodily injury, we must then determine

whether appellant intended to inflict serious bodily injury upon the victim.

Here, the victim did not suffer injuries that constitute the

“serious injuries” contemplated by Section 2301. The victim suffered from

blurred vision that lasted several weeks, and a strained shoulder that was

still providing the victim with discomfort at the time of the trial,

approximately 11 months after the incident in question. (Notes of

testimony, 9/24/14 at 12-13.) Appellant’s visible injuries included swelling

of the eyes and nose, scarring on his ears and nose, and his nose was

bleeding. (Id. at 14.) None of these injuries rise to the level of injuries

enumerated by the statute, which requires “serious or permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2301. Unlike the victims in Burton and

Patrick, the victim in the instant case also did not suffer any life-

threatening injuries. Therefore, we must determine whether appellant acted

with the requisite intent to inflict serious bodily injury upon the victim.

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In order to determine whether appellant acted with the intent to inflict

serious bodily injury upon the victim, we shall consider the four factors

established by the Alexander court. First, we note that the record is silent

as to whether there was a significant disparity in size between the victim

and appellant. There was, however, a significant disparity in strength

between the victim and appellant, given the victim’s state of near

unconsciousness as a result of his altercation with Mr. Ritzie. For the second

Alexander factor, the record reflects that appellant escalated the attack

because unlike the defendants in Burton and Patrick, who threw only one

punch, appellant threw three punches to the victim’s head while he was

nearly unconscious. The third Alexander factor is inapplicable in this case

as the record does not indicate that appellant had a weapon in his

possession. Finally, under the fourth Alexander factor, appellant’s

statements to the victim: “I’ve been looking for you” and “Ritzie was one of

my small boys,” indicate an intent to inflict further injury upon the victim.

After considering the four factors established by the Alexander court,

we, therefore, find that the Commonwealth presented sufficient evidence to

support appellant’s conviction of aggravated assault.

Under his second issue on appeal, appellant challenges the sufficiency

of the evidence relating to his convictions of four counts of simple assault

and one count of REAP. Throughout his argument, appellant raises the

credibility of the Commonwealth’s three witnesses: the victim, Mr. Gulvas,

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and Officer Randall Young of the DuBois City Police Department. (See

appellant’s brief at 17-18.) Such an argument challenges the weight of the

evidence presented, not its sufficiency. Commonwealth v. Gibbs, 981

A.2d 274, 281-282 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa.

2010).

As this court has previously explained,

The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence and to assess the credibility of the witnesses. Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995). . . . An appellate court cannot substitute its judgment for that of the [finder of fact] on issues of credibility. Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004).

Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa.Super. 2011), appeal

denied, 34 A.3d 828 (Pa. 2011); see also Commonwealth v. Griffin, 65

A.3d 932, 939 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013).

As noted by the Palo court, we cannot substitute the fact-finder’s judgment

of credibility with our own. Therefore, because appellant requests that we

reassess witness credibility, no relief is due for appellant’s claim that the

evidence was insufficient to warrant convictions for four counts of simple

assault and one count of REAP.

In his third issue for our review, appellant requests that we review his

sentence imposed by the trial court.

[T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. . . . [A]n

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abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra, [752 A.2d 910, 912 (Pa.Super. 2000)]. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the

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Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Appellant, however, did not file a post-sentence motion asking the

trial court to reconsider his sentence pursuant to Pa.R.Crim.P. 720, nor was

the issue preserved at sentencing. Accordingly, the issue has not been

properly preserved, and we do not have the jurisdiction to review appellant’s

claim on its merits.

In his fourth and final issue, appellant avers that his trial counsel was

ineffective. Our supreme court has held that, “as a general rule, a petitioner

should wait to raise claims of ineffective assistance of trial counsel until

collateral review.” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.

2002). The court further held,

Grant’s general rule of deferral to PCRA[10] review remains the pertinent law on the appropriate timing for review of claims of ineffective assistance of counsel; we disapprove of expansions of the exception to that rule recognized in Bomar[11]; and we limit Bomar, a case litigated in the trial court before Grant was decided and at a time when new counsel entering a case upon post-verdict motions was required to raise ineffectiveness claims at the

10 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. 11 Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).

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first opportunity, to its pre-Grant facts. We recognize two exceptions, however, both falling within the discretion of the trial judge. First, we appreciate that there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims. []

Second . . . where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post-verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant’s knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.

Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014), cert. denied,

U.S. , 134 S.Ct. 1798 (2014), quoting Commonwealth v. Holmes,

79 A.3d 562, 563-564 (Pa. 2013).

In the instant appeal, the record does not indicate that appellant has

knowingly and expressly waived his collateral review rights. Therefore, we

dismiss appellant’s claim as it relates to the ineffective assistance of trial

counsel without prejudice for him to raise it on collateral review.

Judgment of sentence affirmed.

Mundy, J. joins the Memorandum.

Jenkins, J. concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/7/2016

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