J-S87014-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS RICHARD BRADLEY DAVIS,
Appellant No. 1135 MDA 2016
Appeal from the Judgment of Sentence June 27, 2014
in the Court of Common Pleas of York County
Criminal Division at No.: CP- 67 -CR- 0007931 -2013
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 17, 2017
Appellant, Thomas Richard Bradley Davis, appeals from the judgment
of sentence imposed June 27, 2014, following his jury conviction of two
counts each of aggravated assault- attempted to cause serious bodily injury,
and simple assault, following an attack on two victims.' Specifically, he
challenges the sufficiency of the evidence to support the jury's guilty
verdicts for both counts of aggravated assault- attempted to cause serious
bodily injury. We affirm.
The trial court aptly set forth the facts of this case in its July 22, 2016
opinion, as follows.
* Retired Senior Judge assigned to the Superior Court.
' 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), respectively
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In the instant case, the jury heard that a witness, Melissa
Hess, was awoken by a loud noise around 1:30 in the morning
and, after hearing people yelling, . .proceeded outside to
.
smoke. The witness then observed three individuals heckling
two men as they walked to their home, which was diagonally
across the street from the witness' home. . The witness
. .
testified that . . [the] three men proceeded to the victims'
.
location and began throwing punches and kicking the victims
when they collapsed. They jury heard that all three aggressors
crossed the street together.
The witness testified that [Appellant's] codefendant threw
both of the punches that felled the victims. Once the victims
dropped, the witness testified that all three of the assailants
kicked the victims. After the initial onslaught, which the witness
testified lasted some minutes, the assailants proceeded home
before one of the assailants returned to dump refuse on the
victims' bodies. It was then testified that, at this point, all
three assailants resumed kicking the victims. The witness told
the jury that there was a streetlight right outside her home and
that she was able to see the events very clearly. The witness
also stated that the victims were never aggressive.
The witness to the events told the jury that she was able
to inform law enforcement which home the assailants had
relocated to and their general descriptions. Moreover, as far as
the codefendants on trial, the jury heard that the witness was
able to positively identify them on the evening of the event.
The only victim who appeared at trial, George Williams,
testified that he recalled telling the assailants he could not hear
them and then he saw boots and sneakers kicking him. During
trial, Mr. Williams identified both codefendants as being
assailants. A stipulation was later read to the jury that Mr.
Williams was unable to identify [Appellant] at a preliminary
hearing.
Officer [Clayton] Glatfelter testified that upon his arrival,
he found the victims partially lying atop one another and covered
in large amounts of trash. Both victims appeared to be
unconscious. Officer Glatfelter told the jury that there was so
much blood he had to be careful not to step in any of it. Mr.
Williams told Officer [Daniel] Kling that one of the suspects lived
across the street. Officer Kling found [Appellant] pacing the
kitchen in the residence pointed out by Mr. Williams. Officer
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[Michael] Ebersole told the jury that when [Appellant] was found
in the kitchen, he was washing his hands and was reluctant to
come when called by the officers. There was a bloodstain on the
sole of [Appellant's] boot, which [Appellant] stated was from
working construction. Officer Kling testified that [Appellant]
stated he had attempted to stop two individuals beating the
victims, but was threatened with knives upon trying to
intervene. The jury heard that this story was contradicted by
statements [Appellant] made to Officer Kling, prior to
Miranda[2] warnings, that [Appellant] had stayed in his home
and never approached the altercation.
The doctor who treated Jack Corbin[, Dr. Daniel Carney,
M.D., Ph.D.,] ... told the jury that Mr. Corbin had a swollen face
and was incontinent at the time of treatment. . . The doctor
.
testified that Mr. Corbin did sustain facial fractures in the frontal
sinus, a complex nasal fracture, and a maxillary fracture. The
jury heard that these sorts of injuries can result in numbness
and loss of motor function. The jury was informed that the
. . .
bones broken in Mr. Corbin are some of the more durable ones
in the face and that they would result from either the impact of a
large object or multiple blows.
As far as Mr. Williams' injuries, the doctor informed the
jury that Mr. Williams suffered a broken mandible with
associated hematoma. . In the doctor's experience, he has
. .
seen injuries like those Mr. Williams suffered associated with
significant and insignificant head injuries; but, that, ultimately,
the concern is underlying brain injury. Mr. Williams also had a
gash stitched in the back of his head. Mr. Williams testified that
he has lasting effects of the broken jaw, because he cannot
afford to have it fixed. The jury heard from Mr. Williams that his
speech has been affected a little and that he experiences pain
when eating hard foods.
(Trial Court Opinion, 7/22/16, at 4 -8) (record citations and footnote omitted;
emphases in original).
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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At the conclusion of trial, the jury found Appellant guilty of two counts
each of aggravated assault- attempted to cause serious bodily injury, and
simple assault.3 On June 27, 2014, the court sentenced Appellant to two
concurrent terms of not less than seven nor more than fourteen years of
incarceration in a state correctional institution.4 This timely appeal
followed.5
Appellant raises three issues for this Court's review.
1. Whether the Commonwealth's evidence at trial was sufficient
to support the jury's verdict finding that the Appellant [sic] guilty
of aggravated assault, specifically that the Appellant participated
as a principal, accomplice, or co- conspirator in the assault
against the complainants?
3 On the verdict slip, the jury found Appellant not guilty of aggravated
assault caused serious bodily injury- George Williams, but found him guilty
of aggravated assault attempted to cause serious bodily injury- George
Williams. (See Verdict Slip, 5/07/14; see also N.T. Sentencing, 6/27/14, at
2)
4 The trial court merged the simple assault counts with the aggravated
assault counts for sentencing purposes. (See N.T. Sentencing, 6/27/14, at
2)
5 On May 26, 2015, this Court dismissed Appellant's first direct appeal for
lack of a counseled brief from Appellant. After his appeal rights were
reinstated by the trial court on September 28, 2015, Appellant filed a second
notice of appeal. On April 13, 2016, this Court again dismissed Appellant's
appeal because no brief was filed on his behalf. Appellant's appeal rights
were again reinstated on June 17, 2016. On July 13, 2016, Appellant filed a
notice of appeal together with a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b). The court issued its opinion on July 22,
2016. See Pa.R.A.P. 1925(a).
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2. Whether the Commonwealth's evidence at trial was sufficient
to support the jury's verdict finding that the Appellant
specifically intended to cause serious bodily injury?
3. Whether the trial court erred in denying the Appellant's post -
sentence motion challenging the sufficiency of the
Commonwealth's evidence to support the jury's verdict?
(Appellant's Brief, at 3) (unnecessary capitalization omitted).
Our standard of review of a challenge to the sufficiency of the evidence
is well-settled:
In reviewing sufficiency of evidence claims, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
the elements of the offense. Additionally, to sustain a
conviction, the facts and circumstances which the
Commonwealth must prove, must be such that every essential
element of the crime is established beyond a reasonable doubt.
Admittedly, guilt must be based on facts and conditions proved,
and not on suspicion or surmise. Entirely circumstantial
evidence is sufficient so long as the combination of the evidence
links the accused to the crime beyond a reasonable doubt. 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 fact finder is free to believe all,
part, or none of the evidence presented at trial.
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011), appeal
denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).
In Appellant's first two issues, which we have combined in our
analysis, he challenges the sufficiency of the evidence to support his
aggravated assault convictions. (See Appellant's Brief, at 7 -18).
Specifically, he claims that the evidence was not sufficient to prove that he
participated in the assault as a principal, accomplice, or co- conspirator, and
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did not prove that he intended to cause serious bodily injury. (See id.). We
disagree.
Pursuant to 18 Pa.C.S.A. § 2702(a), a person commits aggravated
assault when 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.A. § 2702(a)(1).
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. Attempt, 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... .
Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001),
appeal denied, 803 A.2d 733 (Pa. 2002) (citations, quotation marks, and
footnote omitted). The Commonwealth may prove that a defendant
intended to cause serious bodily injury by circumstantial evidence. See
Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008), appeal
denied, 959 A.2d 928 (Pa. 2008); see also Commonwealth v. Rodriquez,
673 A.2d 962, 966 -67 (Pa. Super. 1996), appeal denied, 692 A.2d 565 (Pa.
1997) (holding that jury could infer intent to cause serious bodily injury from
evidence appellant and confederates punched and kicked lone victim while
victim was on ground).
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Here, the evidence at trial established that an eyewitness saw three
individuals assaulting Mr. Williams and Mr. Corbin. The assailants crossed
the street and then proceeded to attack their victims, kicking Mr. Williams
while he lay on his front porch. (See N.T. Trial, 5/05/14, at 83 -84). Then,
after the first attack, the individuals returned to the victims and began
kicking them again. (See id. at 86). The evidence at trial also clearly
established that Appellant participated in the attack. The eyewitness who
called the police identified Appellant as one of the assailants involved in the
attack, and Mr. Williams identified Appellant trial. (See id. at 86 -89, 108-
09). The jury was free to believe all, part, or none of this testimony. See
Moreno, supra at 136.
Considering the foregoing evidence in the light most favorable to the
Commonwealth, we conclude that the trial court properly found that it was
sufficient to support Appellant's convictions for aggravated assault. See id.;
Galindes, supra at 1012; Rodriguez, supra at 966 -67. Appellant's
challenges to the sufficiency of the evidence do not merit relief.
In his final issue, Appellant claims that because the evidence was
insufficient to support his convictions, the trial court erred in denying his
motion for post -trial relief. (See Appellant's Brief, at 19). Appellant offers
no substantive argument to support his claim, but rather argues he is
entitled to relief "[f]or the same reasons presented" in his previous
arguments. (Id.). As such, he has waived his third issue. See Pa.R.A.P.
2101, 2119(a); see also Commonwealth v. Buterbaugh, 91 A.3d 1247,
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1262 (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014) ( "The
Pennsylvania Rules of Appellate Procedure require that each question an
appellant raises be supported by discussion and analysis of pertinent
authority, and failure to do so constitutes waiver of the claim. ") (citations
omitted). Moreover, because we have concluded that the evidence was
sufficient to support Appellant's convictions, his claim would not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 1/17/2017
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