J -S23039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEPHEN L. MASTEN,
Appellant No. 917 EDA 2016
Appeal from the Judgment of Sentence February 22, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0005766-2014
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 05, 2017
Stephen L. Masten ("Masten") appeals from the judgment of sentence
imposed after a jury convicted him of attempted murder, aggravated
assault, criminal conspiracy, and burglary.' We affirm.
The trial court set forth the relevant facts underlying this appeal as
follows:
On May 6, 2012, David Phillips (herein "[the] victim") was
assaulted by [Masten] and his co-conspirator, Frank Cassiano
[("Cassiano")], [while the victim was asleep in his residence,
located at] 5928 Shisler Street [in Philadelphia]. Around 10:30
p.m. [], [the victim] awoke to the sound of footsteps and saw
[Masten] and Cassiano turn on his bedroom lights and say,
"We're going to kill you motherfucker." Cassiano hit the victim's
head with a foot -long military shovel. [Masten] then strangled
the victim, while Cassiano went through the victim's belongings.
Afterwards, [Masten] again strangled the victim with a piece of
cloth, then smothered him with a pillow. During the tussle, the
victim heard [Masten] ask Cassiano for help. The victim
resisted, using a blackjack on [Masten]. [Masten] yanked the
blackjack out of the victim's hand while Cassiano held the victim
1- See 18 Pa.C.S.A. §§ 901(a), 2702, 903, 3502.
J -S23039-17
down. [Masten] then placed his thumbs into the victim's eyes
and said "... we're going to kill you." The victim testified that his
"eye -balls popped and the fluid popped out of [his] eyes." He
heard [Masten] say, "I blinded that fucking bastard." [Masten]
and Cassiano then laughed[,] and [Cassiano] screamed as they
left, "Remember who did this to you motherfucker ... we hope
you die motherfucker." The victim eventually felt his way out of
the house and asked a neighbor to call the police.
The victim sustained substantial injuries. He received 52
staples on his head at Einstein Hospital, lost his pupil in his right
eye, and his left eye's color changed from green to blue. He is
permanently blinded in both eyes and sustained a permanent
scar from the top center of his head to his eyebrows. The victim
received treatment at Wills Eye Institute for two months before
he was released to a nursing home in Montgomery County for
two months. He then attended Colorado Center for the Blind for
ten months and consulted a psychologist for his depression for a
period of time.
The Commonwealth called several witnesses to testify.
Joseph Hamer [("Hamer")], Cassiano's second cousin, testified
that [Masten] told him that "your cousin have nothing to worry
about ... if anything, I'll take the rap." [According to Hamer,
Masten] had also mentioned "wanting to do something to [the
victim]" for weeks. Furthermore, Wilbert Lauer, the victim's
roommate and landlord, testified that there had been ongoing
problems between the victim and [Masten]. On the night of the
incident, he testified that he came home to a "kicked -in or
pushed -in" front door. Detective Erika Griffin also testified that
the front door was kicked in[,] and investigators found the front
door bolt "jimmied" open.
Michael Cook [("Cook")], an acquaintance to both the
victim and [Masten], testified that [Masten] and Cassiano stayed
at his house approximately two weeks after this incident.
[Masten] told Cook that he "poked [the victim's] eye out" and
felt his late wife "looking down on him and smiling." Cook
immediately asked [Masten] to leave his house. Within two
weeks, Cook found a black bag stashed in his closet that
belonged to [Masten], which [contained] a bomber jacket with a
-2
J -S23039-17
distinctive white supremacy patch,[2] boots, and pants. Forensic
investigators found DNA evidence matching the victim, Cassiano,
and [Masten] on the bomber jacket. The jacket also matched
the description of [that which Masten had been wearing on the
date of the attack] provided by the victim.
Trial Court Opinion, 7/8/16, at 2-4 (footnote added, citations to record
omitted).
The police arrested Masten at his residence a few weeks after the
attack. The Commonwealth thereafter charged him with the above -
mentioned offenses. The matter proceeded to a jury trial, at the close of
which the jury convicted Masten of all counts. On February 22, 2016, the
trial court sentenced Masten to an aggregate prison term of 40 to 80 years.
Masten timely filed a Notice of Appeal, followed by a court -ordered Pa.R.A.P.
1925(b) Concise Statement of Errors Complained of on Appeal. The trial
court then issued a Pa.R.A.P. 1925(a) Opinion.
Masten now presents the following issue for our review: "Is [Masten]
entitled to an arrest of judgment on the charge of attempted murder and
2The victim testified at trial that he, Masten, and Cassiano were all
members of groups associated with white supremacist views.
- 3 -
J -S23039-17
burglary,[3] where the evidence was insufficient to sustain the verdict?" Brief
for Appellant at 3 (footnote added).
Our standard of review of a sufficiency of the evidence claim is well
settled:
Our standard of review is whether the evidence admitted at trial,
and all reasonable inferences drawn from that evidence, when
viewed in the light most favorable to the Commonwealth as
verdict winner, w[as] sufficient to enable the fact[ -]finder to
conclude that the Commonwealth established all of the elements
of the offense beyond a reasonable doubt.
Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super. 2013) (citation
and brackets omitted).
This Court has outlined what the Commonwealth must prove in order
to sustain a conviction for attempted murder as follows:
Under the Crimes Code, "[a] person commits an attempt when[,]
with intent to commit a specific crime, he does any act which
constitutes a substantial step towards the commission of the
crime." 18 Pa.C.S.A. § 901(a). A person may be convicted of
attempted murder if he takes a substantial step toward the
commission of a killing, with the specific intent in mind to
commit such an act. The substantial step test broadens the
scope of attempt liability by concentrating on the acts the
defendant has done[,] and does not any longer focus on the acts
remaining to be done before the actual commission of the crime.
The mens rea required for first -degree murder, specific intent to
kill, may be established solely from circumstantial evidence. The
3 Though Masten's Statement of Questions Involved section purports to
challenge the sufficiency of the evidence supporting his burglary conviction,
his Argument section challenges only the attempted murder conviction.
Accordingly, Masten has waived any challenge to his burglary conviction.
See, e.g., Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(stating that "where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.")
-4
J -S23039-17
law permits the fact[ -]finder to infer that one intends the natural
and probable consequences of his acts[.]
Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008)
(quotation marks and some citations omitted).
In the context of a sufficiency of the evidence claim concerning
attempted murder, this Court has explained that
[as] 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, [the] appellant's
conduct as it appeared to his eyes. ... Moreover, depending on
the circumstances[,] even a single punch may be sufficient.
Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (citation
and brackets omitted); see also Commonwealth v. Chambers, 980 A.2d
35, 47 (Pa. 2009) (stating that "the specific intent to kill can be formed in a
fraction of a second ...."). "Specific intent to kill can be proven where the
defendant knowingly applies deadly force to the person of another."
Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. Super. 2013) (citation
omitted).
Here, Masten challenges only the specific intent element of attempted
murder, asserting that although he "had fully formed the intent to attack the
victim[], [] from the record itself, he did not have the intent to kill the
victim[,] and we know that from the things that he said at the scene of the
offense." Brief for Appellant at 8. Specifically, Masten emphasizes the
victim's testimony that, when Masten and Cassiano were leaving the victim's
house after the brutal attack, the victim "heard [Cassiano] scream
-5
J -S23039-17
'Remember who did this to you motherfucker,' and [Masten] laughing[f] and
they said as they were leaving, 'We hope you die motherfucker.' Id. at 10
(quoting N.T., 10/15/15, at 22). According to Masten,
if [Masten and Cassiano] wanted [the victim] to remember who
did this to him, then [the victim] would have to survive and live.
[The victim] was conscious and alive at the time that [Masten
and Cassiano] left. That is completely inconsistent with having
an intent to kill.
Brief for Appellant at 10. Finally, Masten argues that "even though the
actions taken were gross and heinous, it does not follow, a fortior[]i, that
anyone was trying to kill [the victim] by popping his eyes out." Id. at 11;
see also id. (asserting that "[t]here ... was a shovel or pipe present[,] and
the attack with either of those weapons, [] if kept up, would have split open
the skull of [the victim] and he would have bled out at the scene. However,
[Masten and Cassiano] did not undertake those actions.").
In its Opinion, the trial court determined that the Commonwealth
presented "ample evidence" that Masten possessed specific intent to kill the
victim, reasoning as follows:
[Masten] used his bare hands, a piece of cloth, and a pillow to
strangle and smother the victim. He also gouged out the
victim's eyes, leaving the victim to bleed profusely. Cassiano's
use of a shovel as a deadly weapon is also imputed to [Masten]
as well. See Commonwealth v. Phillips, 946 A.2d 103, 114
(Pa. Super. 2008) (holding that conspirator's use of deadly
weapon[] was imputable to co[-]conspirator because the weapon
was in the defendant's immediate vicinity and accessible during
the crime). Further, a shovel is considered a "deadly weapon"
under 204 Pa. Code § 303.10, which defines a deadly weapon to
include "any device, implement, or instrumentality ... capable of
producing death or serious bodily injury[,] where the court
-6
J -S23039-17
determines that the offender intended to use the weapon to
threaten or injure another individual." Here, Cassiano hit the
victim's head, an indisputably vital part of the body, with a
shovel. This evidences a specific intent to kill. See
Commonwealth v. Blakeney, 596 510, 946 A.2d 645
Pa.
(2008) (holding the finder of fact in [a] prosecution for first -
degree murder may infer that the defendant had the specific
intent to kill the victim based on the defendant's use of a deadly
weapon upon a vital part of the victim's body.)
Trial Court Opinion, 7/8/16, at 6 (footnote citations moved to body, citations
to record omitted). We agree with the trial court's reasoning and
determination.
Masten's using his thumbs to gouge the victim's eyeballs out,
strangling him, and then leaving him seriously injured, permanently blind,
and bleeding profusely, was independently sufficient to prove that Masten
intended to kill the victim. See, e.g., Chambers, 980 A.2d at 47-48
(holding that the evidence was sufficient to establish specific intent to kill
where the defendant repeatedly beat the three -year -old victim, threw her
into a metal radiator, which struck her head, and leaving her to suffocate);
Commonwealth v. Shank, 883 A.2d 658, 665 (Pa. Super. 2005) (stating
that there was sufficient evidence to establish specific intent to kill where the
unarmed defendant participated with other men in severely beating the
victim about the head and face numerous times, which fractured his skull
and caused brain hemorrhaging).
Moreover, Masten's statements to the victim unequivocally
communicated Masten's intent to kill. See Commonwealth v.
-7
J -S23039-17
Hornberger, 270 A.2d 195, 198 (Pa. 1970) (stating that a jury may find
specific intent to kill from a defendant's words, conduct of the defendant,
and the attendant circumstances). Specifically, the victim testified that,
while Masten was gouging his eyeballs, Masten had said "we're going to kill
you." N.T., 10/15/15, at 18; see also id. at 11 (wherein the victim stated
that Masten and Cassiano, upon first entering the victim's room, had both
stated "we're going to kill you motherfucker.").
Finally, contrary to Masten's claim, the jury was under no obligation to
(1) accept that Cassiano purportedly stated to the victim upon leaving the
scene, "Remember who did this to you motherfucker," N.T., 10/15/15, at
22; or (2) find Cassiano's purported statement in this regard to be indicative
of Masten's intent to kill the victim, which was clearly established by
Masten's brutal conduct and express words.
Accordingly, viewing the trial evidence in the light most favorable to
the Commonwealth as verdict winner, there was ample evidence allowing
the jury to conclude that Masten had acted with the specific intent to kill the
victim, and to convict him of attempted murder. Thus, Masten's challenge to
the sufficiency of the evidence fails.
Judgment of sentence affirmed.
-8
J -S23039-17
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/5/2017
-9