Com. v. Foster, S.

J-S26015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

SCOTT A. FOSTER,

Appellant No. 2320 EDA 2017

Appeal from the Judgment of Sentence Entered June 29, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005973-2015

BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 06, 2018

Appellant, Scott A. Foster, appeals from the judgment of sentence of

one year (less a day) to two years’ (less a day) imprisonment, followed by 10

years’ probation, entered after he was convicted of two counts of aggravated

assault and other related offenses. We affirm.

The trial court has summarized the factual background and procedural

history of this case, as follows:
Kimberly and Joseph Gersch1 resided in an apartment building in
Hatfield, Montgomery County, with their two minor daughters.2
The couple learned that [Appellant], a neighboring apartment
tenant, had been complaining to local law enforcement and the
landlord about an odor of marijuana in the building. The Gersches
met with the landlord on July 24, 2015, and denied being the
source of the odor.

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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1
The individuals involved in this case, excluding [Appellant],
will be referred to by their first names to avoid confusion.
No disrespect is intended.
2
The children were four and five years old at the time.

Later that day[,] the Gersches and their daughters were in the
apartment[’s] parking lot, preparing to leave for dinner, when
they saw [Appellant’s] then 17-year-old son. Kimberly
approached [Appellant’s son] and asked if his mother was around
so the two could speak. [Appellant’s son] responded that he was
training to be a Philadelphia police officer and Kimberly could
speak with him. Kimberly then asked that he tell his father to lay
off because she felt like there had been problems since the
Gersches had moved to the complex.3 [Appellant’s son] returned
to his apartment and Kimberly began having a discussion in the
parking lot with another neighbor.
3
This court, as fact-finder, determined the Gersches were
credible witnesses and did not credit [Appellant’s] self-
serving testimony.

[Appellant] emerged from his apartment cursing at Kimberly. He
stood within inches of her, screaming and flailing his arms. Joseph
approached, put his hand on [Appellant’s] chest and told him to
step back. No other physical contact occurred among [Appellant]
and the Gersches. The argument eventually ended and Joseph
took his younger daughter back into their apartment so she could
use the bathroom.

[Appellant], in contrast, returned to his apartment to get his nine-
millimeter semi-automatic handgun.4 He initially could not find it,
but eventually located it after asking his wife if she had moved it.
He removed the handgun from its locked safe and loaded it.
4
[Appellant] lawfully owned the firearm and had a permit
to carry.

Contemporaneously, Kimberly had been standing outside the
Gersches’ car with her five-year-old daughter, waiting for her
husband and other daughter to return. She noticed a commotion
coming from [Appellant’s] apartment and heard him saying
“where is it,” “I am taking it outside,” and “don't tell me what to
do.”

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The Gersch family eventually got back into their car and were
leaving for dinner when [Appellant’s] daughter, Brittany, came out
into the parking lot screaming at Kimberly and accusing her of
making Brittany’s mother ([Appellant’s] wife) punch a wall or
dresser. Kimberly left the car and told Brittany she had done
nothing to her mother. Kimberly then opened the back door of
the car to adjust the seatbelt for one of her daughters.

[Appellant] reappeared within steps of Kimberly and pointed his
handgun in her face. He told Kimberly “he was going to blow [her]
fucking brains out.” None of the Gersches had any weapons.
Joseph heard [Appellant’s] threat and came to the back of the car.
[Appellant] then put the gun in Joseph’s face, about an inch from
one of his eyeballs. [Appellant] told Joseph he would “blow [his]
fucking head off, too.” Joseph asked if the gun was loaded and
[Appellant] said “yes.” [Appellant] then tried to chamber a round,
but his hand slipped. He tried to chamber a round again but the
bullet popped out [of] the gun. [Appellant] picked it up and put
it back in the gun.

During this time, a neighbor had grabbed the Gersches’ daughters
from the car and [had] taken them to safety. Kimberly also called
911 and other neighbors began to come out of their apartments.
Sirens eventually could be heard and [Appellant] went back into
his apartment. Police apprehended him inside and located the gun
he had used during the incident.

The Commonwealth initially charged [Appellant] with more than
30 offenses. The case proceeded to a trial by judge and the
Commonwealth amended the Information to reduce the total
number of charges to eight: two counts of aggravated assault;5
one count of terroristic threats;6 two counts of simple assault;7
one count of recklessly endangering another person;8 and two
counts of disorderly conduct.9 This court found [Appellant] guilty
of all eight counts and later imposed an aggregate sentence on
the aggravated assault convictions of one year (less a day) to two
years (less a day), plus probation.10
5
18 Pa.C.S. § 2702(a)(1),(4).
6
18 Pa.C.S. § 2706(a)(1).
7
18 Pa.C.S. § 2701(a)(1),(3).
8
18 Pa.C.S. § 2705.

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9
18 Pa.C.S. § 5503(a)(1),(4).
10
The remaining convictions either merged for purposes of
sentencing or had no further penalty imposed.

[Appellant] filed a post-sentence motion, seeking reconsideration
of his sentence, which this court denied. He filed a notice of
appeal and subsequently complied with this court’s directive that
he produce a concise statement of errors in accordance with
Pa.R.A.P. 1925(b).

Trial Court Opinion (TCO), 9/22/2017, at 1-4 (internal citations omitted; some

brackets added).

Presently, Appellant raises the following issues for our review:
1. Was the evidence insufficient to support [Appellant’s]
convictions for aggravated assault where he did not cause,
or attempt to cause, serious bodily injury?

2. Was the evidence insufficient to support [Appellant’s]
convictions for simple assault where he did not cause, or
attempt to cause, bodily injury?

Appellant’s Brief at 2.

Before delving into the substance of Appellant’s issues, we must first

determine whether Appellant properly raised these issues for our review in his

Rule 1925(b) statement. In his Rule 1925(b) statement, Appellant presented

the following claims:
1. The evidence was insufficient to sustain a conviction for
aggravated assault because [Appellant] did not attempt to
cause serious bodily injury to anyone as there was no
evidence that he ever made any effort or took any action to
inflict bodily injury and there was no serious bodily injury
actually inflicted upon anyone.

2. The evidence was insufficient to sustain a conviction for
simple assault because [Appellant] did not attempt to cause
… bodily injury to anyone as there was no evidence that he
ever made any effort or took any action to inflict bodily

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[i]njury and there was no bodily injury inflicted upon
anyone.

Appellant’s Rule 1925(b) statement, 8/25/2017, at 1 (unnumbered pages).

The trial court stated that Appellant has waived the first issue because

he was convicted of two different types of aggravated assault, but does not

specify in his concise statement whether he is challenging both of those

convictions. See TCO at 6. Likewise, the trial court found that Appellant

waived his second issue because he was convicted of two different types of

simple assault, but again has not identified whether he is contesting both of

those convictions in his concise statement. Id. at 9.

While we agree that Appellant’s Rule 1925(b) statement should have

specified which convictions he sought to challenge, we decline to deem

Appellant’s issues waived. Despite Appellant’s lack of specificity, the trial

court was nevertheless able to address the merits of Appellant’s issues. In

addition, this case is not particularly complex, and the record is manageable.

See Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (declining to find

waiver of sufficiency claim due to nonspecific Rule 1925(b) statement where

the case was relatively straightforward, the record was not lengthy, and the

trial court readily apprehended the appellant’s claim and addressed it in

detail); Commonwealth v. Richard, 150 A.3d 504, 518 (Pa. Super. 2016)

(determining that “[a]lthough [the a]ppellant did not specify the allegedly

unproven element or elements of his convictions in his Rule 1925(b)

statement, we find this statement was sufficient to preserve a challenge to

the sufficiency of the evidence to sustain his convictions…”) (citation omitted).

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Moving now to the merits, we set forth our standard of review for

sufficiency claims:
A claim challenging the sufficiency of the evidence presents a
question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and accept
as true all evidence and all reasonable inferences therefrom upon
which, if believed, the fact[-]finder properly could have based its
verdict.
…

[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. 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. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually received must
be considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.

Commonwealth v. Fortune, 68 A.3d 980, 983-84 (Pa. Super. 2013) (en

banc) (internal citations and quotation marks omitted; some brackets added).

In his first issue, Appellant claims that the evidence was insufficient to

sustain his convictions for aggravated assault under 18 Pa.C.S. § 2702(a)(1)

and (a)(4). See Appellant’s Brief at 7, 8, 12-13. He argues that the evidence

failed to establish that he acted with the requisite intent to cause either serious

bodily injury for purposes of Section 2702(a)(1), or bodily injury for purposes

of Section 2702(a)(4), to Kimberly or Joseph. See id. at 5. We disagree.

The applicable statute sets forth the elements of those crimes as follows:
(a) Offense defined.--A person is guilty of aggravated assault if
he:

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(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;
…

(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon;

18 Pa.C.S. § 2702(a)(1),(4). Serious bodily injury is defined 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.” 18 Pa.C.S. § 2301. In contrast, bodily injury

constitutes “[i]mpairment of physical condition or substantial pain.” Id.

With respect to aggravated assault under Section 2702(a)(1), this Court

has previously explained:
For aggravated assault purposes, an “attempt” is found where an
accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating
a serious bodily injury upon another. An intent ordinarily must be
proven through circumstantial evidence and inferred from acts,
conduct or attendant circumstances.

The Pennsylvania Supreme Court in Commonwealth v.
Alexander, 477 Pa. 190, 383 A.2d 887 (1978)[,] created a
totality of the circumstances test to be used to evaluate whether
a defendant acted with the necessary intent to sustain an
aggravated assault conviction. In Commonwealth v. Matthew,
589 Pa. 487, 909 A.2d 1254 (2006), that Court reaffirmed the test
and articulated the legal principles which apply when the
Commonwealth seeks to prove aggravated assault by showing
that the defendant attempted to cause serious bodily injury.
Specifically, the Court stated, in relevant part, that:

Alexander created a totality of the circumstances test, to
be used on a case-by-case basis, to determine whether a
defendant possessed the intent to inflict serious bodily
injury. Alexander provided a list, albeit incomplete, of
factors that may be considered in determining whether the

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intent to inflict serious bodily injury was present, including
evidence of a significant difference in size or strength
between the defendant and the victim, any restraint on the
defendant preventing him from escalating the attack, the
defendant’s use of a weapon or other implement to aid his
attack, and his statements before, during, or after the
attack which might indicate his intent to inflict injury.
Alexander, [383 A.2d] at 889. Alexander made clear that
simple assault combined with other surrounding
circumstances may, in a proper case, be sufficient to
support a finding that an assailant attempted to inflict
serious bodily injury, thereby constituting aggravated
assault.

Matthew, 909 A.2d at 1257 (citation and quotation marks
omitted). The Court indicated that our case law does not hold that
the Commonwealth never can establish a defendant intended to
inflict bodily injury if he had ample opportunity to inflict bodily
injury but did not inflict it. Rather, the totality of the
circumstances must be examined as set forth by Alexander. Id.

Fortune, 68 A.3d at 984 (some internal citations and quotation marks

omitted). Similarly, with respect to Section 2702(a)(4), “our inquiry … is

whether … [the] defendant took a substantial step and demonstrated … an

intent to inflict bodily injury[.]” Commonwealth v. Gruff, 822 A.2d 773,

780 (Pa. Super. 2003).

To illustrate, in Fortune, this Court determined that the following

evidence supported a finding that the appellant in that case had acted with

the requisite intent to cause serious bodily injury under Section 2702(a)(1):
[The a]ppellant appeared before the victim without warning,
pointed a gun at the middle of her forehead, demanded her keys,
and threatened to “blow [her] head off” if she did not comply. The
victim indicated that [the a]ppellant grasped one end of [her] keys
while she held a key in her hand. She also estimated that the gun
was less than a half inch from the area between her eyebrows at
the time. Under such circumstances, [the a]ppellant was not
“merely pointing” the gun at the victim while making a conditional

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threat. Rather, his simultaneous demand to her to act was direct
and uttered while he constantly pointed his weapon squarely at a
vital part of her body and while he was holding the opposite end
of the keys that were also still in her hand. As such, we find there
was sufficient evidence from which a jury could have found that
the [a]ppellant attempted to cause serious bodily injury upon the
victim.

We further find there was sufficient evidence from which the jury
could have concluded that [the a]ppellant took a substantial step
towards inflicting serious bodily injury since he pointed a gun at
the middle of the victim’s forehead, threatened to kill her, and did
not do so only because the victim fled. See Matthew, supra
(finding a substantial step to inflict serious bodily injury had been
taken where the appellant pushed a loaded gun against the
victim’s throat, threatened to kill him, and pointed it at him before
fleeing the scene). “The only remaining step [a]ppellant would
have had to take to inflict serious bodily injury upon [the victim]
would have been to pull the trigger on the gun, which would have
obviously caused serious bodily injury.” Matthew, 589 Pa. at
494, 909 A.2d at 1259 (citation omitted).

Moreover, we hold there was sufficient evidence for the jury to
conclude [the a]ppellant possessed the requisite intent to inflict
serious bodily injury upon the victim when he threatened to “blow
her head off.” As was the case in Matthew, if this threat alone
had not been enough to establish his intent, the jury properly
could have determined it from his pointing of the gun at the middle
of her forehead during the carjacking. Matthew, 909 A.2d at
1259 (“Where the intention of the actor is obvious from the act
itself, the [fact-finder] is justified in assigning the intention that is
suggested by the conduct.”) (quotation omitted).

Under the totality of the circumstances, the jury certainly was free
to find, inter alia, that [the a]ppellant intended to carry out his
threat but did not do so for a variety of reasons. The fact the
victim managed to drop her keys and successfully escape does
nothing to negate a finding that [the a]ppellant possessed the
proper mens rea at the time he pointed the gun at the victim. In
sum, in applying the totality of the circumstances approach as
Matthew dictates, we find [the a]ppellant’s claim there was
insufficient evidence to sustain his conviction for Aggravated
Assault must fail.

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Fortune, 68 A.3d at 986-87 (some internal citations and footnote omitted;

some brackets added).

Here, Appellant claims that the Commonwealth failed to establish that

he acted with the requisite intent to cause the Gersches either serious bodily

injury, or bodily injury. See Appellant’s Brief at 11, 12-13. Appellant points

out that he “testified that his finger was never on the trigger and this fact was

never disputed by the Commonwealth.” Id. at 11 (citation omitted).

Moreover, he argues that he “had ample opportunity to inflict serious bodily

injury and chose instead to walk away from the dispute.” Id. at 12.

These arguments are specious. As the trial court aptly discerned,
[Appellant’s] words and actions belie his claim that he never
“made any effort or took any action to inflict bodily injury.” Rule
1925(b) Statement, ¶ 1. After the verbal dispute had ended, he
went into his apartment searching for his handgun. He eventually
found it and loaded it. He went back out to the parking lot and
pointed the weapon at Kimberly’s face and told her he was going
to blow her head off. When her husband stepped between them,
[Appellant] placed the handgun within an inch of one of Joseph’s
eyeballs and said he would blow Joseph’s head off too. [Appellant]
attempted to chamber a round, but his hand slipped. He
attempted to chamber a round again, but the bullet fell out. He
then picked up the bullet and put it back in the gun. He continued
to point the gun at Joseph for some time and left after hearing the
sound of an approaching police siren. This evidence sufficed to
show [Appellant] took a substantial step towards inflicting serious
bodily injury on the Gersches. In addition, the threats to blow the
Gersches’ heads off while pointing a firearm directly at, and in
close proximity to, their heads, further sufficed to show
[Appellant] possessed the requisite intent to inflict serious bodily
injury.

TCO at 8-9 (footnote omitted).

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Under Fortune, it is clear that the above-stated evidence was sufficient

for the jury to conclude that Appellant acted with the requisite intent to cause

serious bodily injury pursuant to Section 2702(a)(1), as well as bodily injury

under Section 2702(a)(4). Accordingly, we affirm Appellant’s aggravated

assault convictions.

In his second issue, Appellant asserts that the Commonwealth failed to

present sufficient evidence to sustain his convictions for simple assault under

18 Pa.C.S. § 2701(a)(1). See Appellant’s Brief at 14.1 Again, he argues that
____________________________________________

1
We must acknowledge an apparent inconsistency in the parties’ briefs.
Appellant claims that he was found guilty of two counts of simple assault under
18 Pa.C.S. § 2701(a)(1). See Appellant’s Brief at 14. Indeed, in the
reproduced record filed by Appellant, the docket reflects that he was convicted
of two counts of simple assault pursuant to 18 Pa.C.S. § 2701(a)(1).
However, the Commonwealth and the trial court state that Appellant was
convicted of two different types of simple assault pursuant to 18 Pa.C.S. §
2701(a)(1) and (a)(3). See Commonwealth’s Brief at 14; TCO at 4, 9-10. To
differentiate, Section 2703(a)(1) sets forth that a person is guilty of assault if
he “attempts to cause or intentionally, knowingly or recklessly causes bodily
injury to another[,]” whereas Section (a)(3) occurs when an individual
“attempts by physical menace to put another in fear of imminent serious bodily
injury[.]” 18 Pa.C.S. § 2701(a)(3).

Based on our review of the record, we agree with the Commonwealth and the
trial court that Appellant was convicted of two different types of simple
assault. The amended information filed by the Commonwealth charged
Appellant with, inter alia, two counts of simple assault: one under Section
2701(a)(1), and the other under Section 2701(a)(3). Amended Information,
4/4/2016, at 1 (unnumbered pages). At the bench trial, Appellant’s counsel
discussed the charges in the amended information, and the trial court
ultimately found Appellant guilty of all of those counts. See N.T. Trial,
4/4/2016, at 161, 183-84. Further, the trial court mentioned the amended
information in its Pa.R.A.P. 1925(a) opinion when reciting the procedural
history of the case. See TCO at 4 (“The case proceeded to a trial by judge
and the Commonwealth amended the Information to reduce the total number

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the Commonwealth failed to prove that he possessed the specific intent to

inflict bodily injury, which he concedes is the same specific intent that is

required for aggravated assault under Section 2702(a)(4). Id. at 14-15. No

relief is due.

We reiterate that the relevant statute sets forth, in pertinent part:

(a) Offense defined.-- Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;

18 Pa.C.S. § 2701(a)(1).

Further,
The Commonwealth need not establish that the victim actually
suffered bodily injury; rather, it is sufficient to support a
conviction if the Commonwealth establishes an attempt to inflict
bodily injury. This intent may be shown by circumstances which
reasonably suggest that a defendant intended to cause injury.

‘To show an ‘attempt’ to inflict bodily injury, it must be shown that
the actor had a specific intent to cause bodily injury[.]’ ‘A person
acts intentionally with respect to a material element of an offense’

____________________________________________

of charges to eight…. This court found [Appellant] guilty of all eight
counts….”). It is unclear to us why Appellant believes — and the docket in the
reproduced record indicates — that he was convicted of two counts of simple
assault under Section 2701(a)(1).

In any event, if Appellant were to challenge his simple assault conviction under
Section 2701(a)(3), we would consider the evidence sufficient to show that
Appellant attempted by physical menace to put another in fear of imminent
serious bodily injury, where he pointed a loaded gun at the faces of Kimberly
and Joseph. See 18 Pa.C.S. § 2701(a)(3); see also Commonwealth v.
Little, 614 A.2d 1146, 1152 (Pa. Super. 1992) (“It is well settled in
Pennsylvania case law that pointing a gun at someone constitutes simple
assault by physical menace.”) (footnote omitted).

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if ‘it is his conscious object to engage in conduct of that nature or
to cause such a result[.]’

Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002) (citation

omitted; brackets in original).

As we discussed above, the Commonwealth adduced evidence at trial

that showed that Appellant pointed a loaded gun at the faces of the Gersches

while in close proximity to them, said he would blow their heads off, twice

attempted to chamber a round in his firearm, and went back into his

apartment only after sirens could be heard. Viewing the evidence in the light

most favorable to the Commonwealth as the verdict winner, see Fortune,

supra, we determine that Appellant attempted to cause bodily injury to the

Gersches. As such, we affirm his simple assault conviction under 18 Pa.C.S.

§ 2701(a)(1).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2018

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