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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC TUBBS :
:
Appellant : No. 3501 EDA 2016
Appeal from the Judgment of Sentence September 8, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013272-2011
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 20, 2018
Appellant, Eric Tubbs, appeals from the judgment of sentence entered
on September 8, 2014, following his bench trial convictions for aggravated
assault, possessing an instrument of crime (PIC), terroristic threats, simple
assault, and recklessly endangering another person (REAP).1 Upon review,
we vacate Appellant’s conviction and sentence for terroristic threats and affirm
the judgment of sentence in all other respects.2, 3
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1 18 Pa.C.S.A. §§ 2702(a), 907(a), 2706(a), 2701(a), and 2705, respectively.
2 On appeal, Appellant challenges the sufficiency of the evidence to support
his convictions for aggravated assault, REAP, and terroristic threats. He does
not, however, challenge his convictions for PIC or simple assault. As such, we
have not examined the merits of those two convictions.
3 Before we examine the merits of this decision, we note that on August 23,
2018, Appellant filed an application to strike the Commonwealth’s brief as
untimely. Upon review of the record, this Court entered a per curiam order
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The trial court summarized the facts this case as follows:
On September 27, 2010, at approximately 6:00 p.m., [Appellant]
attacked the victim, [C.D.], with a hammer, striking him twice in
the head. The victim was working as a handy man and fixing a
porch at a home when this assault occurred. Police came to the
scene and [the victim] was taken to the hospital via ambulance
for treatment. After the attack, [Appellant] fled the scene before
police [] arrived. The victim did not know [Appellant], but only by
his nickname, Nagee, as told to him by others and he then
provided that name to the police. The victim positively identified
[Appellant] in court as the person who attacked him[.]
Almost a year and a half [after the incident], on March 21, 2011,
the victim saw [Appellant] on the street and called the police.
When the police arrived, the victim pointed [Appellant] out to the
officers, who then made the arrest. This was the second time the
victim [observed Appellant] after the attack[. Appellant] fled
before police could be called on the prior occasion.
The events of the attack as testified to by the victim were
corroborated by an eyewitness, Willy Ford, who testified that while
standing outside of his home, he heard [Appellant] telling the
victim to not go into an abandoned home anymore. As the victim
went up the street to work on the porch, [Appellant] got into his
car and went after the victim. Mr. Ford yelled to [Appellant] to
leave the victim alone and then saw him jump out of his car, grab
a hammer and hit the victim twice in the head. [Appellant] then
jumped back into his car and fled the scene. Mr. Ford gave a
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on May 18, 2018, granting “[t]he Commonwealth’s third extension of time to
file a brief[,] due by July 10, 2018.” Per Curiam Order, 5/18/2018. The order
specifically indicated that no further extensions would be granted. The
Commonwealth filed a nunc pro tunc request for a fourth extension on July
12, 2018, after the filing deadline had expired. We denied relief by per curiam
order on August 7, 2018. On August 21, 2018, the Commonwealth filed its
appellate brief in an untimely manner. Upon review of the record, the
Commonwealth’s brief was originally due on February 11, 2018. We granted
the Commonwealth three extensions, amounting to almost five months, to file
an appellate brief and it still failed to do so in a timely manner. We are
constrained to strike the Commonwealth’s brief as untimely and we have not
considered it in rendering our decision.
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statement detailing this attack to detectives after the victim was
released from the hospital.
Philadelphia Police Officer Tracey Cooper testified that she
responded to the scene on the date of the attack. Upon arrival,
she found the victim bleeding profusely and with blood all over his
face and clothes. She was advised that the victim was struck with
a hammer by a person named Nagee. She was also provided
with [information pertaining to] the vehicle operated by
[Appellant], a Mercedes Benz, and a plate number, but it did not
belong to that vehicle.
Further, the victim testified that on several occasions prior to the
assault, [Appellant] had threatened the victim about him living in
an abandoned house.
Trial Court Opinion, 11/27/2017, at 2-3.
The trial court held a bench trial on June 26, 2012 and found him guilty
of the aforementioned crimes. On September 8, 2014, the trial court
sentenced Appellant to an aggregate term of eight to 16 years of
imprisonment with a concurrent term of 5 years of probation. More
specifically, the trial court sentenced Appellant to eight to 16 years of
imprisonment for aggravated assault, a concurrent term of two-and-one-half
to five years of imprisonment for PIC, and a concurrent term of 5 years of
probation for terroristic threats.4 On October 21, 2016, the trial court
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4The trial court did not impose additional sentences for simple assault and
REAP, because those convictions merged for sentencing purposes. N.T.,
11/8/2014, at 45.
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reinstated Appellant’s direct appeal rights nunc pro tunc. This timely appeal
resulted.5
On appeal, Appellant presents the following issues6 for our review:
I. Given the absence of direct evidence of any intent to cause
serious bodily injury, and given the minor nature of the
injury and the brevity of the attack, was the evidence
insufficient to convict Appellant of aggravated assault as a
felony of the first degree?
II. Since there was no evidence of any conduct which would
have placed the complaining witness in danger of death or
serious bodily injury, was the evidence insufficient to
support Appellant’s conviction for recklessly endangering
another person?
III. Given the total absence of evidence that Appellant
threatened any criminal act of violence, was the evidence
insufficient to convict Appellant of terroristic threats?
Appellant’s Brief at 3 (suggested answers omitted).
Appellant’s issues challenge the sufficiency of the evidence to support
his convictions for aggravated assault, REAP, and terroristic threats. Our
standard of review is as follows:
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
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5 Appellant filed a notice of appeal on November 15, 2016. On November 17,
2016, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely and subsequently filed a court-approved supplemental concise
statement. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
November 27, 2017.
6 We have reordered Appellant’s issues for ease of discussion.
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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.
Commonwealth v. Arcelay, 190 A.3d 609, 617 (Pa. Super. 2018) (citation
omitted).
In his first issue presented, Appellant contends that the Commonwealth
failed to prove that he intended to inflict serious bodily injury on the victim in
order to sustain his aggravated assault conviction. Appellant’s Brief at 13-27.
Appellant argues that, “the superficial nature of the injury demonstrates that
the degree of force used was not consistent with any intent to inflict death,
permanent disfigurement or protracted impairment of bodily function.” Id. at
16. He claims that the “attack consisted of only two blows to the head and a
brief scuffle lasting only a couple of seconds, even according to the victim
himself.” Id. at 17. Appellant suggests that he was in a position “to have
hauled off and struck [the victim] with all his strength so as to fracture [the
victim’s] skull[,] yet he chose not to do it.” Id. at 23. Accordingly, Appellant
maintains that “[g]iven these factors, the most that can be said is that
[Appellant] had the intent to – and did – inflict non-serious bodily injury, which
would rise to the level of [] simple assault.” Id. at 17.
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[.]
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18 Pa.C.S.A. § 2702(a)(1).
In proving aggravated assault, “where the victim suffers serious bodily
injury, the Commonwealth need not prove specific intent.” Commonwealth
v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997). We have held that a specific
intent to cause serious bodily injury can be inferred from the use of a deadly
weapon on a vital part of the body. Id., citing Commonwealth v. Pandolfo,
446 A.2d 939, 941 (Pa. Super. 1982) (blows to a portion of the body as vital
as the head exhibited intent to inflict serious bodily injury). Our Supreme
Court has stated that a deadly weapon need not be inherently lethal. Id.,
citing Commonwealth v. McCullum, 602 A.2d 313 (Pa. 1992). “An ax, a
baseball bat, an iron bar, a heavy cuspidor, and even a bedroom slipper have
been held to constitute deadly weapons under varying circumstances.” Id.
(citation omitted).
Here, Appellant does not dispute that he intentionally struck the victim
twice with a hammer to the head. Moreover, Appellant does not dispute that
a hammer, in this instance, constituted a lethal weapon. He does not dispute
that the head is a vital part of the body. Instead, Appellant argues that the
attack was restrained and could have inflicted more severe injuries. However,
because a specific intent may be inferred from the use of a deadly weapon to
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a vital part of the body, we discern no error of law or abuse of discretion by
the trial court in convicting Appellant of aggravated assault.7
Next, Appellant argues that the Commonwealth failed to present
evidence that the victim was in fear of death or serious bodily injury in support
of his REAP conviction. Appellant’s Brief at 31-33. Because REAP is a lesser
included offense of aggravated assault, where the evidence is sufficient to
support a claim of aggravated assault, it is also sufficient to support REAP.
See Commonwealth v. Bullock, 170 A.3d 1109, 1121 (Pa. Super. 2017).
Having already determined that the Commonwealth presented sufficient
evidence to support Appellant’s aggravated assault conviction, we conclude
the evidence also supported his REAP conviction as a matter of law. Id.
Finally, we address Appellant’s contention that there was insufficient
evidence to support his conviction for terroristic threats. Appellant argues
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7 Further, we reject Appellant’s reliance on Commonwealth v. Robinson,
817 A.2d 1152 (Pa. Super. 2003) and Commonwealth v. Alexander, 383
A.2d 887 (Pa. 1978). In Robinson, our Court was tasked with determining
whether striking a victim in the spine with a gun, during the course of a
robbery, constituted aggravated assault. We determined that the “clear intent
[] was to take the [victim’s] backpack, not to inflict serious bodily injury” and
“there was no indication the blow was delivered for any other purpose[.]”
Robinson, 817 A.2d at 1161. By contrast, in this case, there is no dispute
that Appellant had a single purpose to strike the victim in the head with a
hammer. In Alexander, the evidence showed the defendant delivered a
single punch to the victim’s face and walked away. Our Supreme Court
determined that “there [] simply [were] no [] circumstances to support a
finding that [Alexander] harbored the requisite intent” to inflict serious bodily
injury. Alexander, 383 A.2d at 889. Here, by comparison, Appellant used a
potentially lethal weapon and struck the victim twice in the head. As such,
we conclude that Robinson and Alexander are inapplicable herein.
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that although the victim testified generally that Appellant threatened him,
there was no evidence that Appellant threatened him with an act of violence.
Appellant’s Brief at 27-30. Appellant suggests that the Commonwealth only
proved that Appellant made demands to vacate an abandoned property and
that “[w]hile possibly unpleasant, such demands simply [were] not the
equivalent to threats to commit a criminal act” as required under the terroristic
threats statute. Id. at 29. Based upon our standard of review and our review
of the record, we agree for the reasons that follow.
Relevant herein, “a person commits the crime of terroristic threats if the
person communicates, either directly or indirectly, a threat to: (1) commit any
crime of violence with intent to terrorize another[.]” 18 Pa.C.S.A.
§ 2706(a)(1). “Neither the ability to carry out the threat, nor a belief by the
person threatened that the threat will be carried out, is an element of the
offense.” Commonwealth v. Richard, 150 A.3d 504, 514 (Pa. Super. 2016)
(citation omitted). “Rather, the harm sought to be prevented by the statute is
the psychological distress that follows from an invasion of another's sense of
personal security.” Id. Moreover, “it is unnecessary for an individual to
specifically articulate the crime of violence which he or she intends to commit
where the type of crime may be inferred from the nature of the statement and
the context and circumstances surrounding the utterance of the statement.”
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Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009) (citation
omitted), affirmed in part, reversed in part on other grounds, 30 A.3d 1105
(Pa. 2011).
Here, the trial court noted that “the victim [] testified that on several
occasions prior to the assault, [Appellant] had threatened the victim about
him living in an abandoned house.” Trial Court Opinion, 11/27/2017, at 3.
The trial court concluded that Appellant “repeatedly threatened the victim in
this case which eventually escalated to a point where a physical attack actually
occurred.” Id. at 7.
Based upon the record before us, including portions of the transcript
relied upon by the trial court, we cannot agree with the conclusion that
Appellant threatened to commit a crime of violence with the intent to terrorize
the victim. With regard to the actual, physical confrontation, the victim
testified that Appellant “blindsided him.”8 N.T., 6/26/2012, at 12. According
to the victim, Appellant did not utter a word during the attack or when he saw
the victim earlier that same day. Id. at 22. The victim claimed, however,
that he was “threatened” by Appellant “three times before” the incident. Id.
at 23. Thereafter, the following exchange occurred:
Defense counsel: What did [Appellant] threaten you with?
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8 Willy Ford, eyewitness to the altercation, testified similarly. N.T.,
6/26/2012, at 34. There was no evidence that Appellant spoke to the victim
during the attack. Moreover, Ford did not witness other verbal confrontations
as discussed below.
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The victim: He didn’t threat[en] me with – he threatened
me with his mouth.
Defense counsel: And what did he say to you?
The victim: Just words, just words, just words. He told me
to get out.
Id. Subsequently, the victim detailed specific instances where Appellant
“threatened” him on the street by telling him to stay away from the abandoned
house at issue. Id. at 24-25.
Even when we view the evidence in the light most favorable to the
Commonwealth, as our standard requires, we discern there was insufficient
evidence that Appellant threatened a crime of violence against the victim. At
best, the evidence reveals that Appellant told the victim to leave the area on
prior occasions before the attack. The victim characterized those
confrontations as threatening, but he was unable to articulate a crime of
violence that Appellant intended to commit. While a crime of violence may be
inferred based upon the surrounding circumstances, there was no evidence
here that Appellant communicated an intent to harm or physically menace the
victim during the prior instances when Appellant told the victim to stay away
from the abandoned residence. The victim himself testified that Appellant
used confrontational language, but no threat of force. During the actual
assault, Appellant did not speak, so he did not communicate any threats or
reference their earlier exchanges. There was simply no evidence that
Appellant threatened a crime of violence against the victim prior to, or during,
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the actual attack. The trial court essentially determined that because the
assault took place after several verbal exchanges between Appellant and the
victim, such evidence was sufficient to support a conviction for terroristic
threats. This decision was in error. Hence, we are constrained to vacate
Appellant’s conviction for terroristic threats.
“If our disposition upsets the overall sentencing scheme of the trial
court, we must remand so that the court can restructure its sentence plan.”
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (citation
omitted). “By contrast, if our decision does not alter the overall scheme, there
is no need for a remand.” Id. (finding no need to remand because vacating
DUI conviction did not disturb sentencing scheme where the DUI sentence was
concurrent with other terms and did not increase the aggregate length of
incarceration). Here, the trial court imposed a term of probation for terroristic
threats to be served concurrently to the sentences for the remaining
convictions. Vacating the terroristic threats conviction, and its attendant
sentence, does not change the length of Appellant’s aggregate term of
imprisonment and the overall sentencing scheme remains the same. Hence,
we conclude it is unnecessary to remand the matter for resentencing.
Motion to strike the Commonwealth’s brief granted. Conviction and
sentence for terroristic threats vacated. Judgment of sentence affirmed in all
other respects. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/18
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