J-S57021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEVON BILLINGSLEA :
:
Appellant : No. 2922 EDA 2016
Appeal from the Judgment of Sentence August 19, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0001988-2015
CP-51-CR-0001989-2015
BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY PLATT, J.: FILED DECEMBER 10, 2018
Appellant, Devon Billingslea, appeals from the judgment of sentence
imposed following his bench conviction of aggravated assault, possession of
an instrument of a crime (PIC), simple assault, recklessly endangering another
person (REAP), criminal trespass, and indirect criminal contempt (ICC).1 We
affirm.
The trial court aptly summarized the facts of this case as follows:
On January 16, 2015, [Appellant] was involved in an
altercation with Felicia Parks (“Ms. Parks”) and her friend
Daymond Baker (“Mr. Baker”) at 5811 Webster Street in
Philadelphia, Pennsylvania. Prior to the incident, [Appellant] and
Ms. Parks were in a relationship, which ended in 2014. After the
dissolution of the relationship, Ms. Parks filed for a Protection from
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1 18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), 2705, 3503(a)(1)(ii), and 23
Pa.C.S.A. § 6114(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Abuse Order (“PFA”) against [Appellant]. However, at roughly 2
[a.m.] on January 16, Ms. Parks and Mr. Baker were inside Ms.
Parks’ house when they heard noises at the dining room window.
At that time, Ms. Parks discovered that [Appellant] was standing
outside the window saying something, but she could not hear what
because he was outside [of] the locked window. At that time,
[Appellant] went around to the kitchen window, which was open.
When Ms. Parks attempted to slide the window closed, [Appellant]
struck her in the face with a closed fist. In response to this, Mr.
Baker pushed [Appellant] away. [Appellant] then walked to the
front window, which was also locked; he threw a rock at the glass
storm door, which shattered. After that, Ms. Parks and Mr. Baker
testified that they saw [Appellant] walking down 60th Street Way,
so they believed that he had left the area. However, roughly five
minutes later, [Appellant] came “tiptoeing” down the steps from
the upstairs area of the house, and told Mr. Baker to leave. (N.T.
Trial, 4/26/16, at 23). Mr. Baker and [Appellant] had some “back
and forth” while Ms. Parks searched for her cell phone in the
kitchen. (Id. at 24). At that time, Ms. Parks’ 1[4]-year-old child,
S.P., came downstairs; she stated that she put her hands up to
show that she was not trying to hit [Appellant], and stood between
him and Mr. Baker. At that time, S.P. saw [Appellant] make a
quick motion with his hand. Mr. Baker then indicated that he had
been stabbed by [Appellant]. Ms. Parks states that Mr. Baker
pulled his shirt up and blood began gushing out. S.P. said that
[Appellant] “darted out of the house” and she called 911. (Id. at
159). At that point, Mr. Baker “started sliding down the couch
and then he vomited,” while S.P. spoke to the dispatcher about
what to do next. (Id.). She indicated that emergency personnel
arrived within 5-10 minutes of the initial call.
Mr. Baker also testified regarding the incident involving
[Appellant]. He stated that [Appellant] lunged at him, and Ms.
Parks’ daughter got between Mr. Baker and [Appellant]. At that
time, [Appellant] stabbed Mr. Baker in the chest, which left a dime
or nickel sized circular scar on the left chest area. After the
stabbing occurred, [Appellant] walked out the front door and left.
After being transported to the hospital, Mr. Baker underwent
surgery within [a half-]hour of his arrival. He then spent 10 days
in the hospital, and was instructed to continue seeing the doctors
for follow-up appointments every two weeks [until August of
2015]. Mr. Baker also stated that he continued to have trouble
breathing and experienced chest pain as a result of his injuries.
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(Trial Court Opinion, 12/21/17, at unnumbered pages 1-3) (most record
citations omitted; record citation formatting provided).
Appellant proceeded to a bench trial on April 26, 2016. At the
continuation of trial on May 13, 2016, Appellant filed a motion to dismiss the
case, based on the Commonwealth’s alleged failure to provide discovery
materials.2 The trial court denied the motion, and found Appellant guilty of
the aforementioned offenses. On August 19, 2016, the court sentenced him
to an aggregate term of not less than two and one-half nor more than five
years’ incarceration, followed by five years’ probation. This timely appeal
followed.3
Appellant raises the following issues for our review:
I. Whether the [c]ourt was in error in denying Appellant’s motion
to dismiss for failure to provide the mandatory discovery
requested and filed on May 13, 2016[?]
II. The verdict was insufficient as a matter of law, due to the
inconsistency of testimony and the omissions of the
Commonwealth during trial, and elements of the crimes were not
sufficiently proven for the following reasons:
a. As to the PFA, the Commonwealth did not prove
that the Appellant was aware of the PFA and therefore
the Contempt conviction is contrary to law;
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2 The materials at issue were an arrest memorandum prepared by the lead
detective, and documentation regarding the possible existence of a security
system at Ms. Parks’ residence. (See Trial Ct. Op., at unnumbered page 5;
N.T. Trial, 5/13/16, at 6-10).
3Appellant filed a timely concise statement of errors complained of on appeal
on January 31, 2017. The court entered an opinion on December 21, 2017.
See Pa.R.A.P. 1925.
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b. As to the Criminal Trespass, the Commonwealth did
not prove that the Appellant entered into the premises
by breaking into it;
c. As to Aggravated Assault, the Commonwealth did
not prove that the Appellant caused or intended to
cause serious bodily injury;
d. As to the PIC, Simple Assault, and REAP, the
Commonwealth did not prove that the Appellant came
at Mr. Baker, rather than the other way around.
(Appellant’s Brief, at 7).
Appellant first argues that the trial court erred in denying his motion to
dismiss the case for the Commonwealth’s failure to provide discovery
materials, namely an arrest memorandum and documentation related to a
possible security system at the Parks’ property. (See Appellant’s Brief, at 12-
16; see also this Memorandum supra at *3 n.2). Appellant claims that the
Commonwealth’s failure to produce this evidence to defense counsel
constituted a Brady4 violation. (See Appellant’s Brief, at 12). This issue does
not merit relief.
Pennsylvania Rule of Criminal Procedure 573 sets forth the basic
principles governing the Commonwealth’s discovery obligations in a criminal
case, and the sanctions the trial court may impose if the Commonwealth
violates those obligations. This Rule provides, in pertinent part:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
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4 Brady v. Maryland, 373 U.S. 83 (1963).
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might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused that is
material either to guilt or to punishment, and is within
the possession or control of the attorney for the
Commonwealth[.]
* * *
(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.
Pa.R.Crim.P. 573 (B)(1)(a), (E).
Rule 573 does not abridge or limit the Commonwealth’s duty
to provide discovery pursuant to Brady [supra,] and its progeny.
In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment irrespective of the good
faith or bad faith of the prosecution. There are three components
of a true Brady violation: The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.
Commonwealth v. Maldonodo, 173 A.3d 769, 774 (Pa. Super. 2017),
appeal denied, 182 A.3d 991 (Pa. 2018) (quotation marks and citations
omitted). Additionally, “[t]he trial court has broad discretion in choosing the
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appropriate remedy for a discovery violation[,]” and we apply a deferential
abuse of discretion standard of review to any employed remedy. Id.
Here, the trial court explained its rationale in denying the motion to
dismiss as follows:
. . . [I]t was established that the Commonwealth was not in
possession of either item [at issue] until the start of trial, at which
point both items were provided to defense counsel. Additionally,
defense counsel did not allege any prosecutorial misconduct.
After a lengthy discussion with counsel, the court found that the
arrest memo was not exculpatory to [Appellant] and, therefore,
did not constitute a Brady violation. Additionally, because the
Commonwealth had already rested when the exhibit was
presented, the court excluded the memo from evidence
altogether. As far as the possible existence of security footage,
the court found that it was unlikely that the tapes still existed
nearly a year and a half later, and that it would be unproductive
to engage in a search for non-existent tapes that would further
delay the judicial process. Therefore, the court stated that it
would take the missing discovery into consideration in rendering
its decision, as it would likely go to the credibility of the specific
charges. . . .
(Trial Ct. Op., at unnumbered page 5; see also N.T. Trial 5/13/16, at 38).
After review of the record, and in light of the trial court’s express
statement that it, as factfinder, would take the discovery issues related to the
admitted evidence into consideration in rendering its decision, we discern no
abuse of discretion in its denial of Appellant’s motion to dismiss. See
Maldonodo, supra at 774. Therefore, Appellant’s first issue merits no relief.
Appellant next challenges the sufficiency of the evidence supporting all
of his offenses. (See Appellant’s Brief, at 16-21). Our standard of review is
as follows:
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Because a determination of evidentiary sufficiency presents
a question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
Appellant first challenges the sufficiency of the evidence supporting his
ICC conviction for violation of the underlying PFA order. (See Appellant’s
Brief, at 17-18). Appellant maintains that he was never served with proper
notice of the order. (See id. at 18).
. . . Where a PFA order is involved, an indirect criminal
contempt charge is designed to seek punishment for violation of
the protective order. A charge of indirect criminal contempt
consists of a claim that a violation of an order occurred outside
the presence of the court.
In order to establish indirect criminal contempt, the
Commonwealth must prove: 1) the order was sufficiently definite,
clear, and specific to the contemnor as to leave no doubt of the
conduct prohibited; 2) the contemnor had notice of the order; 3)
the act constituting the violation must have been volitional; and
4) the contemnor must have acted with wrongful intent.
Commonwealth v. Felder, 176 A.3d 331, 334 (Pa. Super. 2017) (citations
and quotation marks omitted).
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Here, as noted, Appellant disputes the second element regarding notice
of the order. The trial court explained:
. . . At trial, the Commonwealth provided a copy of the final
PFA order, which the court determined was a self-authenticating
public document. (See N.T. Trial, 4/26/16, at 34-35).
Additionally, the Commonwealth presented a witness, Ms. Parks,
who stated that she filed the PFA order with the police department
and was told that [Appellant] had been properly served with the
order, effectively activating the protections of the PFA. (See id.
at 46-47).[5] Based on these two points, it is clear that
[Appellant] had proper notice of the order, and therefore, cannot
claim that he was unaware of the PFA that led to his contempt
charge.
(Trial Ct. Op., at unnumbered page 7) (record citations provided).
Viewing the evidence admitted at trial in the light most favorable to the
Commonwealth as verdict winner, we agree with the trial court that the
evidence was sufficient to establish that Appellant had notice of the PFA order.
See Palmer, supra at 89. Therefore, Appellant’s challenge to his ICC
conviction merits no relief.
Appellant next challenges the sufficiency of the evidence supporting his
conviction for criminal trespass. (See Appellant’s Brief, at 18-19).
Specifically, Appellant disputes that he entered Ms. Parks’ home by breaking
into it. (See id. at 19).
A person commits the offense of criminal trespass “if, knowing that he
is not licensed or privileged to do so, he . . . breaks into any building or
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5Specifically, Ms. Parks testified that she went to the police station as directed
and waited there until the police returned from serving Appellant with the
order. (See N.T. Trial, 4/26/16, at 46-47).
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occupied structure or separately secured or occupied portion thereof.” 18
Pa.C.S.A. § 3503(a)(1)(ii). A person “breaks into” a building or occupied
structure if he “gain[s] entry by force, breaking, intimidation, unauthorized
opening of locks, or through an opening not designed for human access.” Id.
at § 3503(a)(3).
Instantly, the record reflects that Appellant repeatedly attempted to
enter the kitchen of Ms. Parks’ home, despite her efforts to keep him out by
shutting and locking windows. (See N.T. Trial, 4/26/16, at 17-20). Appellant
used physical force by punching Ms. Parks in the face as she was leaning over
to close a window. (See id. at 18-21). Appellant then threw a rock at Ms.
Parks’ front storm door, shattering the pane of glass. (See id. at 21-22).
Eventually, Appellant entered the home through the upstairs area, and
“tiptoe[d]” down the steps. (Id. at 23; see id. at 22-23, 104).
Based on the foregoing, we conclude that the evidence was more than
sufficient to establish that Appellant gained entry to Ms. Parks’ home by use
of force, intimidation, the unauthorized opening of locks, or through an
opening in the upstairs area not designed for human access. See 18 Pa.C.S.A.
§ 3503(a)(3). Therefore, Appellant’s sufficiency claim regarding his criminal
trespass conviction fails.
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Finally, Appellant challenges the sufficiency of the evidence supporting
his aggravated assault conviction. (See Appellant’s Brief, at 19-21).6
Appellant argues that the evidence failed to establish his intent, i.e., that he
knew or had reason to know that his conduct would result in substantial harm
to Mr. Baker. (See id. at 20).
The offense of aggravated assault is set forth at section 2702 of the
Crimes Code, and provides in relevant part as follows:
(a) Offense defined.—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[.] . . .
18 Pa.C.S.A. § 2702(a)(1). 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.A. § 2301. We are also mindful that “[i]t is
well established in Pennsylvania that a fact finder may infer malice and a
specific intent to kill from the use of a deadly weapon upon a vital part of the
victim’s body.” Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super.
2018), appeal denied, 2018 WL 4776067 (Pa. 2018) (citation omitted).
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6 Appellant also purports to challenge his PIC, simple assault, and REAP
convictions in this same section of his brief, which spans one and one-half
pages. (See Appellant’s Brief, at 19-21). However, because he fails to
develop each of these individual claims with citation to pertinent legal
authority or the record, they are waived. See Pa.R.A.P. 2101, 2119(a)-(c).
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Here, the evidence demonstrated that Appellant stabbed Mr. Baker in
the heart with a knife. (See N.T. Trial, 4/26/16, at 107-08, 158). Mr. Baker
testified that Appellant “stabbed my aorta” and that he “almost died.” (Id. at
107-08). This testimony sufficed to establish that Appellant knowingly caused
serious bodily injury to Mr. Baker. Therefore, Appellant’s final claim lacks
merit. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/18
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