Com. v. Sinkiewicz, M.

J-A07033-23

2023 PA SUPER 62

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MATTHEW SINKIEWICZ : No. 480 EDA 2022

Appeal from the Order Entered December 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0020631-2020,
MC-51-CR-0020632-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MATTHEW SINKIEWICZ : No. 481 EDA 2022

Appeal from the Order Entered December 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0020631-2020,
MC-51-CR-0020632-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY McCAFFERY, J.: FILED APRIL 5, 2023

In these consolidated appeals,1 the Commonwealth appeals from the

orders entered in the Philadelphia County Court of Common Pleas denying its

motions to refile aggravated assault charges against Matthew Sinkiewicz

____________________________________________

1 This Court consolidated these appeals sua sponte. See Order, 5/17/22.
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(Appellee), a former sergeant with the Southeastern Pennsylvania

Transportation Authority (SEPTA) police force, in two cases involving his

assault of two protestors. On appeal, the Commonwealth contends it

presented prima facie evidence that Appellee attempted to cause serious

bodily injury to the victims and caused bodily injury to the victims with a

deadly weapon to support two counts of aggravated assault at each docket.

See 18 Pa.C.S. § 2702(a)(1), (4). For the reasons below, we affirm.

The charges against Appellee arose as a result of his actions during a

May 30, 2020, Black Lives Matter protest outside of Philadelphia’s Municipal

Services Building (MSB). At that time, Appellee was uniformed and on-duty,

assisting other officers in keeping the protestors at bay. While attempting to

push protestors back from the MSB, Appellee struck two protestors ─ Hannah

Bachism and Joseph Rupprecht ─ with his department-issued baton. At two

separate dockets, he was charged with two counts of aggravated assault

under Subsections 2702(a)(1) and (a)(4), and one count each of possessing

an instrument of crime, simple assault, recklessly endangering another person

(REAP), unsworn falsification to authorities, and official oppression.2 See Trial

Ct. Dockets MC-51-CR-0020631-2020 (Rupprecht); MC-51-CR-0020632-

2020 (Bachism).

The cases proceeded to a bifurcated preliminary hearing conducted

before Philadelphia Municipal Court Judge Wendy L. Pew on September 22,
____________________________________________

2 See 18 Pa.C.S. 907, 2701, 2705, 4904, and 5301, respectively.

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2021, and November 3, 2021. The following evidence was presented by the

Commonwealth.

By late afternoon on May 30, 2020, approximately 1,000 to 2,000

protestors had gathered in front of the MSB, and were starting to “rush” the

building. See N.T., 11/3/21, at 48. Both police body cam footage and aerial

footage from a local news station of the incidents at issue was presented at

the preliminary hearings. As noted supra, Appellee was a SEPTA police

sergeant; he was uniformed and on-duty at all relevant times. Just prior to

the incidents, the officers were supplied with protective shields, and ordered

to “push people back.” See id. at 48, 68.

Hannah Bachism testified that at approximately 4:50 p.m., Appellee

pushed her with his shield, then moved it away and struck her “over the back

of [her] head and on [her] arm” with his metal baton. See N.T., 9/22/21 at

7, 9. She stated that she immediately backed away and began “running down

the steps” at which time she tripped and lost a shoe. Id. at 9. Bachism

testified she went to the hospital where the staff “used glue that was safe for

your skin to close the [head] wound.” Id. She stated she had a permanent

scar, and experienced tingling on the back of her head for seven to eight

months following the injury. Id. at 9-10. Bachism identified herself in

photographs from the protest and narrated the body cam and aerial footage

of the incident presented by the Commonwealth. See id. at 10-19.

Under cross-examination, Bachism acknowledged that she did touch

Appellee before he struck her with his baton but did not remember the

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“specifics.” See N.T., 9/22/21, at 26, 29-30. She recalled only that after she

was “hit with his shield[,]” she instinctively raised her arms to push back. Id.

at 26-27. Appellee then presented Bachism with a still photograph of the

incident, after which she admitted showed her pushing against Appellee’s arm.

See id. at 34-36. Under redirect, Bachism agreed the “whole interaction”

took place “within 5 to 10 seconds.” Id. at 60.

Joseph Rupprecht testified that he was also one of the protestors in front

of the MSB on May 30, 2020. N.T., 11/3/21, at 5-6. He claimed that the

police “charged” the protestors, who were unable to “run away[, a]nd

eventually [Appellee] struck [him] over the head with the baton.” Id. at 6.

Rupprecht identified himself in still photographs and the aerial footage; he

was wearing blue gloves at the time. See id. at 7-9, 23-24. He acknowledged

it was “very chaotic” in the “ten minutes or so before [he] was struck[.]” Id.

at 16. Rupprecht testified that officers “came into [his] space and were

attacking” him so he had his “hands up in defense” and some officers “may

have made contact with [his] hands.” Id. While the aerial footage showed

his arm outstretched in Appellee’s direction immediately before he was struck,

Rupprecht claimed he was attempting to “prevent and defend against the

batons and shield and barricades that were being swung at [him] and the

people around [him].” Id. at 24. Rupprecht testified that after Appellee

struck him in the head with his metal baton, he was taken to the emergency

room where he received ten staples and was diagnosed with a concussion.

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Id. at 12. He claimed he experienced pain at the site for weeks, and was

unable to work at his six-hour per week job for two weeks. Id. at 12-14.

The Commonwealth also presented the testimony of SEPTA Police

Lieutenant Mark Pasquarella, who investigated Appellee’s actions during the

protest response. See N.T., 11/3/21, at 44-45. As part of the investigation,

Lieutenant Pasquarella reviewed the Response to Resistance Report, which

was completed by Appellee after the incident. See id. at 46-48. In his report,

Appellee stated the protestors “refused numerous commands to back up[,]”

and were “physically resisting” the officers as they pushed them back with

their shields. See id. at 48. Appellee acknowledged he then “used [his] baton

to get [protestors] to move back.” Id. Lieutenant Pasquarella testified that

he reviewed the body cam and aerial footage of the incident and observed

Appellee strike four protestors in their heads with his baton. See id. at 53-

54. He also acknowledged, however, that there appeared to be 1,000 to 2,000

people present at the scene, the police had requested further assistance, and

there were multiple objects (pipes, glass, strollers) being thrown at police from

the crowd. Id. at 62-63. Lieutenant Pasquarella confirmed Appellee’s claim

that the officers were ordered to “push the people back[.]” Id. at 68.

Lastly, the Commonwealth entered into evidence SEPTA’s “response to

resistance directive.” See N.T., 11/3/21, at 79-81. The parties stipulated

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that the document was “the protocol that is in place for response to resistance

that [Appellee] would have been trained in and subject to.” 3 Id. at 87-88.

At the conclusion of the November 3rd hearing, the trial court

discharged the felony aggravated assault charges for lack of evidence, but

held the remaining misdemeanor charges for trial. See N.T., 11/3/21, at 104.

Five days later, on November 8, 2021, the Commonwealth filed a notice of its

intent to refile the criminal complaint ─ including the felony aggravated assault

charges ─ at each docket. See Notices of Refiling of Criminal Complaint,

11/8/21.

A refile hearing was conducted on December 8, 2021, before

Philadelphia Common Pleas Court Judge Crystal Bryant-Powell.4 The

____________________________________________

3 The document is not included in the certified record on appeal. Nevertheless,
the Commonwealth included it in its reproduced record, and Appellee does not
contest its authenticity. See Commonwealth’s Brief at R.R. 86a-95a;
Appellee’s Brief at 9 n.4, 17. For its purposes, the Commonwealth refers to
the specific directives regarding the use of a police baton. See
Commonwealth’s Brief at 19, 21, R.R. 93-94. The directives provide that
“[i]ntentionally striking areas which could potentially cause death or serious
physical harm, include the head . . . is prohibited unless the use of deadly
force is justified.” Id. at R.R. 93-94.

4 Pennsylvania Rule of Criminal Procedure 544(A) permits the Commonwealth
to refile charges dismissed at a preliminary hearing with the “issuing authority
who dismissed . . . the charges.” Pa.R.Crim.P. 544(A). It further allows the
Commonwealth to file a motion requesting “a different issuing authority to
conduct the preliminary hearing.” See Pa.R.Crim.P. 544(B). Although the
refile hearing in the present case was conducted before a common pleas court
judge ─ not the same municipal court judge who originally dismissed the
aggravated assault charges ─ there is no indication in the record that the
Commonwealth requested a different issuing authority. Nevertheless, neither
(Footnote Continued Next Page)

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Commonwealth “elected not to present additional live testimony but [moved]

into evidence the notes of testimony from the preliminary hearings of

September 22, 2021, and November 3, 2021, two videos collectively that were

shown at the bifurcated preliminary hearings, and photographs that were also

shown at the bifurcated preliminary hearings.” Trial Ct. Op., 4/18/22, at 2.

It also attempted to move into evidence the SEPTA response to resistance

directives that were admitted at the November 3rd hearing. See N.T.,

12/8/21, at 27-28. However, the court sustained Appellee’s objection to the

document, finding it was “irrelevant.” Id. at 28. At the conclusion of the

hearing, the trial court denied the motion to refile at both dockets. See id. at

34.

On December 20, 2021, the Commonwealth filed two notices of appeal,5

one at each docket, asserting that the orders denying its motions to refile

____________________________________________

party has objected to the procedure. See Commonwealth v. Montgomery,
192 A.3d 1198, 1199 n.2 (Pa. Super. 2018).

5 It merits mention that although the Commonwealth listed both municipal
court docket numbers on the notices of appeal, it properly filed a separate
notice of appeal at each docket. See Commonwealth v. Johnson, 236 A.3d
1141, 1148 (Pa. Super. 2020) (en banc) (Pa.R.A.P. 341, which requires
separate notice of appeal for each lower court docket, was satisfied when
appellant filed four separate notices of appeal, although each notice listed all
four docket numbers; appellate rules do not “expressly forbid” inclusion of
multiple docket numbers on notices of appeal). We emphasize, however, that
the better practice is to list one lower court docket number on each notice of
appeal.

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“terminate[d] or substantially handicap[ped] the prosecution[s].”6 See

Commonwealth’s Notices of Appeal, 12/20/21; Pa.R.A.P. 311(d)

(Commonwealth may take an appeal in a criminal case “from an order that

does not end the entire case where the Commonwealth certifies in the notice

of appeal that the order will terminate or substantially handicap the

prosecution.”).

The Commonwealth presents one issue for our review:

Did the lower court err in ruling that the evidence was insufficient
to establish a prima facie case that [Appellee] committed the
aggravated assault charges, where the evidence, properly viewed
in the light most favorable to the Commonwealth, established that
[Appellee] intentionally struck each of the victims in the head with
a metal baton?

Commonwealth’s Brief at 4.

Our review of an order quashing a criminal charge is guided by the

following:

[T]he evidentiary sufficiency of the Commonwealth’s prima facie
case is a question of law to which this Court’s review is plenary.
The trial court is afforded no discretion in deciding whether, as a
matter of law and in light of the facts presented to it, the
Commonwealth has carried its burden to make out the elements
of a charged crime.

As our Supreme Court has explained:

[a]t the preliminary hearing stage of a criminal prosecution,
the Commonwealth need not prove the defendant’s guilt
____________________________________________

6 We note that, at each docket, the Commonwealth complied with the trial
court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.

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beyond a reasonable court, but rather, must merely put
forth sufficient evidence to establish a prima facie case of
guilt. A prima facie case exists when the Commonwealth
produces evidence of each of the material elements of the
crime charged and establishes probable cause to warrant
the belief that the accused committed the offense.
Furthermore, the evidence need only be such that, if
presented at trial and accepted as true, the judge would be
warranted in permitting the case to be decided by the jury.

Weight and credibility of evidence are not factors at the
preliminary hearing stage. All evidence must be read in the light
most favorable to the Commonwealth, and inferences reasonably
drawn therefrom which would support a verdict of guilty are to be
given effect. Courts must employ a “more-likely-than-not” test to
assess the reasonableness of inferences relied upon. Anything
less amounts only to suspicion or conjecture. Our Supreme Court
recently reminded that the prima facie showing is a low threshold
for the Commonwealth to surpass.

Commonwealth v. Munson, 261 A.3d 530, 540 (Pa. Super. 2021) (citations

omitted).

In the present case, the Commonwealth argues the trial court

erroneously denied its motions to refile the aggravated assault charges

against Appellee. It insists it presented a prima facie case against Appellee

under both Subsections 2702(a)(1) and (a)(4) of the aggravated assault

statute at each docket. With regard to subsection (a)(1), the Commonwealth

maintains it presented a prima facie case that Appellee attempted to cause

serious bodily injury to the victims “when he swung his metal baton at their

heads.” Commonwealth’s Brief at 20. With regard to subsection (a)(4), the

Commonwealth contends it established that Appellee used his department-

issued baton as a deadly weapon, and attempted to cause and, in fact, did

cause bodily injury to both Bachism and Rupprecht. See Commonwealth’s

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Brief at 17-19. Related to both claims, the Commonwealth also insists that

the trial court, at the refile hearing, “contravened [its] standard of review” ─

and considered a “diminished record” ─ when it refused “to admit SEPTA’s

response-to-resistance directive, which had been admitted at the preliminary

hearing through a stipulation.” Id. at 16 (quotation marks omitted). It

maintains the directive, which Appellee was “‘trained in and subject to[,]’ . . .

explicitly prohibits officers from striking suspects in the head with a baton

unless ‘deadly force’ is justified because doing so could ‘potentially cause

death or serious bodily injury.’” Id. at 21 (citations omitted). Accordingly,

the Commonwealth requests that we reverse the trial court’s orders denying

its motions to refile the charges and remand both cases for trial.

As noted above, the Commonwealth seeks to pursue aggravated assault

charges against Appellee under Subsections 2702(a)(1) and (a)(4) of the

Crimes Code, which provide, in relevant part:

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; [or]
* * *

(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) (emphasis added).

“Bodily injury” is defined as the “[i]mpairment of physical condition or

substantial pain[,]” while “[s]erious bodily injury” is that which “creates a

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substantial risk of death or . . . causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.”

18 Pa.C.S. § 2301. Although the Commonwealth argued in the trial court that

both victims suffered serious bodily injury, it has abandoned that assertion

on appeal. However, there appears to be no dispute that both Bachism and

Rupprecht suffered “bodily injury” as defined in Section 2301.

Thus, under subsection (a)(1), assuming neither victim suffered serious

bodily injury, the Commonwealth must establish that Appellee attempted to

cause serious bodily injury. See 18 Pa.C.S. § 2702(a)(1). “[A]n ‘attempt’ is

found where the accused, with the required specific intent, acts in a manner

which constitutes a substantial step toward perpetrating a serious bodily injury

upon another.” Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.

Super. 2012) (citation omitted & emphasis added).

A person acts intentionally with respect to a material element of
an offense when . . . it is his conscious object to engage in conduct
of that nature or to cause such a result[.] As intent is a subjective
frame of mind, it is of necessity difficult of direct proof. The intent
to cause serious bodily injury may be proven by direct or
circumstantial evidence.

Id. (citations & quotation marks omitted). When considering whether a

defendant acted with specific intent to cause serious bodily injury if such injury

does not occur, our Supreme Court has considered the following

circumstances: whether the defendant is “disproportionally larger or stronger

than the victim;” whether the defendant had to be “restrained from escalating

his attack upon the victim;” whether the defendant had a “weapon or other

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implement to aid his attack;” and whether the defendant made any

statements “which might indicate his intent to inflict further injury upon the

victim.” Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978).

With regard to Section 2702(a)(4), the Commonwealth must establish

Appellee attempted to cause or, in fact, did cause bodily injury with a “deadly

weapon.” See 18 Pa.C.S. § 2702(a)(4). The Crimes Code defines a deadly

weapon as:

Any firearm, whether loaded or unloaded, or any device designed
as a weapon and capable of producing death or serious bodily
injury, or any other device or instrumentality which, in the
manner in which it is used or intended to be used, is
calculated or likely to produce death or serious bodily
injury.

18 Pa.C.S. § 2301 (emphasis added). Thus:

Although deadly weapons are commonly items which one would
traditionally think of as dangerous (e.g., guns, knives, etc.), there
are instances when items which normally are not considered to be
weapons can take on deadly status. See e.g., Commonwealth
v. Prenni, 55 A.2d 532 (Pa. 1947) (broom
handle); Commonwealth v. Cornish, 589 A.2d 718 (Pa. Super.
1991) (fireplace poker); Commonwealth v. Brown, 587 A.2d 6
(Pa. Super. 1991) (dry-wall saw). The definition of deadly weapon
does not demand that the person in control of the object intended
to injure or kill the victim. Instead, it gives objects deadly
weapon status on the basis of their use under the
circumstances. . . .

Commonwealth v. Scullin, 607 A.2d 750, 753 (Pa. Super. 1992) (some

citations omitted & emphasis added).

Considering first Appellee’s culpability under Subsection (a)(1), the trial

court found the Commonwealth failed to establish a prima facie case that that

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Appellee “acted with the specific intent to cause serious bodily injury” to

Bachism and Rupprecht. Trial Ct. Op. at 10, 11 (emphasis added). The court

summarized the attendant circumstances surrounding both assaults as

follows:

Appellee was among a group of police officers who began to use
their police shields to push protestors back (away) from the steps
of the [MSB], and pursuant to that course of action, . . . Appellee
pushed his shield against a protestor who was standing next to
Ms. Bachism. Ms. Bachism immediately began to use both of her
hands to push back against the shield and in doing so, her hand
made contact with . . . Appellee[’]s arm. At that precise moment,
. . . Appellee struck Ms. Bachism once on her head and once on
her arm with a baton.

The sequence of actions between Ms. Bachism and . . .
Appellee occurred in a time frame of a few seconds, and . . .
Appellee did not attempt to strike Ms. Bachism again with the
baton after his initial actions.

* * *

Mr. [Rupprecht] stated that “there was a line of police amassing,
one of who was . . . Appellee. Eventually the police started
charging the protestors and attacking us . . . the police were
swinging batons and shields and barricades at the protestors . . .
And eventually [Appellee] struck me over the head with the
baton.”

When asked whether he did anything physically toward . . .
Appellee at any point, Mr. Rupp[recht] stated “not toward
[Appellee, but] I did reach my hand out to prevent attacks against
other protestors.[”]

Like [Ms.] Bachism, the sequence of actions between Mr.
Rupprecht and . . . Appellee occurred when . . . Appellee was
among a group of police officers who began to use their police
shields to push protestors back (away) from the steps of the
[MSB]. Mr. Rupprecht described this occurrence as very chaotic.
Notably, Mr. Rupprecht does not state that . . . Appellee struck
him more than once.

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Trial Ct. Op. at 9-11 (record citations & some quotation marks omitted).

Preliminarily, we note Appellee insists the Commonwealth waived the

argument that he possessed the specific intent to cause serious bodily injury

to the victims, because, in the trial court, it argued only that the victims did,

in fact, suffer serious bodily injury. See Appellee’s Brief at 11-14. Indeed,

“[w]hen a victim actually sustains serious bodily injury, the Commonwealth

can, but does not necessarily have to, establish specific intent to cause such

harm.” Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010) (en

banc). We agree that, during the December 8, 2021, refile hearing, the

Commonwealth focused on its claim that “for the purposes of the F1

aggravated assault [under Subsection 2702(a)(1),] serious bodily injury did

occur[.]” See N.T., 12/8/21, at 25. Moreover, it argued that if the court did

not agree the victims’ injuries were “serious enough for F1[,]” then it could

determine that Appellee committed aggravated assault under Subsection

(a)(4) because he “at least caused bodily injury with a deadly weapon[.]” Id.

Nevertheless, during the earlier November 3rd preliminary hearing, the

Commonwealth argued that Appellee’s actions in hitting other protestors with

his baton, and striking the victims’ in their heads, was evidence of his intent.

See id. at 11/3/21, at 100-01. Further, as detailed above, the trial court

addressed this argument in its opinion. Thus, we decline to find the

Commonwealth’s present claim waived.

In asserting that Appellee demonstrated the requisite specific intent, the

Commonwealth focuses on the following: (1) Appellee “swung his metal baton

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at [the victims’] heads[;]” (2) Appellee was “noticeably larger than the two

victims and the surrounding protestors[;]” (3) the other officers present “did

not need to resort to deadly force[;]” (4) Appellee “swung his baton five more

times at other, unidentified protestors ─ two of whom he struck in the head[;]”

and (5) Appellee violated SEPTA’s response-to-resistance directive, “which

explicitly prohibits officers from striking suspects in the head with a baton

unless ‘deadly force’ is justified[.]” Commonwealth’s Brief at 20-21. While

our standard of review requires us to view the evidence in the light most

favorable to the Commonwealth,7 we are not required to accept the

Commonwealth’s interpretation of the evidence it presented ─ particularly

when the incident and surrounding circumstances were captured on video.

Upon our review of the testimony, as well as the relevant body cam and

aerial footage of the incidents, we agree with the trial court’s determination

that the evidence presented did not support a prima facie case of aggravated

assault under Section 2702(a)(1). Even considering the “low threshold” of

the “more-likely-than-not” test, we conclude the Commonwealth failed to

present sufficient prima facie evidence that Appellee acted with the specific

intent to inflict serious bodily injury on the victims. See Munson, 261 A.3d

at 540.

In its review of the circumstances surrounding the assault, the

Commonwealth ignores the fact that the incidents at issue took place while
____________________________________________

7 See Munson, 261 A.3d at 540.

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Appellee and dozens of other police officers were attempting to prevent 1,000

to 2,000 protestors from gaining entry to the MSB. Both the body cam and

aerial footage show unidentified items being thrown at the officers. Although

it does appear that Appellee was larger than the two victims, he was not

involved in a one-on-one attack, where the larger individual would have a

significant advantage. Rather, Appellee was in the minority of police officers

attempting to subdue a large crowd of protestors. Thus, his size advantage

was not relevant. Furthermore, while it does appear Appellee swung his baton

more than twice, there was no testimony or footage showing him repeatedly

attacking either victim ─ both of whom admittedly made some contact with,

or an aggressive gesture towards, Appellee before he reacted. See N.T.,

9/22/21, at 26-27 (Bachism pushed back on Appellee’s shield before she was

hit), 34-36 (photo showed Bachism pushing against Appellee’s arm); N.T.,

11/3/21, at 24 (aerial footage showed Rupprecht with arm outstretched in

Appellee’s direction immediately before he was struck).

The circumstances surrounding these assaults ─ which by all accounts

were chaotic ─ does not establish Appellee possessed the requisite specific

intent to cause serious bodily injury to either Bachism or Rupprecht when he

struck each victim with his baton. Each strike was momentary and not

precipitated by any threats of harm or prior confrontations. See

Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (evidence

sufficient to prove defendant attempted to commit aggravated assault;

defendant placed loaded gun against victim’s throat and threatened to kill him

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multiple times before fleeing scene); Commonwealth v. Fortune, 68 A.3d

980, 987 (Pa. Super. 2013) (en banc) (evidence sufficient to prove defendant

attempted to commit aggravated assault; defendant held a gun to victim’s

forehead during carjacking and threatened her); Commonwealth v. Lopez,

654 A.2d 1150, 1155 (Pa. Super. 1995) (evidence supported prima facie case

of aggravated assault; defendant had specific intent to cause serious bodily

injury when he fired eight bullets into empty residence because he had argued

with and threatened the owner earlier that day); Commonwealth v.

Rightley, 617 A.2d 1289, 1295 (Pa. Super. 1992) (evidence sufficient to

prove defendant attempted to commit aggravated assault; after fist-fight with

victim ended, defendant grabbed aluminum bat and told his girlfriend “no one

does this to me and lives,” before striking victim twice).

We also reject the Commonwealth’s reliance on SEPTA’s response-to-

resistance directive. At the December 8, 2021, refile hearing, the trial court

sustained Appellee’s objection to that document, determining it was

irrelevant. See N.T., 12/8/21, at 27-28. Although the Commonwealth insists

the trial court’s refusal to consider that document was improper because it

had been admitted at the prior November 3rd hearing, the Commonwealth did

not challenge that ruling in its Pa.R.A.P. 1925(b) statements. See Statements

of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(B), 1/4/22.

Thus, it is waived for purposes of appeal. See Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the Statement . . . are waived.”).

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Accordingly, we conclude the Commonwealth failed to present a prima

facie case of aggravated assault under Section 2702(a)(1) as to both victims.

Nevertheless, the Commonwealth also argues it presented prima facie

evidence to support a charge of aggravated assault under Section 2702(a)(4),

which requires proof that the defendant attempted to cause, or did in fact

cause, bodily injury to another with a deadly weapon. See 18 Pa.C.S. §

2702(a)(4). While Appellee does not dispute that the victims suffered bodily

injury, he maintains that his department-issued baton was not a deadly

weapon as contemplated in the statute. See Appellee’s Brief at 9. The

Commonwealth argues, however, that “[a] reasonable fact-finder at trial could

easily find the baton was a deadly weapon when used in the matter [Appellee]

did to strike the victims.” Commonwealth’s Brief at 18. Further, it cites

several cases in which non-traditional items were considered to be deadly

weapons as defined in Section 2301. See id. at 18-19. Moreover, the

Commonwealth emphasizes that “SEPTA itself underscored this in its

response-to-resistance directive, which prohibits using the baton to

“‘[i]ntentionally strik[e] areas which could potentially cause death or serious

physical harm, include the head[,] . . . unless the use of deadly force is

justified.’” Id. at 19, citing R.R. at 93-94.

As noted above, the Crimes Code provides that an item which is not

traditionally viewed as a weapon may be considered a “deadly weapon” when

“in the manner in which it is used or intended to be used, is calculated or likely

to produce death or serious bodily injury.” 18 Pa.C.S. § 2301. Indeed, the

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courts of this Commonwealth have determined that, under certain

circumstances, a club, a baseball bat, and a tire iron were “deadly weapons”

pursuant to Section 2301. See Commonwealth v. Prenni, 55 A.2d 532,

532-33 (Pa. 1947) (club, which defendant admittedly used to repeatedly strike

victim over the head, killing her, was deadly weapon for purposes of first-

degree murder conviction); Commonwealth v. Nichols, 692 A.2d 181, 184

(Pa. Super. 1997) (baseball bat swung at victim’s head during argument was

“deadly weapon” for purposes of aggravated assault statute); Scullin, 607

A.2d at 753 (tire iron thrown a victim during argument was “deadly weapon”

for sentencing enhancement).

Here, however, the trial court found that the Commonwealth did not

present evidence “which showed that Appellee used the baton in a manner

that constituted a deadly weapon” under the aggravated assault statute. Trial

Ct. Op. at 12. We agree. Unlike the decisions cited by the Commonwealth,

Appellee did not use the baton to strike the victims during an ongoing dispute,

or repeatedly strike them in order to subdue them. Rather, as evident in the

body cam and aerial footage, Appellee wielded his department-issued baton

to assist him in controlling the chaotic crowd of protestors. Moreover, the

victims admitted they resisted Appellee’s attempts to push them back with his

shield. Under the circumstances presented herein, we conclude the

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Commonwealth did not present prima facie evidence that Appellee committed

aggravated assault under Section 2702(a)(4).8

Thus, for the foregoing reasons, we affirm the orders of the trial court

denying the Commonwealth’s motions to refile criminal charges against

Appellee under each criminal docket. Moreover, we remand for trial on the

remaining charges.

Orders affirmed. Cases remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/05/2023

____________________________________________

8Again, we refuse to consider the Commonwealth’s reliance on the SEPTA
document which the trial court precluded at the refile hearing.

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