J-S43039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DERIACE STONE
Appellant No. 1677 MDA 2015
Appeal from the Judgment of Sentence August 3, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002876-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 15, 2016
Appellant Deriace Stone appeals from the judgment of sentence
entered on August 3, 2015 in the York County Court of Common Pleas
following his bench trial convictions for aggravated assault (serious bodily
injury), aggravated assault (with a deadly weapon), robbery, and conspiracy
to commit robbery.1 We affirm.
The trial court sets forth the following factual and procedural history:
After midnight on March 20, 2014, James Paul Shickley
(the “victim”) went to the Sheetz convenience store on
South Queen Street, York County. (N.T. Trial, at 6.) The
victim was carrying $800 to $900 in cash and paperwork
from the department of transportation.1 Id. at 15. While
at the Sheetz store, the victim briefly conversed with
[Appellant] and his [girlfriend] Jessica Steininger. Id. at
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1
18 Pa.C.S. §§ 2702(a)(1), 2702(a)(4), 3701(a)(1), and 903(c),
respectively.
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78. The victim left the store and went home. Id. at 53.
Shortly thereafter, a white Honda pulled up to the victim’s
house and beeped its horn. Id. at 7-8, 54[-55], 82. The
victim identified the passenger as [Appellant]. Id. at 8[-
9]. The driver of the vehicle was Jessica Steininger. Id.
at 80. The victim exited the house and spoke with
Steininger. Id. at 9. [Appellant] then exited the vehicle
and approached the victim. Id. [Appellant] testified that
he handed the victim a twenty-dollar bill in an effort to buy
drugs, however, the victim contests that the encounter
involved drugs. Id. at 15, [146-]147. The victim’s wife,
Vonnie Shickley, testified that [Appellant] made
statements indicating he was “going to roll” the victim.
Id. at 55. [Appellant] then jumped on top of the victim.
Id. The victim recalled kicking at [Appellant] as
[Appellant] was cutting the victim’s jeans with a knife.2
Id. at 10. The victim’s wife attempted to call 9-1-1, but
was unable to unlock her phone. Id. at 55-56. She then
ran outside and told [Appellant] that the police were
responding. Id. at 56. [Appellant] jumped onto the back
of the vehicle and instructed Steininger to drive away. Id.
While the vehicle drove away, [Appellant] attempted to
cover the license plate of the vehicle. Id. However, the
victim’s wife was able to read a portion of the license plate
and later provided that evidence to police. Id. at 57.
During an interview the following day, she told police that
she saw [Appellant] take the victim’s CDL paperwork. Id.
at 75.
1
This paperwork was referred to throughout the trial
as “CDL paperwork.”
2
Testimony conflicts with regard to the extent to
which the victim’s jeans were cut or torn during the
struggle.
Steininger testified at trial that after the attack, she
observed [Appellant] holding a knife that was about seven
to seven-and-a-half inches in length. [(N.T. Trial,] at 85-
86. She also testified that [Appellant] discarded the knife
in a field somewhere between the scene of the incident
and Windsor [B]orough in York County. Id. at 86.
Steininger also saw [Appellant] possessing the victim’s
CDL paperwork. Id.
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Ultimately, due to some confusion as to the location of the
incident, police responded to the Sheetz store where they
met the victim and his wife. Id. at 11, 57-58, 116.
Officer Laura Wilson, who responded to the scene,
photographed a stab wound on the victim’s back that was
about two inches in length. Id. at 117. The wound was
actively bleeding “rivers of blood.” Id. Officer Wilson
testified that she noticed the back pocket on the victim’s
jeans was torn. Id. at 122. The victim was then taken to
an area hospital to receive treatment. Id. at 11.
Upon arrival at WellSpan York Hospital, the victim was
presented to hospital staff as a “trauma alert” due to the
“life threatening complications” of his injury. [(N.T. Trial]
at 39-40. The victim was treated for a single stab wound
just below the right scapula measuring about three
centimeters in length. Id. at 40. The victim was
diagnosed with a “traumatic hemopneumothorax” or “a
traumatic hemorrhage within the chest.” Id. at 40, 42.
Such an injury is caused by injury to the lung “due to a
tear” in [the] chest cavity. Id. at 40-41. The victim was
hospitalized and treated over the subsequent 48 to 72
hours. Id. at 46-47. Possible complications of the victim’s
injury included hemorrhagic shock, empyema, blood
clotting, respiratory distress or failure, septic shock, and
permanent nerve damage. Id. at 44-45. Possible
complications stemming from treatment include infection,
additional bleeding, and further damage to the lung. Id.
at 46.
After three days of hospitalization, the victim remained out
of work for three weeks, and continued to suffer from pain
caused by the injury. [(N.T. Trial)] at 13-14.
[Appellant] was arrested and charged with two counts of
aggravated assault and one count each of robbery and
criminal conspiracy to commit robbery.
1925(a) Opinion, 12/8/2015, at 1-5 (some internal footnotes omitted).
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Following a non-jury trial, the trial court found Appellant guilty of the
aforementioned crimes. On August 3, 2015, the trial court sentenced
Appellant to an aggregate term of 9 to 18 years’ incarceration.2
On August 13, 2015, Appellant filed post-sentence motions challenging
the weight of the evidence and the sufficiency of the evidence for his
aggravated assault (serious bodily injury) conviction and robbery conviction.
Following a September 3, 2015 hearing, the trial court denied the motion.
On September 29, 2015, Appellant filed a timely notice of appeal.
Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant raises the following issue on appeal:
1. Whether the Commonwealth failed to present sufficient
evidence to convict Appellant of aggravated assault and
robbery when the evidence presented at trial failed to
establish beyond a reasonable doubt that Appellant caused
or attempted to cause serious bodily injury to the victim.
Appellant’s Brief at 4.
We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient evidence to
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2
The trial court sentenced Appellant to 9-18 years’ incarceration for the
aggravated assault (serious bodily injury) conviction, 33 to 66 months’
incarceration for the aggravated assault (with a deadly weapon) conviction,
9 to 18 years’ incarceration for the robbery conviction, and 9-18 years’
incarceration for the conspiracy to commit robbery conviction. All sentences
were imposed concurrently.
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enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 870 A.2d 818 (Pa.2005) (quoting
Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we
apply this standard, “we may not weigh the evidence and substitute our
judgment for the fact-finder.” Id.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny 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.” Id. “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id.
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582.
Further, “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.” Id.
A defendant 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
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indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1). “For
aggravated assault purposes, an ‘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)
(quoting Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa.Super.2003)).
“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.
Appellant argues the Commonwealth failed to present sufficient
evidence that serious bodily injury occurred. Appellant’s Brief at 8. He
argues there is nothing to indicate the victim suffered a substantial risk of
death.3 Id. Appellant further claims the victim suffered no serious,
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3
Appellant claims that Dr. Amy Rushing, a former staff surgeon at WellSpan
York Hospital, testified that: although the victim presented for trauma alert,
his blood pressure and heart rate were stable; that the victim suffered a
single puncture wound that that was 3 centimeters in length and was not
bleeding at the time of her assessment; that a chest tube was placed to
assist with breathing, but that it was a stable situation; and that this type of
injury presents as a stable situation. Appellant’s Brief at 8-9. He claims Dr.
Rushing testified that there were “really . . . no other organs. It was far
enough away from the spine where a spinal cord injury was highly unlikely.
It was underneath the scapula, or the shoulder blade, so it entered a soft
tissue and multiple layers of muscle.” Id. at 9 (citing N.T., 6/4/2015, at
43). Appellant further notes that Dr. Rush testified that the type of injury
was not likely to cause significant harm, life-threatening bleeding or shock
unless left untreated. Id.
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permanent disfigurement or protracted loss or impairment of the function of
any bodily member or organ.4 Id. at 9.
Contrary to Appellant’s contention, the Commonwealth presented
sufficient evidence that the victim suffered serious bodily injury. The trial
court concluded:
As a result of the attack, the victim suffered a three-
centimeter stab wound to the back near the right scapula,
or shoulder blade, and was diagnosed with a “traumatic
hemopneumothorax” injury, or hemorrhaging within the
chest cavity. Such injury, if left untreated, could lead to
shock, respiratory distress or failure, sepsis, or organ
failure. These complications are life-threatening. Thus,
[the trial c]ourt found beyond a reasonable doubt that
[Appellant] intentionally caused bodily injury that created
a substantial risk of death to the victim.
1925(a) Opinion, 12/8/2015, at 9 (internal citations to record omitted). The
victim received help, and was spared the more serious complications to his
injury. However, the Commonwealth presented sufficient evidence from
which the fact-finder could conclude the injury inflicted “create[d] a
substantial risk of death.”5
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4
Appellant argues the victim was hospitalized for three days, had no need
for any breathing treatments once he left the hospital, had two follow-up
appointments with his physicians, has two small scars, and returned to his
full-time work as a truck driver three weeks after the incident. Appellant’s
Brief at 9.
5
Further, the Commonwealth presented sufficient evidence that Appellant
intended to cause serious bodily injury. He used a knife during a robbery,
and inflicted a stab wound. See, e.g., Gruff, 822 A.2d at 780 (finding
sufficient evidence that appellant attempted to cause serious bodily injury
where he placed a deadly weapon (loaded rifle with an attached bayonet),
(Footnote Continued Next Page)
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Moreover, we agree with the trial court’s conclusion that the
Commonwealth presented sufficient evidence of robbery. The robbery
statute provides:
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon another[.]
18 Pa.C.S. § 3701(a)(1)(i). As discussed above, the Commonwealth
presented sufficient evidence that Appellant inflicted serious bodily injury
upon another. Further, the Commonwealth presented evidence that
Appellant and Steininger discussed stealing the victim’s money and that
Appellant actually took the victim’s CDL paperwork. Opinion, 12/8/2015, at
10.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
_______________________
(Footnote Continued)
against victim’s throat and said, “I just ought to kill you . . . . Do you want
to die today or tomorrow?”).
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Com. v. Stone, D.
Combined Opinion