J. A10045/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
FREDERICK F. BROWN, : No. 3503 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, October 6, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009721-2013
BEFORE: DUBOW, J. SOLANO, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2017
Frederick F. Brown appeals from the October 6, 2015 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County
following his conviction in a waiver trial of aggravated assault, simple
assault, and recklessly endangering another person (“REAP”).1 The trial
court imposed an aggregate term of imprisonment of 3½ to 10 years,
followed by 2 years of reporting probation. We affirm.
The trial court summarized the factual history of the case as follows:
At trial, the complainant, Carmen Cook,
testified that she had lived with Appellant in an
intimate relationship, but left in February 2013 due
to Appellant’s abusive behavior. Ms. Cook testified
that on one prior occasion, Appellant had tried to
stomp her face and that he had choked her on
another occasion. On the afternoon of June 1, 2013,
1
18 Pa.C.S.A. §§ 2702(a)(4), 2701(a)(1), and 2705, respectively.
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Ms. Cook left a friend’s house where she had gotten
high on crack cocaine and beer and walked to a
nearby Hoagie City. When she turned the corner,
Ms. Cook saw Appellant sitting outside the store on a
rock. As Ms. Cook then spoke with a man named
Warren who was sweeping up the outside of the
store, Appellant got up, took something from his
pocket and charged at her, swinging and hitting her
in the head. Ms. Cook was unable to see the object
Appellant removed from his pocket because it was
wrapped in a paper napkin or towel. When Ms. Cook
then ran into Hoagie City, Appellant followed and hit
her again in the head. Ms. Cook realized she had
been hurt when she saw blood coming down the side
of her face.
Ms. Cook immediately went across the street
to the police station where she reported the assault.
Philadelphia Police Officer Charles Nelson who was at
the station at the time testified that Ms. Cook was
very upset, screaming and covered in blood. He
further testified she stated that her ex-boyfriend had
assaulted her. Police transported Ms. Cook to the
emergency room at Temple Hospital where she
received six stitches for the gash in the front of her
head and four stitches for the laceration in the back
of her head.
While in the emergency room, Ms. Cook
observed Appellant enter and immediately told
police. Appellant also called her several times in the
hospital. Although at trial Appellant denied ever
coming to the hospital or calling Ms. Cook there, he
admitted to police after his arrest that he had indeed
gone to the hospital and had called Ms. Cook three
or four times while she was in the emergency room.
Appellant testified at trial that he did not
assault Ms. Cook. He stated that he was eating
some food outside Hoagie City when Ms. Cook
walked up with a man with whom she was living and
asked Appellant for a cigarette and some money.
Appellant claimed that when he pulled out his
money, the male hit him in the chest while Ms. Cook
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snatched the money from him and ran into the store.
Appellant followed them into the store and a tussle
ensued as he tried to get his money back. Appellant
theorized that Ms. Cook probably got hurt in the
tussle over the money and denied having any object
in his hand. Appellant did not report the alleged
robbery to police, and admitted on cross-
examination to having hit a former girlfriend in the
head with a master lock in 2009.
Trial court opinion, 6/3/16 at 2-3 (citations to notes of testimony omitted).
The trial court summarized the procedural history, as follows:
On July 30, 2013, Appellant[] was arrested and
charged with aggravated assault (F2), simple
assault, [REAP], and other related charges. Prior to
trial, the Commonwealth brought a Motion to Admit
Other Bad Acts Evidence, which following a hearing,
the Court granted on February 10, 2014. Appellant
then proceeded to trial before this Court sitting
without a jury on August 3, 2015. On that date the
Court found Appellant guilty of aggravated assault
(F2), simple assault, and [REAP]. On October 6,
2015, the Court sentenced Appellant to an aggregate
term of 3 1/2 to 10 years [of] imprisonment followed
by 2 years [of] reporting probation.
Appellant filed post-sentence motions on
October 15, 2015, which were denied by the Court
on November 17, 2015. Notice of Appeal was filed
by Appellant on November 19, 2015. On
November 25, 2015, this Court ordered Appellant to
file a concise statement of the matters complained of
on appeal pursuant to [Pa.R.A.P. 1925(b)]. A timely
1925(b) Statement of Matters Complained of on
Appeal was filed by Appellant on December 14,
2015. Because counsel for Appellant had not yet
received all the notes of testimony at that time and
requested additional time, a Supplemental
Statement of Matters Complained of on Appeal was
subsequently filed on April 21, 2016.
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Id. at 1-2. The record further reflects that the trial court filed its
Rule 1925(a) opinion on June 3, 2016.
Appellant raises the following issues for our review:
1. Because it was not proven that any particular
device used by appellant could be a deadly
weapon or that it was calculated to produce
death or serious bodily injury, was not the
evidence insufficient to convict appellant of
aggravated assault, graded as a felony of the
second degree?
2. Was not the intrinsic admission of evidence of
appellant’s prior crime of hitting a former
girlfriend in the head with a Master Lock an
abuse of the lower court’s discretion, where
the evidence tended to show only appellant’s
bad character and propensity to commit such
crimes and was not relevant to appellant’s
intent, common plan or scheme, modus
operandi, or other probative fact?
Appellant’s brief at 3.
Appellant first complains that the evidence was insufficient to sustain
his aggravated assault conviction.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the 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
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drawn from the combined circumstances. The
Commonwealth may sustain its burden of proof of
proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
Under the Crimes Code, a person may be convicted of aggravated
assault, graded as a second-degree felony, if he “attempts to cause or
intentionally or knowingly causes bodily injury to another with a deadly
weapon.” 18 Pa.C.S.A. § 2702(a)(4). The Crimes Code defines “deadly
weapon” as:
[a]ny 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.A. § 2301.
This court has recently explained that
[t]he plain language of the Legislature’s definition of
“deadly weapon” makes clear that the weapon need
not be a “firearm . . . or any device designed as a
weapon,” but may also be “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.”
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18 Pa.C.S.[A.] § 2301. “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 a deadly
status.” Commonwealth v. Scullin, 414 Pa. Super.
442, 607 A.2d 750, 753 (Pa.Super. 1992), appeal
denied, 533 Pa. 633, 621 A.2d 579 (Pa. 1992).
These items “take on such status based upon their
use under the circumstances.” Commonwealth v.
Rhoades, 2010 PA Super 204, 8 A.3d 912, 917
(Pa.Super. 2010); appeal denied, 611 Pa. 651, 25
A.3d 328 (Pa. 2011), cert. denied, 565 U.S. 1263,
132 S. Ct. 1746, 182 L. Ed. 2d 536 (2012). See
Commonwealth v. McCullum, 529 Pa. 117, 602
A.2d 313, 323 (Pa. 1992) (holding “[a] deadly
weapon need not be . . . an inherently lethal
instrument or device”). Thus, “[a]n 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.”
Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d
532, 533 (Pa. 1947); see Commonwealth v.
Nichols, 692 A.2d 181, 184 (Pa.Super. 1997) (“[a]
baseball bat, when swung at the head, can be a very
deadly weapon”). Even an egg can be a deadly
weapon when thrown from the roof of a building at
the windshield of a vehicle. See Commonwealth v.
Roman, 714 A.2d 440 (Pa.Super. 1998), appeal
denied, 556 Pa. 707, 729 A.2d 1128 (Pa. 1998).
See also Commonwealth v. Raybuck, 915 A.2d
125 (Pa.Super. 2006) (holding that mouse poison
became deadly weapon when included in sandwich
for husband to consume; fact that amount was
insufficient to cause serious bodily injury was
irrelevant to classification as deadly weapon).
Commonwealth v. Chambers, 157 A.3d 508, 517-518 (Pa.Super. 2017).
Here, the victim testified that as she walked to Hoagie City, she saw
appellant sitting on “the rock,” at which time he took something out of his
pocket and “came charging at [her] swinging at [her] head.” (Notes of
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testimony, 8/3/15 at 12.) The victim further testified that the object that
appellant took out of his pocket was wrapped in brown paper, which she
described as “the paper that you dry your hands with”. (Id. at 37.)
Although the victim was unable to see the object appellant had in his hand
that was wrapped in brown paper, she could see that appellant was holding
an object wrapped in brown paper and knew that he repeatedly struck her
on the head with that wrapped object. (Id. at 17, 20.)
The record further reflects that following this assault, the victim went
to the police station where she arrived “covered with blood and screaming,
very hysterical.” (Id. at 54.) The victim was transported to the hospital
where she “presented with an open, bleeding, deep laceration to her left
temple.” (Id. at 52.) At trial, the Commonwealth and defense stipulated to
the victim’s medical records which revealed that “[t]he laceration was
irregularly shaped and approximately five centimeters in length. [The
victim] also presented with a full thickness linear laceration to the back of
her head approximately four centimeters in length.” (Id. at 52.) The
“laceration to the left temple was closed with six sutures[, and] the
laceration to the back of the head was closed with [four] staples.” (Id.)
Appellant now complains that the evidence was insufficient to convict
him of second-degree felony aggravated assault because “there is not a
‘scintilla of evidence’ about the identity or nature of what appellant used” to
strike the victim on her head and cause a deep laceration to the left temple
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that required six sutures to close, as well as a deep laceration to the back of
the head that required four staples to close. (Appellant’s brief at 14.)
According to appellant, then, so long as a criminal defendant conceals the
device or instrumentality that he uses to repeatedly strike his victim on the
head, he cannot be convicted of second-degree aggravated assault.
Appellant is mistaken.
By his own admission, appellant concedes that “the gash and
laceration on the [victim’s] head suggest something sharp caused [her]
injuries.” (Appellant’s brief at 15.) Appellant used that sharp object to
inflict multiple blows to the victim’s head that resulted in two deep head
lacerations that required emergency medical intervention to close.
Therefore, because the record demonstrates that appellant attempted to
cause or intentionally or knowingly caused bodily injury to the victim by
repeatedly striking her on the head with a sharp object wrapped in brown
paper which was calculated or likely to produce death or serious bodily
injury, the evidence was sufficient to convict appellant of second-degree
aggravated assault.
Appellant next complains that the trial court abused its discretion when
it admitted evidence that appellant struck his former girlfriend on the head
with a Master Lock because that evidence “tended to show only appellant’s
bad character and propensity to commit such crimes and was not relevant to
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appellant’s intent, common plan or scheme, modus operandi, or other
probative fact.” (Appellant’s brief at 3.)
“On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited. A trial court’s decision will not be reversed
absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d
1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not
merely an error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Id. at 1184-
1185 (citations omitted).
Generally, evidence of prior bad acts or
unrelated criminal activity is inadmissible to show
that a defendant acted in conformity with those past
acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad
acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity,
intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2).[2]
2
Rule 404. Character Evidence; Crimes or Other
Acts
....
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a
crime, wrong, or other act is not
admissible to prove a person’s
character in order to show that on
a particular occasion the person
acted in accordance with the
character.
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In determining whether evidence of other prior bad
acts is admissible, the trial court is obliged to
balance the probative value of such evidence against
its prejudicial impact.
Id. at 1185 (citations to case law omitted). In order for prior bad acts to be
introduced under this particular exception, a close factual nexus must exist
to sufficiently demonstrate the connective relevance of the prior bad acts to
the criminal charge at issue. Commonwealth v. Sitler, 144 A.3d 156,
163-164 (en banc) (Pa.Super. 2016) (citations omitted).
At the outset, we note that in its opinion, the trial court explained that
it admitted the evidence because appellant’s 2009 simple assault conviction
for hitting his former girlfriend on the head with a Master Lock was highly
probative of intent, as appellant claimed that the victim in this case and her
male companion robbed him and that the victim likely sustained her injuries
during that robbery. (Trial court opinion, 6/3/16 at 6.) The trial court also
(2) Permitted Uses. This evidence
may be admissible for another
purpose, such as proving motive,
opportunity, intent, preparation,
plan, knowledge, identity, absence
of mistake, or lack of accident. In
a criminal case this evidence is
admissible only if the probative
value of the evidence outweighs its
potential for unfair prejudice.
....
Pa.R.E. 404(b)(1)-(2).
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found the evidence admissible to show a common plan, scheme, and design
based on the factual nexus between the assaults, which the trial court
determined to be relevant to the issue of intent. (Id. at 6-7).
Here, a close factual nexus exists that sufficiently demonstrates the
connective relevance of the 2009 assault and the assault that is the subject
of this appeal. The record reflects that at the time of both assaults, both
victims had been in a romantic relationship with appellant that had ended.
Additionally, in both assaults, appellant pulled an object out of his pocket
and struck the victim on or about the head, causing the victim to sustain
injury. Moreover, as noted by the trial court at the motion in limine
hearing, “the fact that there was violence in ending the relationship [seems
to be] the same thing here.” (Notes of testimony, 2/10/14 at 8.) Indeed,
defense counsel acknowledged that “it’s very similar.” (Id.) And although
defense counsel would not concede admissibility, she admitted to having
“little argument” against the admission of this evidence. (Id.)
With respect to the balancing of the probative value of this evidence
against its prejudicial impact, we note that in its opinion, the trial court did
not balance the two. We further note that appellant lodges numerous
complaints in his brief regarding the prejudicial impact that he suffered as a
result of the admission of this evidence. Because appellant was tried in a
waiver trial, however, we presume that the trial court, sitting as fact-finder,
ignored any potentially prejudicial evidence and remained objective in
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weighing all of the evidence in order to render a true verdict. See
Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa.Super. 2001)
(reaffirming that “it has long been held that trial judges, sitting as
factfinders, are presumed to ignore prejudicial information in reaching a
verdict” (citation omitted)). We discern no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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