J-S53024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY BRACY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 30 EDA 2019

Appeal from the Judgment of Sentence Entered May 23, 2013

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002885-2012

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2020

Anthony Bracy appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, after the Honorable Robert P. 

Coleman, sitting without a jury, convicted him of aggravated assault,1 simple 

assault,2 and recklessly endangering another person (“REAP”).3 After our 

review, we affirm.

Judge Coleman set forth the facts of this case as follows:

The incident [giving rise to] this case took place at 5:30 p[.]m[.] 

on February 12, 2012. [At that time,] [c]omplainant and [Bracy] 

were inside the apartment of [c]omplainant at 1109 Philmore 

Street in Philadelphia. While in the apartment[, Bracy] and 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2702(a)(1).

2 18 Pa.C.S.A. § 2701.

3 18 Pa.C.S.A. § 2705. 
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[c]omplainant engaged in a heated verbal argument over 

[Bracy’s] photograph being published in the newspaper. [Bracy] 

then asked to be driven by [c]omplainant to get his hair[ ]cut. 

Complainant agreed to take [Bracy,] but needed to get ready and 

was seated on the bed combing her hair. Frustrated at the pace 

at which [c]omplainant was getting ready[, Bracy] started pacing 

angrily and balling his fists. [Bracy] then, without provocation, 

became aggressive, jumped onto the bed, grasped 

[c]omplainant’s neck with both hands, placed his thumbs on her 

throat and choked her. While being choked[,] the [c]omplainant 

mouthed words to stop but could not form any sounds. 

Complainant was unable to breath[e] and subsequently lost 

consciousness. 

When [c]omplainant regained consciousness, she was disoriented 

by made her way to the bathroom to appraise the damage and 

clean up. Complainant observed multiple red marks and an 

actively bleeding laceration of the mole on her neck. Meanwhile, 

[Bracy] was sitting in another room expressing concerns that 

[c]omplainant would go to the police. Complainant finished 

getting ready and drove [Bracy] to Hunting Park for his haircut. 

After dropping [Bracy] off, [c]omplainant drove to the Philadelphia 

Police 15th District to report the incident. Officer [Sharon] 

Pawlowski photographed [c]omplainant’s neck[, capturing] red 

hand marks and the open wound from [Bracy’s] grip. After 

[c]omplainant filed [a] police report[,] she went to 1301 Filbert 

Street and obtained a restraining order. 

Complainant then went to a friend’s house to stay the night. While 

there, [c]omplainant’s friend took pictures of her neck[,] which 

showed large bruises on both sides from the choking. Early the 

next morning, around 1:00 a[.]m[.], [Bracy] called and talked 

with [c]omplainant[, who] let him know she had left a key for 

[Bracy] under the [door] mat. The next day[, c]omplainant was 

escorted by officers back to her apartment to collect personal 

effects. [Bracy was present at the apartment and police arrested 

him there.]

Trial Court Opinion, 8/2/19, at 3-4 (paragraph breaks added).

On January 7, 2013, Bracy proceeded to a bench trial before Judge 

Coleman, who found him guilty of the above offenses. On May 23, 2013, 
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Bracy was sentenced to 7 to 14 years’ incarceration for aggravated assault; 

he received no further penalty for simple assault and REAP. Bracy filed an 

appeal to this Court, which was quashed as untimely. On December 27, 2018, 

Bracy’s direct appeal rights were subsequently reinstated, nunc pro tunc, 

pursuant to proceedings under the Post Conviction Relief Act (“PCRA”).

4

 This 

appeal follows; both Bracy and the trial court have complied with Pa.R.A.P. 

1925. 

Bracy raises the following questions for our review:

[1.] Was the evidence insufficient to support the guilty verdict for 

aggravated assault where the evidence did not prove beyond a 

reasonable doubt that [Bracy] attempted to cause serious bodily 

injury?

[2.] Did the [trial] court abuse its discretion by fashioning a 

sentence that greatly exceeded that which is necessary to protect 

the public, [was] greater than that requested by the 

[Commonwealth,] and seems not to have taken into consideration 

[Bracy’s] great potential for complete rehabilitation, 

employability, and great remorse, [the latter of] which the 

sentencing court incorrectly said that [Bracy was lacking]?

Brief of Appellant, at 5 (reordered for ease of disposition).

Bracy first challenges the sufficiency of the evidence supporting his 

conviction for aggravated assault. 

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–

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4 42 Pa.C.S.A. §§ 9541-9546.
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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 drawn from the combined circumstances. The Commonwealth 

may sustain its burden 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 evidence actually received must be 

considered. Finally, the finder 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. Williams, 153 A.3d 372, 375 (Pa. Super. 2016). 

A person may be convicted of aggravated assault graded as a first 

degree felony if he “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” has been 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. For purposes of aggravated assault, 

an “attempt” is found where an “accused who possesses the required, specific 

intent acts in a manner which constitutes a substantial step toward 

perpetrating a serious bodily injury upon another.” Commonwealth v. Gray, 

867 A.2d 560, 567 (Pa. Super. 2005). Intent ordinarily must be proven 

through circumstantial evidence and inferred from acts, conduct, or attendant 

circumstances. Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa. Super.

2013).
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Here, Bracy argues that the complainant did not suffer “serious bodily 

injury” as required by the statute; rather, she merely suffered “bodily injury.” 

Brief of Appellant, at 26. Moreover, he asserts that the Commonwealth failed 

to establish that he attempted to inflict serious bodily injury, as “the evidence 

did not show any extreme indifference to the value of human life[.]” Id. at 

27.5 Bracy is entitled to no relief.

At trial, the complainant testified that Bracy “jumped at [her] and 

grab[bed her] throat” after becoming angry that she was not moving fast 

enough to get ready. N.T. Trial, 1/7/13, at 15. Bracy knocked her down, 

placed both hands around her throat, and was “on top of [her] strangling 

[her].” Id. at 16. Bracy’s thumbs were on the front of the complainant’s 

throat and she was unable to breathe. See id. After she begged Bracy to 

stop because she couldn’t breathe, he “re-positioned his hands even lower 

and he pushed harder.” Id. at 17. Bracy’s actions caused the complainant to 

lose consciousness. See id. When she eventually regained consciousness, 

she was unable to see and her ears were ringing. See id. Upon looking in 

the mirror, she saw blood on her neck from a mole that had been cut open, 

as well as two handprints, one on each side of her neck. See id. at 19. 

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5 Bracy also asserts in his brief that “the evidence was contradictory and 

unreliable.” Brief of Appellant, at 28. However, such an allegation raises a 

challenge to the weight, not the sufficiency, of the evidence—a challenge that 

Bracy failed to preserve in the trial court. Accordingly, to the extent Bracy 

attempts to challenge the weight of the evidence, the claim is waived. See 

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (where 

appellant fails to preserve weight of evidence challenge in trial court, claim is 

waived because appellate court has nothing to review).
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When viewed in the light most favorable to the Commonwealth, the 

complainant’s testimony supports a clear inference that Bracy’s intent was to 

cause serious bodily injury to the complainant. Thomas, supra. This is 

particularly so where Bracy actually repositioned his hands to squeeze even 

harder on the complainant’s neck after she made it clear to him that she was 

unable to breathe. See Commonwealth v. Russell, 460 A.2d 316 (Pa. 

Super. 1983) (evidence sufficient to support finding that defendant intended 

to inflict serious bodily injury where victim attacked without warning and 

choked until she could no longer breathe, gagged, and felt faint). Accordingly, 

Bracy’s sufficiency claim fails. 

In his final claim, Bracy asserts that the trial court abused its discretion 

in sentencing him to a term of imprisonment that greatly exceeded that 

necessary for the protection of the public, as well as the sentence requested 

by the Commonwealth, and failed to take into consideration his rehabilitative 

needs and remorse. Such a claim constitutes a challenge to the discretionary 

aspects of Bracy’s sentence and does not entitle him to review as a matter of 

right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). 

Rather, before this Court can address such a discretionary challenge, Bracy 

must invoke this Court’s jurisdiction by: (1) filing a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) properly preserving the issue at sentencing 

or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

including in his brief a concise statement of reasons relied upon for allowance 

of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a substantial question 
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that the sentence appealed from is not appropriate under the Sentencing 

Code. Swope, 123 A.3d at 337. 

Here, Bracy filed a timely notice of appeal and has included a Rule 

2119(f) statement in his brief. However, he has failed to preserve his 

sentencing challenge by filing a timely post-sentence motion with the trial 

court. Some procedural background is in order. 

Following his sentencing on May 23, 2013, Bracy filed a post-sentence 

motion to modify his sentence on June 24, 2013; the trial court denied the 

motion that same day. Bracy filed a notice of appeal to this Court on July 22, 

2013. In an unpublished memorandum decision, we quashed that appeal, 

finding that Bracy’s post-sentence motion had been filed beyond the 10-day 

period provided in Pa.R.Crim.P. 720(A)(1). As a result, we concluded that his 

notice of appeal was also untimely. See Commonwealth v. Bracy, 2052 

EDA 2013 (Pa. Super. filed Oct. 10, 2014) (unpublished memorandum 

decision).

Thereafter, on November 17, 2015, Bracy filed a PCRA petition alleging 

ineffectiveness of trial counsel and seeking reinstatement of his appellate 

rights, nunc pro tunc. Counsel was appointed and filed an amended petition, 

again requesting reinstatement of Bracy’s direct appeal rights, because 

“previous counsel was instructed to file an appeal but due to various errors, 

that appeal was not filed and/or not perfected and indeed was eventually 

quashed.” Amended PCRA Petition, 7/18/18, at ¶ 13. In a contemporaneously 

filed legal memorandum in support of Bracy’s amended PCRA petition, counsel 
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also stated the following: “Moreover, and because the sentence was at issue 

and because the Defendant instructed counsel to file for Reconsideration of 

Sentence, the Court should also reinstate the Defendant’s right to file a Motion 

for Reconsideration of Sentence, Nunc Pro Tunc.” PCRA Legal Memorandum, 

7/18/18, at 6. 

On November 5, 2018, the Commonwealth filed a response to Bracy’s 

amended PCRA petition, in which it averred the following:

The Commonwealth does not oppose defendant’s request for 

reinstatement of his direct appeal rights nunc pro tunc. Defendant 

is not, however, entitled to reinstatement of his right to file postsentence motions because he has failed to allege and prove 

prejudice. See Commonwealth v. Liston, 977 A.2d 1089, 1092 

(Pa. 2009) (holding that “the failure to file post-sentence motions 

does not fall within the limited ambit of situations where a 

defendant alleging ineffective assistance of counsel need not 

prove prejudice to obtain relief”), Commonwealth v. Reaves, 

923 A.2d 1119, 1127 (Pa. 2007) (noting that defendant had to 

satisfy Pierce’s actual prejudice standard to establish counsel 

was ineffective for failing to file a requested post-sentence 

motion).

Commonwealth Response to Amended PCRA Petition, 11/5/18. 

Subsequently, on November 29, 2018, court-appointed counsel filed a 

“supplemental” amended PCRA petition. Therein, counsel specifically 

requested reinstatement of Bracy’s post-sentence rights and, further, alleged 

that failure to reinstate his post-sentence rights would result in prejudice 

because, inter alia, his discretionary sentencing claim would be waived. See

Supplemental Amended PCRA Petition, 11/29/18, at ¶ 6. 
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On December 27, 2018, the PCRA court entered an order granting PCRA 

relief “to the extent that the appellate rights are reinstated nunc pro tunc.” 

PCRA Court Order, 12/27/18. Although the PCRA court did not grant Bracy’s 

request that his post-sentence rights be reinstated, Bracy did not appeal this 

order. Instead, on January 2, 2019, he instituted the instant appeal by filing 

a notice of appeal, nunc pro tunc, from his judgment of sentence. As a result 

of Bracy’s acquiescence to the PCRA court’s failure to reinstate his postsentence rights, he is unable to invoke this Court’s jurisdiction to review his 

discretionary sentencing claim. See Swope, supra. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/20