J-S40028-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

FRANK AIELLO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3694 EDA 2016

Appeal from the Judgment of Sentence July 18, 2016

in the Court of Common Pleas of Philadelphia County 

Criminal Division at Nos.: CP-51-CR-0001922-2015 

CP-51-CR-0001923-2015

BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED OCTOBER 25, 2018

Appellant, Frank Aiello, appeals from the aggregate judgment of 

sentence of eight to twenty years of confinement following his bench trial 

convictions for criminal attempt to commit murder, aggravated assault, 

possessing instruments of crime (“PIC”), terroristic threats with intent to 

terrorize another, and recklessly endangering another person (“REAP”)1 at 

Docket No. CP-51-CR-0001922-2015 and PIC, terroristic threats with intent 

to terrorize another, REAP, and aggravated assault2 at Docket No. CP-51-CR0001923-2015. We affirm.

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1 18 Pa.C.S. §§ 901(a), 2702(a), 907(a), 2706(a)(1), and 2705, respectively.

2 18 Pa.C.S. §§ 907(a), 2706(a)(1), 2705, and 2702(a)(1), respectively.
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In its opinion, the trial court fully and correctly set forth the relevant 

facts of this case:

On November 29, 2014, Ms. Cheryl Mollo invited Appellant 

over her house for Thanksgiving leftovers. Notes of Testimony 

(N.T.) 2/8/16 at 33. Appellant had recently been struggling 

because he had not seen his kids in a long time. Id. at 32. Ms. 

Mollo invited him over to see if he was doing alright. Id. at 33. 

After Ms. Mollo made Appellant a plate of leftovers, she asked 

Appellant to leave, but he refused. Id. at 12. During the 

argument that followed, Appellant said that he was going to kill 

himself and Ms. Mollo. Id. at 12-13. Appellant then began to hit 

Ms. Mollo with a closed fist to her head and body. Id. at 13-14. 

Ms. Mollo rushed to the bathroom and called the neighbors by cell 

phone to tell them to call the police. Id. at 14-15. As Ms. Mollo 

was in the bathroom, Appellant asked her if she was calling the 

cops and if she had her cell phone. Id. at 16. When Ms. Mollo 

came out of the bathroom, Appellant retrieved a butcher’s knife 

from the kitchen. Id. at 16-17. Shortly after, there was a knock 

on the front door and Appellant told Ms. Mollo not to answer. Id. 

at 18. When Ms. Mollo went toward the door, Appellant put the 

knife up to her chest. Id. at 19. Appellant stabbed Ms. Mollo in 

the chest, leaving a penetrating wound just above her heart. Id. 

at 19. As a result, Ms. Mollo had a scar that is approximately 2 to 

2 and a half inches long. Id. At this time, police entered the 

residence. Id. at 21.

Police Officer [Phillip] Cherry stated that he pulled up to the 

residence at 2605 South 9th Street behind Lieutenant Wong. N.T. 

2/9/16 at 6. Officer Cherry exited his vehicle and approached 

Ms. Mollo’s house. Id. As he approached, he could hear a lot of 

yelling, screaming and some banging. Id. He and Lieutenant 

Wong knocked on the front door several times trying to gain entry. 

Id. After the officers made entry into the home, they observed 

Ms. Mollo standing just to the left of the front door and Appellant 

standing on a landing area with a knife in his hand waving it back 

and forth with the blade facing outward. Id. at 6-7. Officer Cherry 

then pulled Ms. Mollo behind him, pulled his firearm and kept 

Appellant at gunpoint. Id. at 6. Officer Cherry gave Appellant 

several verbal commands to put the knife down but he did not 

comply. Id. at 8. Appellant then stated that if the officers took a 

step towards him that there are going to be problems and it will 
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not end well. Id. He also stated that if they took a step towards 

him that he would kill them. Id. at 9.

Officer Cherry then asked [a third police officer who had 

arrived at the scene,] Officer Edwards[,3] to deploy his taser to 

avoid any bloodshed. Id. at 8, 9. Officer Edwards deployed the 

taser and struck Appellant. Id. at 10. Appellant fell backwards 

but still clenched to the knife. Id. The officers then approached 

Appellant and as Officer Cherry got close to get the knife out of 

his hand, Appellant swung the knife downward toward Officer 

Cherry’s right foot. Id. Fortunately, Officer Cherry was quick 

enough to jump back to avoid the knife. Id. at 10-11. Officer 

Edwards deployed another charge of the taser to keep Appellant 

from swinging the knife again. Id. at 12-13. Once he hit 

Appellant again, the knife flew out of his hand and landed towards 

the bathroom. Id. at 13. The officers then handcuffed Appellant. 

Id. After the incident, Ms. Mollo was taken to the hospital and as 

a result of Appellant’s assault, sustained a punctured lung. Id. at 

22. She remained at Temple Hospital for about 5 days. N.T. 

2/8/16 at 22.

Trial Ct. Op. at 2-4. 

Appellant was convicted of the aforementioned charges on February 9, 

2016, and sentenced on July 18, 2016. He filed a timely notice of appeal.

Appellant raises two issues for our review:

A. Was the evidence insufficient to establish [Appellant] 

had a specific intent to kill Cheryl Mollo, a necessary element of 

attempted murder?

B. Was the evidence insufficient to establish aggravated 

assault on Police Officer Cherry, as Mr. Aiello did not attempt to -

- or take any substantial step toward -- causing serious bodily 

injury[?]

Appellant’s Brief at 2 (trial court’s answers omitted).

Both of Appellant’s challenges concern the sufficiency of the evidence.

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3 Officer Edwards’s first name does not appear in the certified record.
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In reviewing the sufficiency of the evidence, our standard of review is as 

follows:

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. . . . 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. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and 

internal brackets omitted) (some formatting), appeal denied, 174 A.3d 558 

(Pa. 2017).

Appellant first contends that the Commonwealth failed to establish that 

he “acted with specific intent to kill Ms. Mollo,” and, accordingly, “the evidence 

was insufficient to prove attempt to commit murder.” Appellant’s Brief at 10.

A person commits an attempt when, with the intent to 

commit a specific crime, he does any act which constitutes a 

substantial step towards the commission of that crime.” 18 

Pa.C.S. § 901(a).

“For a defendant to be found guilty of attempted 

murder, the Commonwealth must establish specific intent to 

kill.” Commonwealth v. Geathers, 847 A.2d 730, 734 

(Pa.Super.2004). Therefore, “[i]f a person takes a 

substantial step toward the commission of a killing, with the 

specific intent in mind to commit such an act, he may be 

convicted of attempted murder.” In re R.D., 44 A.3d 657, 

678 (Pa.Super.2012). “The Commonwealth may establish 

the mens rea required for first-degree murder, specific intent 

to kill, solely from circumstantial evidence.” Id. Further, 

our Supreme Court has repeatedly determined that “[t]he 

use of a deadly weapon on a vital part of the body is 

sufficient to establish the specific intent to kill.” 

Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009 

(2007); see also Commonwealth v. Cousar, 593 Pa. 204, 
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928 A.2d 1025, 1034 (2007) (“a specific intent to kill may 

be inferred from the use of a deadly weapon on a vital part 

of the victim’s body.”).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 

2016), appeal denied, 143 A.3d 955 (Pa. 2017).

Fortson, 165 A.3d at 15 (emphasis added); accord Commonwealth v. 

Thomas, ___ A.3d ___, 2018 PA Super 221, 2018 WL 3679940, *6 (Aug. 3, 

2018) (fact-finder “may infer that the defendant had the specific intent to kill 

the victim based on the defendant’s use of a deadly weapon upon a vital part 

of the victim’s body” (citation omitted)).

A butcher knife has long been considered a “deadly weapon” in 

Pennsylvania. Commonwealth v. Blakeney, 946 A.2d 645, 649, 652 (Pa. 

2008); Commonwealth v. Festa, 40 A.2d 112, 114 (Pa. Super. 1944) (list 

of examples of “a great variety of instruments employed ordinarily for useful, 

practical purpose” that could still be considered “deadly weapons” includes “a 

butcher’s knife”); see also Commonwealth v. Raybuck, 915 A.2d 125, 128 

(Pa. Super. 2006) (“Not surprisingly, guns, knives, and other clearly offensive 

weapons constitute the most obvious and commonly encountered forms of 

deadly weapons.”).

In Blakeney, 946 A.2d at 652, the Supreme Court of Pennsylvania 

stated that a “jury could readily infer specific intent to kill” when the appellant 

stabbed the victim “in the chest, a vital part of the body,” “with a butcher 

knife[,]” thus supporting an attempted murder conviction.

Here, Appellant seized a butcher knife from the kitchen, put it against 

Ms. Mollo’s chest, then stabbed her in the lung, near her heart. Trial Ct. Op. 
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at 2-4 (citing N.T., 2/8/2016, at 16-17, 19, 22). Ms. Mollo spent five days in 

the hospital thereafter.

Appellant’s use of a butcher knife – a deadly weapon – on a vital part of 

Ms. Mollo’s body – her chest – is consequently sufficient to establish the 

specific intent to kill and, thus, to establish attempted murder. See 

Blakeney, 946 A.2d at 649, 652; Thomas, 2018 WL 3679940 at *6; 

Fortson, 165 A.3d at 15; Raybuck, 915 A.2d at 128; Festa, 40 A.2d at 114; 

Trial Ct. Op. at 2-4 (citing N.T., 2/8/2016, at 16-17, 19, 22). Accordingly, 

Appellant’s first issue is meritless.

Next, Appellant argues that “the Commonwealth failed to establish that 

[he] attempted to cause or took any step toward causing serious bodily injury 

to Officer Cherry.” Appellant’s Brief at 13. He maintains that his action of 

swinging the knife towards Officer Cherry was “an involuntary act caused by 

the shock of the taser and head trauma.” Id. at 15. He continues that the 

Commonwealth’s evidence did not prove that [he] made a conscious effort or 

voluntary physical act toward causing serious bodily injury to Officer Cherry.” 

Id. at 16.

“A person is guilty of aggravated assault if he . . . attempts to cause 

serious bodily injury to another . . .” 18 Pa.C.S. § 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.” Id. § 2301.
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Pursuant to our standard of review, we are required to view all of the 

evidence admitted at trial in the light most favorable to the Commonwealth 

as the verdict winner. Fortson, 165 A.3d at 14. In the light most favorable 

to the Commonwealth, Appellant intended to injure Officer Cherry when he 

swung the knife. The fact that Appellant did not swing the knife when he was 

first hit by the Taser but waited until Officer Cherry approached undermines 

his suggestion that the action was involuntary, Trial Ct. Op. at 3 (citing N.T., 

2/9/2016, at 10), as does the fact that he did not release the knife until he 

received a second charge from the Taser. Id. at 4 (citing N.T., 2/9/2016, at 

12-13). Additionally, Appellant had previously articulated his intent to harm 

the officers when he threated to kill them and warned that there were going 

to be “problems” if the officers approached him. Trial Ct. Op. ta 3 (citing N.T., 

2/9/2016, at 8-9). Hence, although we may not re-weigh the evidence nor 

substitute our judgment for the fact-finder, Fortson, 165 A.3d at 14, as 

Appellant requests we do, Appellant’s Brief at 15-16, there was still sufficient 

evidence to establish that Appellant attempted to cause serious bodily injury 

to Officer Cherry. The evidence was thereby sufficient to establish aggravated 

assault, and Appellant’s second challenge is also without merit.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/18