J-S71038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MAURICE TAYLOR

 Appellant No. 2521 EDA 2015

Appeal from the Judgment of Sentence March 16, 2012

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s):CP-51-CR-0004838-2011

 CP-51-CR-0004855-2011

BEFORE: BOWES, PANELLA, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 23, 2017

Appellant, Maurice Taylor, appeals nunc pro tunc from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas at 

docket number 4855-2011,

1

following his bench trial conviction for 

aggravated assault (a first-degree felony),

2 persons not to possess

firearms,3firearms not to be carried without a license,4 unlawful restraint,5

 

*

Former Justice specially assigned to the Superior Court.

1 Appellant was convicted at three different dockets, each stemming from a 

separate altercation between Appellant and the victim, Alisa Gardner. At 

docket number 4838-2011, the trial court convicted Appellant of aggravated 

assault (a second-degree felony), possessing an instrument of crime, simple 

assault, and recklessly endangering another person. At docket number 

4859-2011, the court convicted Appellant of theft and harassment. 

2 18 Pa.C.S. § 2702(a)(1). 

3 18 Pa.C.S. § 6105(a)(1). 
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carrying firearms in public in Philadelphia,6 possessing an instrument of 

crime,7simple assault,8recklessly endangering another person,9false 

imprisonment,10 and possession of a weapon.11 Appellant challenges the 

sufficiency of the evidence for aggravated assault. We affirm. 

The trial court’s opinion summarizes the relevant facts of this case as 

follows:

On April 8, 2011, at approximately 12:20 p.m., Police 

Officer David O’Connor responded to a call for a person 

with a gun at 848 East Chelten Avenue. The officer met 

with [the victim] a few houses away from that address. 

She had bruising to her face, and she was teary eyed. Her 

hair looked like it had been pulled, the bottom left corner 

of her lip was cut open, and her clothing was in disarray. 

A few moments later, Appellant was spotted walking down 

Locust Street and was identified by [the victim] as her 

assailant. After a struggle with police, Appellant was 

arrested, and police confiscated a firearm from his 

belongings. 

According to [the victim], Appellant held her against her 

will inside the residence, held a firearm to her head, and 

 

4 18 Pa.C.S. § 6106(a)(1). 

5 18 Pa.C.S. § 2902(a)(1). 

6 18 Pa.C.S. § 6108. 

7 18 Pa.C.S. § 907(a). 

8 18 Pa.C.S. § 2701(a)(1). 

9 18 Pa.C.S. § 2705. 

10 18 Pa.C.S. § 2903(a). 

11 18 Pa.C.S. § 907(b). 
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threatened to kill her. He also slapped her, kicked her and 

stomped on her. During this incident, Gardner sustained 

two broken ribs, bruising to her face and a laceration to 

her liver. 

Trial Ct. Op., 3/4/16, at 3 (record citations omitted). 

On January 30, 2012, the court convicted Appellant of the above

offenses at docket number 4855-2011. The court sentenced Appellant at 

this docket on March 16, 2012, to an aggregate sentence of six to fourteen 

years’ imprisonment.12 Appellant did not file post-sentence motions. 

On September 24, 2012, Appellant timely filed a pro se Post Conviction 

Relief Act (“PCRA”) petition, which alleged, inter alia, that trial counsel was 

ineffective for failing to file a direct appeal. PCRA counsel entered his 

appearance and filed an amended petition and memorandum requesting that

Appellant’s direct appeal rights be reinstated nunc pro tunc. Thereafter, 

Appellant filed a pro se motion for the removal of PCRA counsel based on 

ineffectiveness.

13

 Appellant filed a notice of appeal nunc pro tunc on August 

18, 2015. On October 8, 2015, the court subsequently granted Appellant’s 

 

12 The court also sentenced Appellant to a concurrent two-and-one-half to 

five years’ imprisonment at docket number 4838-2011, and a consecutive

five years’ probation at docket number 4859-2011. 

13 A review of the record reveals the court did not dispose of Appellant’s pro 

se motion for removal, and PCRA counsel continues to represent Appellant 

on this appeal. 
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request to have his direct appeal rights reinstated nunc pro tunc.

14

 The 

court ordered Appellant to file a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. 

On March 4, 2016, the court filed a responsive opinion, in which it 

determined that it had erred in finding there was sufficient evidence that the 

victim suffered serious bodily injury. Trial Ct. Op. at 4. Rather, the court 

concluded there was sufficient evidence that Appellant attempted to cause 

serious bodily injury to the victim. Id. at 5. 

Appellant raises the following issue for our review:

Did the Commonwealth prove beyond a reasonable doubt 

that . . . Appellant had the specific intent to cause serious 

bodily injury to the complaining witness? 

Appellant’s Brief at 8. 

Appellant argues there was insufficient evidence to convict him of 

aggravated assault because the Commonwealth failed to prove he acted with 

a specific intent to cause serious bodily injury to the victim. Appellant 

 

14 As a general rule, this Court has jurisdiction only over final orders. 

Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). “A direct

appeal in a criminal proceeding lies from the judgment of sentence.” 

Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).

Nevertheless, “[a] notice of appeal filed after the announcement of a 

determination but before the entry of an appealable order shall be treated as 

filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5). 

Instantly, Appellant filed his notice of appeal nunc pro tunc on August 18, 

2015. However, the court did not reinstate his direct appeal rights until 

October 8, 2015. Therefore, we will relate forward Appellant’s premature 

notice of appeal to October 8, 2015, to resolve any jurisdictional 

impediments. See id. 
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claims the evidence did not indicate the victim sustained any serious injuries 

or that Appellant used a firearm or any weapon on the victim. Appellant 

further contends that, even if he had used a firearm, merely pointing a gun 

at the victim would have established no more than simple assault. Appellant 

maintains the court erred in finding his actions constituted an attempt to 

cause serious bodily injury. Appellant concludes this Court should reverse 

his aggravated assault conviction and remand for resentencing. We 

disagree. 

Our review of sufficiency of the evidence is governed by the following 

principles:

As this case involves a question of law, our scope of review 

is plenary. Our standard of review is de novo. 

* * *

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. [A]ll of the evidence and any 

inferences drawn therefrom must be viewed in the light 

most favorable to the Commonwealth as the verdict 

winner. 

* * *

In applying this standard, [the reviewing court must] bear 

in mind that: the Commonwealth may sustain its burden 

by means of wholly circumstantial evidence; the entire trial 

record should be evaluated and all evidence received 

considered, whether or not the trial court’s ruling thereon 

were correct; and the trier of fact, while passing upon the 
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credibility of witnesses and the weight of the proof, is free 

to believe all, part, or none of the evidence. 

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007) 

(citations and quotation marks omitted). 

The Pennsylvania Consolidated Statutes define aggravated assault, in 

relevant part, as follows:

§ 2702. Aggravated assault

(a) Offense defined.―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[.] 

18 Pa.C.S. § 2702(a)(1). This Court has defined “serious bodily injury” 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.” Commonwealth v. Holley, 945 

A.2d 241, 247 (Pa. Super. 2008) (citation and quotation marks omitted). 

“The Commonwealth, in sustaining an aggravated assault conviction, need 

only show the defendant attempted to cause serious bodily injury to 

another, not that serious bodily injury actually occurred.” Commonwealth 

v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001) (citations and footnote 

omitted). 

Further,
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[w]here the victim does not sustain serious bodily 

injury, the Commonwealth must prove that the 

appellant acted with specific intent to cause serious 

bodily injury. The Commonwealth may prove intent 

to cause serious bodily injury by circumstantial 

evidence. In determining whether the 

Commonwealth proved the [a]ppellant had the 

requisite specific intent, the fact-finder is free to 

conclude the accused intended the natural and 

probable consequences of his actions to result 

therefrom. A determination of whether an appellant 

acted with intent to cause serious bodily injury must 

be determined on a case-by-case basis. 

An intent is a subjective frame of mind, it is of 

necessity difficult of direct proof[.] We must look to 

all the evidence to establish intent, including, but not 

limited to, appellant’s conduct as it appeared to his 

eyes[.] Intent can be proven by direct or 

circumstantial evidence; it may be inferred from acts 

or conduct or from the attendant circumstances. 

Moreover, depending on the circumstances even a 

single punch may be sufficient. 

Holley, 945 A.2d at 247 (citations omitted). Moreover, “[a]ttempt, for 

aggravated assault purposes, is found where the accused intentionally acts 

in a manner which constitutes a substantial or significant step toward 

perpetrating serious bodily injury upon another.” Galindes, 786 A.2d at 

1012 (citation and quotation marks omitted). 

This Court has held that “we cannot sustain a conviction for 

aggravated assault where the Commonwealth only demonstrates that the 

defendant pointed a gun at someone.” Commonwealth v. Matthews, 870 

A.2d 924, 929 (Pa. Super. 2005) (en banc) (citation omitted). Nevertheless, 

in Matthews, a panel of this Court concluded, “a defendant’s failure to avail 
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himself of an opportunity to inflict serious bodily injury is not dispositive but 

merely one circumstance to be considered in the totality of the 

circumstances.” Id. at 932, 933 (holding there was sufficient evidence to 

sustain the appellant’s conviction for aggravated assault where the 

appellant’s actions of shoving a loaded firearm into an unsuspecting 

motorist’s throat, restraining the motorist by pointing the firearm at his 

throat, and expressing an intent to kill the motorist constituted a substantial 

step toward the infliction of serious bodily injury). 

While a defendant’s failure to follow through with a threat 

may permit the fact-finder to conclude that a defendant 

only intended to frighten, and never possessed the intent 

to commit serious bodily injury, it may also permit the 

fact-finder to infer that the defendant possessed the intent 

and, under the circumstances, changed his mind. If the 

remaining circumstantial evidence of record, when viewed 

in the light most favorable to the Commonwealth, would 

permit the fact-finder to reach the latter conclusion, we 

may not reweigh the evidence and substitute our judgment 

for the fact-finder. 

Id. 

Instantly, after reviewing the record in the light most favorable to the 

Commonwealth, we conclude there is sufficient evidence to sustain 

Appellant’s conviction of aggravated assault. See Ratsamy, 934 A.2d at

1236. An examination of Appellant’s conduct, which included kicking and 

stomping the victim’s body and holding a loaded firearm to her head, 

establishes Appellant’s intent to take a substantial step toward causing 

serious bodily injury to the victim. See Holley, 945 A.2d at 247; Galindes, 
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786 A.2d at 1012. Thus, considering the totality of the circumstances, which 

includes the victim’s broken rib and lacerated liver, Appellant’s arguable 

failure to avail himself of the opportunity to inflict more severe bodily injury 

to the victim does not entitle him to relief. See Matthews, 870 A.2d at 

932; Galindes, 786 A.2d at 1012. Accordingly, we affirm Appellant’s 

conviction for aggravated assault. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2017