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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN ROY MILLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1919 MDA 2018

Appeal from the Judgment of Sentence Entered August 1, 2018

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

No(s): CP-22-CR-0000674-2018

BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED JULY 12, 2019

Brian Roy Miller appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Dauphin County, following his conviction of simple 

assault with a hypodermic needle1 and unlawful possession of drug 

paraphernalia.2 After careful review, we affirm. 

On September 1, 2017, multiple police officers were dispatched to the 

south end of City Island, Harrisburg, where there was a report of a suspicious 

vehicle. Upon arrival, officers observed Miller in the back seat of the driver’s 

side of the vehicle, an unwrapped cigar on Miller’s lap, and a water bottle cap 

laying directly beneath his feet. Officer Daniel Antoni then observed an orange 

syringe cap on the floorboard in front of Miller. Suspecting heroin usage, 

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1 18 Pa.C.S.A. § 2701(a)(4).

2 35 P.S. § 780-113(a)(32).
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Officer Antoni instructed Miller to exit the vehicle so he could perform a pat 

down. When Officer Antoni inquired multiple times if he had anything on his 

person, including any needles that could harm someone, Miller equivocated. 

Officer Antoni began his pat down and was poked by a hypodermic needle 

concealed in Miller’s waistband. At no point did Miller tell Officer Antoni to 

stop, nor did he suggest there could be a needle in his waistband.

On August 1, 2018, following a bench trial, Miller was convicted of simple 

assault with a hypodermic needle and unlawful possession of drug 

paraphernalia. The court sentenced Miller to two years and six months of 

county supervision and fines totaling $75 plus costs. On August 3, 2018, 

Miller filed a post-sentence motion, raising issues regarding the sufficiency 

and weight of the evidence. The court denied this motion and Miller filed a 

timely notice of appeal. On November 27, 2018, the court instructed Miller to 

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 

Miller filed his Rule 1925(b) statement on December 10, 2018. Miller raises 

the following issue for our review: 

Did the Commonwealth lack sufficient evidence to convict [Miller] 

of simple assault by penetration with a hypodermic needle beyond 

a reasonable doubt where the Commonwealth failed to prove that 

[Miller] acted intentionally or knowingly in penetrating Officer 

Daniel Antoni?

Appellant’s Brief, at 4. 

Our standard of review with regard to sufficiency of the evidence claims 

is well-settled:
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A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. When reviewing a sufficiency claim the court is required 

to view the evidence in the light most favorable to the verdict 

winner, giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence.

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993); Commonwealth 

v. Chambers, 599 A.2d 630 (Pa. 1991).

A person is guilty of the offense of simple assault if he: 

Conceals or attempts to conceal a hypodermic needle on his 

person and intentionally or knowingly penetrates a law 

enforcement officer or an officer or an employee of a correctional 

institution, county jail or prison, detention facility or mental 

hospital during the course of an arrest or any search of the person. 

18 Pa.C.S.A. § 2701(a)(4).

After reviewing the certified record, the briefs of the parties, and the 

applicable law, we conclude that the Commonwealth presented sufficient 

evidence to convict Miller beyond a reasonable doubt. So long as the evidence 

offered, when accepted in the light most favorable to the Commonwealth, 

demonstrates the respective elements of a defendant’s crime beyond a 

reasonable doubt, the convictions will be upheld. Commonwealth v. 

Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). At trial, the officers’ 

testimony indicated that Miller confirmed the presence of a needle, but it may 

have fallen onto the car floor, might be in his right pocket, but never indicated 
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it could be in his waistband. N.T. Bench Trial, 8/1/18, at 10, 22-25. Each 

answer given was different and vague, leaving officers unaware of the 

presence of a needle or its location, resulting in its concealment. 

The Commonwealth also presented sufficient evidence to prove that 

Miller acted with knowledge as to the concealment of the needle. The evidence 

suggests Miller must have been aware that his conduct would likely result in 

the outcome of an officer being poked by his needle during a pat down. 18 

Pa.C.S.A. § 302(b)(2). Miller was aware that Officer Antoni could encounter 

the needle and did not attempt to warn him. Miller never implied the needle 

could be in his waistband, giving Officer Antoni no indication to proceed with 

extra caution during the pat down. Instead, Miller suggested two alternate 

locations, leaving the officer unaware of the concealed needle on Miller’s waist. 

We conclude, therefore, the evidence was sufficient to support Miller’s 

conviction. Brewer, supra.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/12/2019
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