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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MICHAEL G. FERKO

No. 177 EDA 2014

Appeal from the Order Dated December 13, 2013

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000943-2013

BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 15, 2015

The Commonwealth appeals from the order entered December 13, 

2013, in the Chester County Court of Common Pleas granting the motion for 

judgment of acquittal made by Appellee, Michael G. Ferko, on one count of 

aggravated assault.1 After Ferko was convicted by a jury of terroristic 

threats, simple assault (two counts), and aggravated assault – attempts to 

cause serious bodily injury,2 he moved for a judgment of acquittal on the 

charge of aggravated assault, which the trial court granted. On appeal, the 

Commonwealth contends the court erred in granting Ferko’s motion because 

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1 18 Pa.C.S. § 2702(a)(1).

2 18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1), (a)(3), and 2702(a)(1), 

respectively. The trial court also found Ferko guilty of the summary offense 

of harassment. 18 Pa.C.S. § 2709(a)(1).
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the evidence clearly supported the jury’s determination that Ferko attempted 

to cause serious bodily injury to the victim. For the reasons set forth below, 

we are compelled to reverse the order of the trial court, reinstate the jury’s 

verdict, and remand for further proceedings.

The trial court summarized the testimony presented at Ferko’s trial as 

follows: 

During the early morning hours of January 21, 2013, [Ferko] and 

his victim, J.M., were living together at the Pickering Inn, a hotel 

in Phoenixville, PA. They had been together 4 or 5 months as 

boy[friend] and girl[friend]. On that day, they had been drinking 

all day long – beer and vodka. J.M. was intoxicated, as was 

[Ferko]. J.M. testified that she wanted to party in the next 

apartment, but that [Ferko] wanted to go to bed. [Ferko] 

became agitated, which sparked the disagreement that led to 

J.M.’s assault by [Ferko]. J.M. resisted and tried to get out of 

the apartment. She clawed at his arms to get him to let her go. 

[Ferko] backed away eventually, and the pair started drinking 

again. When [Ferko] went in [the] bathroom,[3]J.M. ran 

upstairs, but [Ferko] followed her and took her back to their 

apartment. During the course of the argument and physicality 

that morning, reported to have lasted from 45 minutes to 3 

hours, J.M. dialed 911 on her cell phone. While she did not 

speak to the 911 operator, the operator heard the melee and 

notified police, who were able to triangulate J.M.’s location, and 

responded to the hotel at 5:18 A.M. “for a report of a domestic.” 

There, police confronted both [Ferko] and J.M. and, as reported 

in the police affidavit, observed minor cuts and abrasions on 

J.M.’s face and chest, who reported [Ferko] had punched her 

numerous times and threatened to kill her. [Ferko] was 

arrested, and J.M. was taken to Phoenixville Hospital, where she 

was seen in the emergency room by a Physician’s Assistant, and 

diagnosed with a pressure-punctured left [eardrum], a fractured 

____________________________________________

3 The rooms in the hotel shared a bathroom, which was located in the 

hallway, “[r]ight next door” to Ferko’s room. N.T., 12/2/2013, at 30. 
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rib and a broken tooth. The diagnosis was verified by the PA’s 

supervising physician, who did not examine J.M. The evidence 

at trial was that the punctured eardrum was consistent with a 

blow to the side of the face. The injuries, with the exception of 

the broken tooth, were photographed and shown to the jury. 

During the assault, [Ferko] suffered scratches on his arms, 

which were photographed and shown to the jury. J.M. did not 

seek follow-up care for her injuries. 

Trial Court Order, 1/9/2014 at n.1.

At the conclusion of the testimony, the jury was instructed on the 

following charges: aggravated assault - causing serious bodily injury; 

aggravated assault – attempts to cause serious bodily injury; simple assault 

– attempts to cause bodily injury; simple assault – attempts by physical 

menace to put another in fear of serious bodily injury; and terroristic 

threats. As noted above, on December 4, 2013, the jury returned a verdict 

of guilty on one count of aggravated assault – attempts to cause serious 

bodily injury, as well as both counts of simple assault, and terroristic 

threats.4 The jury, however, found Ferko not guilty of aggravated assault –

causing serious bodily injury. Following the verdict, Ferko made an oral 

motion for judgment of acquittal on the charge of aggravated assault –

attempts to cause serious bodily injury.5 On December 13, 2013, the trial 

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4

In addition, the trial court found Ferko guilty of the summary offense of 

harassment, but not guilty of the summary offense of disorderly conduct. 

See 18 Pa.C.S. §§ 2709(a)(1) and 5503(a)(1), (4).

5

Ferko originally moved for judgment of acquittal on this charge at the close 

of the Commonwealth’s case-in chief. See N.T., 12/3/2013, at 171. After 

taking the matter under advisement, the trial court denied the motion the 

(Footnote Continued Next Page)
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court granted Ferko’s motion. Thereafter, the Commonwealth filed a motion 

for reconsideration, which the trial court denied on January 9, 2014. This 

timely appeal followed.6

On appeal, the Commonwealth argues the trial court erred in granting 

Ferko’s motion for judgment of acquittal. Specifically, the Commonwealth 

contends the trial court applied an incorrect standard of review, and viewed 

the evidence in a light most favorable to Ferko, rather than a light most 

favorable to the Commonwealth, as verdict winner. See Commonwealth’s 

Brief at 23. In support of this argument, the Commonwealth asserts the 

court overlooked the testimony of a neighbor who witnessed the assault. 

Moreover, it claims the trial court improperly considered Ferko’s voluntary 

intoxication as a factor that “militate[d] against [his] formation of a specific 

intent to commit aggravated assault[.]” Id. at 29.

(Footnote Continued) _______________________

next day, stating “I think under the facts of this case this is a jury 

question.” N.T., 12/4/2013, at 4 (emphasis supplied). 

6 The Commonwealth certified in its notice of appeal that the trial court’s 

order “effectively terminates the prosecution with respect to the charge of 

Aggravated Assault.” Notice of Appeal, 1/10/2014. See Pa.R.A.P. 311(d); 

Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985). 

The trial court did not direct the Commonwealth to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

nor did the court file an opinion pursuant to Pa.R.A.P. 1925(a). Rather, the 

reasons for the trial court’s ruling are reflected in a footnote in its January 9, 

2014, order denying the Commonwealth’s motion for reconsideration.
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Our review of a ruling granting a motion for judgment of acquittal is 

guided by the following: 

“A motion for judgment of acquittal challenges the sufficiency of 

the evidence to sustain a conviction on a particular charge, and 

is granted only in cases in which the Commonwealth has failed 

to carry its burden regarding that charge.” As we have stated:

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 [that of] 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 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 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. 

“It is well recognized, however, that a criminal conviction cannot 

be based upon mere speculation and conjecture.”

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citations 

omitted), appeal denied, 93 A.3d 462 (Pa. 2014).

At issue in the present case is Ferko’s jury conviction of aggravated 

assault – attempting to cause serious bodily injury. See 18 Pa.C.S. § 

2702(a)(1). 
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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. § 

2702(a)(1). “Serious bodily injury” means “[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. § 

2301. “A person commits an attempt when, with intent to 

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

substantial step toward the commission of that crime.” 18 

Pa.C.S. § 901(a). An attempt under § 2702(a)(1) requires a 

showing of some act, albeit not one causing serious bodily 

injury, accompanied by an intent to inflict serious bodily injury. 

Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887, 

889 (1978).

“A person acts intentionally with respect to a material 

element of an offense when ... it is his conscious object to 

engage in conduct of that nature or to cause such a result....” 

18 Pa.C.S. § 302(b)(1)(i). “As intent is a subjective frame of 

mind, it is of necessity difficult of direct proof.” 

[Commonwealth v. ]Gruff, [822 A.2d 773, 776 (Pa. Super. 

2003), appeal denied, 863 A.2d 1143 (Pa. 2004)] (quoting 

Commonwealth v. Roche, 783 A.2d 766, 769 

(Pa.Super.2001)). The intent to cause serious bodily injury may 

be proven by direct or circumstantial evidence. 

Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 542 

(2003).

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006).

In Matthew, supra, the Pennsylvania Supreme Court reaffirmed the 

totality of the circumstances test, first utilized in Commonwealth v. 

Alexander, 383 A.2d 887 (Pa. 1978), to determine whether a defendant 

possessed the requisite specific intent to inflict serious bodily injury 

necessary to support a conviction of aggravated assault, when the victim did 
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not, in fact, suffer serious bodily injury as a result of the assault. The 

Matthew Court explained:

Alexander provided a list, albeit incomplete, of factors that may 

be considered in determining whether the intent to inflict serious 

bodily injury was present, including evidence of a significant 

difference in size or strength between the defendant and the 

victim, any restraint on the defendant preventing him from 

escalating the attack, the defendant’s use of a weapon or other 

implement to aid his attack, and his statements before, during, 

or after the attack which might indicate his intent to inflict 

injury. Alexander, at 889. Alexander made clear that “simple 

assault combined with other surrounding circumstances may, in 

a proper case, be sufficient to support a finding that an assailant 

attempted to inflict serious bodily injury, thereby constituting 

aggravated assault. All we hold is that the evidence in the 

instant case is insufficient to support such a finding.” Id., at 

889-90.

Matthew, supra, 909 A.2d at 1257, citing Alexander, supra. 

In Matthew, the Court determined that the defendant’s actions in 

placing a loaded gun to the throat of the victim, then repeatedly pointing the 

gun at the victim while threatening to kill him, was sufficient to establish the 

defendant intended to inflict serious bodily injury, although the victim, was 

not, in fact, injured at all. Id. at 1258-1259. The Court opined:

Regarding the intent element, there was sufficient 

evidence for the fact-finder to conclude appellant possessed the 

requisite intent to inflict serious bodily injury upon [the victim] 

since he repeatedly threatened to kill [the victim]. See

[Commonwealth v.] Hall, [830 A.2d 537, 542 (Pa. 2003)] 

(intent can be found where one verbalizes reasons for his 

actions). If the threats alone were not enough to establish his 

intent, the fact-finder could determine his intent from pushing 

the loaded gun against [the victim’s] throat and otherwise 

pointing it at him. See id. (“Where the intention of the actor is 

obvious from the act itself, the [fact-finder] is justified in 
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assigning the intention that is suggested by the conduct.” 

(citation omitted)).

Id. at 1259. 

Here, the trial court distinguished Matthew from the facts of this case 

because Ferko “employed no weapon and made no repeated threats against 

[the victim].” Order, 1/9/2014, at n.1. Rather, the trial court concluded:

[T]he angry encounter between [Ferko] and [the victim] during 

which the assault occurred was variously described as having 

lasted from 45 minutes to 3 hours. It defies credulity to 

conclude under the factual circumstances of this case, had 

[Ferko] harbored the specific intent to cause serious bodily injury 

to [the victim], he could not have accomplished that purpose 

and intent at any time during this protracted domestic incident. 

Instantly, [the] Commonwealth was required to prove beyond a 

reasonable doubt from the circumstances surrounding the 

assault that [Ferko] had the specific intent to cause the type of 

harm that in fact did not occur in this instance. As to [Ferko’s] 

malicious conduct, []where malice is based on a reckless 

disregard of consequences, it is not sufficient to show mere 

recklessness; rather, it must be shown the defendant 

consciously disregarded an unjustified and extremely high risk 

that his actions might cause death or serious bodily injury. A 

defendant must display a conscious disregard for almost certain 

death or injury such that it is tantamount to an actual desire to 

injure or kill; at the very least, the conduct must be such that 

one could reasonably anticipate death or serious bodily injury 

would likely and logically result. Commonwealth v. O’Hanlon, 

653 A.2d 616, 618 (1995). The trial evidence clearly 

demonstrated that both [Ferko] and [the victim] were 

intoxicated, a factor that militates against [Ferko’s] formation of 

a specific intent to commit aggravated assault under all of the 

instant facts.

Id.

Therefore, the trial court determined the Commonwealth presented 

insufficient evidence of Ferko’s specific intent to cause serious bodily injury 

to the victim because: (1) Ferko did not use a weapon to assault the victim; 
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(2) the assault occurred over a long period of time so that Ferko could have 

inflicted serious bodily injury upon the victim if he had intended; and (3) 

both Ferko and the victim were intoxicated at the time of the assault. 

The Commonwealth counters, however, that in reversing the jury’s 

verdict, the trial court viewed the evidence in a light most favorable to 

Ferko, rather than the light most favorable to the Commonwealth, as verdict 

winner. Moreover, in doing so, the court “overlooked” the testimony of 

Ferko’s neighbor, Terri Bearden, who witnessed the assault. 

Commonwealth’s Brief at 29. 

A review of the trial testimony supports the Commonwealth’s claims. 

The victim testified that when she attempted to leave the apartment in the 

early morning hours of January 21, 2013, Ferko “[t]old [her] he didn’t want 

[her] to leave, that [she] belonged in bed with him.” N.T., 12/2/2013, at 

20. The argument soon turned physical, when Ferko “smacked [her] upside 

[her] head a couple of times,” and, after she fell back onto the couch, he 

“started punching [her] in [her] ribs and ... upper body area.” Id. She 

claimed Ferko was “straddled over top” of her, and that she began “clawing 

at his arms” to get him off. Id. at 22-23. The victim further testified that 

while Ferko was hitting her, “he said he was going to kill [her].” Id. at 32. 

When Ferko finally relented, the victim went in search of a male 

neighbor who lived upstairs. When she could not find him, she headed back 

downstairs where she encountered Ferko who was “coming up the stairs to 

get [her] and bring [her] back down.” Id. at 24. The victim testified that 
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they started arguing again, and Ferko began “smacking [her] around.” Id. 

at 25. She stated that when Ferko went to the bathroom in the hallway, she 

dialed 911 on her cell phone and left the line open in the apartment so that 

the police would come. She testified, “I was afraid [Ferko] was going to kill 

me. He was hitting me over and over again and wasn’t stopping.” Id. The 

victim kept Ferko out of their apartment until the police arrived.

A neighbor, Terri Bearden, testified that she was in her apartment next 

door with her door closed when she heard the victim screaming, “stop it, 

leave me alone, get off of me.” N.T., 12/3/2013, at 39. She started 

banging on the victim’s door to see if the victim was OK. Ferko answered 

the door, and Bearden saw the victim crying. She asked the victim to go to 

the store with her so that Ferko could calm down. Bearden testified that 

Ferko responded, “she is not going anywhere and took [the victim] and 

threw her into this ... dresser[-]like thing that was in their room, and 

slammed the door.” Id. at 40. Bearden was able to “peek[] through” the 

door because the hinge was broken.7 Id. at 41. She witnessed Ferko with 

his hands on the victim’s throat, screaming, “I’m just going to kill you,” as 

he was choking the victim. Id. Bearden testified that Ferko then started 

punching the victim in her face with a closed fist. Id. at 43. 

____________________________________________

7 Bearden testified that although she could see in the room, she could not 

open the door. N.T., 12/2/2013, at 43.
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Accordingly, viewing the evidence in the light most favorable to the 

Commonwealth, the testimony reveals that Ferko threatened to kill the 

victim, while he slapped, punched, and choked her over a prolonged period 

of time. Further, with regard to the Alexander factors, we note that while 

Ferko did not use any weapon during the assault, the record reveals that he 

was much larger than the 5’2”, 125-pound victim,8and that he continued to 

assault the victim, on and off, until the police finally arrived.

Moreover, we note the Matthews Court rejected the argument that 

specific intent is lacking when a defendant “does not avail himself of the 

opportunity to follow through with threats” to harm the victim. Matthews, 

supra, 909 A.2d at 1258. Here, the jury was properly instructed on the 

elements of the crime of aggravated assault – attempts to cause serious 

bodily injury. See N.T., 12/4/2013, at 98-102. Furthermore, the trial court 

instructed the jury on the totality of the circumstances test set forth in 

Alexander, and told them that Ferko’s intent “may be proven by the totality 

of the defendant’s conduct and any threats made during the encounter with 

the victim.” Id. at 101. Therefore, the jury, as fact finder, was left to 

determine whether the testimony of the victim and Bearden was credible, 

and if so, whether Ferko’s words and actions demonstrated his intent to 

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8 N.T., 12/2/2013, at 23. See Criminal Complaint, 1/21/2013, at 1 (listing 

Ferko’s height and weight as 6’1” and 175 pounds).
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inflict serious bodily injury upon the victim. We conclude that the evidence 

presented, which the jury did find credible, was sufficient for them to return 

a verdict of guilty on that charge. 

Lastly, with regard to the trial court’s statement that the intoxication 

of both Ferko and the victim “militates against [Ferko’s] formation of specific 

intent,”9 we note that such a consideration is improper under the law. It is 

axiomatic that voluntary intoxication is not a defense to a criminal charge, 

nor may evidence of intoxication be introduced to negate the intent element 

of an offense. 18 Pa.C.S. § 308.10 Therefore, the fact that Ferko was 

intoxicated at the time of the assault was irrelevant to the question of 

whether he possessed the specific intent to inflict serious bodily injury on the

victim.

Accordingly, because we agree with the Commonwealth that the jury 

was presented with sufficient evidence to support a verdict of aggravated 

assault – attempts to cause serious bodily injury, we are compelled to 

reverse the order of the trial court granting Ferko’s motion for judgment of 

acquittal on that charge, reinstate the jury’s verdict, and remand for further 

proceedings.

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9 Trial Court Order, 1/9/2014, at n.1.

10 The only exception to this rule is for a charge of first degree murder, 

where evidence of intoxication may be introduced “whenever it is relevant to 

reduce murder from a higher degree to a lower degree of murder.” 18 

Pa.C.S. § 308.
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Order reversed. Jury’s verdict reinstated. Case remanded for further 

proceedings. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2015