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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

DERRICK WILLIAMS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 220 EDA 2018

Appeal from the Judgment of Sentence March 27, 2017

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

No(s): CP-51-CR-0010939-2013

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

MEMORANDUM BY LAZARUS, J.: FILED MARCH 08, 2019

Derrick Williams appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, following his conviction for 

aggravated assault.1 On appeal, Williams claims his mandatory sentence is 

illegal, his conviction rests on insufficient evidence, and the verdict is against 

the weight of the evidence. After careful review, we affirm.

On August 10, 2013, at Williams’s home, he and his romantic partner,

K.A., drank alcohol, smoked crack cocaine and engaged in consensual sex, 

after which Williams became physically violent, slapping K.A. and slamming

her into a door. K.A. subsequently went downstairs, pretending to need a 

glass of water, but, in truth, hoping to escape without provoking Williams’ ire.

After discovering that Williams kept his front door locked from the inside, K.A. 

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1 18 Pa.C.S.A. § 2702. 
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began screaming, hoping someone would call the police. In response, 

Williams forced K.A. into a chair and proceeded to choke her until she lost 

consciousness. Williams then nudged K.A. When she moved, he reacted by 

stating, “I thought you was dead.” N.T. Trial, 8/11/16, at 71. After being 

assured she would be left alone, K.A. headed upstairs and pretended to sleep. 

When Williams fell asleep, K.A. searched for the key to the front door and 

found it hidden behind the television. K.A. left the house in her nightgown 

and jeans, heading for the nearby First District Police Station. Officer Jeffrey 

McGarvey spoke with her, later describing K.A. as distraught, with visible 

bruising on her neck and arms. He escorted her to the Special Victims’ Unit, 

which documented and photographed her injuries. 

On August 12, 2016, following a trial presided over by the Honorable 

Carolyn H. Nichols, the jury convicted Williams of aggravated assault, while 

acquitting him of rape, sexual assault, and indecent assault. On March 27, 

2017, the court denied Williams’ motion for extraordinary relief, challenging 

the weight and sufficiency of the evidence. That same day, the 

Commonwealth asserted the instant conviction represented Williams’ third 

conviction for a crime of violence, thus requiring a mandatory minimum 

sentence of twenty-five years of total confinement.2 In support, the 

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2 42 Pa.C.S.A. § 9714(a)(2).
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Commonwealth entered evidence of Williams’ prior conviction for robbery3 and 

of his prior guilty plea to burglary as a felony of the first degree.4 In addition 

to docketing information, the Commonwealth also entered notes of testimony 

from the preliminary hearing in Williams’ burglary case, indicating a family 

was present in their own home when Williams attempted to steal their 

television and VCR. The court found Williams committed two prior crimes of 

violence, requiring a minimum sentence of twenty-five years of incarceration. 

Williams timely filed his notice of appeal on January 2, 2018.5

Williams presents the following issues for our consideration:

(1) Whether the trial court erred when the court ruled that 

Derrick Williams was previously convicted of two crimes of 

violence and pursuant to 42 Pa.C.S. § 9714(a)(1), imposed 

a sentence of 25 to 50 years of incarceration.

(2) Whether the evidence was sufficient as a matter of law to 

convict Derrick Williams of aggravated assault.

(3) Whether the verdict was against the weight of the evidence.

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3 Docket number CP-51-CR-0705841-1996.

4 Docket number CP-51-CR-0805631-1993.

5 Williams filed his original notice of appeal on March 31, 2017. On April 7, 

2017 Williams petitioned to file post-sentence motions nunc pro tunc. On June 

23, 2017, this Court dismissed his appeal for failing to comply with Pa.R.A.P. 

3517. On August 28, 2017, he filed a petition pursuant to the Post Conviction 

Relief Act, 42 Pa.C.S.A. §§ 9541–9546, resulting in reinstatement of direct 

appeal rights on December 7, 2017. Williams filed the instant notice of appeal 

on January 2, 2018. At that point Judge Nichols had already been elected to 

the Superior Court of Pennsylvania. Consequently, we received Williams’ 

appeal without an opinion pursuant to Pa.R.A.P.1925(a).
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Appellant’s Brief, at 6. 

Williams contends the trial court erred in meting out a mandatory 

minimum sentence of twenty-five years’ incarceration on the grounds that the 

Commonwealth failed to prove his guilty plea to first-degree burglary6

constituted a predicate offense pursuant to 42 Pa.C.S.A. § 9714. 

Section 9714, in relevant part, mandates a twenty-five year minimum 

sentence of incarceration under the following circumstance:

(a) Mandatory sentence.--

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(2) Where the person had at the time of the commission of the 

current offense previously been convicted of two or more such 

crimes of violence arising from separate criminal transactions, 

the person shall be sentenced to a minimum sentence of at 

least 25 years of total confinement, notwithstanding any other 

provision of this title or other statute to the contrary . . . 

42 Pa.C.S.A. § 9714(a)(2). 

When an offender contests the accuracy of his criminal record, the 

Commonwealth is required to prove the prior convictions warrant the 

application of section 9714 by a preponderance of the evidence. 42 Pa.C.S.A. 

§ 9714(d). The current version of section 9714(g),

7 under which Williams was 

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6 Williams does not contest the validity of viewing his robbery conviction as a 

crime of violence under section 9714(g). 

7 Effective April 28, 2014.
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sentenced, defines crimes of violence, in relevant part, as “burglary as defined 

in 18 Pa.C.S. § 3502(a)(1) (relating to burglary) . . .” 42 Pa.C.S.A. § 9714(g) 

Section 3502 states a defendant commits burglary if, with the intent to 

commit a crime therein, he:

(1) (i) enters a building or occupied structure, or separately 

secured or occupied portion thereof, that is adapted for 

overnight accommodations in which at the time of the 

offense any person is present and the person commits, 

attempts or threatens to commit a bodily injury crime 

therein;

(ii) enters a building or occupied structure, or separately 

secured or occupied portion thereof that is adapted for 

overnight accommodations in which at the time of the 

offense any person is present;

Section 9714(g) limits the definition of burglary as a crime of violence 

to paragraph (1). Taking these requirements in tandem, a first-degree 

burglary conviction constitutes a crime of violence under section 9714(g) 

when the sentencing court determines the defendant entered a building or 

structure “adapted for overnight accommodation” when an individual was

“present at the time of entry.” See Commonwealth v. Guilford, 861 A.2d 

365, 374–75 (Pa. Super. 2004) (defining circumstances where first-degree 

burglary is crime of violence under section 9714(g); holding guilty plea for 

second-degree burglary, even under conditions which could have constituted 

first-degree burglary, insufficient for purposes of section 9714(g) as statute 

requires conviction for crime of violence); see also Commonwealth v. 

Samuel, 961 A.2d 57, 65 (Pa. 2008) (“we hold that . . . whether a defendant 
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has been convicted of burglary of a structure adapted for overnight 

accommodation in which at the time of the offense any person is present [] is 

to be determined by the sentencing court.”) (quotations omitted). 

Williams was charged with and pleaded guilty to first-degree burglary 

under a previous version of the burglary statute,8 which

distinguished first-degree burglary from second-degree burglary 

based upon whether the building or structure entered was adapted 

for overnight accommodation and whether an individual was 

present at the time of entry. Only if neither of these conditions 

were true—i.e., that there was no risk of confrontation—was the 

entry a second-degree burglary.

Commonwealth v. Chester, 101 A.3d 56, 64–65 (Pa. 2014).

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8 The version of the burglary statute under which Williams was convicted 

reads, in relevant part, as follows: 

(a) Offense defined.--A person is guilty of burglary if he enters 

a building or occupied structure, or separately secured or occupied 

portion thereof, with intent to commit a crime therein, unless the 

premises are at the time open to the public or the actor is licensed 

or privileged to enter.

* * *

(c) Grading.--

(1) Except as provided in paragraph (2), burglary is a felony 

of the first degree.

(2) If the building, structure or portion entered is not 

adapted for overnight accommodation and if no individual is 

present at the time of entry, burglary is a felony of the 

second degree.

18 Pa.C.S.A. § 3502 (1990).
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Therefore, Williams’ conviction under the 1990 burglary statute cannot,

on its own, be used to infer the presence of both requirements. See id. The 

sentencing court, however, properly considered the transcripts of Williams’ 

preliminary hearing. See Commonealth v. Medley, 725 A.2d 1225, 1229 

(Pa. Super. 1999) (“[T]he court may receive any relevant information for the 

purposes of determining the proper penalty.”). The court found the defendant 

knew he was pleading guilty to first-degree burglary, inter alia, on the basis 

of the following testimony offered by the victim at Williams’ preliminary 

hearing:

Approximately between [1:00] and 1:15, I heard glass breaking 

on my front porch. There was a small window to the right-hand 

side of my door. I heard the glass break. As I was getting 

dressed, I heard my son’s voice coming up coming from outside. 

My wife and I came down the steps, saw the defendant on my 

front porch with the TV and the Nintendo system in his hand, with 

my son holding it, holding it at bay.

N.T. Sentencing, 3/27/17, at 24. In the eyes of the sentencing court, “the 

testimony at the preliminary hearing establishe[d] that the victims were 

present, and there was an encounter with the son of the victim.” Id. at 25. 

We agree, and further concur, that these facts establish a proper basis for 

concluding Williams was convicted for perpetrating a crime of violence as 

defined by section 9714(g). See Guilford, supra at 374–75. 

Williams’ attempt to analogize his case to Guilford is unavailing. The 

court in Guilford found it improper to classify a burglary conviction as a crime 

of violence, though the underlying behavior met the requisite elements of 
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first-degree burglary, when the defendant pleaded guilty to second-degree 

burglary. Guilford, supra at 374–75. Unlike Guilford, the instant case

presents a conviction for first-degree burglary presented in tandem with prior 

testimony indicating Williams entered a structure adapted for overnight 

accommodation, and did so while the structure was occupied. 

Williams further submits the evidence was insufficient to sustain his 

conviction for aggravated assault, arguing the Commonwealth failed to prove 

the presence of a serious bodily injury or the necessary criminal intent. 

Our standard of review with regard to sufficiency claims is well-settled: 

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. . . . When performing this review, we 

may not reweigh the evidence or substitute our own judgment for 

that of the fact finder.

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation and 

quotation omitted). 

The Crimes Code, in relevant part, defines aggravated assault 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
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18 Pa.C.S.A. § 2702(a)(1). The Crimes Code defines serious bodily injury as 

follows:

“Serious bodily injury.” Bodily 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. § 2602. 

In order to provide evidence sufficient to sustain a conviction for 

aggravated assault, “the Commonwealth does not have to prove that the 

serious bodily injury was actually inflicted but rather that the Appellant acted 

with the specific intent to cause such injury.” Commonwealth v. Holley, 

945 A.2d 241, 247 (Pa. Super. 2008) (citation omitted). We have previously 

explicated the Commonwealth’s burden as follows: 

The Commonwealth may prove intent to cause serious bodily 

injury by circumstantial evidence. In determining whether the 

Commonwealth proved the Appellant 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 [A]ppellant 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, [A]ppellant’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.

Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006) (internal 

citations and quotations omitted). This logic applies 
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“with equal force to prove recklessness to a degree that one would reasonably 

anticipate serious bodily injury as a likely and logical result” from one’s 

actions. Commonwealth v. Bruce, 916 A.2d 657, 664 (Pa. Super. 2007) 

(finding “four or five blows to the face and throat” sufficient for inferring

reckless intent to cause serious bodily injury, even in light of “minimal external 

injury to [victim’s] face”). 

Alleging the Commonwealth failed to prove Williams possessed the 

requisite intent is, quite simply, unreasonable in light of the record. K.A. tried 

to escape Williams’ house after a sexual encounter transitioned into a physical 

attack. After K.A. found herself trapped and made an attempt to extricate 

herself, Williams used both of his hands to strangle K.A. into unconsciousness. 

After nudging K.A.’s unconscious body, William’s reacted with surprise to see 

her stir, stating, “I thought you was dead.” N.T. Trial, 8/11/16, at 71. K.A.’s

account of events was supported by Officer McGarvey’s testimony and 

documentation of her injuries from the Special Victims’ Unit. The jury, acting 

as finder of fact, drew a reasonable inference in determining that Williams 

acted with, at least, a reckless intent to cause serious bodily injury in light of 

the aforementioned attendant circumstances. See Lewis, supra at 564; 

Bruce, supra at 664.
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Next, Williams claims that the verdict was against the weight of the 

evidence.

9 Given its unique vantage point, the trial court is ordinarily 

obligated to rule on challenges to the weight of the evidence and explain its 

reasoning through an opinion filed pursuant to Rule 1925(a),

10 reserving for 

the Superior Court the role of reviewing the trial court’s analysis for a palpable

abuse of discretion. Armbruster v. Horowitz, 813 A.2d 698, 702–703 (Pa. 

2002) (citations and quotations omitted); cf. Commonwealth v. DeJesus, 

868 A.2d 379, 383 (Pa. 2005) (requiring remand “where the trial court fails 

to prepare an opinion that addresses the issues upon which it passed and 

which are raised by a party on appeal”—a requirement, which under ordinary 

circumstances, is not dependent “upon the reason for the absence of an 

independent articulation by the court below of the reasons for its decisions.”). 

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9 Williams preserved his weight claim by including it in a timely-filed postsentence motion. See Pa.R.Crim.P. 607.

10 Rule 1925(a) states:

Except as otherwise prescribed by this rule, upon receipt of the 

notice of appeal, the judge who entered the order giving rise to 

the notice of appeal, if the reasons for the order do not already 

appear of record, shall forthwith file of record at least a brief 

opinion of the reasons for the order, or for the rulings or other 

errors complained of, or shall specify in writing the place in the 

record where such reasons may be found.

Pa.R.A.P.1925(a) (emphasis added). 
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Our Supreme Court created an exception for this Court to review timelyfiled weight claims in the first instance under circumstances where the trial 

judge is permanently unavailable to do so, “including resignation, illness, 

death, and retirement, appointment to another court and election defeat.” 

Armbruster, supra at 704. In such situations, “the claim must be reviewed 

by the appellate tribunal in the first instance” to avoid an untenable “burden 

upon the judicial process that would be occasioned by a rule requiring a new 

trial whenever the trial judge is unavailable to rule upon a post-verdict 

motion.” Id. 

Though Judge Nichols denied Williams’ motion for extraordinary relief 

and stated her reasoning for doing so during his sentencing hearing,11 the 

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11 Judge Nichols denied Williams’ motion for extraordinary relief, which 

contained both a sufficiency claim and a weight claim, on the following 

grounds:

All right. Looking at the Criminal Code Section 2702 for 

aggravated assault, a person is guilty of aggravated assault 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.

The jury was so instructed by the Court on the law. As Mr. Tinari 

points out, the jury weighs credibility. The Court can't become a 

13th juror. So the fact that there's no DNA is of no moment. They 

weigh credibility. And there was testimony by the complainant 

that the defendant, as Commonwealth counsel brings out, that he 

choked her, she passed out, and he made a comment like, thought 

you were dead. So, certainly, choking and the other physical 

striking that went on. The jury heard that testimony and weighed 

the credibility of the complainant and rendered their verdict. 
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procedural delays in the instant case prevented her from authoring a Rule 

1925(a) Opinion before she assumed her current seat on the Superior Court. 

Though Armbruster did not specifically state election to a new court as 

grounds for finding a judge permanently unavailable, the non-exhaustive list

it provided, including “resignation . . . retirement, appointment to another 

court and election defeat,” indicates voluntarily vacating one’s position on a 

court renders that judge permanently unavailable. See id. (emphasis 

added). Accordingly, we find Judge Nichols’ election to this Court left her 

permanently unavailable to provide this court with a Rule 1925(a) opinion,

requiring this Court to review Williams’ weight claim in first instance. Id. 

Under such circumstances, our review is plenary, though we are 

confined to the “cold record of the trial proceedings” in conducting our review. 

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Because the jurors are the judges of the facts. The Judge is the 

judge of the law. It's not for me to go back and second guess the 

facts or the credibility determinations of the jury. 

Certainly, if there's a misstep in the law, obviously, that's where 

the Court needs to step in. But the jury heard that testimony, 

they weighed the credibility, they judged the weight of the 

evidence, and they convicted the defendant of aggravated assault 

in the first degree. There is no basis based on a preponderance 

of the evidence to grant a motion for extraordinary relief. The 

verdict of the jury should stand; and, therefore, the motion is 

denied.

N.T. Sentencing 3/27/17, 8–9.
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Commonwealth v. Izurieta, 171 A.3d 803, 809–10 (Pa. Super. 2017)

(citation and quotation omitted). We, therefore, apply the following standard: 

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, the role of 

the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice. 

It has often been stated that a new trial should be awarded when 

the jury's verdict is so contrary to the evidence as to shock one's 

sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail. 

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (citations and quotations 

omitted). Moreover, when adjudicating weight claims based solely on a cold 

record, we must do so:

with an eye to the delicate balance that exists between the jury's 

exclusive role in assessing credibility, and our longstanding 

recognition of the power in courts to allow justice another 

opportunity to prevail when a verdict nevertheless shocks the 

judicial conscience.

Armbruster, supra, at 705. 

Williams specifically highlights K.A.’s inconsistent testimony and her

prior crimin falsi convictions as the principal factors that resulted in a verdict 

against the weight of the evidence. Brief of Appellant at 22. We review 

Williams’ weight claim in first instance using the cold record of the trial 

proceedings. Izurieta, supra at 809–10. 

The trial record reveals the jury heard evidence of K.A.’s open felony 

cases in addition to her crimin falsi convictions. N.T. Trial, 8/11/16, at 77, 
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87–95. On cross-examination, counsel thoroughly challenged K.A.’s version of 

events, specifically highlighting the differences among her statements given 

at trial, during the preliminary hearing, and to the police the day of the 

incident. Id. at 87–124. In the presence of inconsistencies and a blemished 

record, the jury was free to evaluate K.A.’s statements and “believe all, part, 

or none of . . . [her] testimony.” Commonwealth v. Mitchell, 902 A.2d 430, 

444 (Pa. 2006). The jury’s split verdict—finding Williams guilty of aggravated 

assault, but not guilty of rape, sexual assault, or indecent assault—evinces a 

conscientious process used in evaluating K.A.’s testimony. N.T. Trial,

8/12/16, at 54. Nothing in the full record, which contains substantial 

corroborating evidence from Officer McGarvey and the Special Victims’ Unit, 

renders the jury's verdict so contrary to the evidence as to shock one's sense 

of justice. See Armbruster, supra at 705 (outlining standard by for 

adjudicating weight claims on cold record). We, therefore, find Williams’ claim 

meritless.

Judgment of sentence affirmed. 

Judge Olson joins this Memorandum.

Judge Strassburger files a Concurring Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/19