J. S25004/16

NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : JOVAN BROWN, : No. 345 WDA 2015 : Appellant :
Appeal from the Judgmen t of Sentence, November 19, 2014, in the Court of Common Pleas of Clearfield County Criminal Division at No. CP

- 17

- CR

- 0001007

- 2013

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 07, 2016
Jovan Br own appeals from the November 19, 2014 judgment of sentence following his convictions of aggravated assault, simple assault, recklessly endangering another person (“REAP”), and disorderly conduct. 1
We affirm. This case stems from an incident that took pl ace at an off

- campus college party at a house not far from Penn State

- DuBois. Isaac Peterson, the victim, was involved in two altercations

-- one with Justin Ritzie and the other with appellant. The record indicates that the victim and appellant had
a prev ious interaction in which the victim asked appellant to leave the

1 18 Pa.C.S.A . §§ 2702(a)(1), 2701 (a)(1) and (3), 2705, and 5503(a)(1), respectively.J. S25004/16

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victim’s residence because the victim “did not want [any] problems.” 2 (Notes of testimony, 9/24/14 at 8.) Upon appellant’s arrival at the party, the victim said to appellant, “I heard you’ re looking for me, . . . everything good, any problems.” ( Id. ) Appellant responded, “No, sir, no problems, everything’s fine.” ( Id. ) Later in the evening, the victim was on the porch having a discussion with Mr. Ritzie and Kelsey Gulvas, a friend of th e victim’s. ( Id. at 9.) Eventually, the victim started talking to a woman standing behind him, and at that point, Mr. Ritzie punched him in the right side of his face. 3 ( Id. ) After the initial hit from Mr. Ritzie, the victim claims to have “blacked out .” ( Id. ) The victim did not testify regarding the altercation involving appellant. Mr. Gulvas testified that he left the party for approximately five to
ten minutes, and that upon his return, the victim was lying in the yard with his pants and underwear around his ankles. ( Id. at 28.) The victim was disoriented, had blood coming out of his ears, and his eyes were bloodshot. ( Id. ) Mr. Gulvas and another person attending the party (“the unidentified male”) 4 assisted the victim to his feet, and at that point, appellant punched

2 The previous interaction allegedly originated from an incident in which one of appellant’s friends was physically assaulting his girlfriend. (Notes of testimony, 9/24/14 at 8.)

3 Mr. Ritzie pled guilty to one count of simple assault.

4 Mr. Gulvas was unable to identify the other person who assisted the victim at the party

-- he only knew that the other person was a basketball player.J. S25004/16

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the victim in the right side of his head with a closed fist. ( Id. at 29.)
Mr. Gulvas and the unidentified male tried to get the victim back on his feet again, and appellant said, “I was looking for you,” to the victim and hit hi m again in the right side of the head with a closed fist. ( Id. at 29

- 30.) After the second punch from appellant, Mr. Gulvas testified that the victim was unconscious. ( Id. ) He also testified that after the second punch, appellant said that “Ritzie was one of my small boys, that was one of my small boys.” ( Id. ) Again, Mr. Gulvas and the unidentified male attempted to get the victim on his feet, and appellant punched the victim on the right side of the head with a closed fist. ( Id. at 30

- 31.) At that point, Mr. Gulvas and the unidentified male took appellant to a mutual friend’s residence. ( Id. at 31.) The victim did not seek medical attention for his injuries until the following day when his father took him to the emergency room at the
DuBois Hospit al. ( Id. at 12.) The victim suffered from blurred vision that lasted several weeks, and a strained shoulder that was still providing the victim with discomfort at the time of the trial, approximately 11 months after the incident. ( Id. at 12

- 13.) The vi ctim’s injuries included swelling of the eyes and nose, scarring on his ears and nose, and his nose was bleeding. ( Id. at 14.)

The other person was identified as “the basketb all player” at trial. ( Id. at 29.)J. S25004/16

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The Commonwealth charged appellant with the aforementioned crimes on November 25, 2013. Additionally, the Commonwealth charged appellant with harassment. 5 Following a bench trial on September 24, 2014, the trial court acquitted appellant of harassment and convicted on all remaining charges. On November 19, 2014, the trial court sentenced appellant to an aggregate sentence of 22

- 60 months’ imprisonment. Appellant filed a motion for judgment of acquittal as it related to the aggravated assault conviction on December 1, 2014, which the trial court denied on January 26, 2015. 6 On February 11, 2015, appellant filed a notice of appe al. The trial court, on February 26, 2015, ordered appellant to file a concise statement of errors complained of on appeal within 21 days. On June 5, 2015, the Commonwealth filed a motion to quash the appeal with this court on the grounds that appellant failed to file a Rule 1925 statement as ordered. We denied the Commonwealth’s motion to quash on July 21, 2015, while simultaneously remanding the case for appellant to file a Rule 1925
statement nunc pro tunc . On October 5, 2015, appellant filed a conci se statement of errors complained of on appeal. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on October 28, 2015.

5 18 Pa.C.S.A. § 2709.

6 November 29, 2014, was a Saturday. Therefore, appellant’s filing deadline was extended to the next business day, which was December 1, 2014. See 1 Pa.C.S.A. § 1908.J. S25004/16

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Appellant raises the following issues for our review:
I. Whether the Lower Court erred when, on September 24, 2014, it fou nd the Appellant guilty on the charge of Aggravated Assault, a felony of the first degree, following a bench trial despite a lack of sufficiency [sic] of the evidence presented by the Commonwealth[?]
II. Whether the Lower Court erred when, on September 24 , 2014, it found the Appellant was guilty of four counts of Simple Assault and one count of Recklessly Endangering Another Person following a bench trial despite a lack of sufficiency [sic] of the evidence presented by the Commonwealth[?]
III. Whether the sentence imposed by the Lower Court by order dated November 18, 2014 was manifestly excessive and failed to take into account mitigating factors[?]
IV. Whether the Appellant’s trial attorney, James Walsh, Esquire, was ineffective to the level that it und ermined the truth

- determining process that no reliable adjudication of guilt or innocence could take place, and whether said representation violated the Appellant’s rights under the Constitutions of the Commonwealth and of the United States[?] Appellant’s brief at 6. Appellant’s first two issues relate to the sufficiency of the evidence presented by the Commonwealth.

In reviewing the sufficiency of the evidence, we view all evidence admitted at trial in the light most favorable to the Commonwealth, as ve rdict winner, to see whether there is sufficient evidence to enable [the fact

- finder] to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence isJ. S25004/16

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- circumstantial rather than direct so lon g as the combination of the evidence links the accused to a crime beyond a reasonable doubt. Although a conviction must be based on “more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.”
Moreover , when reviewing the sufficiency of the evidence, the Court may not substitute its judgment for that of the fact finder; if the record contains support for the convictions, they may not be disturbed. Commonwealth v. Stokes , 78 A.3d 644, 649 (Pa.Super. 201 3), appeal denied , 89 A.3d 661 (Pa. 2014) (citations omitted).

Moreover, when applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact, while passing upon the credibil ity of the witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Estepp , 17 A.3d 939, 943

- 944 (Pa.Super. 2011) (citations omitted), appeal dismissed , 54 A.3d 22 (Pa. 2012). We first revi ew appellant’s aggravated assault conviction. The statute defines aggravated assault as when a person “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extrem e indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is defined as “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. § 2301. OurJ. S25004/16

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supreme court has further defined aggravated assault as “the functional equivalent of murder in which, for some reason, death fails to occur.” Commonwealth v. O’Hanlon , 653 A.2d 616, 618 (Pa. 1995). The Commonwealth avers that we are governed by two previous decisions of this court: Commonwealth v. Burton , 2 A.3d 598 (Pa.Super. 2010) ( en banc ), appeal denied , 32 A.3d 1275 (Pa. 2011), and Commonwealth v. Patrick , 933 A.2d 1043 (Pa.Super. 2007) ( en banc ), appeal denied , 940 A.2d 364 (Pa. 2007). In Burton , the victim, William Price, Jr., sustained significant permanent injuries following a single punch from Mr. Burton. Burton , 2 A.3d at 599. The Burton court found that the Commonwealth pr esented sufficient evidence to warrant an aggravated assault conviction. Specifically, the court stated that Mr. Burton intended to cause serious bodily injury to Mr. Price, 7 based in part on
Mr. Burton’s “gleeful remarks upon viewing [Mr. Price]” unconsc ious with “his eyes [] rolled back into his head, blood [] coming from his nose, his head [was] bloody, and he was involuntarily twitching.” Id. at 603. The court further found that Mr. Burton’s “gloating remarks” “clearly confirmed his desire to severel y hurt Mr. Price, regardless of whether those statements

7 Mr. Price sustained the f ollowing injuries: “subdural hemorrhage, subarachnoid hemorrhage to the right temporal lobe, a basal skull fracture, a left occipital depressed skull fracture, an intraparenchimal hemorrhage, bilateral inferior frontal lobel, dens fracture on C

- 2, and spi nous fracture of T

- 4.” Id. at 600. Mr. Price required “aggressive physical and occupational therapy” and also lost his senses of taste and smell. Id.J. S25004/16

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established that he wanted to continue the attack.” Id. at 604. As a result, the court determined that Mr. Burton acted with the “requisite mens rea to sustain a conviction for aggravated assault. ” Id. The victim in Patrick , Mark Shutkufski, left the line to enter the
Front Row bar following an exchange of words with Nicholas Patrick. Patrick , 933 A.2d at 1044. Mr. Shutkufski decided to patronize a different bar, and he and a friend walked to ward an Irish pub. Id. Mr. Shutkufski was walking with his hands in his pockets when Mr. Patrick approached him and punched him in the side of the head. Id. The force of the blow caused
Mr. Shutkufski to fall to the sidewalk, hitting it head first. Id . Mr. Patrick fled the scene immediately after hitting Mr. Shutkufski. 8 Id. Unlike Burton , where the court reviewed the sufficiency of the evidence following a bench trial, Patrick was a review of the lower court’s dismissal of an aggravated assault cha rge against Mr. Patrick. Id. This court found that the above facts satisfied the Commonwealth’s burden of establishing a prima facie case of aggravated assault at the preliminary hearing. Id. at 1047. A lack of serious injuries sustained by a victim, however, does not necessarily preclude the Commonwealth from charging a defendant with

8 Mr. Shutkufski had to be life

- flighted to St. Luke’s Hospital in Allentown where he spent approximate ly two days in a coma as a result of severe trauma to the brain. Thereafter, the victim spent several weeks in therapy. The victim “has not worked since the incident, as he cannot use his right arm or leg well.” Id. at 1044 n.3.J. S25004/16

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aggravated assault and being able to present sufficient evidence to warrant a conviction. “Where the injury actually inflicted did not constitute serious bodily injury , the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.” Commonwealth v. Alexander , 383 A.2d 887, 889 (Pa. 1978); see also Commonwe alth v. Martuscelli , 54 A.3d 940, 948 (Pa.Super. 2012) (“Where the victim does not suffer serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding of an attempt to cause such injury.”). 9
In order to determine intent, the Alexander court established four factors to consider upon review. When determining whether a defendant acted with the requisite intent to inflict serious bodily injury, we must consider the following: (1) whether there was a dispar ity in size and strength between the defendant and the victim; (2) whether the defendant would have escalated the attack had he or she not been otherwise restrained; (3) whether the defendant was in possession of a weapon; and (4) whether the defendant mad e any statements indicative of his or her intent to “inflict further injury upon the victim.” Alexander , 383 A.2d at 889; see also Commonwealth v. Matthew , 909 A.2d 1254, 1259 (Pa.

9 “A person commits an a ttempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” Alexander , 383 A.2d at 889, quoting 18 Pa.C.S.A. § 901(a).J. S25004/16

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2006) (reaffirming the Alexander test); Commonwealth v. Fortune , 68 A.3d 980, 986 (Pa.Super. 2013) ( en banc ), appeal denied , 78 A.3d 1089 (Pa. 2013) (same). In order to determine whether the Commonwealth presented sufficient evidence to warrant a conviction of aggravated assault, we must first determine if the victim suffered serious bodily injury. Should we find that there is an absence of serious bodily injury, we must then determine whether appellant intended to inflict serious bodily injury upon the victim. Here, the victim did not suffer injuries that constitute the “ser ious injuries” contemplated by Section 2301. The victim suffered from blurred vision that lasted several weeks, and a strained shoulder that was still providing the victim with discomfort at the time of the trial, approximately 11 months after the inciden t in question. (Notes of testimony, 9/24/14 at 12

- 13.) Appellant’s visible injuries included swelling of the eyes and nose, scarring on his ears and nose, and his nose was bleeding. ( Id. at 14.) None of these injuries rise to the level of injuries

enum erated by the statute, which requires “serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. Unlike the victims in Burton and Patrick , the victim in the instant case also did not suffer any life

threatening injuries. Therefore, we must determine whether appellant acted with the requisite intent to inflict serious bodily injury upon the victim.J. S25004/16

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In order to determine whether appellant acted with the intent to inflict
serio us bodily injury upon the victim, we shall consider the four factors established by the Alexander court. First, we note that the record is silent as to whether there was a significant disparity in size between the victim and appellant. There was, however , a significant disparity in strength between the victim and appellant, given the victim’s state of near unconsciousness as a result of his altercation with Mr. Ritzie. For the second Alexander factor, the record reflects that appellant escalated the atta ck because unlike the defendants in Burton and Patrick , who threw only one punch, appellant threw three punches to the victim’s head while he was nearly unconscious. The third Alexander factor is inapplicable in this case as the record does not indicate t hat appellant had a weapon in his possession. Finally, under the fourth Alexander factor, appellant’s statements to the victim: “I’ve been looking for you” and “Ritzie was one of my small boys,” indicate an intent to inflict further injury upon the victi m. After considering the four factors established by the Alexander court, we, therefore, find that the Commonwealth presented sufficient evidence to support appellant’s conviction of aggravated assault. Under his second issue on appeal, appellant challen ges the sufficiency of the evidence relating to his convictions of four counts of simple assault and one count of REAP. Throughout his argument, appellant raises the credibility of the Commonwealth’s three witnesses: the victim, Mr. Gulvas,J. S25004/16

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and Officer R andall Young of the DuBois City Police Department. ( See appellant’s brief at 17

- 18.) Such an argument challenges the weight of the evidence presented, not its sufficiency

. Commonwealth v. Gibbs , 981 A.2d 274, 281

- 282 (Pa.Super. 2009), appeal denied , 3 A .3d 670 (Pa. 2010). As this court has previously explained, The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence and to assess the credibility of the witnesses. Commonwealth v. John son , 668 A.2d 97, 101 (Pa. 1995). . . . An appellate court cannot substitute its judgment for that of the [finder of fact] on issues of credibility. Commonwealth v. DeJesus , 860 A.2d 102, 107 (Pa. 2004). Commonwealth v. Palo , 24 A.3d 1050, 1055 (Pa.Supe r. 2011), appeal denied , 34 A.3d 828 (Pa. 2011); see also Commonwealth v. Griffin , 65 A.3d 932, 939 (Pa.Super. 2013), appeal denied , 76 A.3d 538 (Pa. 2013). As noted by the Palo court, we cannot substitute the fact

- finder’s judgment of credibility with ou r own. Therefore, because appellant requests that we reassess witness credibility, no relief is due for appellant’s claim that the evidence was insufficient to warrant convictions for four counts of simple assault and one count of REAP. In his third issu e for our review, appellant requests that we review his sentence imposed by the trial court.

[T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. . . . [A]nJ. S25004/16

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- abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill

- will. In more expa nsive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill

- will, o r such lack of support so as to be clearly erroneous. The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a part icular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Moury , 992 A.2d 162, 169

- 170 (Pa.Super. 2010) (citation omitted).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to revie w as of right. Commonwealth v. Sierra , [752 A.2d 910, 912 (Pa.Super. 2000)]. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four

- part test: [W]e conduct a four

- part analysis to de termine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brie f has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under theJ. S25004/16

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- Sentencing Code, 42 Pa.C.S.A. § 9781(b). Moury , 992 A.2d at 170 (citation omitted). Here, we begin our a nalysis by determining whether appellant has complied with the procedural requirements of challenging his sentence. First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902 and 903. Appellant, however, did not file a post

- sentence mot ion asking the trial court to reconsider his sentence pursuant to Pa.R.Crim.P. 720, nor was the issue preserved at sentencing. Accordingly, the issue has not been properly preserved, and we do not have the jurisdiction to review appellant’s claim on its m erits. In his fourth and final issue, appellant avers that his trial counsel was ineffective. Our supreme court has held that, “as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review .” Commonwealth v. Grant , 813 A.2d 726, 738 (Pa. 2002). The court further held,

Grant ’s general rule of deferral to PCRA[ 10 ] review remains the pertinent law on the appropriate timing for review of claims of ineffective assistance of counsel; we disapprov e of expansions of the exception to that rule recognized in Bomar [ 11 ]; and we limit Bomar , a case litigated in the trial court before Grant was decided and at a time when new counsel entering a case upon post

- verdict motions was required to raise ineffectiv eness claims at the

10 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541

- 9 546.

11 Commonwealth v. Bomar , 826 A.2d 831 (Pa. 2003).J. S25004/16

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- first opportunity, to its pre

- Grant facts. We recognize two exceptions, however, both falling within the discretion of the trial judge. First, we appreciate that there may be extraordinary circumstances where a discrete claim (or clai ms) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims. [] Second . . . where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non

- record

- based claims, on post

- verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant’s knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects f urther collateral review to the time and serial petition restrictions of the PCRA. Commonwealth v. Stollar , 84 A.3d 635, 652 (Pa. 2014), cert. denied , U.S. , 134 S.Ct. 1798 (2014), quoting Commonwealth v. Holmes , 79 A.3d 562, 563

- 564 (Pa. 2013)

. In the instant appeal, the record does not indicate that appellant has knowingly and expressly waived his collateral review rights. Therefore, we dismiss appellant’s claim as it relates to the ineffective assistance of trial counsel without prejudice f or him to raise it on collateral review. Judgment of sentence affirmed.

Mundy, J. joins the Memorandum. Jenkins, J. concurs in the result.J. S25004/16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 6/7/2016