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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 Judgment 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 Brown 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 place 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 previous 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

- 2 -

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 the 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”)4assisted 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

- 3 -

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 him 

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 Hospital. (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 victim’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 basketball player” at trial. (Id. at 

29.)
J. S25004/16

- 4 -

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 appeal. 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 concise 

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

- 5 -

Appellant raises the following issues for our review:

I. Whether the Lower Court erred when, on 

September 24, 2014, it found 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 undermined 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 verdict 

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 is 
J. S25004/16

- 6 -

circumstantial rather than direct so long 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. 2013), 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 credibility 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 review 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 extreme 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. Our 
J. S25004/16

- 7 -

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 presented 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]” unconscious 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 severely hurt Mr. Price, regardless of whether those statements 

 

7 Mr. Price sustained the following 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 spinous 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

- 8 -

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 toward 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 charge 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 approximately 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

- 9 -

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 Commonwealth 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 disparity 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 made 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 attempt 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

- 10 -

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 

“serious 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 incident 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 

enumerated 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 lifethreatening injuries. Therefore, we must determine whether appellant acted 

with the requisite intent to inflict serious bodily injury upon the victim.
J. S25004/16

- 11 -

In order to determine whether appellant acted with the intent to inflict 

serious 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 attack 

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 that 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 victim.

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 challenges 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

- 12 -

and Officer Randall 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. Johnson, 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.Super. 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 our 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 issue 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]n 
J. S25004/16

- 13 -

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 expansive 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, or 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 

particular 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 review 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 

determine: (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 brief 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 the 
J. S25004/16

- 14 -

Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

Here, we begin our analysis 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 motion 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 merits.

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 disapprove 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 ineffectiveness claims at the 

 

10 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

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

- 15 -

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 claims) 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 further 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 for 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

- 16 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2016