J-A26015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KURT WINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2134 EDA 2021

Appeal from the Judgment of Sentence Entered October 8, 2021

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

No(s): CP-51-CR-0000822-2020

COMMONWEALTH OF PENNSYLVANIA

v.

KURT WINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2135 EDA 2021

Appeal from the Judgment of Sentence Entered October 8, 2021

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

No(s): CP-51-CR-0000823-2020

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED DECEMBER 9, 2022

Kurt Wins appeals from the October 8, 2021 judgments of sentence

which imposed an aggregate sentence of six to fifteen years of imprisonment 

stemming from convictions at the above captioned docket numbers. We 

affirm.

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* Retired Senior Judge assigned to the Superior Court.
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The trial court offered the following summary of the facts underlying 

Appellant’s convictions:

Nadia Butler was married to Appellant in May of 2019. They 

had been together for about two years prior to the marriage. After 

the marriage they were together for approximately nine months, 

before separating, then briefly getting back together. They have 

only one child together, [who Ms. Butler was seven months 

pregnant with at the time the events for which Appellant was 

charged took place]. . . . They were . . . divorced by early January 

2020.

Around New Year’s 2020, Ms. Butler received a call from a 

woman she knows as Latoya, who she described as Appellant’s 

godmother or “play mom.” On January 3, 2020, Ms. Butler went 

to Latoya’s home on Bouvier Street in Philadelphia. As Ms. Butler 

came around the corner near Latoya’s [residence], she spotted 

Appellant sitting on the steps, talking on the phone. As Ms. Butler 

turned to leave, Appellant grabbed her by the hair and punched 

her in the face.

At that point a woman named Geneva, . . . then-current 

girlfriend of Appellant, arrived on the scene in a vehicle. She 

jumped out and joined Appellant in hitting Ms. Butler, including 

holding Ms. Butler down as Appellant repeatedly kicked her in the 

stomach. . . . As Appellant was kicking Ms. Butler, he threat[en]ed 

to kill her and her baby. Appellant had a gun, with which he struck 

Ms. Butler in the face. At one point a bystander attempted to 

intervene and assisted Ms. Butler. During the incident, Appellant 

took Ms. Butler’s pocketbook, money, and various cards and 

identification.

At some point[,] Officer Brandon Dugan responded to a 

radio call and met Ms. Butler at West Erie and North Bouvier. He 

observed her to be very distraught and upset. He observed visible 

marks under and around her right eye . . . . Ms. Butler 

subsequently spoke with [Detective Curtis Matthews who] took 

photographs of Ms. Butler’s injuries, including of abrasions on her 

belly.

On January 8, 2020, Ms. Butler was leaving a girlfriend’s 

house, headed toward her grandmother’s [home], when she 
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encountered Appellant at the intersection of Erie and Bouvier in 

Philadelphia, at about 1:00 AM. Appellant came up behind Ms. 

Butler, grabbed her by the hair, swung her around by her hair, 

struck her in the head with a gun, and struck her repeatedly in 

the face and upper body. Appellant then threat[en]ed to kill Ms. 

Butler. . . . Ms. Butler broke free and was running away when she 

heard two gunshots. She then felt the bullet which grazed her 

leg.

Following the incident Ms. Butler met with Police Officer 

Shawn Ciaurro, who responded to the scene based on a radio call. 

Ms. Butler told the officer she had been hit in the head. After 

speaking with Ms. Butler, Officer Ciaurro transported her to the 

Detective Division, where she met with Detective [William] 

Lackman. The detective took photographs of some of her injuries. 

Ms. Butler told Detective Lackman about Appellant possessing a 

gun and a shot being fired, as a result of which he canvassed the 

scene looking for evidence of a gunshot. Either before or after 

meeting with Detective Lackman, Ms. Butler went to Temple 

Hospital where she was examined, treated and released. The 

medical records show that at Temple Ms. Butler complained that 

she had been pistol-whipped, hit in the head, and fell on her wrist 

and knee. The medical examination showed positive for 

headaches and loss of consciousness, no facial trauma or 

abrasions, no other abrasions or lacerations.

[Sometime after the second incident the victim obtained a 

protection from abuse order against Appellant.] On January 20, 

2020, Police Officer Donald Pancoast went to a house on North 

Bouvier Street to serve [the] protection from abuse order. When 

he arrived at the scene Officer Pancoast spoke to a woman who 

confirmed that Appellant was present. The officer saw Appellant 

and proceeded to enter the house, at which time Appellant ran 

down the steps into the basement. When Appellant came back 

upstairs after a minute or two, he was taken into custody.

Trial Court Opinion, 4/8/22, at 2-4. Appellant was arrested and charged at 

CP-51-CR-000822-2020 (“the January 3rd incident”) with aggravated assault, 

conspiracy, theft by unlawful taking, simple assault, and aggravated assault 

of an unborn child and at CP-51-CR-000823-2010 (“the January 8th incident”) 
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with aggravated assault, robbery, possession of a firearm, firearms not to be 

carried without a license, carrying firearms in public, theft by unlawful taking, 

terroristic threats, simple assault, and recklessly endangering another person. 

On August 3, 2021, Appellant proceeded to a jury trial. For the January 

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rd incident, he was convicted of aggravated assault, conspiracy to commit 

aggravated assault, theft by unlawful taking, and simple assault. For the 

January 8th incident, he was convicted of simple assault and recklessly 

endangering another person. Appellant was acquitted of the remaining 

charges. On October 8, 2021, Appellant received an aggregate sentence of 

six to fifteen years of incarceration. Appellant did not file a post-sentence 

motion but did submit separate timely notices of appeal which we 

consolidated. Both the trial court and Appellant complied with the mandates 

of Pa.R.A.P. 1925. 

Appellant raises the following issues for our review:

1. Whether there was sufficient evidence to sustain convictions 

for aggravated assault and whether conviction for that 

offense was against the weight of the evidence.

2. Whether there was sufficient evidence to sustain convictions 

for conspiracy-aggravated assault and whether conviction 

for that offense was against the weight of the evidence.

3. Whether there was sufficient evidence to sustain a 

conviction for theft by unlawful taking of movable property 

and whether conviction for that offense was against the 

weight of the evidence.
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Appellant’s brief at 5 (unnecessary capitalization removed).1

We first consider Appellant’s sufficiency challenges for the January 3rd

aggravated assault, conspiracy, and theft. See Appellant’s brief at 31-40. 

Regarding aggravated assault, he claims that the evidence was insufficient to 

prove that he “did not care whether [the victim] lived or died.” Id. at 35. 

Relating to the conspiracy charge, he alleges that there was “no evidence of 

a shared criminal agreement.” Id. 38. Finally, Appellant attacks his theft 

conviction on the grounds that the evidence did not show he intended to keep 

the victim’s belongings after he retrieved them from the ground. Id. at 40. 

Our scope and standard of review when considering challenges to the 

sufficiency of the evidence are well settled:

Because a determination of evidentiary sufficiency presents a 

question of law, our standard of review is de novo and our scope 

of review is plenary. In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable doubt. 

[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. Moreover, as an appellate court, we may not re-weigh 

the evidence and substitute our judgment for that of the factfinder.

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1 Although Appellant has appealed both docket numbers, his claims and 

arguments relate only to the convictions that resulted from the January 3rd

incident. Therefore, we affirm the judgment of sentence that resulted from 

the January 8th incident without further discussion. 
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Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017) 

(citations and quotation marks omitted).

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.” 18 Pa.C.S. § 2702(a)(1). “Serious bodily injury” has been 

defined as “[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. An 

“attempt” is found where an “accused who possesses the required, specific 

intent acts in a manner which constitutes a substantial step toward 

perpetrating a serious bodily injury upon another.” Commonwealth v. Gray, 

867 A.2d 560, 567 (Pa.Super. 2005). “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[.]” 

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012). Since 

there is rarely direct evidence of the defendant’s intent, intent ordinarily must 

be proven through circumstantial evidence and inferred from acts, conduct or 

attendant circumstances. Commonwealth v. Fortune, 68 A.3d 980, 984 

(Pa.Super. 2013). Accordingly, whether a defendant acted with the necessary 

intent to sustain an aggravated assault conviction is evaluated based on the 
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totality of the circumstances, including the defendant’s use of a weapon to aid 

his attack and his statements before, during, or afterwards. Id. 

A person is guilty of conspiracy with another person to commit a crime 

if, with the intent of promoting or facilitating its commission, he: 

(1) agrees with such other person or persons that they or one or 

more of them will engage in conduct which constitutes such crime 

or an attempt or solicitation to commit such crime; or 

(2) agrees to aid such other person or persons in the planning or 

commission of such crime or of an attempt or solicitation to 

commit such crime. 

18 Pa.C.S. § 903(a). Accordingly, to sustain a conviction of criminal 

conspiracy to commit aggravated assault, the Commonwealth must establish 

intent to commit or aid in the commission of aggravated assault, an 

agreement with a co-conspirator, and an overt act in furtherance of the 

conspiracy. Id. We have held that “acting together before, during, and after 

an attack on another individual suffices to show a unity of criminal purpose 

for purposes of sustaining a conviction for criminal conspiracy to commit 

aggravated assault.” Commonwealth v. Thomas, 65 A.3d 939, 945 

(Pa.Super. 2015) (finding evidence that the attackers were close friends, 

punched the victim simultaneously, and walked away together was sufficient 

to establish a conspiracy to commit aggravated assault conviction).

Theft by unlawful taking, under the subsection charged here, occurs 

when a person “unlawfully takes, or exercises unlawful control over, movable 
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property of another with intent to deprive [the other] thereof.” 18 Pa.C.S. 

§ 3921(a). The Crimes Code defines “deprive” as the following:

(1) To withhold property of another permanently or for so 

extended a period as to appropriate a major portion of its 

economic value, or with intent to restore only upon payment of 

reward or other compensation; or

(2) to dispose of the property so as to make it unlikely that the 

owner will recover it.

18 Pa.C.S. § 3901.

Here, the evidence, viewed in the light most favorable to the 

Commonwealth, overwhelmingly supports Appellant’s aggravated assault, 

conspiracy to commit aggravated assault, and theft convictions. Through the 

victim’s testimony, the evidence established that Appellant and his girlfriend 

physically attacked the pregnant victim, repeatedly punching her in the head 

and kicking her in the stomach. See N.T. Jury Trial, 8/3/21, at 52-62. During 

the ongoing assault, Appellant made various statements indicating his desire 

to kill the victim and her unborn child. See id. at 63 (“[F]uck you bitch. I’m 

going to kill you and this baby today.”). Thus, the evidence was sufficient to 

establish that Appellant intended to inflict serious bodily injury to the victim 

while acting in concert with his co-conspirator. See Fortune, supra at 984; 

see also Thomas, supra at 945. Afterwards, Appellant retrieved the victim’s 

credit card, cash, and cell phone and drove away, never returning these items 

to the victim. See N.T. Jury Trial, 8/3/21, at 69-70. Accordingly, the evidence 

was sufficient to establish that Appellant took the victim’s personal belongings 
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with the intent to deprive her of them. We find the victim’s testimony was 

sufficient to establish the aggravated assault, conspiracy, and theft 

convictions. See Commonwealth v. Johnson, 180 A.3d 474, 579 

(Pa.Super. 2018) (establishing that a single witness’s testimony, alone, may 

be sufficient to establish every element of a criminal offense so long as the 

testimony “speaks to each element, directly and/or by rational inference”). 

At the end of each argument section challenging the sufficiency of the 

evidence, Appellant included a single sentence alleging that the verdicts were 

also against the weight of the evidence. See, e.g. Appellant’s brief at 35 

(“Furthermore, under these circumstances, the weight of the evidence did not 

suggest such indifference to his former wife’s pregnant life.”). 

It is well settled that: “[a] weight of the evidence claim must be 

preserved either in a post-sentence motion, by a written motion before 

sentencing, or orally prior to sentencing. Failure to properly preserve the 

claim will result in waiver, even if the trial court addresses the issue in its 

opinion.” See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.Super. 

2014) (citations omitted). Herein, Appellant raised this claim for the first time 

in his Pa.R.A.P. 1925(b) statement. Accordingly, this claim is waived. See 

Pa.R.Crim.P. 607(A); Thompson, supra at 490. 

Judgments of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2022