J-S55008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC TUBBS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3501 EDA 2016

Appeal from the Judgment of Sentence September 8, 2014

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

No(s): CP-51-CR-0013272-2011

BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 20, 2018

Appellant, Eric Tubbs, appeals from the judgment of sentence entered 

on September 8, 2014, following his bench trial convictions for aggravated 

assault, possessing an instrument of crime (PIC), terroristic threats, simple 

assault, and recklessly endangering another person (REAP).1 Upon review, 

we vacate Appellant’s conviction and sentence for terroristic threats and affirm 

the judgment of sentence in all other respects.

2, 3

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1

 18 Pa.C.S.A. §§ 2702(a), 907(a), 2706(a), 2701(a), and 2705, respectively. 

2

 On appeal, Appellant challenges the sufficiency of the evidence to support 

his convictions for aggravated assault, REAP, and terroristic threats. He does 

not, however, challenge his convictions for PIC or simple assault. As such, we 

have not examined the merits of those two convictions.

 

3

 Before we examine the merits of this decision, we note that on August 23, 

2018, Appellant filed an application to strike the Commonwealth’s brief as 

untimely. Upon review of the record, this Court entered a per curiam order 
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The trial court summarized the facts this case as follows:

On September 27, 2010, at approximately 6:00 p.m., [Appellant] 

attacked the victim, [C.D.], with a hammer, striking him twice in 

the head. The victim was working as a handy man and fixing a 

porch at a home when this assault occurred. Police came to the 

scene and [the victim] was taken to the hospital via ambulance 

for treatment. After the attack, [Appellant] fled the scene before 

police [] arrived. The victim did not know [Appellant], but only by 

his nickname, Nagee, as told to him by others and he then 

provided that name to the police. The victim positively identified 

[Appellant] in court as the person who attacked him[.]

Almost a year and a half [after the incident], on March 21, 2011, 

the victim saw [Appellant] on the street and called the police. 

When the police arrived, the victim pointed [Appellant] out to the 

officers, who then made the arrest. This was the second time the 

victim [observed Appellant] after the attack[. Appellant] fled 

before police could be called on the prior occasion.

The events of the attack as testified to by the victim were 

corroborated by an eyewitness, Willy Ford, who testified that while 

standing outside of his home, he heard [Appellant] telling the 

victim to not go into an abandoned home anymore. As the victim 

went up the street to work on the porch, [Appellant] got into his 

car and went after the victim. Mr. Ford yelled to [Appellant] to 

leave the victim alone and then saw him jump out of his car, grab 

a hammer and hit the victim twice in the head. [Appellant] then 

jumped back into his car and fled the scene. Mr. Ford gave a 

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on May 18, 2018, granting “[t]he Commonwealth’s third extension of time to 

file a brief[,] due by July 10, 2018.” Per Curiam Order, 5/18/2018. The order 

specifically indicated that no further extensions would be granted. The 

Commonwealth filed a nunc pro tunc request for a fourth extension on July 

12, 2018, after the filing deadline had expired. We denied relief by per curiam

order on August 7, 2018. On August 21, 2018, the Commonwealth filed its

appellate brief in an untimely manner. Upon review of the record, the 

Commonwealth’s brief was originally due on February 11, 2018. We granted 

the Commonwealth three extensions, amounting to almost five months, to file 

an appellate brief and it still failed to do so in a timely manner. We are 

constrained to strike the Commonwealth’s brief as untimely and we have not 

considered it in rendering our decision. 
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statement detailing this attack to detectives after the victim was 

released from the hospital. 

Philadelphia Police Officer Tracey Cooper testified that she 

responded to the scene on the date of the attack. Upon arrival, 

she found the victim bleeding profusely and with blood all over his 

face and clothes. She was advised that the victim was struck with 

a hammer by a person named Nagee. She was also provided 

with [information pertaining to] the vehicle operated by 

[Appellant], a Mercedes Benz, and a plate number, but it did not 

belong to that vehicle.

Further, the victim testified that on several occasions prior to the 

assault, [Appellant] had threatened the victim about him living in 

an abandoned house.

Trial Court Opinion, 11/27/2017, at 2-3. 

The trial court held a bench trial on June 26, 2012 and found him guilty 

of the aforementioned crimes. On September 8, 2014, the trial court 

sentenced Appellant to an aggregate term of eight to 16 years of 

imprisonment with a concurrent term of 5 years of probation. More 

specifically, the trial court sentenced Appellant to eight to 16 years of 

imprisonment for aggravated assault, a concurrent term of two-and-one-half 

to five years of imprisonment for PIC, and a concurrent term of 5 years of 

probation for terroristic threats.4 On October 21, 2016, the trial court 

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4 The trial court did not impose additional sentences for simple assault and 

REAP, because those convictions merged for sentencing purposes. N.T., 

11/8/2014, at 45. 
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reinstated Appellant’s direct appeal rights nunc pro tunc. This timely appeal 

resulted.5 

On appeal, Appellant presents the following issues6for our review:

I. Given the absence of direct evidence of any intent to cause 

serious bodily injury, and given the minor nature of the 

injury and the brevity of the attack, was the evidence 

insufficient to convict Appellant of aggravated assault as a 

felony of the first degree?

II. Since there was no evidence of any conduct which would 

have placed the complaining witness in danger of death or 

serious bodily injury, was the evidence insufficient to 

support Appellant’s conviction for recklessly endangering 

another person?

III. Given the total absence of evidence that Appellant 

threatened any criminal act of violence, was the evidence 

insufficient to convict Appellant of terroristic threats?

Appellant’s Brief at 3 (suggested answers omitted).

Appellant’s issues challenge the sufficiency of the evidence to support 

his convictions for aggravated assault, REAP, and terroristic threats. Our 

standard of review is as follows:

A claim challenging the sufficiency of the evidence presents a 

question of law. We must determine whether the evidence is 

sufficient to prove every element of the crime beyond a 

reasonable doubt. We must view evidence in the light most 

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5

 Appellant filed a notice of appeal on November 15, 2016. On November 17, 

2016, the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely and subsequently filed a court-approved supplemental concise 

statement. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

November 27, 2017.

6

 We have reordered Appellant’s issues for ease of discussion.
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favorable to the Commonwealth as the verdict winner, and accept 

as true all evidence and all reasonable inferences therefrom upon 

which, if believed, the fact finder properly could have based its 

verdict.

Commonwealth v. Arcelay, 190 A.3d 609, 617 (Pa. Super. 2018) (citation 

omitted).

In his first issue presented, Appellant contends that the Commonwealth 

failed to prove that he intended to inflict serious bodily injury on the victim in 

order to sustain his aggravated assault conviction. Appellant’s Brief at 13-27. 

Appellant argues that, “the superficial nature of the injury demonstrates that 

the degree of force used was not consistent with any intent to inflict death, 

permanent disfigurement or protracted impairment of bodily function.” Id. at 

16. He claims that the “attack consisted of only two blows to the head and a 

brief scuffle lasting only a couple of seconds, even according to the victim 

himself.” Id. at 17. Appellant suggests that he was in a position “to have 

hauled off and struck [the victim] with all his strength so as to fracture [the 

victim’s] skull[,] yet he chose not to do it.” Id. at 23. Accordingly, Appellant 

maintains that “[g]iven these factors, the most that can be said is that 

[Appellant] had the intent to – and did – inflict non-serious bodily injury, which 

would rise to the level of [] simple assault.” Id. at 17.

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).

In proving aggravated assault, “where the victim suffers serious bodily 

injury, the Commonwealth need not prove specific intent.” Commonwealth 

v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997). We have held that a specific 

intent to cause serious bodily injury can be inferred from the use of a deadly 

weapon on a vital part of the body. Id., citing Commonwealth v. Pandolfo, 

446 A.2d 939, 941 (Pa. Super. 1982) (blows to a portion of the body as vital 

as the head exhibited intent to inflict serious bodily injury). Our Supreme 

Court has stated that a deadly weapon need not be inherently lethal. Id., 

citing Commonwealth v. McCullum, 602 A.2d 313 (Pa. 1992). “An ax, a 

baseball bat, an iron bar, a heavy cuspidor, and even a bedroom slipper have 

been held to constitute deadly weapons under varying circumstances.” Id.

(citation omitted).

Here, Appellant does not dispute that he intentionally struck the victim 

twice with a hammer to the head. Moreover, Appellant does not dispute that 

a hammer, in this instance, constituted a lethal weapon. He does not dispute 

that the head is a vital part of the body. Instead, Appellant argues that the 

attack was restrained and could have inflicted more severe injuries. However, 

because a specific intent may be inferred from the use of a deadly weapon to 
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a vital part of the body, we discern no error of law or abuse of discretion by 

the trial court in convicting Appellant of aggravated assault.7

Next, Appellant argues that the Commonwealth failed to present 

evidence that the victim was in fear of death or serious bodily injury in support 

of his REAP conviction. Appellant’s Brief at 31-33. Because REAP is a lesser 

included offense of aggravated assault, where the evidence is sufficient to 

support a claim of aggravated assault, it is also sufficient to support REAP. 

See Commonwealth v. Bullock, 170 A.3d 1109, 1121 (Pa. Super. 2017). 

Having already determined that the Commonwealth presented sufficient 

evidence to support Appellant’s aggravated assault conviction, we conclude 

the evidence also supported his REAP conviction as a matter of law. Id.

Finally, we address Appellant’s contention that there was insufficient 

evidence to support his conviction for terroristic threats. Appellant argues 

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7

 Further, we reject Appellant’s reliance on Commonwealth v. Robinson, 

817 A.2d 1152 (Pa. Super. 2003) and Commonwealth v. Alexander, 383 

A.2d 887 (Pa. 1978). In Robinson, our Court was tasked with determining 

whether striking a victim in the spine with a gun, during the course of a 

robbery, constituted aggravated assault. We determined that the “clear intent 

[] was to take the [victim’s] backpack, not to inflict serious bodily injury” and 

“there was no indication the blow was delivered for any other purpose[.]” 

Robinson, 817 A.2d at 1161. By contrast, in this case, there is no dispute 

that Appellant had a single purpose to strike the victim in the head with a 

hammer. In Alexander, the evidence showed the defendant delivered a 

single punch to the victim’s face and walked away. Our Supreme Court 

determined that “there [] simply [were] no [] circumstances to support a 

finding that [Alexander] harbored the requisite intent” to inflict serious bodily 

injury. Alexander, 383 A.2d at 889. Here, by comparison, Appellant used a 

potentially lethal weapon and struck the victim twice in the head. As such, 

we conclude that Robinson and Alexander are inapplicable herein.
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that although the victim testified generally that Appellant threatened him, 

there was no evidence that Appellant threatened him with an act of violence. 

Appellant’s Brief at 27-30. Appellant suggests that the Commonwealth only 

proved that Appellant made demands to vacate an abandoned property and 

that “[w]hile possibly unpleasant, such demands simply [were] not the 

equivalent to threats to commit a criminal act” as required under the terroristic 

threats statute. Id. at 29. Based upon our standard of review and our review 

of the record, we agree for the reasons that follow.

Relevant herein, “a person commits the crime of terroristic threats if the 

person communicates, either directly or indirectly, a threat to: (1) commit any 

crime of violence with intent to terrorize another[.]” 18 Pa.C.S.A. 

§ 2706(a)(1). “Neither the ability to carry out the threat, nor a belief by the 

person threatened that the threat will be carried out, is an element of the 

offense.” Commonwealth v. Richard, 150 A.3d 504, 514 (Pa. Super. 2016)

(citation omitted). “Rather, the harm sought to be prevented by the statute is 

the psychological distress that follows from an invasion of another's sense of 

personal security.” Id. Moreover, “it is unnecessary for an individual to 

specifically articulate the crime of violence which he or she intends to commit 

where the type of crime may be inferred from the nature of the statement and 

the context and circumstances surrounding the utterance of the statement.”
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Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009) (citation 

omitted), affirmed in part, reversed in part on other grounds, 30 A.3d 1105 

(Pa. 2011).

Here, the trial court noted that “the victim [] testified that on several 

occasions prior to the assault, [Appellant] had threatened the victim about 

him living in an abandoned house.” Trial Court Opinion, 11/27/2017, at 3. 

The trial court concluded that Appellant “repeatedly threatened the victim in 

this case which eventually escalated to a point where a physical attack actually 

occurred.” Id. at 7. 

Based upon the record before us, including portions of the transcript 

relied upon by the trial court, we cannot agree with the conclusion that 

Appellant threatened to commit a crime of violence with the intent to terrorize 

the victim. With regard to the actual, physical confrontation, the victim 

testified that Appellant “blindsided him.”8 N.T., 6/26/2012, at 12. According 

to the victim, Appellant did not utter a word during the attack or when he saw 

the victim earlier that same day. Id. at 22. The victim claimed, however, 

that he was “threatened” by Appellant “three times before” the incident. Id.

at 23. Thereafter, the following exchange occurred:

Defense counsel: What did [Appellant] threaten you with?

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8

 Willy Ford, eyewitness to the altercation, testified similarly. N.T., 

6/26/2012, at 34. There was no evidence that Appellant spoke to the victim 

during the attack. Moreover, Ford did not witness other verbal confrontations 

as discussed below.
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The victim: He didn’t threat[en] me with – he threatened 

me with his mouth.

Defense counsel: And what did he say to you?

The victim: Just words, just words, just words. He told me 

to get out. 

Id. Subsequently, the victim detailed specific instances where Appellant 

“threatened” him on the street by telling him to stay away from the abandoned 

house at issue. Id. at 24-25.

Even when we view the evidence in the light most favorable to the 

Commonwealth, as our standard requires, we discern there was insufficient 

evidence that Appellant threatened a crime of violence against the victim. At 

best, the evidence reveals that Appellant told the victim to leave the area on 

prior occasions before the attack. The victim characterized those 

confrontations as threatening, but he was unable to articulate a crime of 

violence that Appellant intended to commit. While a crime of violence may be 

inferred based upon the surrounding circumstances, there was no evidence

here that Appellant communicated an intent to harm or physically menace the 

victim during the prior instances when Appellant told the victim to stay away 

from the abandoned residence. The victim himself testified that Appellant 

used confrontational language, but no threat of force. During the actual 

assault, Appellant did not speak, so he did not communicate any threats or 

reference their earlier exchanges. There was simply no evidence that 

Appellant threatened a crime of violence against the victim prior to, or during, 
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the actual attack. The trial court essentially determined that because the 

assault took place after several verbal exchanges between Appellant and the 

victim, such evidence was sufficient to support a conviction for terroristic 

threats. This decision was in error. Hence, we are constrained to vacate

Appellant’s conviction for terroristic threats.

“If our disposition upsets the overall sentencing scheme of the trial 

court, we must remand so that the court can restructure its sentence plan.” 

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (citation 

omitted). “By contrast, if our decision does not alter the overall scheme, there 

is no need for a remand.” Id. (finding no need to remand because vacating 

DUI conviction did not disturb sentencing scheme where the DUI sentence was 

concurrent with other terms and did not increase the aggregate length of 

incarceration). Here, the trial court imposed a term of probation for terroristic 

threats to be served concurrently to the sentences for the remaining 

convictions. Vacating the terroristic threats conviction, and its attendant

sentence, does not change the length of Appellant’s aggregate term of 

imprisonment and the overall sentencing scheme remains the same. Hence, 

we conclude it is unnecessary to remand the matter for resentencing. 

Motion to strike the Commonwealth’s brief granted. Conviction and 

sentence for terroristic threats vacated. Judgment of sentence affirmed in all 

other respects. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/18