J-S43023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT MOORE III

Appellant No. 2660 EDA 2014

Appeal from the Judgment of Sentence August 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010920-2012

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 28, 2015

Appellant, Robert Moore III, appeals from the judgment of sentence 

entered August 14, 2014, in the Court of Common Pleas of Philadelphia 

County. We affirm. 

The trial court summarized the pertinent facts of this case as follows.

Barrington Rhoden (Rhoden) testified that on June 27, 

2012, at about 9:50 AM, he was working as a SEPTA bus driver 

at 4th and Market Streets. [Appellant] boarded the bus, but did 

not pay his fare. Mr. Rhoden closed the doors to the bus and 

started to proceed into traffic. At [that] point [Appellant] made 

a hard tap on Rhoden’s shoulder, and as Rhoden looked around, 

[Appellant] started to choke Rhoden with his right arm, while 

pulling back on Rhoden’s head with his left hand. As [Appellant] 

was pulling Rhoden out of his seat, Rhoden engaged the bus[’s] 

emergency brake. 

Rhoden attempted to pull down on the arm that was 

[choking] him, while loosening his seat belt, which was tying him 

into his seat. Rhoden got free of the seat belt, stopped the bus 

and stood up, and pushed his head against [Appellant’s] belly, 

causing [Appellant] to fall to the floor, with Rhoden on top of 
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him. Passengers then came to Rhoden’s assistance, while 

another called 911 and the police responded. Rhoden was 

treated at the hospital for a sprained left toe which was injured 

during the incident. He was out of work for approximately two 

months. 

SEPTA Police Sergeant Kevin Mahoney testified that he was 

working in uniform when he and his partner responded to a radio 

call which took him to the bus at 4th and Market Streets. 

Mahoney and his partner attempted to pull the seated 

[Appellant] on the ground to handcuff him. [Appellant] flailed 

his arms, and failed to stop when Mahoney and his partner 

ordered him to do so 2-4 times. As he was attempting to 

subdue [Appellant], [Appellant] bit Sgt. Mahoney on the left 

hand. A utility knife was found underneath [Appellant]. The bite 

did not bleed, just caused a bit of redness, and Sgt. Mahoney did 

not require medical treatment. 

Trial Court Opinion, 3/3/15 at 2-3 (unnumbered). 

Appellant proceeded to a waiver trial on May 22, 2014, after which the 

trial court convicted him of two counts of aggravated assault, two counts of 

simple assault, two counts of recklessly endangering another person and one 

count of resisting arrest. On August 14, 2014, the trial court sentenced 

Appellant to an aggregate term of six to twelve years’ imprisonment, 

followed by two years’ probation. This timely appeal followed. 

Appellant raises the following issues for our review.

1. Whether the trial court erred in finding that the evidence was 

sufficient to show as a matter of law that appellant was guilty 

of aggravated assault (F1) where the Commonwealth failed to 

establish beyond a reasonable doubt that appellant attempted 

to cause or intentionally, knowingly or recklessly caused 

serious bodily injury to a SEPTA bus driver while in the 

performance of their duty where the Commonwealth failed to 

present any evidence of the Complainant being hit, kicked or 

struck in any way, no weapon was alleged to have been used 

and the uncontradicted evidence was that appellant and 
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Complainant wrestled with each other for no more than eight 

seconds?

2. Whether the trial court erred in finding that evidence was 

sufficient to show as a matter of law that appellant was guilty 

of aggravated assault (F2) where the Commonwealth failed to 

establish beyond a reasonable doubt that appellant attempted 

to cause or intentionally or knowingly caused bodily injury to 

a SEPTA police officer in the performance of their duty where 

the evidence showed that appellant did not attempt to strike 

the police officer in any way, he merely flailed his arms, and 

the alleged “bite” to the officer’s hand resulted in no injury 

whatsoever?

3. Did the sentencing court err in denying appellant’s timely filed 

Motion for a New Trial and Motion to Reconsider?

Appellant’s Brief at 5. 

Appellant first challenges the sufficiency of the evidence in support of 

his convictions for aggravated assault. 

The standard we apply when reviewing the sufficiency of 

the evidence is whether viewing all the evidence admitted at trial 

in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying the 

above test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. In addition, we note that the facts 

and circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant's guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced is free to believe all, part or 

none of the evidence. Furthermore, when reviewing a sufficiency 

claim, our Court is required to give the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence.
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However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused's guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted). 

Appellant was convicted of one count of aggravated assault, graded as 

a felony of the first degree (F1) as to SEPTA bus driver Barrington Rhoden, 

and one count of aggravated assault, graded as a felony of the second 

degree (F2) as to victim Sergeant Kevin Mahoney. A person commits F1 

aggravated assault where, inter alia, he or she “attempts to cause or 

intentionally, knowingly or recklessly causes serious bodily injury to ... an 

employee of an agency, company or other entity engaged in public 

transportation, while in the performance of duty[.]” 18 Pa.C.S.A. § 

2702(a)(2). The Crimes Code defines “serious bodily injury” as “bodily 

injury which creates a substantial risk of death or which causes serious, 

permanent disfigurement, or protracted loss or impairment of function of 

any bodily member or organ.” 18 Pa.C.S.A. § 2301. “For aggravated assault 

purposes, an ‘attempt’ is found where the accused, with 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) (citations omitted). “A person 

acts intentionally with respect to a material element of an offense when ... it 
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is his conscious object to engage in conduct of that nature or to cause such 

a result.” Id. at 567-568 (citations omitted).

As previously noted, Appellant began to choke and pull at Mr. Rhoden, 

who at the time was operating a moving SEPTA bus. As a result of the 

assault, Mr. Rhoden was forced to engage the bus’s emergency brake and 

rise from his seat in order to force Appellant to the ground and escape from 

his chokehold. Although Appellant contends that the evidence did not 

establish his intent to cause serious bodily injury because he did not “hit, 

kick or strike” the SEPTA driver, we find this argument to be specious. 

Appellant’s actions in choking a SEPTA bus driver who was actively engaged 

in operating a moving public transportation vehicle clearly evinces 

Appellant’s intent to cause serious bodily injury to that driver, and also 

constitutes a substantial step towards that result. Although Mr. Rhoden did 

not actually sustain serious bodily injury, had he not been able to thwart the 

attack and engage the moving vehicle’s emergency brake, serious bodily 

injury would have almost certainly occurred. Viewing this evidence in the 

light most favorable to the Commonwealth, we find that the Commonwealth 

presented sufficient evidence for the fact-finder to infer that Appellant 

attempted to inflict serious bodily injury upon Mr. Rhoden.

We likewise find the evidence was sufficient to support Appellant’s 

conviction of F2 aggravated assault. A person is guilty of F2 aggravated 

assault if, among other things, he “attempts to cause or intentionally or 

knowingly causes bodily injury to [a police officer], in the performance of 
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duty[.]” 18 Pa.C.S.A. § 2702(a)(3). “[I]n a prosecution for aggravated 

assault on a police officer[,] the Commonwealth has no obligation to 

establish that the officer actually suffered a bodily injury; rather, the 

Commonwealth must establish only an attempt to inflict bodily injury, and 

this intent may be shown by circumstances which reasonably suggest that a 

defendant intended to cause injury.” Commonwealth v. Rahman, 75 

A.3d 497, 502 (Pa. Super. 2013) (citation omitted). 

Here, Appellant repeatedly flailed his arms when Sergeant Mahoney 

attempted to arrest him, and did not desist despite repeated requests do to 

so. Appellant additionally bit Sergeant Mahoney in the hand during the 

arrest. Although the bite did not require medical treatment, this violent 

behavior clearly demonstrates that Appellant intended to cause Sergeant 

Mahoney bodily injury. See Commonwealth v. Brown, 23 A.3d 544 (Pa. 

Super. 2011) (finding jury could reasonably infer that the defendant 

intended to cause the officer bodily injury when he responded violently to 

the officer's attempt to arrest him). Accordingly, the evidence was sufficient 

to convict Appellant of aggravated assault of a police officer under section 

2702(a)(3). 

Finally, Appellant argues that the trial court erred in denying his 

motion for a new trial and motion to reconsider sentence. Appellant argued 

in his motion for a new trial that “a new trial should be ordered as the 

verdict was against the weight of the evidence.” Post Trial Motion for 

Reconsideration of Sentence and/or for New Trial and/or In Arrest of 
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Judgment, 8/18/14 at ¶5.2. In support of this argument on appeal, 

Appellant merely repeats the arguments he raised in support of his challenge 

to the sufficiency of the evidence, discussed above. As we have already 

found these claims to be without merit, his challenge to the weight of the 

evidence, premised on the same unavailing arguments, must likewise fail. 

Appellant’s claim that the trial court erred in denying his motion to 

reconsider sentence invokes a challenge to the discretionary aspects of his 

sentence. Preliminarily, we must determine whether Appellant has the right 

to seek permission to appeal the sentencing court’s exercise of its discretion. 

See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). 

When an appellant challenges the discretionary aspects of his sentence, we 

utilize a four-part test 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 Sentencing Code, 42 

PA.CONS.STAT.ANN. § 9781(b). 

Id. (internal citations omitted). 

In the present case, our review of the record reveals that Appellant 

failed to raise the specific arguments he now seeks for us to review in 

support of his discretionary aspects of sentencing claim either in his postsentence motion or at sentencing. See Post Trial Motion for Reconsideration 

of Sentence and/or for New Trial and/or In Arrest of Judgment, 8/18/14 at 
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¶5.3. (stating only that “[t]he defendant respectfully prays that the [c]ourt 

will reconsider his sentence.”); Matters Complained of on Appeal, 12/11/14 

at ¶3 (arguing only that “the sentencing court err[ed] in denying appellant’s 

timely filed Motion for a New Trial and Motion to Reconsider[.]”). 

In the Rule 1925(a) opinion, the trial court noted with frustration that 

Appellant “sought reconsideration of sentence, but offered no claims or basis 

for such reconsideration, nor is there any indication in the 1925(b) 

statement as what any alleged sentence error might consist of.” Trial Court 

Opinion, 3/3/15 at 7 (unnumbered). As Appellant preserved none of the 

arguments he now raises in support of his discretionary aspects of 

sentencing claim in either his post-sentence motion or even in his Rule 

1925(b) statement, they are not subject to our review. See 

Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015); 

Pa.R.A.P. 1925(b)(4)(ii) (“The statement shall concisely identify each ruling 

or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.”); id. at (b)(4)(vii) (“Issues not 

included in the statement and/or not raised in accordance with the 

provisions of this paragraph (b)(4) are waived.”).
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2015