J

- S14044

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK JULIAN BETHUNE

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1233 MDA 2023

Appeal from the Judgment of Sentence Entered August 1, 2023

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

No(s): CP

- 22

- CR

- 0001764

- 2020

COMMONWEALTH OF PENNSYLVANIA

v.

MARK BETHUNE

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1234 MDA 2023

Appeal from the Judgment of Sentence Entered August 1, 2023

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

No(s): CP

- 22

- CR

- 0005058

- 2021

COMMONWEALTH OF PENNSYLVANIA

v.

MARK BETHUNE

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1235 MDA 2023

Appeal from the Judgment of Sentence Entered August 1, 2023

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

No(s): CP

- 22

- CR

- 0000623

- 2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.J

- S14044

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- 2

-

MEMORANDUM BY MURRAY, J.: FILED: JUNE 17, 2024

Mark Bethune (Appellant) appeals from the judgment s of sentence

imposed following his conviction s by a jury of (a) one count each of

aggravated assault ( attempts to cause serious bodily injury ) and simple

assault 1 at CP

- 22

- CR

- 0005058

- 2021 (No. 5058) ; (b) one count each of

criminal attempt (homicide) , aggravated assault (attempts to cause or causes

bodily injury with a deadly weapon) 2 at CP

- 22

- CR

- 0000623

- 2022 (No. 623) ;

and (c) one count each of possession of an instrument of crime (PIC) and

access device fraud 3 at CP

- 22

- CR

- 0001764

- 2020 (No. 1764) (the credit card

offenses)

. We affirm.

No. 1764

– The Credit Card Offenses

The trial court summarized the trial testimony pertaining to the credit

card offenses :

Blaine Heller, who was working as a bartender at the

Underdog Sports Bar on June 12, 2020, testified that he recalled

selling two six packs of beer to an individual and, shortly

thereafter, received a call regarding that purchase. (N.T.,

6/30/22, pp. 19

- 21) (Commonwealth ’ s Exh. No. 1). Specifically,

the individual in the call reported that someone had just used their

credit card to make the purchase of the six packs of beer. ( Id. ).

... Mr. Heller testified that the individual who made the beer

purchase came into the bar the following evening, June 13, 2020,

and ordered takeout [food]

. ( Id. at 24

- 25). While the individual

_________________ __________ ______ ____ _______

1 See 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1).

2 See 18 Pa.C.S.A. §§ 901, 2702(a)(4)

.

3 See 18 Pa.C.S.A. §§ 907(a), 4106(a)(1)(i).J

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- 3

-

waited for the food, because Mr. Heller recognized the individual

from the night before, the police were contacted. ( Id. ). He

identified the receipt from the purchase the individual made on

June 13, 2020. ( Id. at 26) (Commonwealth ’ s Exh. No. 4).

Shannon Graybill confirmed that a credit card linked to her

financial account was used on June 12, 2020 at the Underdog

Sports Bar. ( Id. at 35). She explained that prior to getting

divorced, her married name was Shannon Lego. ( Id. at 34). She

testified that the signature on the receipt for the credit card

purchase of the two six packs of beer on June 12, 2020 was not

hers, nor had she ever visited the Underdog Sports Bar. ( Id. at

33

- 35) (Commonwealth Exh. No. 2). Ms. Graybill further

identified a seco nd receipt from Underdog Sports Bar which was

for her credit card but did not contain her signature. ( Id

. at 35)

( Commonwealth ’ s Exh. No. 4).

Trial Court Opinion, 10/30/23, at 3

- 4.

Corporal Shawn Moore testified regarding h is investigation of the

incident:

Corporal [] Moore testified that he was dispatched to the

Underdog Sports Bar on June 12, 2020 for a complaint that a

credit card was used without an individual ’ s permission. ( [N.T.,

6/30/22,] at 36

- 37). He spoke with Mr. Heller and collected the

receipt in question; he then told Mr. Heller that if the gentleman

who used the credit card returned , to contact him. ( Id. at 37).

Corporal Moore responded to the Underdog Spo rts bar again on

June 13, 2020, after he received a call from Mr. Heller that the

gentleman returned to the bar. ( Id. at 38). Corporal Moore

identified the Appellant a s the gentleman who had used the credit

card on June 12 and 13, 2020. ( Id. at 39). Corporal Moore placed

Appellant under arrest and upon [executing] a search incident to

arrest, he found eight (8) credit cards on the Appellant, five (5) of

which had different names on them. ( Id. at 39) (Commonwealth ’ s

Exh . Nos

. 5 , 6, and 7).

Corporal Moore entered the cards into evidence and then ran

them through the card reader at the police station. ( Id. at 40).

He explained that when you run the magnetic strip through the

card reader, it provides the information of who the account

belongs to. ( Id. at 41). One of the cards that Corporal MooreJ

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-

recovered had the name John Morton on it; however, after running

it through the card reader, the account was associated with

Shannon Lego. ( Id. at 42).

Trial Court Opinion, 10/30/23, at 4.

On August 27, 2020, Appellant was charged at No. 1764 with one count

of forgery, 4 four counts of PIC, and two counts of access device fraud. The

matter proceeded to a jury trial on June 30, 2022. That same day, the jury

convicted Appellant of one count each of PIC and access device fraud, but the

jury could not reach a verdict on Appellant ’ s second count of access device

fraud and the charge of forgery

.

Nos. 5058 and 623

On August 5, 2021, Kassandra Jimenez (Jimenez) 5 and Darrious Neville

(Neville ) sat at a table inside Bill ’ s Café in Harrisburg, Pennsylvania

. Appellant

entered the café and cut Nevill e on the side of the neck with an unidentified

sharp object

. When Jimenez and Neville began to chase Appellant , Appellant

turned and cut Jimenez on the forehead before fleeing the scene. Neville

drove himself and Jimenez to the hospital for treatment. Both required

sutures. On August 19, 2021, Jimenez identified Appellant as the perpetrator

from a photo line

- up.

_________________ __________ ______ ____ _______

4 18 Pa.C.S.A. § 4101.

5 Various documents have spelled the name, “ Jiminez. ” However, our review

of the trial transcript discloses that the victim spelled her name as “ Jimenez. ”

N.T., 2/1

- 2/23, at 60.J

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- 5

-

At No

. 623, the Commonwealth charged Appellant with respect to his

attempted murder and aggravated assault of N eville. At No. 5058, the

Commonwealth charged Appellant with respect to aggravated assault of

Jimenez. On January 18, 2023, the trial court join ed No s

. 623 and 5058 for

trial. The matter proceeded to a jury trial on February 1, 2023. On February

2, 2023, the jury convicted Appellant on all counts. The jury specifically found

that Appellant committed serious bodily injury to Neville

. See N.T., 2/1

- 2/24,

at 284.

Sentencing

On August 1, 2023

, at No. 623 (Neville)

, the trial court sentenced

Appellant to 20

- 40 years in prison for his conviction of attempted murder . For

his conviction of aggravated assault, the trial court imposed a consecutive 6

-

12 years in prison. For his convictions at No. 5058 (Jimenez), the trial court

imposed an aggregate 1

- 2 years in prison, to be served concurrent with

Appellant ’ s sentence for attempted murder at No. 623. The trial court imposed

no further sentence for Appellant ’ s simple assault convic tion . The court

granted Appellant time credit of 19 months and 29 days.

At No. 1764 (the credit card offenses), for his conviction of PIC, the trial

court sentenced Appellant to 1

- 2 years in prison. For his conviction of access

device fraud, the trial court sentenced Appellant to 1

- 2 years in prison, to be

served concurrent ly with his sentence for PIC. The trial court directed that

Appellant ’ s aggregate 1

- 2

- year prison term be served concurrent ly with hisJ

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-

attempted murder sentence at No. 623. The trial court granted time credit of

13 months and 5 days.

Appellant timely filed post

- sentence motions in all cases , which the trial

court denied on August 16, 2023. Appellant timely filed notices of appeal at

each docket number. 6 Appellant and the trial court have complied with

Pa.R.A.P. 1925. 7

Appellant presents the following issues:

A. [At No. 1764 (credit card offenses) ,] [s] hould the offense of

[PIC] and access device fraud have merged [at sentencing

, ]

when the basis of the access device fraud would involve the

criminalized use of credit cards?

B. Was the evidence insufficient to constitute attempt to

murder [,] when the Commonwealth failed to prove specific

intent to kill when, in the totality of the circumstances,

[Appellant ’ s] actions reflect an intent to only cause serious

bodily injury?

C. Was there insufficient evidence that Mr. Bethune acted with

[ sic ] the injury in question [to Jimenez] left a minor scar which

healed on its own and does not qualify as a “ disfigurement, ”

for purposes of constituting serious bodily injury?

Appellant ’ s Brief at 6 (issues renumbered)

.

_________________ __________ ______ ____ _______

6 See Commonwealth v. Walker , 185 A.3d 969, 977 (Pa. 2018) (stating

that when “ when a single order resolves issues arising on more than one lower

court docket, separate notices of appeal must be filed. ”)

.

7 On October 12, 2023, we granted Appellant ’ s petition to consolid ate Nos.

623, 1764 and 5058 for appeal. S ee Order, 10/12/23.J

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- 7

-

Appellant first challenges the legality of his sentence for access device

fraud. 8 Id. at 29. Citing Commonwealth v. Eddowes , 580 A.2d 769 (Pa.

Super. 1990), Appellant argues

t he credit cards were used in the context of access device fraud.

... Because the reasoning in Eddowes would suggest a credit card

used illegally is per se a violation o f access device fraud, the

[sentences] should merge . ... [A]ny credit card used for access

device fraud is, per se

, [possession of] an instrument of crime

....

Id. at 31.

Appellant compares the elements of access device fraud and PIC, and

argues,

t o commit the act of access device fraud is to commit [PIC], i.e.

, they are one and the same. One cannot commit the crime of

access device fraud without an access device being employed

criminally. Commonwealth v. Anderson , 650 A.2d 20, 24 (Pa.

1994). Thus, the sentences should have merged....

Id. at 32.

The Commonwealth counters that Appellant ’ s convictions are based

upon two separate criminal acts: (1) Appellant possessed a specially made

or specially adapted credit card with the intent to employ it criminally (PIC) ;

and (2) he knowingly used the altered or counterfeit access device (credit

card) in a ttempting to obtain property or service s (access device fraud)

. See

_________________ __________ ______ ____ _______

8 “ A challenge to the legality of sentence

... need not be preserved and is never

waivable. ” Commonwealth v. Foster

, 17 A.3d 332, 334 n.1 (Pa. 2011).J

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- 8

-

Commonwealth ’ s Brief at 21. Thus, t he Commonwealth argues that Appellant

was properly sentenced for two separate criminal acts. See id.

Whether convictions merge for sentencing is a question implicating

the legality of the sentence. Commonwealth v. Baldwin

, 985 A.2d 830,

833 (Pa. 2009). Accordingly, we undertake a de novo

, plenary review. Id.

Our legislature addressed the merger of sentences at 42 Pa.C.S.A. §

9765:

No crimes shall merge for sentencing purposes unless the

crimes arise from a single criminal act and all of the statutory

elements of one offense are included in the statutory elements of

the other offense. Where crimes merge for sentencing purposes,

the court may sentence the defendant only on the higher graded

offense.

42 Pa.C.S. A. § 9765 (emphasis added)

. Accordingly

,

m erger is appropriate only when two distinct criteria are satisfied:

(1) the crimes arise from a single criminal act ; and (2) all of

the statutory elements of one of the offenses are included within

the statutory elements of the other.

Commonwealth v. Kimmel

, 125 A.3d 1272, 1276 (Pa. Super. 2015) ( en

banc ) ( emphasis added; citation omitted ).

PIC is defined by the Crimes Code as follows:

(a) Criminal instruments generally.

— A person commits a

misdemeanor of the first degree if he possesses any

instrument of crime with intent to employ it

criminally.

42 Pa.C.S. A. § 907(a) ( some emphasis added)

. An instrument of crime is

defined as

(1) Anything specially made or specially adapted for criminal use.J

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-

(2) Anything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful

uses it may have.

18 Pa.C.S. A. § 907(d).

Under Crimes Code Section 4106(a)(1)

, a person commits access device

fraud if he

(1) uses an access device to obtain or in an attempt to obtain

property or services with knowledge that:

(i ) the access device is counterfeit, altered or incomplete[.]

Id. § 4106(a)(1) (emphasis added).

Our review of the record discloses Appellant committed the crime of PIC

by possessing a credit card “ specially made and ad a pted for criminal use. ”

Id. § 907(d) (1 ). Appellant committed the separate crime of access device

fraud when he used the credit card (access device) to obtain or in an attempt

to obtain property or services

. Id. § 4106(a)(1). Because the crimes did not

arise from a single criminal act, the trial court properly imposed separate

sentences for Appellant ’ s convictions of PIC and access device fraud. See

Kimmel

, 125 A.3d at 1276

. Appellant ’ s challenge to the legality of his

sentences merits no relief. See id.

In his second claim, Appellant challenges the sufficiency of the evidence

underlying his conviction of attempted murder. Appellant ’ s Brief at 16.

Appellant argues the Commonwealth failed to prove he acted with the

requisite specific intent to kill

. Id. Appellant compares this case to theJ

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-

evidence deemed insufficient in Commonwealth v. Predmore

, 199 A.3d 925

(Pa. Super. 2018) ( en banc )

. Appellant ’ s Brief at 18

- 19.

In Predmore

, Appellant argues

, two men confronted each other, but

the altercation was broken up by the defendant ’ s girlfriend. Id. at 18.

However, the defendant then returned to his vehicle, retrieved a firearm, and

shot the complainant twice. Id. According to Appellant, the Predmore Court

held that while there was prima facie evidence the defendant took a

substantial step towards a “ killing, ” the evidence failed to establish he acted

with the specific intent to kill. Id.

Appellant asserts that in this case, there was no prior altercation

between Appellant and Neville

. Id. at 19. Appellant asserts, “ [w]hile at first

blush this is a serious injury, the actual injury contradicts the severity. ” Id.

In support, Appellant argues that Neville was able to drive, responsive, and

did not suffer any injury to vital organs. Id. According to Appellant,

w hile the injury looks worse than it actually was, it was treatable

... , [Neville] was conscious during his treatment, and it was

considered a simple procedure. If [Appellant had ] intended to kill

[] Neville, a close cut to the actual neck, chest, or veins would

have been just as easy

....

Id. at 20. Thus, Appellant argues, the Commonwealth failed to establish the

specific intent to kill necessary to sustain his conviction of attempted murder

.

Id.

We review a challenge to the sufficiency of the evidence under the

following standard:J

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-

The standard we apply in 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.

Commonwealth v. Tucker

, 143 A.3d 955, 964 (Pa. Super. 2016) ( citation

omitted).

The elements of attempted homicide are as follows:

Criminal attempt is separately codified at 18 Pa.C.S.A

. § 901,

which states, “ 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. ” 18

Pa.C.S.A. § 901(a).

Criminal attempt is a specific

- intent crime. Thus, attempted

murder requires a specific intent to kill. Commonwealth v.

Robertson

, 874 A.2d 1200, 1207 (Pa. Super. 2005) ( “ For the

Commonwealth to prevail in a conviction of criminal attempt to

commit homicide, it must prove beyond a reasonable doubt that

the accused with a specific intent to kill took a substantial step

towards that goal. ” ).

Commonwealth v. Palmer

, 192 A.3d 85, 88 (Pa. Super. 2018) (brackets

omitted). Thus, attempted murder is comp rised of two primary elements:J

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-

The mens rea element of the offense is specific intent to kill, which

is identical to the mens rea element of murder in the first degree

. The actus reus element of the offense is the commission of one or

more acts which collectively constitute a substantial step toward

the commission of a killing.

Predmore , 199 A.3d at 929.

We further recognize that,

[w] here one does not verbalize the reasons for his actions, we are

forced to look to the act itself to glean the intentions of the

actor. Where the intention of the actor is obvious from the act

itself, the finder of fact is justified in assigning the intention that

is suggested by the conduct.

Commonwealth v. Hall

, 830 A.2d 537, 542 (Pa. Super. 2003) (citation

omitted). “ [I] n instances where there is conflicting testimony, it is for the jury

to determine the weight to be given the testimony. The credibility of a witness

is a question for the fact

- finder. ” Id. (citation omitted)

.

Instantly, a t trial, Harrisburg Police Lieutenant Kyle Gautsch testified

regarding the events of August 5, 2021. N.T., 2/1

- 2 /23, at 32. Lieutenant

Gautsch stated that

, while working at the Harrisburg Hospital that night, he

observed a man and woman enter the hospital ’ s emergency room

. Id. at 35

.

According to Lieutenant Gautsch, the woman ’ s face and chest were covered

in blood. Id. The man held a cloth

, saturated in blood, to the side of his neck.

Id. at 36. The couple informed him they had been involved in an altercation

at Bill ’ s Café

, and had been “ stabbed or sliced

. ” Id. Lieutenant Gautsch

stated,

I was overly concerned, the female had a lo t of blood. I mean,

visibly, it was more shocking. But where the male was holdingJ

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-

the rag on his neck, his throat, I was really concerned about that.

Because I saw the blood that was saturating or coming through

the rag and knowing how

... severe it can be if you get a laceration

to your throat, so I was concerned about that.

Id. at 37.

Jimenez testified that on August 5, 202 1

, at around 8:00 p.m., she met

Neville, the father of her children, at Bill ’ s Café

. Id. at 6 1, 62

- 63. While

sitting at a table, Jimenez observed Appellant walk in and look towards Neville.

Id. at 60

- 62. Jimenez indicated that she had known Appellant for about five

years prior to the attack. Id. at 64

- 65. According to Jimenez , Appellant struck

Neville, after which she observed Neville bleeding. Id. at 63

. She stated, “ I

seen [ sic ] the blood already because it immediately ... started pouring out. ”

Id. at 68. Jimenez testified that she saw “ something silver ” in Appellant’s

hand, but “wasn’t sure ... exactl y what it was. ” Id. at 68.

As described by the trial court in its opinion

,

Appellant ’ s car was running in the parking lot and as [Neville] and

[] Jimenez chased him, [Appellant] got into the car and drove

towards them, and they had to move out of the way to avoid being

hit. ( [N.T., 2/1

- 2/23,] at 73). [] Jimenez and [Neville] got into

[ Jimenez ’ s] vehicle and the two followed Appellant; however,

because of the amount of blood they were losing, the two decided

to drive to a hospital. ( Id. at 75). ... [ Jimenez ] contacted [a police

detective] and told him that Appellant

... was the individual who

cut her and [Neville]

. ( Id. at 81). [] Jimenez described [Neville ’ s]

scar from the incident and stated that it goes from the middle of

his neck to his ear, and it is thick and bubbly in appearance. ( Id.

at 82).

Trial Court Opinion (Nos. 623 and 5058)

, 10/30/23, at 4

- 5

.J

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-

The trial court further summarized the trial testimony of Cameron

Benedict , M.D. (Dr. Benedict), a surgical resident at Harrisburg Hospital:

[Dr. Benedict] testified that she was working on August 5, 2021,

when she was alerted to a trauma over the hospital PA system.

(N.T., [2/1

- 2/23]

, pp. 131

- 136) (Commonwealth ’ s Exh. No. 14).

Dr. Benedict identified a laceration to the left side of [] Neville ’ s

neck [,] which was 10 to 11 centimeters in length and 2 to 3

centimeters in depth. ( Id. at 137

- 138). A CT scan was performed

to ensure that there was no damage to underlying vessels in []

Neville ’ s neck, which there was not. ( Id. at 139

- 141). Because

of the d epth of the cut, [] Neville ’ s wound was repaired in

layers, requiring multiple stitches, including 18 to close the

top layer of skin . ( Id. at 142

- 143). [] Neville was kept at the

hospital ove rn ight for observation. ( Id. at 143

- 144). Dr.

Benedict testified that due to the clean edges of the cut Mr.

Neville sustained, the object that created the cut must have

been sharp. ( Id. at 145).

Syed Jaffrey, [ D.O

. (Dr. Jaffrey) ,] a physician at UPMC

Harrisburg, testified that he is chief resident of the emergency

department Harrisburg Hospital, and was working on August 5,

2021 when he observed [] Neville. ( Id. at 153

- 157). Because of

the location of [] Neville ’ s injury, Dr. Jaffrey initiated a trauma

alert. ( Id. at 156)

....

Trial Court Opinion (Nos. 623 and 5058)

, 10/30/23 , at 6

- 7 (emphasis added)

.

As the trial court explained in its opinion, the evidence was sufficient to

sustain Appellant ’ s conviction of attempted murder as to Neville:

Appellant asserts several arguments in support of his insufficiency

argument. He argues there was only one “ slash ” [;] [] Neville had

a thick neck which absorbed the brunt of the blow [;] Neville drove

himself to the hospital [;] and the injury was contained by his own

pressure. Appellant ’ s arguments lack merit. These arguments

are irrelevant to the inquiry of whether Appellant had intent.

Under the circumstances, and as confirmed by the medical

testimony, the slash to [] Neville ’ s neck was considered a trauma

upon his arrival in the emergency room [,] based on the location

of the cut on his neck. The medical testimony further supported

that had the cut gone deeper, it would have affected the bloodJ

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-

vessels in [] Neville ’ s neck. ... [T] he evidence supports the

conclusion that [] Appellant used a knife to inflict an injury to a

vital part of Mr. Neville ’ s body and, therefore, there was sufficient

evidence to support his conviction for attempted murder.

Id. at 9

. The record supports the trial court ’ s findings and its legal conclusions

are sound. See id. ; see also Commonwealth v. Arrington

, 86 A.3d 831,

840 (Pa. 2014) ( “ Specific intent ... may be established through circumstantial

evidence, such as the use of a deadly weapon on a vita l part of the victim ’ s

body. ” ). Appellant ’ s challenge to the sufficiency of the evidence underlying

his attempted murder conviction merits no relief.

In his third issue, Appellant challenges the sufficiency of the evidence

to sustain his conviction of aggravated assault under 18 Pa.C.S.A. §

2702(a)(1)

. 9 Appellant’s Brief at 20. Appellant asserts,

it is unknown [under] which theory the jury ultimately convicted

[Appellant], whether it was actually causing or attempting to

cause serious bodily injury. ... [Appellant] challenges his actions

as lacking the requisite intent to cause serious bodily injury, and

the injury does not meet the statutory definition....

Id. at 22.

_________________ __________ ______ ____ _______

9 Section 2702(a)(1) provides 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 human life.

18 Pa.C.S.A. § 2702(a)(1).J

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-

Appellant argues that his actions towards Jimenez did not “ reflect any

form of conscious desire to leave her either dead or disfigured, nor a conscious

disregard of a high risk of the same. ” Id. at 24. Appellant asserts that as he

attempted to flee the café,

h e hit the wrong door while trying to leave. [Appellant] then

swipe [d] down as [] Jimenez move[d] toward him. The evidence

reflects an intent to escape and dissuade [] Jim e nez from

grappling him, not to leave her disfigured . Because he was

fleeing, his conscious action was not to cause serious bodily injury,

nor was it his specific action and goal to do so....

Id. at 24.

Appellant compares the facts in this case to those in Commonwealth

v. Sinkiewicz , 293 A.3d 681 (Pa. Super. 2023). In Sinkiewicz , Appellant

argues, this Court concluded the evidence was not sufficient to sustain his

conviction of aggravated assault . Appellant’s Brief at 26. In that case,

Appellant claims there was no prior animosity between the police

officer/ assailant and victim , but the officer had swung a deadly weapon

causing bodily injury. Id.

A person commits aggravated assault if he, inter alia

, “ 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). We have explained

the elements of aggravated assault as follows:

“ 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 ofJ

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-

the function of any bodily member or organ. ” 18 Pa.C.S.A. §

2301. F or aggravated assault purposes, 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. ”

An 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) (some

internal citations and quotation marks omitted ; emphasis added ).

At trial, Jimenez testified that after Appellant had cut Neville, she

fo llowed Appellant to the door, at which time Appellant cut her. N.T., 2/1

-

2/23, at 69. Jimenez stated,

I just though t [Appellant] hit me. Because ... I didn’t feel it at the

moment until ... when I got outside, someone told me ... he cut

her. He cut her. And then I felt the blood ... rushing down my

face.

Id. Jimenez described the blood as “pouring down[.]” Id. Jimenez sustained

a cut from the middle of her forehead to underneath her eye, requiring

stitches. Id. at 76

- 77.

As the trial court summarized in its opinion, at trial, Dr. Benedict

testified regarding Ji menez’s injury:

Dr. Jaffrey repaired the laceration to Ms. Jimenez’ s face,

which extended into her bone. ([N.T., 2/1

- 2/23, at] 151). The

repair of Ms. Jimenez’s wound required three layers of stitches.

( Id. at 163). The length of the wound was approximately 8

centimeters, and the depth was estimated to be 3

millimeters. ( Id. at 163

- 164). Dr. Jaffrey testified that based

on the nature of the wound, it was his opinion that a sharp, blunt

object was used. ( Id. at 164).

Trial Court Opinion (No s

. 623 and 5058) , 10/30/23, at 7 (emphasis added)

.J

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In rejecting Appellant’s sufficiency challenge, the trial court opined:

Here, the evidence presented established that Appellant wielded

a blade of some type on the evening of August 5, 2021, that he

used to slash [Jimenez’s] face. Appellant ’ s argument that the

resultant scar is not enough to sustain the burden of permanent

disfigurement under the statute is without merit. By wielding a

blade at [] Jim e nez while the chaos of that evening ensued

, it can

certainly be inferred that Appellant had the intent to cause serious

bodily injury and did in fact cause serious bodily injury

. Accordingly, there was sufficient evidence to support Appellant’s

conviction of aggravated assaul t.

Id. at 8 (emphasis added)

. We agree with and adopt the trial court’s rationale.

We further conclude Appellant’s reliance on Sinkiewicz is misplaced.

In Sinkiewicz

, the appellee police officer (Appellee) acted with an other officer

in attempting “to prevent 1,000 to 2,000 protestors from gaining entry to [ the

municipal services building (MSB) ].” Sinkiewicz , 293 A.3d at 690. As this

Court explained,

Appellee was among a group of police officers who began to use

their police shields to push protestors back (away) from the steps

of the [MSB], and pursuant to that course of action,

... Appellee

pushed his shield against a protestor who was standing next to

Ms. Bachism [, the victim]

. Ms. Bachism immediately began to

use both of her hands to push back against the shield and in doing

so, her hand made contact with

... Appellee[ ’ ]s arm. At that

precise moment,

... Appellee struck Ms. Bachism once on her

head and once on her arm with a baton.

The sequence of actions between Ms. Bachism and

... Appellee

occurred in a time frame of a few seconds, and

... Appellee did not

attempt to strike Ms. Bachism again with the baton after his initial

actions.

....

T he sequence of actions between [the other victim,] Mr.

Rupprecht and

... Appellee occurred when

... Appellee was amongJ

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a group of police officers who began to use their police shields to

push protestors back (away) from the steps of the [MSB]. Mr.

Rupprecht described this occurrence as very chaotic. Notably, Mr.

Rupprecht does not state that

... Appellee struck him more than

once.

Id. at 689 (emphasis added)

.

In deeming the evidence insufficient to establish a prima facie case for

aggravated assault, this Court opined:

The circumstances surrounding these assaults

— which by all

accounts were chaotic

— does not establish Appellee possessed

the requisite specific intent to cause serious bodily injury to either

Bachism or Rupprecht when he struck each victim with his baton.

Each strike was momentary and not precipitated by any

threats of harm or prior confrontations.

Id. at 691 (emphasis added)

.

Here, by contrast, Appellant attack ed Jimenez after attempting to

murder Neville. Further, w hen Neville and Jimenez followed Appellant as he

attempted to flee, he turned and struck Jimenez with a sharp object

.

Appellant’s action cut Jimenez’s forehead almost to the bone. The evidence

established Jimenez sustained a serious

, permanent disfigurement to her face,

from her forehead to under her eye. This evidence, viewed in a light most

favorable to the Commonwealth, was amply sufficient to sustain Appellant’s

conviction of aggravated assault. Sinkiewicz , 293 A.3d at 690 ( “[ W ]hen a

victim actually sustains serious bodily injury, the Commonwealth can, but

does not necessarily have to , establish specific intent to cause such harm.”

Id. at 690 (emphasis added) )

. Appellant’s final issue merits no relief.J

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Judgments of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 6/17/2024