J-S02006-18

* Retired Senior Judge Assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRAULIO LEBRON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 97 EDA 2017

Appeal from the Judgment of Sentence December 16, 2016

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

No(s): CP-51-CR-0008590-2015

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.: FILED JUNE 27, 2018

Braulio Lebron appeals from the judgment of sentence of ten to twenty 

years incarceration imposed following his non-jury trial convictions for inter 

alia, aggravated assault with a deadly weapon and burglary. We affirm. 

The trial court set forth the facts underlying these convictions in its 

Pa.R.A.P. 1925(a) opinion, which we adopt herein: 

On August 7, 2015, at about 8:12 p.m., Mr. Robert Hampton 

entered his residence[.] As he did so, Appellant, who lived a 

☺couple of houses away, was standing to the side of Mr. 

Hampton's residence. Appellant followed Mr. Hampton inside his 

☺residence, called him a rapist, and then punched him in the 

face. Appellant then picked up a stick that was in Mr. Hampton's 

living-room and struck Mr. Hampton with the stick, which had 

nails protruding out of it, about three times. During the assault, 

Appellant also bit Mr. Hampton. Mr. Hampton did not give 

Appellant permission to enter his residence. 

A second person entered Mr. Hampton's residence when he and 

Appellant entered. The other male, who[m] Mr. Hampton knew 
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by the name Chris, ran from the residence after hitting Mr.

Hampton in the face. 

Mr. Hampton fought back against Appellant's assault. In doing 

so, Appellant pulled him to the ground and kicked Mr. Hampton 

in the ribs three or four times. At or about that time, a friend of 

Mr. Hampton's named Megan Ross, who was present in the 

residence when the incident began, tried to break up the fight. It 

ended when Appellant fled the residence.

Shortly thereafter, the police arrived and Mr. Hampton pointed 

out and identified Appellant, who was sitting on the steps of his 

residence. Mr. Hampton went to a nearby hospital, was 

admitted and spent seven days recuperating from the injuries 

suffered during the attack, which included broken ribs and a 

collapsed lung. Appellant was arrested and charged.

Trial Court Opinion, 4/25/17, at 2-3.

The trial court sentenced Appellant to a mandatory sentence of ten to 

twenty years incarceration at the burglary conviction, due to Appellant’s 

prior conviction for a crime of violence. See 42 Pa.C.S. § 9714(a)(1). 

Appellant filed post-sentence motions and a timely notice of appeal following 

their denial, and complied with the order to file a concise statement of 

matters complained of on appeal. The trial court penned an opinion in 

response, and the matter is ready for review of Appellant’s two claims: 

I. Is the evidence sufficient as a matter of law to sustain 

[Appellant]’s conviction for the crime of aggravated assault 

. . . where the evidence of record does not establish that 

the item allegedly used by defendant; (i) caused bodily 

injury, and/or, (ii) is a "deadly weapon" as that term is 

defined in 18 Pa.C.S.A. § 2301?

II. Should the mandatory minimum sentence imposed by the 

trial court with respect to the charge of burglary under 42 

Pa.C.S.A. § 9714 be vacated, and this matter remanded 
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for a new sentencing hearing, due to the fact that § 9714 

is unconstitutional as currently drafted?

Appellant’s brief at 5.

Appellant’s first claim challenges the sufficiency of the evidence 

supporting the verdict of the crime of aggravated assault with a deadly 

weapon. Our standard of review is well-settled:

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 finder 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. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)

(citation omitted). 

The statutory language states that a person is guilty of aggravated 

assault with a deadly weapon if he “attempts to cause or intentionally or 

knowingly causes bodily injury to another with a deadly weapon[.]” 18 

Pa.C.S. § 2702(a)(4). “Deadly weapon” is defined as:
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Any firearm, whether loaded or unloaded, or any device 

designed as a weapon and capable of producing death or serious 

bodily injury, or any other device or instrumentality which, in the 

manner in which it is used or intended to be used, is calculated 

or likely to produce death or serious bodily injury.

18 Pa.C.S. § 2301.

Appellant’s argument is twofold. First, he notes that the trial court 

acquitted him of the separate charge of aggravated assault under §

2702(a)(1), which required proof that Appellant attempted to cause serious 

bodily injury or caused such injury intentionally, knowingly, or recklessly. 

According to Appellant, that finding definitively establishes for purposes of 

our review that he neither attempted to cause nor caused serious bodily 

injury for purposes of aggravated assault with a deadly weapon under §

2702(a)(4). 

In turn, Appellant emphasizes the following language of the deadly 

weapon definition: “or any other device or instrumentality which, in the 

manner in which it is used or intended to be used, is calculated or likely to 

produce death or serious bodily injury.” Appellant asserts that the acquittal 

“constrains this reviewing court to find that [Appellant] did not use, attempt 

to use, or intend to use, the stick in a manner that was calculated or likely to 

produce serious bodily injury.” Appellant’s brief at 16-17. 

Before examining the particulars of Appellant’s argument, we first note 

that § 2702 defines deadly weapon in three discrete ways. The first 

definition is: “Any firearm, whether loaded or unloaded[.]” Thus, a firearm 
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qualifies as a deadly weapon per se, regardless of how the firearm was used. 

Obviously, the stick does not fall under this definition. Therefore, the 

Commonwealth was required to prove that the stick fell under one of the 

remaining two definitions. 

The second definition reads: “any device designed as a weapon and 

capable of producing death or serious bodily injury.” Finally, the third 

definition is: “any other device or instrumentality which, in the manner in 

which it is used or intended to be used, is calculated or likely to produce 

death or serious bodily injury.” 

Thus, for these two definitions, the first question is whether the 

weapon was “designed as a weapon” and is “capable of producing death or 

serious bodily injury.” If so, like a firearm, the weapon qualifies as a deadly 

weapon per se without analyzing its actual or intended use. If not, the 

weapon may fall under the generic “any other device or instrumentality” 

description. That definition requires proof that “the manner in which it is 

used or intended to be used is calculated or likely to produce death or 

serious bodily injury.”

In Commonwealth v. Blake, 605 A.2d 427 (Pa.Super. 1992), we 

examined the § 2301 language to determine if a knife qualified as a deadly 
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weapon for purposes of the deadly weapon enhancement.1 Therein, Blake, 

while committing a burglary, encountered the homeowners. During the 

ensuing struggle, the victim was stabbed in the thigh by an open pocket 

knife, which was in Blake’s pocket. That knife had been used to cut through 

a screen door to gain access to the home; however, there was no evidence 

that Blake wielded the knife as a weapon, nor did the record contain a 

description of the knife. We stated:

Our first inquiry is to determine whether the pocket knife was 

designed as a weapon. If the pocket knife is designed as a 

weapon, then the mere possession of the knife during the crime 

is sufficient to apply the deadly weapon enhancement. The word 

designed is defined as “contrived or taken to be employed for a 

particular purpose.” Blacks Law Dictionary 533 (4th ed. 1968). 

Since there is no evidence of record that the pocket knife was 

extraordinary in any way, we find that there is insufficient 

evidence to find that it was designed as a weapon.

[fn]

 1 Pa.C.S.A. 

§ 1921(b) (“When the words of a statute are clear and free from 

ambiguity, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit”). To hold otherwise would mandate 

the application of the weapon enhancement for the commission 

of any crime while the perpetrator was in possession of nearly 

any instrument capable of producing serious bodily injury. This 

result permits an unreasonable interpretation of the 

phrase, designed as a weapon. Commonwealth v. Gatto, 236 

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1 At the time, the deadly weapon enhancement statute referred to 18 

Pa.C.S. § 2301 for definition of that term. See Commonwealth v. Blake, 

605 A.2d 427, 428 (Pa.Super. 1992) (“When the court determines that the 

defendant . . . possessed a deadly weapon, as defined in 18 Pa.C.S.A. 

§ 2301 . . .”) (quoting former 204 Pa.Code § 303.4(a)). The definition of 

deadly weapon for the enhancement was later modified. See

Commonwealth v. Brougher, 978 A.2d 373, 379 (Pa.Super. 2009) (“[T]he 

deadly weapons enhancement has been modified, and now defines deadly 

weapon differently than section 2301[.]”).
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Pa.Super. 92, 344 A.2d 566 (1975) (all statutory law must be

given a reasonable interpretation).

[fn] We do not hold that a pocket knife can never be considered 

to be designed as a weapon under all circumstances. However, 

in the present case, the prosecution does not provide a 

description of the size and shape of the knife or blade to enable 

the court to make a determination. See Annot. 100 A.L.R.3d 287 

(discussing whether a pocket knife is a deadly weapon).

Id. at 428 (emphasis in original). 

Arguably, there was sufficient evidence to find that the stick qualified 

under the “designed as a weapon” possibility. We think that a stick with 

nails protruding from it is clearly capable of producing death or serious 

bodily injury. Moreover, the stick appears to have been designed as a 

weapon. Unlike a pocket knife, which has obvious utility for a “particular 

purpose,” id., beyond weaponry, there is no readily discernible use for the 

stick except as an instrument of violence. In any event, we find that the 

evidence suffices to warrant a finding that “the manner in which [the stick]

[was] used or intended to be used, [was] calculated or likely to produce 

death or serious bodily injury.” 18 Pa.C.S. § 2301. 

Our standard of review asks whether there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond a 

reasonable doubt. We find that standard met, as the evidence establishes 

that Appellant initially attacked Mr. Hampton by punching him in the face, 

then kicking him in the ribs after Mr. Hampton fell to the ground. Appellant

then elected to continue the attack by picking up the stick and striking Mr. 
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Hampton three times. The fact-finder could determine that Appellant used

the stick in a manner that was calculated or likely to produce serious bodily 

injury. Blake, supra at 428 (“While there is no requirement that the victim 

actually be in immediate danger of serious injury, the device or 

instrumentality must be used in a manner that could cause serious bodily 

injury.”). 

In response, Appellant emphasizes that the trial court acquitted him of 

the additional charge of aggravated assault under 18 Pa.C.S. § 2702(a)(1). 

That crime required proof that Appellant “attempt[ed] to cause serious 

bodily injury to another” or caused such injury intentionally, knowingly, or 

recklessly. Appellant submits that the finding of not guilty means, in the 

language of § 2301, that his employment of the stick was not calculated or 

likely to produce serious bodily injury. Accordingly, he is not guilty of 

aggravated assault with a deadly weapon under § 2702(a)(4). 

We reject Appellant’s attempt to attach significance to the acquittal. 

As our Supreme Court has observed, inconsistent verdicts are permissible. 

Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014). In 

Moore, our High Court reiterated that “Federal and Pennsylvania courts 

alike have long recognized that jury acquittals may not be interpreted as 

specific factual findings with regard to the evidence, as an acquittal does not 

definitively establish that the jury was not convinced of a defendant's guilt.” 

Id. at 1246. Moore references jury acquittals; however, our precedents 
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apply the same rule to bench trials. See Commonwealth v. Yachymiak, 

505 A.2d 1024, 1026 (Pa.Super. 1986) (citing Commonwealth v. Harris, 

360 A.2d 728 (Pa.Super. 1976)).2 Therefore, to the extent that the trial 

court’s acquittal of aggravated assault at 18 Pa.C.S. § 2702(a)(1) is 

inconsistent with its verdict at the separate charge of aggravated assault 

with a deadly weapon at § 2702(a)(4), we agree with the Commonwealth 

that the inconsistency does not preclude affirmance.

Additionally, we note that the verdicts are not necessarily inconsistent. 

First, the trial court could have determined that the weapon qualified under 

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2 Harris rejected the view expressed in United States v. Maybury, 274 

F.2d 899 (2d Cir. 1960), which criticized extending the rationale for 

accepting inconsistent verdicts in jury trials to non-jury trials. In 

Commonwealth v. Gonzalez, 892 N.E. 2d 255 (Ma. 2008), the Supreme 

Court of Massachusetts cited and discussed the differing approaches to this 

issue, and highlighted that “A common concern expressed by courts 

adopting the Maybury rule is the fear that inconsistent findings on separate 

charges by a judge might represent confusion or mistake on the part of the 

judge, and thus call into question the soundness of the guilty finding.” Id. 

at 152-53. 

At any rate, the wisdom of accepting or rejecting Maybury has been viewed 

as an exercise of supervisory powers over the administration of criminal 

justice. See Harris v. Rivera, 454 U.S. 339, 344-45 (1981) (“[T]he Court 

of Appeals erred when it directed the state trial judge to provide an 

explanation of the apparent inconsistency . . . without first determining 

whether an inexplicably inconsistent verdict would be unconstitutional.”) 

(footnotes omitted). Thus, the ultimate question of whether our courts 

should tolerate inconsistent verdicts is reserved to our Supreme Court.
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the “designed as a weapon” standard examined by Blake, supra.

3

 Second, 

the crime of aggravated assault under § 2702(a)(1) required proof that 

Appellant specifically attempted to cause serious bodily injury, or, caused 

such actual injury, inter alia, intentionally. While it would seem that Mr. 

Hampton suffered serious bodily injury, we note that Appellant argued to the 

trial court in a motion for judgment of acquittal that Mr. Hampton had a 

preexisting medical condition, and that the Commonwealth failed to establish 

causation. “There is no proof that [the attack] actually caused what 

happened to Mr. Hampton, especially when the medics transported him and 

noted that everything with his breathing sounded clear. The Commonwealth 

has some burden of showing a causal connection, especially when there is a 

preexisting medical condition.” N.T., 10/6/16, at 57. Thus, the trial court 

could have simply accepted Appellant’s argument and determined that he 

did not specifically intend to inflict serious bodily injury, nor actually caused 

such injury. 

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3 We note that the trial court’s opinion is unclear on this point, as the writing 

refers to precedents interpreting the definition of deadly weapon for 

purposes of the sentencing enhancement as currently enacted. That statute 

supplies a separate definition of the term “deadly weapon” that is met by a 

lesser degree of “use.” See 204 Pa.Code § 303.10(a)(2)(iii) (an offender 

has used a deadly weapon where the weapon was employed “in a way that 

threatened or injured another individual”).
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Appellant’s remaining claim concerns the mandatory minimum 

sentence of ten to twenty years incarceration, imposed at the burglary 

charge. That statute reads, in pertinent part: 

(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the 

time of the commission of the current offense the 

person had previously been convicted of a crime of 

violence, be sentenced to a minimum sentence of at 

least ten years of total confinement, notwithstanding 

any other provision of this title or other statute to 

the contrary. . . .

. . . . 

(d) Proof at sentencing.--Provisions of this section shall not 

be an element of the crime and notice thereof to the defendant 

shall not be required prior to conviction, but reasonable notice of 

the Commonwealth's intention to proceed under this section 

shall be provided after conviction and before sentencing. The 

applicability of this section shall be determined at sentencing. 

The sentencing court, prior to imposing sentence on an offender 

under subsection (a), shall have a complete record of the 

previous convictions of the offender, copies of which shall be 

furnished to the offender. If the offender or the attorney for the 

Commonwealth contests the accuracy of the record, the court 

shall schedule a hearing and direct the offender and the attorney 

for the Commonwealth to submit evidence regarding the 

previous convictions of the offender. The court shall then 

determine, by a preponderance of the evidence, the previous 

convictions of the offender and, if this section is applicable, shall 

impose sentence in accordance with this section. Should a 

previous conviction be vacated and an acquittal or final 

discharge entered subsequent to imposition of sentence under 

this section, the offender shall have the right to petition the 

sentencing court for reconsideration of sentence if this section 

would not have been applicable except for the conviction which 

was vacated.

. . . .
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42 Pa.C.S. § 9714.

Appellant conceded that he had previously been convicted of a crime 

of violence, and likewise did not dispute that the conviction for burglary 

qualified as a crime of violence. 42 Pa.C.S. § 9714(g) (defining crime of 

violence as, inter alia, burglary as defined in 18 Pa.C.S. § 3502(a)(1)). 

Appellant argues, however, that the statute is unconstitutional under 

Alleyne v. United States, 570 U.S. 99 (2013), which held that any fact 

that increases the penalty for a crime is considered an element of the crime, 

and must be found beyond a reasonable doubt by the factfinder. The 

existence of a prior conviction, however, has been understood as an 

exception. In Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016), 

we stated:

[T]he Supreme Court has recognized a narrow exception to this 

rule for prior convictions. [Alleyne, supra at 111 n. 1]

(citing Almendarez–Torres v. United States, 523 U.S. 224, 

118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). In Commonwealth 

v. Reid, 117 A.3d 777, 785 (Pa.Super.2015), this Court 

specifically found that Section 9714 is not rendered 

unconstitutional under Alleyne as it provides for mandatory 

minimum sentences based on prior convictions. 

Id. at 332–33. On August 22, 2017, our Supreme Court affirmed our order.

Commonwealth v. Bragg, 169 A.3d 1024 (Pa. 2017).

4

 See also 

Commonwealth v. Resto, 179 A.3d 18, 21 (Pa. 2018) (OAJC) (“This case 

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4 Appellant filed his brief one week after our Supreme Court affirmed Bragg, 

and his brief acknowledges our decision in Bragg. 
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does not concern previous convictions considered as aggravation at 

sentencing. Notably, under prevailing federal jurisprudence, such prior 

convictions are not treated as a type of fact implicating Alleyne.) (citation 

omitted). Therefore, we reject Appellant’s challenge to his sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/27/18