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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

TROY GILLIS, : No. 774 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, February 7, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0002924-2013

BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2015

Troy Gillis appeals from the judgment of sentence of February 7, 2014, 

following his conviction of aggravated assault -- attempt to cause serious 

bodily injury, and carrying a firearm without a license in violation of the 

Uniform Firearms Act (“VUFA”). We affirm.

The trial court has aptly summarized the facts of this matter as 

follows:

The evidence admitted at trial established that 

on January 28, 2013, Appellant fired a 

semi-automatic handgun at the complainant, 

Eric Santiago, at the corner of Luzerne and Glendale 

streets. The shooting stems from an earlier 

disagreement between Appellant and Mr. Santiago. 

Appellant sought to purchase Mr. Santiago’s pit bull 

for dog fighting; however, Mr. Santiago was not 

prepared to make the sale. During their 

conversation, Appellant accused Mr. Santiago of 

using PCP and threatened him saying: “Don’t 
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disrespect me. I’ll bust you in your fucking mouth 

with this gun.” Throughout their argument, 

Appellant manipulated the gun he had in his pants 

pocket; the gun was making a clicking sound. The 

interaction lasted for approximately five to ten 

minutes, after which Mr. Santiago returned to his 

parent’s [sic] house.

While there, Mr. Santiago’s parents urged him 

to remain home and not to go back out onto the 

street. He did not heed this advice, and returned to 

Glendale Street to visit his girlfriend. As 

Mr. Santiago walked, he observed Appellant standing 

outside in all black clothing. Mr. Santiago laughed, 

and told Appellant that he resembled Count Dracula. 

Afterwards, Mr. Santiago walked to Sam’s Deli 

located on the corner of Luzerne and Glendale. 

[Footnote 2] Appellant and his brother were calling 

out “where is ‘E’?” (Mr. Santiago’s nickname). 

Appellant and his brother approached Mr. Santiago 

and were standing less than three feet away from

him. Appellant was holding a silver, semi-automatic 

pistol. Appellant grabbed Mr. Santiago around the 

shoulder with his left arm. As Appellant raised the 

gun and pointed it at Mr. Santiago, Santiago pushed 

the gun down, turned, and ran in the opposite 

direction. As he fled, Mr. Santiago heard a gunshot 

behind him. He immediately ran to his parent’s [sic] 

house, where he sought refuge.

[Footnote 2] The street address for 

Sam’s Deli is 1344 East Luzerne Street, 

Philadelphia, PA 19124. 

Officer Maureen Burns and her partner 

Officer McAdams (first name not given) of the 

Philadelphia Police Department responded to a radio 

call for a gun shot at the corner of Luzerne and 

Glendale. Upon arrival, Officer Burns observed no 

victims or witnesses at the scene. She then 

accessed the video surveillance system at Sam’s 

Deli. A review of the video depicted the shooting 

taking place on the southeast corner of Luzerne and 

Glendale. Officer Burns recovered a 9 millimeter 
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fired cartridge case and located a nearby Buick 

minivan with a bullet hole above the wheel well. The 

owner of the vehicle was questioned and reported 

that the damage was not there when he parked the 

vehicle earlier in the day.

The day after the shooting, Mr. Santiago was 

standing outside on Luzerne Street. Appellant rode 

past in a car and made a gun gesture with his hand 

and said, “I’m going to kill you.” Mr. Santiago’s 

parents insisted he report the shooting, against his 

own inclination. He was also being called a “snitch” 

and a “rat” by Appellant, threats Mr. Santiago took 

seriously as he felt such a label endangered his life. 

Eventually, Mr. Santiago did report the shooting to 

police and cooperated, positively identifying a 

photograph of Appellant during interviews with 

Detective Jeffery Daly.

When Appellant was being taken into custody 

by police, he was yelling at Mr. Santiago (who was 

standing across the street on the steps of his 

girlfriend’s house) “You a rat; you a rat. I’m going 

to blow your house up. Your girl and your kid, I’m 

going to kill them and blow the house up.” Appellant 

then blew a kiss to Mr. Santiago and smiled.

Additionally, there was a stipulation to the 

certification from the Commissioner of the 

Pennsylvania State Police that on January 28, 2013 

-- the date of the incident -- Appellant did not have a 

license to carry a firearm. [Footnote 3]

[Footnote 3] Admitted as 

Commonwealth’s exhibit C-24.

Trial court opinion, 10/3/14 at 2-4 (citations to the transcript omitted).

Following a jury trial held September 11-12, 2013, appellant was 

found guilty of VUFA and aggravated assault, attempt to cause serious bodily 

injury. Appellant was found not guilty of attempted murder. On February 7, 
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2014, appellant received an aggregate sentence of 101⁄2 to 25 years’ 

imprisonment. A timely post-sentence motion was filed on February 14, 

2014, and denied on February 18, 2014. This timely appeal followed. 

Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial 

court has filed an opinion.1

On appeal, appellant raises a single issue, challenging the sufficiency 

of the evidence to support his conviction of aggravated assault. (Appellant’s 

brief at 4.) Appellant argues that the Commonwealth failed to prove specific 

intent to cause serious bodily injury. Appellant argues that the victim, 

Santiago, was not actually injured, and that there was no evidence he was 

pointing the gun in Santiago’s direction when he fired. (Id. at 10.)

 

1 The trial court issued its Rule 1925 order on March 13, 2014, directing 

appellant to file a Rule 1925(b) concise statement of errors complained of on 

appeal within 21 days. (Docket #10.) On April 7, 2014, appellant requested 

a 30-day extension, stating that the notes of testimony from trial were not 

yet available. (Docket #11.) On April 9, 2014, the trial court granted an 

extension of 30 days “from the receipt of all required notes of testimony,” 

within which to file a concise statement. (Docket #12.) Appellant 

eventually filed the statement on August 19, 2014, and the trial court filed a 

Rule 1925(a) opinion on October 3, 2014. (Docket #13, 14.) The docket 

does not indicate when the notes of testimony were transcribed, so it is 

impossible to discern whether appellant’s Rule 1925(b) statement was timely 

filed within 30 days thereof; regardless, the trial court addressed the issues 

raised in its Rule 1925(a) opinion and it is unnecessary to remand. See 

Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012) (“When 

counsel has filed an untimely Rule 1925(b) statement and the trial court has 

addressed those issues we need not remand and may address the merits of 

the issues presented.”), citing Commonwealth v. Burton, 973 A.2d 428, 

433 (Pa.Super. 2009) (en banc). Filing an untimely Rule 1925(b) 

statement no longer results in automatic waiver in a criminal case.
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We review Appellant’s challenge to the sufficiency of 

the evidence under the following, well-settled 

standard of review:

A claim challenging the sufficiency of the 

evidence presents a question of law. 

Commonwealth v. Widmer, 560 Pa. 

308, 744 A.2d 745, 751 (2000). We 

must determine “whether the evidence is 

sufficient to prove every element of the 

crime beyond a reasonable doubt.” 

Commonwealth v. Hughes, 521 Pa. 

423, 555 A.2d 1264, 1267 (1989). We 

“must view evidence in the light most 

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.” Id.

Our Supreme Court has instructed:

[T]he 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. 

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. 

Ratsamy, 594 Pa. 176, 934 A.2d 1233, 

1236 n. 2 (2007).
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Commonwealth v. Fortune, 68 A.3d 980, 983-984 (Pa.Super. 2013) 

(en banc), appeal denied, 78 A.3d 1089 (Pa. 2013), quoting 

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).

A person may be convicted of Aggravated Assault 

graded as a first degree felony 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.A. § 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.A. § 2301. For 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.” Commonwealth v. Gray, 867 A.2d 560, 

567 (Pa.Super.2005), appeal denied, 583 Pa. 694, 

879 A.2d 781 (2005). An intent ordinarily must be 

proven through circumstantial evidence and inferred 

from acts, conduct or attendant circumstances. 

Thomas, 65 A.3d at 944, 2013 WL 1319796, at *4.

Id. at 984.

The Pennsylvania Supreme Court in 

Commonwealth v. Alexander, 477 Pa. 190, 383 

A.2d 887 (1978) created a totality of the 

circumstances test to be used to evaluate whether a 

defendant acted with the necessary intent to sustain 

an aggravated assault conviction. In 

Commonwealth v. Matthew, 589 Pa. 487, 909 

A.2d 1254 (2006), that Court reaffirmed the test and 

articulated the legal principles which apply when the 

Commonwealth seeks to prove aggravated assault 

by showing that the defendant attempted to cause 

serious bodily injury. Specifically, the Court stated, 

in relevant part, that:
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Alexander created a totality of the 

circumstances test, to be used on a 

case-by-case basis, to determine 

whether a defendant possessed the 

intent to inflict serious bodily injury. 

Alexander provided a list, albeit 

incomplete, of factors that may be 

considered in determining whether the 

intent to inflict serious bodily injury was 

present, including evidence of a 

significant difference in size or strength 

between the defendant and the victim, 

any restraint on the defendant 

preventing him from escalating the 

attack, the defendant’s use of a weapon 

or other implement to aid his attack, and 

his statements before, during, or after 

the attack which might indicate his intent 

to inflict injury. Alexander, at 889. 

Alexander made clear that simple 

assault combined with other surrounding 

circumstances may, in a proper case, be 

sufficient to support a finding that an 

assailant attempted to inflict serious 

bodily injury, thereby constituting 

aggravated assault.

Matthew, 909 A.2d at 1257 (citation and quotation 

marks omitted). The Court indicated that our case 

law does not hold that the Commonwealth never can 

establish a defendant intended to inflict bodily injury 

if he had ample opportunity to inflict bodily injury 

but did not inflict it. Rather, the totality of the 

circumstances must be examined as set forth by 

Alexander. Id.

Id.

Where the victim does not suffer serious bodily 

injury, the charge of aggravated assault can be 

supported only if the evidence supports a finding of 

an attempt to cause such injury. “A person commits 

an attempt when, with intent to commit a specific 
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crime, he does any act which constitutes a

substantial step toward the commission of that 

crime.” 18 Pa.C.S.A. § 901(a). An attempt under 

Subsection 2702(a)(1) requires some act, albeit not 

one causing serious bodily injury, accompanied by an 

intent to inflict serious bodily injury. 

Commonwealth v. Matthew, 589 Pa. 487, 909 

A.2d 1254 (2006). “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[.]” Id. at 1257-58 

(quotation omitted). “As intent is a subjective frame 

of mind, it is of necessity difficult of direct proof.” 

Id. (citation omitted). The intent to cause serious 

bodily injury may be proven by direct or 

circumstantial evidence. Id.

Id. at 985, quoting Commonwealth v. Martuscelli, 54 A.3d 940, 948 

(Pa.Super. 2012).

Here, appellant threatened Santiago that he would “bust you in your 

fucking mouth with this gun.” Later, outside the deli, appellant grabbed 

Santiago while brandishing a firearm. When Santiago turned and ran, 

appellant fired. Appellant missed Santiago but struck a nearby vehicle. 

Appellant claims that there was no evidence he was actually aiming the gun 

at Santiago. It is true that Santiago’s back was turned towards appellant so 

he could not testify that he saw where appellant was pointing the gun. 

However, as the Commonwealth points out, appellant ignores the evidence 

of the surveillance tape from the store which shows appellant pointing the 

gun in Santiago’s direction when he fired. (Commonwealth’s brief at 8; trial 

court opinion, 10/3/14 at 7 n.4.) The jury could also fairly infer appellant’s 
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intent from his words and actions, including threatening to kill Santiago and 

blow his house up.

Appellant claims that he had ample opportunity to inflict serious bodily 

injury upon Santiago and did not. Appellant’s argument misses the mark. 

The fact that Santiago fortuitously was not struck by appellant’s bullet as he 

ran away does not negate intent. This is not a case where the defendant 

merely pointed a firearm in the victim’s direction. Commonwealth v. 

Alford, 880 A.2d 666, 671 (Pa.Super. 2005), appeal denied, 890 A.2d 

1055 (Pa. 2005) (“It is well settled that merely pointing a gun at another 

person in a threat to cause serious bodily injury does not constitute an 

aggravated assault.”), citing Commonwealth v. Savage, 418 A.2d 629, 

632 (Pa.Super. 1980). Appellant repeatedly threatened the victim, 

physically assaulted him, and actually discharged his weapon in the victim’s 

direction. These constituted substantial steps toward perpetrating a serious 

bodily injury upon Santiago. See Commonwealth v. Woods, 710 A.2d 

626, 631 (Pa.Super. 1998), appeal denied, 729 A.2d 1129 (Pa. 1998) (“the 

jury was certainly entitled, although not required, to find the necessary 

intent to support an aggravated assault charge from the fact that appellant 

fired his weapon into [the victim’s] vehicle while he occupied it”). The 

evidence was sufficient to support appellant’s conviction of aggravated 

assault. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015