Com. v. Bowersox, S. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STANLEY FOSTER BOWERSOX, : No. 1283 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, June 24, 2013,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0002503-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2015
Appellant, Stanley Foster Bowersox, appeals from the judgment of
sentence of June 24, 2013, following his convictions for aggravated assault,
criminal conspiracy, and robbery. We affirm.
The trial court summarized the relevant factual history of this case as
follows:
On August 12, 2012, Appellant and a
co-defendant viciously beat and robbed Brent Allen.
The two then assaulted and stabbed
Derrick Elverton, a Good Samaritan who had come to
Allen’s aid.
The genesis of these crimes was a malicious
plot to resolve a common dispute with violence.
Appellant and Ashley Smith were in a romantic
relationship. Smith reported to Appellant that
Brent Allen was making unwanted romantic
overtures to her on Facebook. Appellant, Andrew
Loomis and Smith then concocted a cold-blooded
* Retired Senior Judge assigned to the Superior Court.
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plan to assault Allen. Smith lured Allen to a
potentially romantic encounter by enticing him
through Facebook into meeting her at midnight in a
park and to bring marijuana.
Allen appeared at the appointed time and
place. En route, Allen found an old golf club which
he brought with him. Consistent with their plan,
Smith coaxed Allen to walk up a street where
Appellant and Loomis were lying in wait
unbeknownst to Allen. As their prey neared,
Appellant and Loomis jumped out from the bushes
and assaulted Allen. Appellant and Loomis wrested
the golf club from Allen and hit him with such force
the golf club broke. Appellant and Loomis rifled
through Allen’s clothing demanding marijuana and
his cell phone. While Allen was on the ground,
Appellant and Loomis continued to kick and beat him
about the head and body. Allen is much smaller
than Appellant and Loomis. Allen removed his pants
and hoodie in an attempt to escape from his
assailants. Allen suffered a host of injuries including
a concussion as a result of the attack.
These events occurred in the vicinity of
Derrick Elverton’s home. Elverton observed part of
the assault on Allen from his front porch. Elverton
appealed to Appellant and Loomis to stop beating up
Allen. The two assailants did not stop. Fortunately,
Allen was able to run to Elverton’s porch and find
refuge inside Elverton’s house.
Appellant and Loomis left momentarily but
returned with a butcher knife. Elverton, not knowing
the two assailants had returned, went down the
sidewalk to retrieve Allen’s clothing. Appellant and
Loomis surrounded Elverton. Loomis was behind him
with a knife and Appellant was face-to-face with
Elverton. Appellant and Loomis began verbally
assaulting Elverton for stopping the assault on Allen.
The verbal assault escalated into a physical
assault when Loomis pulled the butcher knife on
Elverton. Appellant implored Loomis to “stick him,
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stick him.” Loomis stabbed Elverton in the back.
Despite the stab wound, Elverton was able to fight
back. Elverton took the knife from Loomis and
stabbed Appellant. Thereafter, Appellant and Loomis
fled the scene.
Allen was transported to the Hamot Hospital
Emergency Room where he was treated for a
concussion and numerous bruises and abrasions.
Allen missed three days of work due to the head
injury. His medical bills totaled $8340.20. Elverton
was treated for the stab wound in the back. The
butcher knife entered Elverton’s back to a depth of
two inches. The knife did not puncture Elverton’s
lung because of his musculature.
Trial court opinion, 9/19/13 at 1-3.
A bench trial was held on May 15, 2013, and appellant was convicted
of aggravated assault, criminal conspiracy, and robbery. On June 24, 2013,
appellant was sentenced to an aggregate term of 13½ to 27 years’
imprisonment to be followed by 10 years of probation. A post-sentence
motion to reconsider sentence was filed and denied. 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. On November 12, 2013, appellant
filed a motion to waive counsel and proceed pro se. The trial court granted
the motion by order dated January 26, 2014.
Appellant raises the following issue for this court’s review:
THERE WAS INSUFFICIENT [EVIDENCE] TO SUPPORT
THE TRIAL COURT’S FINDING OF GUILT AS TO THE
CHARGES OF AGGRAVATED ASSAULT, 18 PA.C.S.
§ 2702(A)(1); CRIMINAL CONSPIRACY, 18 PA.C.S.
§ 903(C) AND ROBBERY, 18 PA.C.S. § 3701.
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Appellant’s brief at 17.
Before we begin to address the substance of appellant’s argument, we
note that appellant is proceeding pro se. As such, appellant is not excused
from following the rules of appellate procedure. Commonwealth v. Maris,
629 A.2d 1014, 1017 n.1 (Pa.Super. 1993). The issue raised in appellant’s
brief differs from the issue raised in appellant’s counseled Rule 1925(b)
statement. The specific issue raised in the Rule 1925(b) statement, and
addressed by the trial court, is as follows:
9. There was insufficient evidence submitted at
trial to support the jury’s [sic] finding the
Appellant guilty of the Serious Bodily Injury
enhancement to the Robbery and Aggravated
Assault charges. Further, there was
insufficient evidence to support the jury’s [sic]
finding the Appellant guilty of Criminal
Conspiracy to Commit Aggravated Assault
where no clear evidence was shown.
Statement of Matters Complained of on Appeal, Document #28. Thus,
based on the above, we first discuss only whether the evidence was
insufficient to support the finding of the “Serious Bodily Injury enhancement
to the Robbery and Aggravated Assault charges.”
In reviewing a sufficiency challenge, we apply the following
well-settled principles:
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
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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 crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record 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. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),
quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.
2008).
Appellant was convicted of aggravated assault under 18 Pa.C.S.A. §
2702(a)(1), which 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 the value of human life.” “Serious bodily injury” is
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.”
Commonwealth v. Stevenson, 894 A.2d 759, 774 (Pa.Super. 2006). “The
intent to cause serious bodily harm may be shown by circumstances
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surrounding the incident.” Commonwealth v. Caterino, 678 A.2d 389,
391 (Pa.Super. 1996). “[T]he conduct giving rise to the inference that the
defendant intended to inflict serious bodily harm need not in itself be life
threatening.” Id.Moreover, to sustain a conviction for aggravated assault, the
Commonwealth need not show that serious bodily injury actually occurred,
but only that the defendant attempted to cause serious bodily injury to
another person. Stevenson, 894 A.2d at 774. An “attempt” exists when
“the accused intentionally acts in a manner which constitutes a substantial
or significant step toward perpetrating serious bodily injury upon another.”
Id. (citation and quotation omitted).
Appellant contends the injuries sustained by Brent Allen (“Allen”) did
not amount to the requisite degree of “serious bodily injury” necessary to
sustain appellant’s conviction for aggravated assault. (Appellant’s brief at
19.) According to appellant, Allen’s injuries were not as severe as Allen
claimed and “were far less significant” than found in other cases where this
court determined serious bodily injury had not been sustained. (Id.) In
support of his argument, appellant cites Commonwealth v. Alexander,
383 A.2d 887, 889 (Pa. 1978), where our supreme court found that a broken
nose and facial lacerations did not rise to the level of serious bodily injury.
Appellant’s reliance on Alexander is misplaced. In Alexander, our
supreme court held that a single blow to the face of the victim, without
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more, resulting only in a fractured nose was not sufficient to constitute
aggravated assault. Id. (emphasis added).
Here, the record reveals Allen was hit with a golf club so hard that the
club broke. Allen, who was physically smaller than appellant, was
repeatedly kicked in the head and body by both appellant and
Andrew Loomis (“Loomis”). Allen suffered a concussion along with
numerous bruises and lacerations, and missed three days of work. Clearly,
breaking a golf club on Allen and repeatedly kicking him in the head and
body establish an intent to commit serious bodily injury.
The instant facts are more akin to Commonwealth v. Glover, 449
A.2d 662 (Pa.Super. 1982), affirmed, 458 A.2d 935 (Pa. 1983), where this
court held that the testimony of the victim that three men repeatedly hit him
in the head with their fists and kicked him was sufficient to warrant an
inference that the defendant attempted to cause serious bodily injury to the
victim. Had Allen not been able to escape by wiggling out of his pants and
hoodie, the beating inflicted by appellant and Loomis would have been even
more severe with worse consequences.1 Accordingly, we find appellant’s
argument that the evidence was insufficient to support the serious bodily
injury enhancement to aggravated assault to be without merit.
1
Allen testified he was afraid for his life. When describing the beating he
endured, Allen stated, “I was prepared to die that night.” (Notes of
testimony, 5/15/13 at 73.) Derrick Elverton testified that he heard appellant
and Loomis state, “Let’s take him [Allen] somewhere and kill him.” (Id. at
100.)
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In his next argument, appellant claims the injuries sustained by Allen
did not amount to the requisite degree of “serious bodily injury” necessary to
sustain appellant’s conviction for robbery. Appellant also claims there was
no evidence he committed a theft. (Appellant’s brief at 30-32.) Appellant
was convicted of robbery under 18 Pa.C.S.A. § 3701(a)(1)(i) which provides,
“A person is guilty of robbery if, in the course of committing a theft, he: (i)
inflicts serious bodily injury upon another.” We have already determined
that the beating Allen endured satisfied the “serious bodily injury” prong.
Allen testified, “they [appellant and Loomis] started running through
my pockets asking me where all my stuff was, you know, give me
everything.” (Notes of testimony, 5/15/13 at 72.) He further stated, “They
were putting their hands in my pockets trying to take everything I had.”
(Id.) Whether appellant actually succeeded in removing property from Allen
is immaterial. According to the robbery statute, “An act shall be deemed ‘in
the course of committing a theft’ if it occurs in an attempt to commit theft or
in flight after the attempt or commission.” 18 Pa.C.S.A. § 3702(a)(2).
Clearly, we can infer appellant and Loomis were looking to take anything, for
instance, appellant’s cellphone or money, they could find in his pockets.
Accordingly, there is no merit to this argument.
In his last argument, appellant claims there was insufficient evidence
to sustain his conviction for criminal conspiracy to commit aggravated
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assault against Elverton, the Good Samaritan, who ended up being stabbed
in the back with a 12-inch butcher knife. (Appellant’s brief at 24-29.)
To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant
(1) entered into an agreement to commit or aid in an
unlawful act with another person or persons, (2) with
a shared criminal intent and (3) an overt act was
done in furtherance of the conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.Super. 2006); see also
18 Pa.C.S.A. § 903(a). We recognize that:
[c]ircumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create
a “web of evidence” linking the accused to the
alleged conspiracy beyond a reasonable doubt.
Additionally:
An agreement can be inferred from a
variety of circumstances including, but
not limited to, the relation between the
parties, knowledge of and participation in
the crime, and the circumstances and
conduct of the parties surrounding the
criminal episode. These factors may
coalesce to establish a conspiratorial
agreement beyond a reasonable doubt
where one factor alone might fail.
Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007), quoting
Commonwealth v. Jones, 874 A.2d 108, 121-122 (Pa.Super. 2005)
(citation omitted). “Circumstances like an association between alleged
conspirators, knowledge of the commission of the crime, presence at the
scene of the crime, and/or participation in the object of the conspiracy, are
relevant when taken together in context, but individually each is insufficient
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to prove a conspiracy.” Id. (citation omitted). Furthermore, we recognize
that, “[o]nce there is evidence of the presence of a conspiracy, conspirators
are liable for acts of co-conspirators committed in furtherance of the
conspiracy.” Commonwealth v. Lambert, 795 A.2d 1010, 1016
(Pa.Super. 2002) (internal citations omitted).
Instantly, the fact that appellant did not wield the knife is of no
moment. The record indicates appellant acted in concert with Loomis.
Elverton testified that he was standing on his porch and heard someone
screaming. (Notes of testimony, 5/15/13 at 99.) Elverton saw Allen being
beaten with a golf club by two men. (Id. at 100.) He watched Allen escape,
get caught, and break loose a second time. (Id.) Allen ran onto Elverton’s
porch, and Elverton told him to go into his house. (Id.) According to
Elverton, Allen asked him to retrieve his shirt and shoes, which Elverton
agreed to do. (Id.) Elverton then described how appellant and Loomis
cornered him in an alleyway: “one got in front and one got in back.” (Id. at
101.) Elverton described the “tussle” that ensued as he fought both
appellant and Loomis. (Id. at 104-109.)
Additionally, appellant contends he did not tell Loomis to “stick him,”
but rather, said “get him.” Appellant also claims that Loomis’ actions of
stabbing Elverton were beyond those which appellant intended. First,
appellant’s choice of words is inconsequential here. Second, even if
appellant did not anticipate Elverton getting stabbed, as a co-conspirator, he
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is liable for the actions of Elverton. Upon review of the evidence presented
in the light most favorable to the Commonwealth, as the verdict winner, we
conclude there was ample evidence to sustain appellant’s conviction for
criminal conspiracy to commit aggravated assault.
Appellant’s judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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