Com. v. Colon, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JORGE COLON :
:
Appellant : No. 1952 EDA 2019
Appeal from the Judgment of Sentence Entered February 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006281-2016
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED JUNE 15, 2020
Appellant, Jorge Colon, appeals from the judgment of sentence following
a bench trial and convictions for aggravated assault, simple assault, terroristic
threats, recklessly endangering another person (“REAP”), and possessing
instruments of crime (“PIC”).1 Appellant’s counsel filed a petition to withdraw
per Anders v. California, 386 U.S. 738 (1967). We affirm and grant
counsel’s petition to withdraw.
On June 12, 2016, Kevin Clark (“Clark”) and Joe Connelly (“Connelly”)
were sitting on a step at the corner of Harold and Thompson Streets in
Philadelphia. N.T., 12/8/16, at 13. Appellant approached them and punched
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a), 2701(a), 2706(a)(1), 2705, and 907(a), respectively.
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Connelly four times with a closed fist, after which Clark and Connelly
attempted to walk away. Id. at 12. When Clark, an elderly disabled man,
asked Appellant to leave them alone, Appellant punched Clark at least thirty
to forty times. Id. at 14–15. As neighbors intervened to restrain Appellant,
he yelled, “I’ll shoot him, I’ll shoot him,” and placed his hand inside his satchel.
Id. at 17.
One neighbor, Michael Fenerty (“Fenerty”), heard the commotion, went
outside and witnessed Appellant beating Clark. N.T., 12/8/16, at 41. Fenerty
told Appellant to leave Clark alone and then grabbed Appellant’s arm. Id. at
42. Appellant screamed at Fenerty that he was going to kill him but began
walking away. Id. at 43.
Believing that the altercation was over, Fenerty returned to his house,
put on a pair of jeans and shoes, and went outside to wait for the police. N.T.,
12/8/16, at 45. Appellant then charged toward Fenerty with an aluminum
baseball bat. Appellant struck Fenerty four times with the bat. Fenerty
shielded himself with his arms, suffering injuries to his arm and elbow. Id. at
45–46. Appellant fled when the police arrived. Two police officers pursued
Appellant and apprehended him. Id. at 80.
Fenerty testified that his arm was red and purple the next morning and
that its condition worsened in the ensuing days. N.T., 12/8/16, at 53–54.
Later in the week, Fenerty went to an emergency room where an X-ray
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revealed deep bruising in the arm and his elbow had to be drained on two
occasions. Id. at 54.
Following a bench trial on December 8, 2016, the trial court found
Appellant guilty of aggravated assault, simple assault, terroristic threats,
REAP, and PIC. On February 17, 2017, the court sentenced Appellant to an
aggregate term of five to ten years of imprisonment followed by five years of
probation.
Appellant did not file a post-sentence motion or a direct appeal.
However, on August 9, 2017, Appellant filed a pro se petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., seeking
reinstatement of his right to file a direct appeal and/or post-sentence motions
nunc pro tunc. The trial court granted Appellant leave to file a direct appeal
nunc pro tunc, but denied Appellant’s request to file post-sentence motions
nunc pro tunc. On the same day, the trial court granted PCRA counsel’s leave
to withdraw and appointed present counsel, James Lloyd, Esquire, to
represent Appellant with respect to the nunc pro tunc direct appeal.
Appellant filed a timely direct appeal nunc pro tunc. On July 31, 2019,
appointed appellate counsel filed a statement pursuant to Pa.R.A.P.
1925(c)(4) of notice of intent to file a brief pursuant to Anders and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and a petition to
withdraw. The trial court did not issue a Rule 1925(a) opinion, but instead
forwarded the certified record to this Court.
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Counsel raises five issues in the Anders brief:
[1.] Was the sentence imposed upon defendant/appellant by
the lower court manifestly excessive?
[2.] Was the verdict against the weight of the evidence to
such a degree that it shocks one’s conscience?
[3.] Was there a violation of Brady v. Maryland, where medical
records relating to treatment of one complainant were not
provided to defendant/appellant prior to trial?
[4.] Is the competent evidence of record legally sufficient to
support the convictions in this matter?
[5. Did the trial court err when it did not recuse itself?]2
Anders Brief at 11.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). In counsel’s petition to withdraw and Anders
brief, he states that these five issues are frivolous, and that there are no other,
non-frivolous issues that Appellant could pursue herein. Accordingly,
[t]his Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
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2 Appellant neglected to include issue number five in the Statement of
Questions Presented portion of his brief. However, the issue was listed in the
Table of Contents and discussed in the body of the brief. Anders Brief at i;
56–57.
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(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent review
of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted).
In this case, counsel’s Anders brief complies with the above-stated
requirements. Namely, he includes a summary of the relevant factual and
procedural history, he refers to portions of the record that could arguably
support Appellant’s claims, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
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determination and supports his rationale with citations to the record and
pertinent legal authority. Counsel also states in his petition to withdraw that
he has supplied Appellant with a copy of his Anders brief. Additionally, he
attached to his petition to withdraw a letter directed to Appellant in which he
informed Appellant of the rights enumerated in Nischan, 928 A.2d at 353.
Accordingly, counsel has complied with the technical requirements for
withdrawal. We will now independently review the record to determine if
Appellant’s issues are frivolous, and to ascertain if there are any other non-
frivolous issues he could pursue on appeal.
With regard to Appellant’s first two issues, counsel concludes that these
claims are waived based on prior counsel’s failure to file a post-sentence
motion raising them with the trial court. Anders Brief at 28–37. We agree.
See Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (finding
a weight of evidence claim waived where the appellant failed to comply with
Pa.R.Crim.P. 607; the appellant did not raise the issue orally or in writing prior
to sentencing, and did not raise it in a post-sentence motion);
Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super. 2004) (“It is
well settled that an [a]ppellant’s challenge to the discretionary aspects of his
sentence is waived if the [a]ppellant has not filed a post-sentence motion
challenging the discretionary aspects with the sentencing court.”) (citation
omitted). Notwithstanding Appellant’s waiver of these claims, we would still
deem them frivolous if considered on appeal.
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In regard to Appellant’s weight of the evidence challenge, ordinarily such
claims require review “of the exercise of [the trial court’s] discretion, not of the
underlying question of whether the verdict is against the weight of the
evidence.” Commonwealth v. McClelland, 204 A.3d 436, 447 (Pa. Super.
2019). In the instant matter, however, the trial court did not address the
weight claim because Appellant did not file a post-sentence motion. Moreover,
the judge who presided over Appellant’s nonjury trial is no longer sitting in the
Philadelphia County Court of Common Pleas.3 In such instances, the
Pennsylvania Supreme Court has carved an exception to the general rule that
“a weight of the evidence claim is primarily addressed to the discretion of the
judge who actually presided at trial.” Armbruster v. Horowitz, 813 A.2d
698, 702 (Pa. 2002). The Armbruster Court held:
[W]here a properly preserved weight of the evidence claim is
raised on appeal and the judge who presided at trial failed to rule
on the claim and is now permanently unavailable to do so, the
claim must be reviewed by the appellate tribunal in the first
instance. We are confident in the ability of our appellate courts to
apply this exception appropriately, with an eye to the delicate
balance that exists between the jury’s exclusive role in assessing
credibility, and our longstanding recognition of the power in courts
to allow justice another opportunity to prevail when a verdict
nevertheless shocks the judicial conscience. In this regard, we
note that our appellate courts are well-familiar with weight claims.
Although appellate review has been confined to an assessment of
the trial judge’s exercise of discretion, it obviously has been
necessary to consider the proper role and contours of the weight
of the evidence doctrine, in evaluating that exercise of discretion.
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3The trial judge, Honorable Daniel D. McCaffery, was elected to this Court in
November of 2019.
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Id. at 705. Under such circumstances, our review is plenary, although we are
confined to the “cold record of the trial proceedings” in conducting our review.
Commonwealth v. Izurieta, 171 A.3d 803, 808 (Pa. Super. 2017) (citation
and quotation omitted). We, therefore, apply the following standard:
[T]he role of the trial judge is to determine that notwithstanding
all the facts, certain facts are so clearly of greater weight that to
ignore them or to give them equal weight with all the facts is to
deny justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (citations and quotations
omitted). Moreover, when adjudicating weight claims based solely on a cold
record, we must do so “with an eye to the delicate balance that exists between
the jury’s exclusive role in assessing credibility, and our longstanding
recognition of the power in courts to allow justice another opportunity to
prevail when a verdict nevertheless shocks the judicial conscience.”
Armbruster, 813 A.2d at 705.
The evidence admitted at Appellant’s trial consisted of the testimony
from Commonwealth witnesses, Clark, Fenerty, and Philadelphia Police Officer
Stephen Robinson, who apprehended Appellant. The defense did not present
any witnesses, but during cross-examination, offered into evidence the
transcript of Clark’s preliminary hearing testimony and Fenerty’s statement to
the police on the night of the incident and pointed out inconsistencies between
these former statements and the witnesses’ trial testimony. Thus, Appellant’s
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weight of the evidence challenge is premised on the credibility of the
witnesses.
As we are assuming the role of the trial judge in our review, this Court
is “the sole arbiter of the credibility of each of the witnesses.”
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017). “Issues of
witness credibility include questions of inconsistent testimony. . . .” Id.(citation omitted). A fact-finder “is entitled to resolve any inconsistencies in
the Commonwealth’s evidence in the manner that it sees fit.” Id. (citation
omitted). Further, “inconsistencies in eyewitness testimony are not sufficient
to warrant a new trial on grounds that the verdict was against the weight of
the evidence.” Id. at 1081 (citation omitted).
Here, our review of the record indicates that the discrepancy between
Clark’s preliminary hearing testimony, wherein Clark testified that Appellant
hit him “from the neck down to the waist,” N.T. (Preliminary Hearing),
6/28/16, at 9, and his trial testimony, wherein Clark recounted that Appellant
punched him “all over my body, on my face, my side, my ribs,” N.T. (Trial),
12/8/16, at 15, was nominal and did not impugn Clark’s credibility. As for the
discrepancies between Fenerty’s statement to the police and his trial
testimony, Fenerty explained that when he reviewed the police report the day
after the incident, he contacted a detective at the police station to point out
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factual errors in the written report. N.T., 12/8/16, at 60.4 According to
Fenerty, the detective stated that he would alert the district attorney’s office
that the statement included some mistakes. Id. at 61. Approximately one
week prior to the preliminary hearing, Fenerty called the district attorney’s
office, and he learned that a prosecutor had yet to be assigned to the case. A
representative from the office eventually contacted Appellant and assured him
that the attorney assigned to the case would be informed “that the statement
needed to be supplemented.” Id. at 62. On the morning of the preliminary
hearing, Fenerty mentioned the need to supplement the statement, and the
prosecutor advised him “to tell the truth and that’s what I did.” Id. at 63.
Appellant cross-examined Fenerty extensively regarding his prior
inconsistent statement and introduced the police report as an exhibit.
However, given Fenerty’s explanation regarding the conflicts between the
statement and his trial testimony, we can readily credit his testimony at trial
notwithstanding his prior inconsistent statement. After assessing all of the
evidence, we conclude that the verdict did not shock the sense of justice.
Consequently, were we to reach it, Appellant’s weight challenge fails.
Likewise, we would also discern no arguable merit to an excessive
sentence claim, even if preserved below. The parties agreed at the sentencing
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4 The police report stated that Fenerty related that Appellant was carrying a
bat when Fenerty observed him hitting Clark and that Fenerty disarmed
Appellant. These statements were at odds with Fenerty’s trial testimony.
N.T., 12/8/16, at 42–44.
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hearing that Appellant’s prior record score was four, the offense gravity score
was ten, and that the sentence for the aggravated assault conviction followed
the standard Sentencing Guidelines, which recommended a minimum of forty-
eight to sixty months confinement. N.T. (Sentencing), 2/17/17, at 6–7.
Additionally, although the Commonwealth sought to proceed under the deadly
weapon used matrix, the court did not apply the deadly weapon enhancement.
Id. at 6, 22.
As to the crimes perpetrated against Fenerty, the court sentenced
Appellant to a term of five to ten years of imprisonment for aggravated assault
and a concurrent term of two to five years of imprisonment for PIC. The
conviction for simple assault of Fenerty merged with aggravated assault for
sentencing purposes. The court also imposed a period of reporting probation
for five years for terroristic threats to run consecutively to the five to ten years
imprisonment term. No further penalty was assessed for the REAP conviction.
For the assault of Clark, Appellant received a sentence of two years of
reporting probation for simple assault and five years of reporting probation for
terroristic threats to run consecutive to the five to ten years of imprisonment.
The trial court did not impose a further penalty for REAP. The aggregate term
of imprisonment was five to ten years followed by a maximum of five years of
probation. N.T. (Sentencing), 2/17/17, at 21–22.
A claim that a sentence within statutory limits is excessive is generally
not sufficient to raise a substantial question, absent a claim that the sentence
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violates a specific provision of the Sentencing Code or a fundamental norm
underlying the sentencing process. Commonwealth v. Dodge, 77 A.3d
1263, 1271 (Pa. Super. 2013). However, even if Appellant’s claim of
excessiveness constituted a substantial question for our review, the record
does not demonstrate any reason for this Court to overturn Appellant’s
sentence. The trial court sentenced Appellant within the standard range of
the guidelines and well below the statutory maximum for aggravated assault.
See 18 Pa.C.S. § 1103(1) (a person who has been convicted of a felony of the
first degree may be sentenced to imprisonment for a term not more than
twenty years.). The trial court also considered testimony from Fenerty,
Appellant’s work history, his familial responsibilities and support, the
arguments of counsel, and Appellant’s allocution. N.T. (Sentencing), 2/17/17,
at 8–20.
Given this record, we would ascertain no abuse of discretion in the
sentence imposed by the trial court, even if Appellant had preserved this issue
for our review. Therefore, this issue is frivolous.5
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5 To the extent Appellant could raise a claim of counsel’s ineffectiveness for
failure to file a post-sentence motion and plausibly preserving weight of the
evidence and sentencing error issues, such claim is properly raised in a PCRA
petition. Although Appellant previously filed a PCRA petition in this matter,
he retains the right to file a new PCRA petition. We have held that if a
petitioner’s prior PCRA petition merely results in the granting of an appeal
nunc pro tunc, a subsequent petition would not be considered a prior PCRA
petition. Commonwealth v. Lewis, 718 A.2d 1262, 1263 (Pa. Super. 1998);
See also Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa. Super.
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Appellant also seeks to argue that the Commonwealth committed a
Brady v. Maryland, 373 U.S. 83 (1963), violation by not providing the
defense with a copy of Fenerty’s medical records detailing the injuries inflicted
by Appellant. Counsel first concludes that this claim is frivolous because
Appellant waived his right to assert this when he failed to object to the failure
to produce the records in the trial court. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”). Alternatively, counsel notes that Appellant would not be able to
prove that the Commonwealth committed a Brady violation even if he had
not waived this claim. For the reasons stated infra, we agree with counsel
that Appellant’s Brady claim is frivolous, and we need not consider whether
he waived this issue for our review.
Our Supreme Court has stated that,
in order to establish a Brady violation, a defendant must show
that: (1) evidence was suppressed by the state, either willfully or
inadvertently; (2) the evidence was favorable to the defendant,
either because it was exculpatory or because it could have been
used for impeachment; and (3) the evidence was material, in that
its omission resulted in prejudice to the defendant. See
Commonwealth v. Lambert, 584 Pa. 461, 471, 884 A.2d 848,
854 (2005); Commonwealth v. Collins, 585 Pa. 45, 68, 888
A.2d 564, 577–78 (2005). However, “[t]he mere possibility that
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2003) (stating, “When a petitioner is granted a direct appeal nunc pro tunc in
his first PCRA petition, a subsequent PCRA petition is considered a first PCRA
petition for timeliness purposes.”).
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an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not
establish materiality in the constitutional sense.”
Commonwealth v. Chambers, 570 Pa. 3, 29, 807 A.2d 872, 887
(2002) (citation omitted and emphasis added). Rather, evidence
is material “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Id. at 29, 807 A.2d at 887–88.
Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (emphasis in
original; internal citation omitted). Moreover, the burden rests with the
defendant to “prove, by reference to the record, that evidence was withheld
or suppressed by the prosecution,” see Commonwealth v. Paddy, 15 A.3d
431, 451 (Pa. 2011), and the withheld evidence must have been in the
“exclusive control of the prosecution at the time of trial.” Commonwealth
v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012).
There is nothing in the record before us demonstrating that the
Commonwealth possessed Fenerty’s medical records. Notably, the records
were not introduced into evidence at the trial. Furthermore, Fenerty testified
that the assistant district attorney rebuffed his offer to authorize release of
the records. N.T. (Trial), 12/8/16, at 75. While the prosecutor indicated to
Fenerty that the Commonwealth could procure the records without his
authorization, there is no indication that the Commonwealth either requested
or received Fenerty’s medical records. Id.Based on this record, Appellant has failed to demonstrate that the
Commonwealth possessed Fenerty’s medical records, let alone that the
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record’s contents were favorable to his defense and that they were suppressed
by the Commonwealth either willfully or inadvertently. Accordingly, even had
Appellant preserved this claim for our review, we would deem it frivolous.
We next determine whether Appellant’s challenge to the sufficiency of
the evidence underlying his convictions is wholly frivolous. 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. Adams, 39 A.3d 310, 323 (Pa. Super. 2012) (quoting
Commonwealth v. Brown, 23 A.3d 544, 559–560 (Pa. Super. 2011) (en
banc)).
Initially we observe that Appellant was convicted of the following related
offenses: one count of the aggravated assault of Fenerty, two counts of simple
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assault6 premised on the attacks of Clark and Fenerty, and two counts of
REAP, one for recklessly endangering Clark and one for recklessly endangering
Fenerty, as well as two counts of terroristic threats and one count of PIC.
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[.]” 18 Pa.C.S. § 2702(a). “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. § 2301.
A person is guilty of simple assault if he “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another.” 18
Pa.C.S. § 2701(a)(1). Additionally, “bodily injury” constitutes “[i]mpairment
of physical condition or substantial pain.” 18 Pa.C.S. § 2301
Appellant was convicted of two counts of REAP. “A person commits
[REAP] if he recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. REAP
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6 In his Anders brief, counsel does not discuss whether the Commonwealth’s
evidence supported the convictions of simple assault, terroristic threats, and
REAP stemming from Appellant’s attack of Clark. We review that evidence as
required by our obligation to independently review the record “to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Flowers, 113 A.3d at 1250.
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“is a crime directed against reckless conduct entailing a serious risk to life or
limb out of proportion to any utility the conduct might have.”
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (citation
omitted). “A person acts in a reckless manner when he consciously disregards
a substantial and unjustifiable risk.” Id. (citing 18 Pa.C.S. § 302(b)(4)).
Reckless endangerment and simple assault are lesser-included offenses
of aggravated assault, and evidence sufficient to prove aggravated assault is
sufficient to prove those offenses as well. Commonwealth v. Brown, 605
A.2d 429, 432 (Pa. Super. 1992) (finding that the elements of REAP and
simple assault are met by a conviction for aggravated assault);
Commonwealth v. Smith, 956 A.2d 1029, 1036 (Pa. Super. 2008)
(“Reckless endangerment is a lesser included offense of aggravated assault
and where the evidence is sufficient to support a claim of aggravated assault
it is also sufficient to support a claim of recklessly endangering another
person.”).
The Commonwealth presented evidence sufficient to establish every
element of aggravated assault. Appellant threatened to kill Fenerty and
swung a baseball bat toward Fenerty’s head. When Fenerty attempted to
block the bat with his arm, Appellant repeatedly struck him. N.T. (Trial),
12/8/16, at 52–53. Fenerty eventually went to the hospital where it was
determined that he had a deeply bruised arm that required draining of the
elbow. He continues to experience pain. Id. at 54.
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A baseball bat, as employed by Appellant toward Fenerty’s head, is
considered a deadly weapon. Commonwealth v. Nichols, 692 A.2d 181,
184 (Pa. Super. 1991) (citation omitted). Use of a deadly weapon on a vital
part of the body is sufficient to establish intent to cause serious bodily harm.
Id. Although the bat did not make contact with Fenerty’s head, the fact that
Appellant could have used the bat more effectively does not negate the
inference that it was intended to be used to cause serious bodily injury.
Commonwealth v. Rightley, 617 A.2d 1289, 1296 (Pa. Super. 1992). This
evidence, viewed in a light most favorable to the Commonwealth, was
sufficient to convict Appellant of the counts of aggravated assault, simple
assault, and REAP regarding the incident involving Fenerty.
There was also sufficient evidence to uphold Appellant’s convictions of
REAP and simple assault regarding his interaction with Clark. At trial, Clark
testified that Appellant approached him and Connelly when they were sitting
on a step drinking beer. N.T. (Trial), 12/8/16, at 11. Appellant struck
Connelly in the face a number of times, after which Connelly and Clark
attempted to extricate themselves from the situation. Clark is elderly and
disabled and was unable to move away quickly. Id. at 13. Appellant followed
and continued to hit Connelly and then turned his attention to Clark. Appellant
punched Clark with closed fists more than thirty times. Id. at 14–15.
Concerned that he had a broken rib, Clark sought medical treatment the next
day. It was determined that Clark’s ribs, although not broken, were badly
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bruised. Clark averred that he suffered pain for three or four days following
the incident. Id. at 20.
Based on the aforementioned, the evidence was sufficient to prove that
Appellant had the mens rea, i.e., recklessness, necessary to convict him of
REAP. See Commonwealth v. Vogelsong, 90 A.3d at 719 (citation omitted)
(“A person acts in a reckless manner when he consciously disregards a
substantial and unjustifiable risk.”). Specifically, Clark’s testimony
demonstrated that Appellant punched him continually with closed fists while
Clark was unusually vulnerable and unable to get away. Therefore, Appellant
consciously disregarded a known risk of great bodily injury to another person.
Having found the evidence was sufficient to support Appellant’s
conviction for recklessly endangering Clark, we conclude the evidence was
also sufficient to support Appellant’s conviction for the simple assault of Clark,
which this Court has expressly held is a lesser-included offense of REAP. See
Commonwealth v. Brunson, 938 A.2d 1057, 1061 (Pa. Super. 2007). As
such, Appellant’s conviction for simple assault must stand.
Appellant was also convicted of two counts of terroristic threats. A
person commits the crime of terroristic threats “if [he] communicates, either
directly or indirectly, a threat to [] commit any crime of violence with intent
to terrorize another. . . .” 18 Pa.C.S. § 2706(a)(1). To convict a defendant
of terroristic threats, “the Commonwealth must prove that 1) the defendant
made a threat to commit a crime of violence, and 2) the threat was
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communicated with the intent to terrorize another or with reckless disregard
for the risk of causing terror.” Commonwealth v. Beasley, 138 A.3d 39, 46
(Pa. Super. 2016) (citations omitted).7
The Commonwealth presented evidence sufficient to establish each
element of terroristic threats perpetrated against both Clark and Fenerty.
Clark testified that when Appellant was beating him, he noticed that Appellant
had a satchel strapped across his body. Appellant yelled that he had a gun
and “was going to shoot somebody.” N.T. (Trial), 12/8/16, at 16. When some
neighbors implored Appellant to leave Clark alone, Appellant screamed, “I’ll
shoot him. I’ll shoot him.” Id. at 17. Appellant continued to threaten to shoot
someone, reached into his satchel, and stated that he had a gun. Id.
Fenerty recounted that when he approached Appellant and restrained
him from inflicting further injury on Clark, Appellant stared at Fenerty and
screamed, “I’m gonna kill you.” N.T. (Trial), 12/8/16, at 43. Appellant
repeated the threat on at least two other occasions. Id. Fenerty then testified
that Appellant pulled off his satchel, held it up, and said: “I’m going to blow
you f***ing away. Like he’s got a gun and he’s pointing it at me.” Id. at 44.
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7 We take issue with counsel’s summary assessment of the sufficiency of the
evidence to support Appellant’s terroristic threats convictions without
providing support. Counsel simply avers that “[i]f believed, Appellant’s threat
to kill Fenerty is sufficient to sustain the conviction for terroristic threats.”
Anders Brief at 52.
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This evidence, when viewed in the light most favorable to the
Commonwealth, demonstrates that Appellant made threats to commit crimes
of violence with the intent to terrorize Clark and Fenerty. Accordingly, the
evidence was sufficient to establish terroristic threats, and Appellant’s
challenge to this conviction is meritless.
Finally, we review the sufficiency of the evidence in support of
Appellant’s conviction of PIC. A person is guilty of this offense “if he possesses
any instrument of crime with intent to employ it criminally.” 18 Pa.C.S.
§ 907(a). An instrument of crime can be anything specially made or adapted
for criminal use, or “anything used for criminal purposes and possessed by the
actor under circumstances not manifestly appropriate for lawful uses [the
instrument] may have.” 18 Pa.C.S. § 907(d).
Here, the evidence established that Appellant swung a baseball bat
towards Fenerty’s head and struck him in the arm with the bat. N.T. (Trial),
12/8/16, at 46. A baseball bat, as employed by Appellant toward Fenerty’s
head, is considered a deadly weapon. See Nichols, 692 A.2d at 184 (a
baseball bat, when swung at the head, can be a deadly weapon); see also
Commonwealth v. McCullum, 602 A.2d 313 (Pa. 1992) (“An ax, a baseball
bat, an iron bar, a heavy cuspidor, and even a bedroom slipper have been
held to constitute deadly weapons under varying circumstances.”). Thus, the
evidence established that Appellant possessed an instrument of crime with
intent to employ it criminally. We therefore agree with counsel that
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Appellant’s challenge to his PIC conviction, as with each of Appellant’s
sufficiency of the evidence claims, would be a frivolous issue to raise on
appeal.
Appellant’s final argument is that the trial court erred when it did not
recuse itself. Prior to Fenerty’s testimony, the trial court acknowledged sua
sponte that the court had met Fenerty and knew members of Fenerty’s family.
N.T. (Trial), 12/8/16, at 38–39. After the court revealed its familiarity with
Fenerty, defense counsel stated: “On the record. That’s fine. I have no
objection, Your Honor, and I have no motion with regard to that.” Id. at 39.
Accordingly, the issue of the trial court’s recusal was not preserved for judicial
review. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).8
Even if not waived, the record does not support a conclusion that the
trial court was required to recuse itself in this instance. “The party who asserts
that a trial judge must be disqualified bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating recusal.”
Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983) (citation omitted).
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8 As with Appellant’s weight of the evidence and sentencing error issues, see
n.4 supra, an allegation that counsel was ineffective for failing to request the
trial court’s recusal could feasibly be raised in a PCRA petition. See
Karanicolas, 836 A.2d at 944.
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“The acquaintance between a judge and a victim of a crime, is not, in
itself, sufficient to require the trial judge to recuse.” Commonwealth v.
Perry, 364 A.2d 312, 318 (Pa. 1976). Because the relationship itself does
not disqualify the judge, we look beyond the connection to the victim “to
determine if any prejudice has actually accrued.” Id.After review, there is no showing that the trial court exhibited favorable
bias towards Fenerty or assessed his credibility positively without justification.
Accordingly, the issue is frivolous.
In summary, our independent review of the record confirms counsel’s
assertion that Appellant cannot raise any non-frivolous issues in this appeal.
Accordingly, we affirm the judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/20
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