Com. v. Brown, F.

J. A10045/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

FREDERICK F. BROWN, : No. 3503 EDA 2015

:

Appellant :

Appeal from the Judgment of Sentence, October 6, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0009721-2013

BEFORE: DUBOW, J. SOLANO, J. AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2017

Frederick F. Brown appeals from the October 6, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction in a waiver trial of aggravated assault, simple

assault, and recklessly endangering another person (“REAP”).1 The trial

court imposed an aggregate term of imprisonment of 3½ to 10 years,

followed by 2 years of reporting probation. We affirm.

The trial court summarized the factual history of the case as follows:

At trial, the complainant, Carmen Cook,

testified that she had lived with Appellant in an

intimate relationship, but left in February 2013 due

to Appellant’s abusive behavior. Ms. Cook testified

that on one prior occasion, Appellant had tried to

stomp her face and that he had choked her on

another occasion. On the afternoon of June 1, 2013,

1

18 Pa.C.S.A. §§ 2702(a)(4), 2701(a)(1), and 2705, respectively.

J. A10045/17

Ms. Cook left a friend’s house where she had gotten

high on crack cocaine and beer and walked to a

nearby Hoagie City. When she turned the corner,

Ms. Cook saw Appellant sitting outside the store on a

rock. As Ms. Cook then spoke with a man named

Warren who was sweeping up the outside of the

store, Appellant got up, took something from his

pocket and charged at her, swinging and hitting her

in the head. Ms. Cook was unable to see the object

Appellant removed from his pocket because it was

wrapped in a paper napkin or towel. When Ms. Cook

then ran into Hoagie City, Appellant followed and hit

her again in the head. Ms. Cook realized she had

been hurt when she saw blood coming down the side

of her face.

Ms. Cook immediately went across the street

to the police station where she reported the assault.

Philadelphia Police Officer Charles Nelson who was at

the station at the time testified that Ms. Cook was

very upset, screaming and covered in blood. He

further testified she stated that her ex-boyfriend had

assaulted her. Police transported Ms. Cook to the

emergency room at Temple Hospital where she

received six stitches for the gash in the front of her

head and four stitches for the laceration in the back

of her head.

While in the emergency room, Ms. Cook

observed Appellant enter and immediately told

police. Appellant also called her several times in the

hospital. Although at trial Appellant denied ever

coming to the hospital or calling Ms. Cook there, he

admitted to police after his arrest that he had indeed

gone to the hospital and had called Ms. Cook three

or four times while she was in the emergency room.

Appellant testified at trial that he did not

assault Ms. Cook. He stated that he was eating

some food outside Hoagie City when Ms. Cook

walked up with a man with whom she was living and

asked Appellant for a cigarette and some money.

Appellant claimed that when he pulled out his

money, the male hit him in the chest while Ms. Cook

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snatched the money from him and ran into the store.

Appellant followed them into the store and a tussle

ensued as he tried to get his money back. Appellant

theorized that Ms. Cook probably got hurt in the

tussle over the money and denied having any object

in his hand. Appellant did not report the alleged

robbery to police, and admitted on cross-

examination to having hit a former girlfriend in the

head with a master lock in 2009.

Trial court opinion, 6/3/16 at 2-3 (citations to notes of testimony omitted).

The trial court summarized the procedural history, as follows:

On July 30, 2013, Appellant[] was arrested and

charged with aggravated assault (F2), simple

assault, [REAP], and other related charges. Prior to

trial, the Commonwealth brought a Motion to Admit

Other Bad Acts Evidence, which following a hearing,

the Court granted on February 10, 2014. Appellant

then proceeded to trial before this Court sitting

without a jury on August 3, 2015. On that date the

Court found Appellant guilty of aggravated assault

(F2), simple assault, and [REAP]. On October 6,

2015, the Court sentenced Appellant to an aggregate

term of 3 1/2 to 10 years [of] imprisonment followed

by 2 years [of] reporting probation.

Appellant filed post-sentence motions on

October 15, 2015, which were denied by the Court

on November 17, 2015. Notice of Appeal was filed

by Appellant on November 19, 2015. On

November 25, 2015, this Court ordered Appellant to

file a concise statement of the matters complained of

on appeal pursuant to [Pa.R.A.P. 1925(b)]. A timely

1925(b) Statement of Matters Complained of on

Appeal was filed by Appellant on December 14,

2015. Because counsel for Appellant had not yet

received all the notes of testimony at that time and

requested additional time, a Supplemental

Statement of Matters Complained of on Appeal was

subsequently filed on April 21, 2016.

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Id. at 1-2. The record further reflects that the trial court filed its

Rule 1925(a) opinion on June 3, 2016.

Appellant raises the following issues for our review:

1. Because it was not proven that any particular

device used by appellant could be a deadly

weapon or that it was calculated to produce

death or serious bodily injury, was not the

evidence insufficient to convict appellant of

aggravated assault, graded as a felony of the

second degree?

2. Was not the intrinsic admission of evidence of

appellant’s prior crime of hitting a former

girlfriend in the head with a Master Lock an

abuse of the lower court’s discretion, where

the evidence tended to show only appellant’s

bad character and propensity to commit such

crimes and was not relevant to appellant’s

intent, common plan or scheme, modus

operandi, or other probative fact?

Appellant’s brief at 3.

Appellant first complains that the evidence was insufficient to sustain

his aggravated assault conviction.

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

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drawn from the combined circumstances. The

Commonwealth may sustain its burden of proof 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

Under the Crimes Code, a person may be convicted of aggravated

assault, graded as a second-degree felony, if he “attempts to cause or

intentionally or knowingly causes bodily injury to another with a deadly

weapon.” 18 Pa.C.S.A. § 2702(a)(4). The Crimes Code defines “deadly

weapon” as:

[a]ny 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.A. § 2301.

This court has recently explained that

[t]he plain language of the Legislature’s definition of

“deadly weapon” makes clear that the weapon need

not be a “firearm . . . or any device designed as a

weapon,” but may also be “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.”

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18 Pa.C.S.[A.] § 2301. “Although deadly weapons

are commonly items which one would traditionally

think of as dangerous (e.g., guns, knives, etc.),

there are instances when items which normally are

not considered to be weapons can take on a deadly

status.” Commonwealth v. Scullin, 414 Pa. Super.

442, 607 A.2d 750, 753 (Pa.Super. 1992), appeal

denied, 533 Pa. 633, 621 A.2d 579 (Pa. 1992).

These items “take on such status based upon their

use under the circumstances.” Commonwealth v.

Rhoades, 2010 PA Super 204, 8 A.3d 912, 917

(Pa.Super. 2010); appeal denied, 611 Pa. 651, 25

A.3d 328 (Pa. 2011), cert. denied, 565 U.S. 1263,

132 S. Ct. 1746, 182 L. Ed. 2d 536 (2012). See

Commonwealth v. McCullum, 529 Pa. 117, 602

A.2d 313, 323 (Pa. 1992) (holding “[a] deadly

weapon need not be . . . an inherently lethal

instrument or device”). Thus, “[a]n 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.”

Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d

532, 533 (Pa. 1947); see Commonwealth v.

Nichols, 692 A.2d 181, 184 (Pa.Super. 1997) (“[a]

baseball bat, when swung at the head, can be a very

deadly weapon”). Even an egg can be a deadly

weapon when thrown from the roof of a building at

the windshield of a vehicle. See Commonwealth v.

Roman, 714 A.2d 440 (Pa.Super. 1998), appeal

denied, 556 Pa. 707, 729 A.2d 1128 (Pa. 1998).

See also Commonwealth v. Raybuck, 915 A.2d

125 (Pa.Super. 2006) (holding that mouse poison

became deadly weapon when included in sandwich

for husband to consume; fact that amount was

insufficient to cause serious bodily injury was

irrelevant to classification as deadly weapon).

Commonwealth v. Chambers, 157 A.3d 508, 517-518 (Pa.Super. 2017).

Here, the victim testified that as she walked to Hoagie City, she saw

appellant sitting on “the rock,” at which time he took something out of his

pocket and “came charging at [her] swinging at [her] head.” (Notes of

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testimony, 8/3/15 at 12.) The victim further testified that the object that

appellant took out of his pocket was wrapped in brown paper, which she

described as “the paper that you dry your hands with”. (Id. at 37.)

Although the victim was unable to see the object appellant had in his hand

that was wrapped in brown paper, she could see that appellant was holding

an object wrapped in brown paper and knew that he repeatedly struck her

on the head with that wrapped object. (Id. at 17, 20.)

The record further reflects that following this assault, the victim went

to the police station where she arrived “covered with blood and screaming,

very hysterical.” (Id. at 54.) The victim was transported to the hospital

where she “presented with an open, bleeding, deep laceration to her left

temple.” (Id. at 52.) At trial, the Commonwealth and defense stipulated to

the victim’s medical records which revealed that “[t]he laceration was

irregularly shaped and approximately five centimeters in length. [The

victim] also presented with a full thickness linear laceration to the back of

her head approximately four centimeters in length.” (Id. at 52.) The

“laceration to the left temple was closed with six sutures[, and] the

laceration to the back of the head was closed with [four] staples.” (Id.)

Appellant now complains that the evidence was insufficient to convict

him of second-degree felony aggravated assault because “there is not a

‘scintilla of evidence’ about the identity or nature of what appellant used” to

strike the victim on her head and cause a deep laceration to the left temple

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that required six sutures to close, as well as a deep laceration to the back of

the head that required four staples to close. (Appellant’s brief at 14.)

According to appellant, then, so long as a criminal defendant conceals the

device or instrumentality that he uses to repeatedly strike his victim on the

head, he cannot be convicted of second-degree aggravated assault.

Appellant is mistaken.

By his own admission, appellant concedes that “the gash and

laceration on the [victim’s] head suggest something sharp caused [her]

injuries.” (Appellant’s brief at 15.) Appellant used that sharp object to

inflict multiple blows to the victim’s head that resulted in two deep head

lacerations that required emergency medical intervention to close.

Therefore, because the record demonstrates that appellant attempted to

cause or intentionally or knowingly caused bodily injury to the victim by

repeatedly striking her on the head with a sharp object wrapped in brown

paper which was calculated or likely to produce death or serious bodily

injury, the evidence was sufficient to convict appellant of second-degree

aggravated assault.

Appellant next complains that the trial court abused its discretion when

it admitted evidence that appellant struck his former girlfriend on the head

with a Master Lock because that evidence “tended to show only appellant’s

bad character and propensity to commit such crimes and was not relevant to

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appellant’s intent, common plan or scheme, modus operandi, or other

probative fact.” (Appellant’s brief at 3.)

“On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited. A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.” Id. at 1184-

1185 (citations omitted).

Generally, evidence of prior bad acts or

unrelated criminal activity is inadmissible to show

that a defendant acted in conformity with those past

acts or to show criminal propensity.

Pa.R.E. 404(b)(1). However, evidence of prior bad

acts may be admissible when offered to prove some

other relevant fact, such as motive, opportunity,

intent, preparation, plan, knowledge, identity, and

absence of mistake or accident. Pa.R.E. 404(b)(2).[2]

2

Rule 404. Character Evidence; Crimes or Other

Acts

....

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a

crime, wrong, or other act is not

admissible to prove a person’s

character in order to show that on

a particular occasion the person

acted in accordance with the

character.

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In determining whether evidence of other prior bad

acts is admissible, the trial court is obliged to

balance the probative value of such evidence against

its prejudicial impact.

Id. at 1185 (citations to case law omitted). In order for prior bad acts to be

introduced under this particular exception, a close factual nexus must exist

to sufficiently demonstrate the connective relevance of the prior bad acts to

the criminal charge at issue. Commonwealth v. Sitler, 144 A.3d 156,

163-164 (en banc) (Pa.Super. 2016) (citations omitted).

At the outset, we note that in its opinion, the trial court explained that

it admitted the evidence because appellant’s 2009 simple assault conviction

for hitting his former girlfriend on the head with a Master Lock was highly

probative of intent, as appellant claimed that the victim in this case and her

male companion robbed him and that the victim likely sustained her injuries

during that robbery. (Trial court opinion, 6/3/16 at 6.) The trial court also

(2) Permitted Uses. This evidence

may be admissible for another

purpose, such as proving motive,

opportunity, intent, preparation,

plan, knowledge, identity, absence

of mistake, or lack of accident. In

a criminal case this evidence is

admissible only if the probative

value of the evidence outweighs its

potential for unfair prejudice.

....

Pa.R.E. 404(b)(1)-(2).

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found the evidence admissible to show a common plan, scheme, and design

based on the factual nexus between the assaults, which the trial court

determined to be relevant to the issue of intent. (Id. at 6-7).

Here, a close factual nexus exists that sufficiently demonstrates the

connective relevance of the 2009 assault and the assault that is the subject

of this appeal. The record reflects that at the time of both assaults, both

victims had been in a romantic relationship with appellant that had ended.

Additionally, in both assaults, appellant pulled an object out of his pocket

and struck the victim on or about the head, causing the victim to sustain

injury. Moreover, as noted by the trial court at the motion in limine

hearing, “the fact that there was violence in ending the relationship [seems

to be] the same thing here.” (Notes of testimony, 2/10/14 at 8.) Indeed,

defense counsel acknowledged that “it’s very similar.” (Id.) And although

defense counsel would not concede admissibility, she admitted to having

“little argument” against the admission of this evidence. (Id.)

With respect to the balancing of the probative value of this evidence

against its prejudicial impact, we note that in its opinion, the trial court did

not balance the two. We further note that appellant lodges numerous

complaints in his brief regarding the prejudicial impact that he suffered as a

result of the admission of this evidence. Because appellant was tried in a

waiver trial, however, we presume that the trial court, sitting as fact-finder,

ignored any potentially prejudicial evidence and remained objective in

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weighing all of the evidence in order to render a true verdict. See

Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa.Super. 2001)

(reaffirming that “it has long been held that trial judges, sitting as

factfinders, are presumed to ignore prejudicial information in reaching a

verdict” (citation omitted)). We discern no abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2017

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