Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

THOMAS RICHARD BRADLEY DAVIS,

Appellant No. MDA 2016 Appeal from the Judgment of Sentence June 27, 2014 the Court of Common Pleas of York County Criminal Division at No.: CP- 67 -CR- 0007931 -2013 BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.* FILED JANUARY 17, 2017

MEMORANDUM BY PLATT, J.:

Appellant, Thomas Richard Bradley Davis, appeals from judgment of sentence imposed June 27, following conviction of two counts each aggravated assault- attempted injury, simple assault, following an attack two victims.' Specifically, he challenges the sufficiency of the evidence support jury's guilty verdicts for both counts of aggravated assault- attempted to cause serious bodily injury. We affirm. court aptly set forth the facts of this case its July 22, 2016

opinion, follows.

[*] Retired Senior Judge assigned to the Superior Court.

' Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), respectively

In the instant case, the jury heard that witness, Melissa Hess, was awoken by loud noise around 1:30 the morning and, after hearing people yelling, . . proceeded outside to . smoke. The witness then observed three individuals heckling two men as they walked to their home, which was diagonally across the street from the witness' home. . . The witness . testified that . . [the] three men proceeded to the victims' . location and began throwing punches and kicking the victims when they collapsed. They jury heard that all three aggressors crossed the street together.

The witness testified that [Appellant's] codefendant threw both of the punches that felled the victims. Once the victims dropped, the witness testified that all three of the assailants kicked the victims. After the initial onslaught, which the witness testified lasted some minutes, the assailants proceeded home before one of the assailants returned dump refuse on It was then testified that, at this point, all victims' bodies. three assailants resumed kicking the victims. The witness told the jury that there was streetlight right outside her home that she was able to see the events very clearly. The witness stated that the victims were never aggressive. witness the events told the jury that she was able inform law enforcement which home the assailants had to relocated to and their general descriptions. Moreover, as far as the codefendants on trial, jury heard that the witness able to positively identify them the evening of the event. only victim who appeared at trial, George Williams,

testified that he recalled telling the assailants he could not hear them then he saw boots sneakers kicking him. During trial, Mr. Williams identified both codefendants being assailants. A stipulation was later read jury that Mr. Williams unable identify [Appellant] preliminary hearing.

Officer [Clayton] Glatfelter testified upon arrival, found the victims partially lying atop one another covered large amounts trash. Both victims appeared be in unconscious. Officer Glatfelter told the there so much blood had be careful not to step any of it. Mr. Williams told Officer [Daniel] Kling one of the suspects lived across street. Officer Kling found [Appellant] pacing kitchen residence pointed out Mr. Williams. Officer

-2-

J-S87014-16 [Michael] Ebersole told the jury that when [Appellant] was found in the kitchen, he was washing his hands and was reluctant to come when called by the officers. There was a bloodstain sole of [Appellant's] boot, which [Appellant] stated was from working construction. Officer Kling testified that [Appellant] stated he had attempted to stop two individuals beating the victims, but threatened with knives upon trying to intervene. The jury heard that this story was contradicted by to Officer Kling, prior statements [Appellant] made to Miranda[2] warnings, that [Appellant] had stayed in his home and never approached the altercation. doctor who treated Jack Corbin[, Dr. Daniel Carney,

M.D., Ph.D.,] ... told the jury that Mr. Corbin had a swollen face and incontinent at the time of treatment. . . doctor . testified that Mr. Corbin did sustain facial fractures in frontal sinus, complex nasal fracture, and maxillary fracture. The jury heard that these sorts of injuries can result in numbness . The jury informed that and loss of motor function. . . bones broken in Mr. Corbin are some of the more durable ones the face and that they would result from either the impact of a large object or multiple blows.

As far as Mr. Williams' injuries, the doctor informed the jury Mr. Williams suffered broken mandible with associated hematoma. . In the doctor's experience, he has . . seen injuries like those Mr. Williams suffered associated with significant insignificant head injuries; but, that, ultimately, concern is underlying brain injury. Mr. Williams had a gash stitched back head. Mr. Williams testified that has lasting effects of the broken jaw, because he cannot afford to have it fixed. The heard from Mr. Williams his speech has been affected little experiences pain when eating hard foods.

(Trial Court Opinion, 7/22/16, 4 -8) (record citations footnote omitted; emphases original). Miranda Arizona, U.S. (1966).

J-S87014-16

At the conclusion of trial, the jury found Appellant guilty of two counts each of aggravated assault- attempted serious bodily injury, simple assault.3 On June 27, 2014, the court sentenced Appellant two concurrent terms of not less than seven nor more than fourteen years of a state correctional institution.4 This timely appeal incarceration followed.5

Appellant raises three issues for this Court's review.

1. Whether the Commonwealth's evidence at trial sufficient support the jury's verdict finding the Appellant [sic] guilty of aggravated assault, specifically the Appellant participated principal, accomplice, or co- conspirator assault against the complainants?

[3] On verdict slip, found Appellant guilty of aggravated assault caused serious bodily injury- George Williams, but found him guilty of aggravated assault attempted to cause injury- George Williams. (See Verdict Slip, 5/07/14; see N.T. Sentencing, 6/27/14, at 2) trial court merged the simple assault counts with the aggravated

assault counts for sentencing purposes. (See N.T. Sentencing, 6/27/14, at 2) On May 26, 2015, this Court dismissed Appellant's first direct appeal for

lack of counseled brief from Appellant. After appeal rights were reinstated court on September 28, 2015, Appellant filed second notice of appeal. On April 13, 2016, this Court again dismissed Appellant's appeal because no brief filed on his behalf. Appellant's appeal rights were again reinstated on June 17, 2016. On July 2016, Appellant filed a notice appeal together with concise statement of errors complained of appeal. See Pa.R.A.P. 1925(b). court issued its opinion on July 22, 2016. See Pa.R.A.P. 1925(a).

J-S87014-16

2. Whether the Commonwealth's evidence at trial sufficient jury's verdict finding that the Appellant to support the specifically intended to injury?

3. Whether the court erred in denying the Appellant's post - sentence motion challenging the sufficiency of the Commonwealth's evidence to support the jury's verdict?

(Appellant's Brief, at 3) (unnecessary capitalization omitted).

Our standard of review of a challenge to the sufficiency of the evidence is well-settled:

In reviewing sufficiency of evidence claims, we must determine whether the evidence admitted trial, as well as all reasonable inferences drawn therefrom, when viewed the light most favorable verdict winner, are sufficient to support all the elements of the offense. Additionally, sustain a conviction, facts circumstances which the and Commonwealth must prove, must be such every essential element of the crime is established beyond a reasonable doubt. Admittedly, guilt must be based on facts conditions proved, not suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the combination of the evidence links accused the crime beyond reasonable doubt. Any doubts regarding defendant's guilt may be resolved fact -finder unless evidence is so weak inconclusive that as matter law no probability of fact may be drawn from the combined circumstances. fact finder is free believe all, part, or none of the evidence presented at trial.

Commonwealth Moreno, A.3d 133, 136 (Pa. Super. 2011), appeal denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).

In Appellant's first two issues, which we have combined our analysis, challenges the sufficiency of the evidence support his aggravated assault convictions. (See Appellant's Brief, at -18). Specifically, claims evidence sufficient prove he participated the assault principal, accomplice, or co- conspirator,

J-S87014-16 did not prove intended to cause serious bodily injury. (See id.). We disagree.

Pursuant Pa.C.S.A. § 2702(a), person commits aggravated assault when he

(1) attempts serious bodily injury another, or causes injury intentionally, knowingly or such recklessly under circumstances manifesting extreme indifference the value of human life[.] Pa.C.S.A. § 2702(a)(1). Commonwealth, sustaining an aggravated assault

conviction, need only show defendant attempted cause serious bodily injury another, serious bodily injury actually occurred. Attempt, for aggravated assault purposes, is found where the accused intentionally acts manner which constitutes substantial or significant step toward perpetrating serious bodily injury upon another... .

Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001), appeal denied, 803 A.2d 733 (Pa. 2002) (citations, quotation marks, footnote omitted). Commonwealth may prove defendant intended to cause serious bodily injury circumstantial evidence. See Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008); see also Commonwealth Rodriquez, 673 A.2d -67 (Pa. Super. 1996), appeal denied, 692 A.2d 565 (Pa. 1997) (holding that jury could infer intent to cause injury from evidence appellant confederates punched kicked lone victim while victim ground).

J-S87014-16

Here, the evidence at trial established that an eyewitness saw three individuals assaulting Mr. Williams and Mr. Corbin. The assailants crossed the street then proceeded to attack their victims, kicking Mr. Williams while he lay his front porch. (See N.T. Trial, 5/05/14, at 83 -84). Then, after the first attack, the individuals returned to the victims began (See id. at 86). evidence at also clearly kicking them again. established that Appellant participated in the attack. eyewitness who called police identified Appellant one of the assailants involved in attack, Mr. Williams identified Appellant trial. (See id. at -89, 108- 09). The free believe all, part, or none of this testimony. See Moreno, supra 136.

Considering the foregoing evidence light most favorable Commonwealth, we conclude trial court properly found it was sufficient support Appellant's convictions for aggravated assault. See id.; Galindes, supra at 1012; Rodriguez, supra at 966 -67. Appellant's challenges to the sufficiency of the evidence do merit relief.

In his final issue, Appellant claims because the evidence insufficient support his convictions, the trial court erred denying his motion for post -trial relief. (See Appellant's Brief, at 19). Appellant offers no substantive argument support his claim, but rather argues is entitled relief "[f]or same reasons presented" his previous arguments. (Id.). As such, has waived third issue. See Pa.R.A.P. 2119(a); see Commonwealth Buterbaugh, A.3d 1247,

-7-

J-S87014-16 (Pa. Super. 2014), appeal denied, 104 A.3d (Pa. 2014) ( "The Pennsylvania Rules of Appellate Procedure require each question an appellant raises be supported discussion analysis of pertinent authority, failure do so constitutes waiver of the claim. ") (citations omitted). Moreover, because we have concluded evidence sufficient support Appellant's convictions, claim would not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 1/17/2017