Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA v.

STEPHEN L. MASTEN,

Appellant No. EDA 2016 Appeal from the Judgment of Sentence February 22, 2016 the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0005766-2014 BEFORE: OLSON, SOLANO and MUSMANNO, JJ. FILED MAY 05, 2017

MEMORANDUM BY MUSMANNO, J.: Stephen L. ("Masten") appeals from the judgment of sentence imposed jury convicted him of attempted murder, aggravated assault, criminal conspiracy, burglary.' We affirm. trial court set forth relevant facts underlying this appeal as

follows:

On May 6, David Phillips (herein "[the] victim") was assaulted [Masten] and his co-conspirator, Frank Cassiano [("Cassiano")], [while victim was asleep residence, located at] 5928 Shisler Street [in Philadelphia]. Around 10:30 p.m. [], [the victim] awoke to the sound of footsteps and saw [Masten] Cassiano turn on his bedroom lights and say, "We're going to kill you motherfucker." Cassiano hit the victim's head with foot -long military shovel. [Masten] then strangled while went through victim's belongings. Afterwards, [Masten] again strangled the with piece of cloth, then smothered him pillow. During the tussle, the heard [Masten] ask Cassiano help. The victim resisted, using blackjack [Masten]. yanked the blackjack out of the hand while Cassiano held victim 1- See Pa.C.S.A. §§ 901(a), 2702, 903, 3502. [Masten] then placed his thumbs into the eyes

down. and said "... we're going to kill you." The victim testified that his "eye -balls popped and the fluid popped out [his] eyes." He heard [Masten] say, "I blinded that fucking bastard." [Masten] and Cassiano then laughed[,] and [Cassiano] screamed they left, "Remember who did this to you motherfucker ... we hope you die motherfucker." The victim eventually felt his way out of house and asked a neighbor to call police.

The victim sustained substantial injuries. He received 52 staples on his head at Einstein Hospital, lost his pupil in his right eye, and his left eye's color changed from green to blue. He is permanently blinded in both eyes and sustained a permanent scar the top center of his head to his eyebrows. The victim received treatment Wills Eye Institute for two months before he was released nursing home Montgomery County for two months. He then attended Colorado Center for Blind for ten months and consulted psychologist for his depression for a period of time. called several witnesses testify.

Joseph Hamer [("Hamer")], Cassiano's second cousin, testified that [Masten] told him that "your cousin have nothing worry about ... if anything, I'll take the rap." [According to Hamer, Masten] had also mentioned "wanting do something [the victim]" weeks. Furthermore, Wilbert Lauer, victim's roommate and landlord, testified there been ongoing problems between the and [Masten]. On the night of the incident, he testified he came home to "kicked -in or pushed -in" front door. Detective Erika Griffin testified that front door was kicked in[,] investigators found front door bolt "jimmied" open.

Michael Cook [("Cook")], acquaintance to both [Masten], testified [Masten] stayed his house approximately two weeks this incident. [Masten] told Cook "poked [the victim's] eye out" felt his late wife "looking down him smiling." Cook immediately asked to leave house. Within two closet that weeks, Cook found black bag stashed belonged to [Masten], [contained] bomber jacket distinctive white supremacy patch,[2] boots, pants. Forensic investigators found DNA evidence matching the Cassiano, on the bomber jacket. The jacket matched description of [that Masten been wearing on date of attack] provided by the victim.

Trial Court Opinion, at 2-4 (footnote added, citations to record omitted).

The police arrested Masten residence few weeks attack. The thereafter charged him above - mentioned offenses. The matter proceeded to jury trial, at the close of which the jury convicted Masten of all counts. On February 2016, the trial court sentenced Masten an aggregate prison term of 40 to 80 years. timely filed Notice of Appeal, followed court -ordered Pa.R.A.P. 1925(b) Concise Statement Errors Complained of on Appeal. The trial court then issued Pa.R.A.P. 1925(a) Opinion.

Masten now presents the following issue our review: "Is [Masten] entitled arrest judgment the charge of attempted murder testified he, Masten, were all members of groups associated with white supremacist views.

- 3 - burglary,[3] where the evidence insufficient to sustain the verdict?" Brief Appellant 3 (footnote added).

Our standard of review of a sufficiency of the evidence claim is well settled:

Our standard of review is whether the evidence admitted trial, and all reasonable inferences drawn evidence, when viewed in light most favorable to the Commonwealth as verdict winner, w[as] sufficient to enable fact[ -]finder to conclude the Commonwealth established all of the elements of the offense beyond a reasonable doubt.

Commonwealth v. Cruz, 71 A.3d 1006 (Pa. 2013) (citation brackets omitted).

This Court has outlined what the Commonwealth must prove in order to sustain conviction for attempted murder follows:

Under Crimes Code, "[a] person commits an attempt when[,] with intent to commit specific crime, he does any act which constitutes substantial step towards the commission of the crime." Pa.C.S.A. § 901(a). A person may be convicted of attempted murder if takes substantial step toward the commission of killing, with the specific mind to commit such an act. The substantial step test broadens scope of attempt liability concentrating on acts defendant has done[,] does not any longer focus acts remaining be done before the actual commission of the crime. mens rea required for first -degree murder, to kill, may be established solely from circumstantial evidence. The Though Masten's Statement Questions Involved section purports challenge the sufficiency of the evidence supporting his burglary conviction, Argument section challenges only the attempted murder conviction. Accordingly, has waived any challenge burglary conviction. See, e.g., Johnson, 985 A.2d 915, 924 2009) (stating "where appellate brief fails provide any discussion claim with citation relevant authority or fails develop the issue any other meaningful fashion capable of review, that claim is waived.")

law permits the fact[ -]finder infer one intends the natural and probable consequences of acts[.]

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008) (quotation marks some citations omitted).

In the context of sufficiency of the evidence claim concerning attempted murder, this Court has explained that

[as] intent is subjective frame of mind, it is of necessity difficult of direct proof. We must look all the evidence establish intent, including, but not limited to, [the] appellant's conduct it appeared eyes. ... Moreover, depending on circumstances[,] even single punch may be sufficient.

Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (citation brackets omitted); see also Commonwealth v. Chambers, 980 A.2d 35, 47 (Pa. 2009) (stating that "the intent to kill can be formed fraction second ...."). "Specific intent can be proven where the defendant knowingly applies deadly force person another." Stokes, A.3d 2013) (citation omitted).

Here, Masten challenges only the specific element of attempted murder, asserting although he "had fully formed the intent attack victim[], [] record itself, he did not have victim[,] we know from the things said at the scene of the offense." Brief for Appellant 8. Specifically, Masten emphasizes the victim's testimony that, when were leaving victim's house the brutal attack, "heard [Cassiano] scream 'Remember who did this you motherfucker,' and [Masten] laughing[f] and they said as they were leaving, 'We hope you die motherfucker.' Id. at 10 (quoting N.T., at 22). According to Masten,

if [Masten and Cassiano] wanted [the victim] remember who did this him, then [the victim] would have to survive and live. [The victim] was conscious and alive at the time that [Masten and Cassiano] left. That is completely inconsistent with having to kill. Brief Appellant 10. Finally, argues that "even though the actions taken were gross and heinous, it does not follow, a fortior[]i, that anyone was trying [the victim] popping eyes out." Id. 11; see also id. (asserting "[t]here ... was a shovel or pipe present[,] the attack with either of those weapons, [] if kept up, would have split open skull of [the victim] and would have bled out at the scene. However, [Masten Cassiano] did not undertake those actions.").

In its Opinion, the court determined the Commonwealth presented "ample evidence" Masten possessed reasoning as follows: used his bare hands, a piece cloth, a pillow to

strangle smother victim. He also gouged out the eyes, leaving to bleed profusely. Cassiano's use shovel as deadly weapon is imputed [Masten] well. See Phillips, A.2d 103, 114 2008) (holding conspirator's use of deadly weapon[] was imputable co[-]conspirator because weapon defendant's immediate vicinity accessible during crime). Further, shovel is considered "deadly weapon" under Pa. Code § 303.10, which defines deadly weapon include "any device, implement, or instrumentality ... capable of producing death or serious bodily injury[,] where the court determines that the offender intended use the weapon to threaten or injure another individual." Here, Cassiano hit the victim's head, indisputably vital part of the body, with shovel. This evidences specific intent See to kill. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645 (2008) (holding the finder fact [a] prosecution first - degree murder may infer the defendant the specific intent kill the based on the defendant's use deadly weapon upon vital part of the victim's body.)

Trial Court Opinion, (footnote citations moved to body, citations to record omitted). We agree court's reasoning determination.

Masten's using thumbs to gouge eyeballs out, strangling him, then leaving him seriously injured, permanently blind, bleeding profusely, was independently sufficient prove Masten intended victim. See, e.g., Chambers, 980 A.2d at 47-48 (holding evidence was sufficient establish specific to kill where the defendant repeatedly beat three -year -old victim, threw her into metal radiator, struck her head, leaving her to suffocate); Commonwealth Shank, 883 A.2d 2005) (stating there sufficient evidence establish specific where the unarmed defendant participated with other men severely beating the about the head and face numerous times, which fractured skull caused brain hemorrhaging).

Moreover, Masten's statements victim unequivocally See v. intent communicated Masten's to kill. Hornberger, 270 A.2d 195, 198 1970) (stating jury may find intent to kill defendant's words, conduct of the defendant, attendant circumstances). Specifically, the victim testified that, while Masten was gouging eyeballs, Masten had said "we're going to kill you." N.T., 10/15/15, 18; see id. (wherein the stated Masten Cassiano, upon first entering the room, had both stated "we're going to kill you motherfucker.").

Finally, contrary Masten's claim, the jury was under no obligation to (1) accept purportedly stated upon leaving scene, "Remember who did this to you motherfucker," N.T., at 22; or (2) find Cassiano's purported statement this regard to be indicative of Masten's victim, was clearly established by Masten's brutal conduct express words.

Accordingly, viewing the evidence light most favorable to the Commonwealth verdict winner, there ample evidence allowing jury to conclude acted the specific convict him of attempted murder. Thus, Masten's challenge the sufficiency of the evidence fails.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/5/2017