Com. v. Wins, K. ( 2022 )

J-A26015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KURT WINS :
:
Appellant : No. 2134 EDA 2021
Appeal from the Judgment of Sentence Entered October 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000822-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KURT WINS :
:
Appellant : No. 2135 EDA 2021
Appeal from the Judgment of Sentence Entered October 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000823-2020
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 9, 2022
Kurt Wins appeals from the October 8, 2021 judgments of sentence
which imposed an aggregate sentence of six to fifteen years of imprisonment
stemming from convictions at the above captioned docket numbers. We
affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The trial court offered the following summary of the facts underlying
Appellant’s convictions:
Nadia Butler was married to Appellant in May of 2019. They
had been together for about two years prior to the marriage. After
the marriage they were together for approximately nine months,
before separating, then briefly getting back together. They have
only one child together, [who Ms. Butler was seven months
pregnant with at the time the events for which Appellant was
charged took place]. . . . They were . . . divorced by early January
2020.
Around New Year’s 2020, Ms. Butler received a call from a
woman she knows as Latoya, who she described as Appellant’s
godmother or “play mom.” On January 3, 2020, Ms. Butler went
to Latoya’s home on Bouvier Street in Philadelphia. As Ms. Butler
came around the corner near Latoya’s [residence], she spotted
Appellant sitting on the steps, talking on the phone. As Ms. Butler
turned to leave, Appellant grabbed her by the hair and punched
her in the face.
At that point a woman named Geneva, . . . then-current
girlfriend of Appellant, arrived on the scene in a vehicle. She
jumped out and joined Appellant in hitting Ms. Butler, including
holding Ms. Butler down as Appellant repeatedly kicked her in the
stomach. . . . As Appellant was kicking Ms. Butler, he threat[en]ed
to kill her and her baby. Appellant had a gun, with which he struck
Ms. Butler in the face. At one point a bystander attempted to
intervene and assisted Ms. Butler. During the incident, Appellant
took Ms. Butler’s pocketbook, money, and various cards and
identification.
At some point[,] Officer Brandon Dugan responded to a
radio call and met Ms. Butler at West Erie and North Bouvier. He
observed her to be very distraught and upset. He observed visible
marks under and around her right eye . . . . Ms. Butler
subsequently spoke with [Detective Curtis Matthews who] took
photographs of Ms. Butler’s injuries, including of abrasions on her
belly.
On January 8, 2020, Ms. Butler was leaving a girlfriend’s
house, headed toward her grandmother’s [home], when she
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encountered Appellant at the intersection of Erie and Bouvier in
Philadelphia, at about 1:00 AM. Appellant came up behind Ms.
Butler, grabbed her by the hair, swung her around by her hair,
struck her in the head with a gun, and struck her repeatedly in
the face and upper body. Appellant then threat[en]ed to kill Ms.
Butler. . . . Ms. Butler broke free and was running away when she
heard two gunshots. She then felt the bullet which grazed her
leg.
Following the incident Ms. Butler met with Police Officer
Shawn Ciaurro, who responded to the scene based on a radio call.
Ms. Butler told the officer she had been hit in the head. After
speaking with Ms. Butler, Officer Ciaurro transported her to the
Detective Division, where she met with Detective [William]
Lackman. The detective took photographs of some of her injuries.
Ms. Butler told Detective Lackman about Appellant possessing a
gun and a shot being fired, as a result of which he canvassed the
scene looking for evidence of a gunshot. Either before or after
meeting with Detective Lackman, Ms. Butler went to Temple
Hospital where she was examined, treated and released. The
medical records show that at Temple Ms. Butler complained that
she had been pistol-whipped, hit in the head, and fell on her wrist
and knee. The medical examination showed positive for
headaches and loss of consciousness, no facial trauma or
abrasions, no other abrasions or lacerations.
[Sometime after the second incident the victim obtained a
protection from abuse order against Appellant.] On January 20,
2020, Police Officer Donald Pancoast went to a house on North
Bouvier Street to serve [the] protection from abuse order. When
he arrived at the scene Officer Pancoast spoke to a woman who
confirmed that Appellant was present. The officer saw Appellant
and proceeded to enter the house, at which time Appellant ran
down the steps into the basement. When Appellant came back
upstairs after a minute or two, he was taken into custody.
Trial Court Opinion, 4/8/22, at 2-4. Appellant was arrested and charged at
CP-51-CR-000822-2020 (“the January 3rd incident”) with aggravated assault,
conspiracy, theft by unlawful taking, simple assault, and aggravated assault
of an unborn child and at CP-51-CR-000823-2010 (“the January 8th incident”)
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with aggravated assault, robbery, possession of a firearm, firearms not to be
carried without a license, carrying firearms in public, theft by unlawful taking,
terroristic threats, simple assault, and recklessly endangering another person.
On August 3, 2021, Appellant proceeded to a jury trial. For the January
3rd incident, he was convicted of aggravated assault, conspiracy to commit
aggravated assault, theft by unlawful taking, and simple assault. For the
January 8th incident, he was convicted of simple assault and recklessly
endangering another person. Appellant was acquitted of the remaining
charges. On October 8, 2021, Appellant received an aggregate sentence of
six to fifteen years of incarceration. Appellant did not file a post-sentence
motion but did submit separate timely notices of appeal which we
consolidated. Both the trial court and Appellant complied with the mandates
of Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether there was sufficient evidence to sustain convictions
for aggravated assault and whether conviction for that
offense was against the weight of the evidence.
2. Whether there was sufficient evidence to sustain convictions
for conspiracy-aggravated assault and whether conviction
for that offense was against the weight of the evidence.
3. Whether there was sufficient evidence to sustain a
conviction for theft by unlawful taking of movable property
and whether conviction for that offense was against the
weight of the evidence.
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Appellant’s brief at 5 (unnecessary capitalization removed).1
We first consider Appellant’s sufficiency challenges for the January 3rd
aggravated assault, conspiracy, and theft. See Appellant’s brief at 31-40.
Regarding aggravated assault, he claims that the evidence was insufficient to
prove that he “did not care whether [the victim] lived or died.” Id. at 35.
Relating to the conspiracy charge, he alleges that there was “no evidence of
a shared criminal agreement.” Id. 38. Finally, Appellant attacks his theft
conviction on the grounds that the evidence did not show he intended to keep
the victim’s belongings after he retrieved them from the ground. Id. at 40.
Our scope and standard of review when considering challenges to the
sufficiency of the evidence are well settled:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
____________________________________________
1 Although Appellant has appealed both docket numbers, his claims and
arguments relate only to the convictions that resulted from the January 3rd
incident. Therefore, we affirm the judgment of sentence that resulted from
the January 8th incident without further discussion.
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Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017)
(citations and quotation marks omitted).
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)(1). “Serious bodily injury” has been
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. An
“attempt” is found where an “accused who possesses the required, specific
intent acts in a manner which constitutes a substantial step toward
perpetrating a serious bodily injury upon another.” Commonwealth v. Gray,
867 A.2d 560, 567 (Pa.Super. 2005). “A person acts intentionally with respect
to a material element of an offense when . . . it is his conscious object to
engage in conduct of that nature or to cause such a result[.]”
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012). Since
there is rarely direct evidence of the defendant’s intent, intent ordinarily must
be proven through circumstantial evidence and inferred from acts, conduct or
attendant circumstances. Commonwealth v. Fortune, 68 A.3d 980, 984
(Pa.Super. 2013). Accordingly, whether a defendant acted with the necessary
intent to sustain an aggravated assault conviction is evaluated based on the
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totality of the circumstances, including the defendant’s use of a weapon to aid
his attack and his statements before, during, or afterwards. Id.A person is guilty of conspiracy with another person to commit a crime
if, with the intent of promoting or facilitating its commission, he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such crime
or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
18 Pa.C.S. § 903(a). Accordingly, to sustain a conviction of criminal
conspiracy to commit aggravated assault, the Commonwealth must establish
intent to commit or aid in the commission of aggravated assault, an
agreement with a co-conspirator, and an overt act in furtherance of the
conspiracy. Id. We have held that “acting together before, during, and after
an attack on another individual suffices to show a unity of criminal purpose
for purposes of sustaining a conviction for criminal conspiracy to commit
aggravated assault.” Commonwealth v. Thomas, 65 A.3d 939, 945
(Pa.Super. 2015) (finding evidence that the attackers were close friends,
punched the victim simultaneously, and walked away together was sufficient
to establish a conspiracy to commit aggravated assault conviction).
Theft by unlawful taking, under the subsection charged here, occurs
when a person “unlawfully takes, or exercises unlawful control over, movable
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property of another with intent to deprive [the other] thereof.” 18 Pa.C.S.
§ 3921(a). The Crimes Code defines “deprive” as the following:
(1) To withhold property of another permanently or for so
extended a period as to appropriate a major portion of its
economic value, or with intent to restore only upon payment of
reward or other compensation; or
(2) to dispose of the property so as to make it unlikely that the
owner will recover it.
18 Pa.C.S. § 3901.
Here, the evidence, viewed in the light most favorable to the
Commonwealth, overwhelmingly supports Appellant’s aggravated assault,
conspiracy to commit aggravated assault, and theft convictions. Through the
victim’s testimony, the evidence established that Appellant and his girlfriend
physically attacked the pregnant victim, repeatedly punching her in the head
and kicking her in the stomach. See N.T. Jury Trial, 8/3/21, at 52-62. During
the ongoing assault, Appellant made various statements indicating his desire
to kill the victim and her unborn child. See id. at 63 (“[F]uck you bitch. I’m
going to kill you and this baby today.”). Thus, the evidence was sufficient to
establish that Appellant intended to inflict serious bodily injury to the victim
while acting in concert with his co-conspirator. See Fortune, supra at 984;
see also Thomas, supra at 945. Afterwards, Appellant retrieved the victim’s
credit card, cash, and cell phone and drove away, never returning these items
to the victim. See N.T. Jury Trial, 8/3/21, at 69-70. Accordingly, the evidence
was sufficient to establish that Appellant took the victim’s personal belongings
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with the intent to deprive her of them. We find the victim’s testimony was
sufficient to establish the aggravated assault, conspiracy, and theft
convictions. See Commonwealth v. Johnson, 180 A.3d 474, 579
(Pa.Super. 2018) (establishing that a single witness’s testimony, alone, may
be sufficient to establish every element of a criminal offense so long as the
testimony “speaks to each element, directly and/or by rational inference”).
At the end of each argument section challenging the sufficiency of the
evidence, Appellant included a single sentence alleging that the verdicts were
also against the weight of the evidence. See, e.g. Appellant’s brief at 35
(“Furthermore, under these circumstances, the weight of the evidence did not
suggest such indifference to his former wife’s pregnant life.”).
It is well settled that: “[a] weight of the evidence claim must be
preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Failure to properly preserve the
claim will result in waiver, even if the trial court addresses the issue in its
opinion.” See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.Super.
2014) (citations omitted). Herein, Appellant raised this claim for the first time
in his Pa.R.A.P. 1925(b) statement. Accordingly, this claim is waived. See
Pa.R.Crim.P. 607(A); Thompson, supra at 490.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
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