Com. v. Bolshakov, I.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
IVAN BOLSHAKOV, No. 1063 EDA 2018
Appellant
Appeal from the Judgment of Sentence, March 5, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0001834-2017
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 23, 2019
Ivan Bolshakov appeals from the March 5, 2018 judgment of sentence
entered in the Court of Common Pleas of Delaware County after a jury
convicted him of simple assault, retail theft, and possession of drug
paraphernalia.' The trial court sentenced appellant to a term of incarceration
of one day to two years less one day on the simple assault conviction, followed
by a two-year probationary term for the remaining convictions.2 We affirm.
The trial court set forth the following:
Ashai Mathurin had been employed by Rite Aid as a
Loss Prevention agent for about four years at the time
of the incident. On February 8, 2017, in the early
' 18 Pa.C.S.A. §§ 2701(a)(4) and 3929(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.
2 We note that at the time of sentencing, the trial court found appellant eligible
for parole and immediately paroled appellant.
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afternoon hours, he was working at the Rite Aid on
69th Street in Upper Darby. On that day, he observed
[appellant] come into the store with a backpack and
conceal random items in his backpack in a cart. While
still in the store, Mr. Mathurin confronted [appellant]
and asked him why he was stealing. [Appellant]
responded in English saying he was sorry and asking
Mr. Mathurin not to call the police. Mr. Mathurin then
escorted [appellant] to the loss prevention office to fill
out an external loss prevention incident report.
[Appellant] claimed to have no identification. As a
result, Mr. Mathurin was not able to identify
[appellant] to complete the report. As part of that
process, Rite Aid generated a receipt for the items that
were in [appellant's] backpack. The receipt came to
a total of $109.13. Mr. Mathurin then called the Upper
Darby Police to report the incident.
Officer Francis Devine is employed by the Upper Darby
Township Police Department as a patrolman. He
received a call to respond to the Rite Aid store at
123 South 69th Street. Officer Devine was informed
that loss prevention had a cooperative subject in
custody and they needed assistance with identifying
the subject for their paperwork. When Officer Devine
arrived at this Rite Aid, he made contact with a loss
prevention officer who directed him to the manager's
office. He advised Officer Devine they had a subject
that passed all points of sale and took numerous
items. The Rite Aid employees were trying to
complete their in-house paperwork and had no way of
identifying the subject. So they asked Officer Devine
if he could obtain the subject's identity through the
police database. The loss prevention officer then
directed Officer Devine to [appellant]. Officer Devine
asked [appellant] his name, date of birth, and his
address. [Appellant] apologized for taking the items.
Officer Devine advised [appellant] that he was there
to check on his identification and that it was his belief
Rite Aid just was going to bar him from the store.
[Appellant] provided Officer Devine with a name and
date of birth. Officer Devine ran the information
through NCIC[,] and it came back with no record
found. Officer Devine concluded that either
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[appellant] has never been through the system or the
information [appellant] provided was fraudulent.
During their conversation, [appellant] was responding
in English. Officer Devine believed [appellant]
understood everything he asked him. During the
conversation[, appellant] indicated he was sorry and
regretted committing a theft. He further stated he
was from a different country. He also told the officer
that he has a wife and a 6 -year -old daughter and that
he was embarrassed he would do this to them. Their
conversation in English lasted for a couple minutes.
After Officer Devine determined he couldn't verify the
identifying information [appellant] was providing him,
he advised [appellant] he was going to be handcuffed
and brought to the police station for purposes of
identification. [Appellant] then stood up, put his
hands behind his back and allowed Officer Devine to
place handcuffs on him. Officer Devine observed that
[appellant] was complying with everything he asked
him to do. Officer Devine believed [appellant] fully
understood everything being said to him.
It is Upper Darby Township Police Department policy
that everyone who is placed into custody or is
transported in a police car is patted down for
weapons. It is Officer Devine's practice every time he
makes an arrest or transports an individual to ask
them if they have anything on them he should worry
about. He asks the same question each time; "Do you
have any drugs, guns, bombs, bodies, any knives,
weapons, anything that's going [to] poke me, stick
me, or hurt me." Officer Devine asked [appellant] the
same question in this case. [Appellant] replied that
he had nothing on him that would hurt Officer Devine.
Officer Devine then began a pat down of [appellant].
[Appellant] had a large puffy down feather type jacket
with two large pockets in the front that were buttoned
together. Officer Devine could tell from the outside
that something was in the pockets. Officer Devine
started to undo the button to look inside the pocket.
When Officer Devine grabbed the fabric of the jacket,
he felt a puncture in his hand. Officer Devine looked
down and saw an uncapped hypodermic needle
sticking out of the fabric. Officer Devine then took a
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knife out and cut the pocket open. Inside the
pocket[,] he recovered a used hypodermic needle, as
well as a metal bottlecap that had an off-white residue
and cotton inside of it. After being stabbed by the
needle, Officer Devine sat [appellant] back down while
he was handcuffed and went into the Rite Aid and took
a bottle of rubbing alcohol and began cleaning his
hands. Officer Devine then requested additional
officers to come to continue handling the scene.
Officer Devine later took himself to the hospital for
exposure treatment.
Officer John Millison is employed by the Upper Darby
Township Police Department as a Patrolman.
Officer Millison responded to the Rite Aid to assist
Officer Devine. Officer Millison took custody of
[appellant] while Officer Devine went to the hospital.
Officer Millison was present while the loss prevention
officer was talking to [appellant]. The loss prevention
officer was asking [appellant] his name and all the
other questions on the loss prevention form.
[Appellant] responded to each question in English. At
no time during the conversation did [appellant]
indicate he didn't understand English or that he
needed an interpreter.
Officer Charles Peterson is employed by the Upper
Darby Township Police Department as a Patrolman.
He transported [appellant] to the police station. Prior
to the transport, Officer Peterson explained to
[appellant] what he was doing and that he was patting
him down again. During this time[, appellant] was
answering questions and talking to Officer Peterson in
English. At no time did [appellant] indicate he could
not understand. At the [p]olice station[,]
Officer Peterson continued to speak with [appellant]
in English. Officer Peterson asked [appellant] for
biographical information. [Appellant's] responses
were appropriate and responsive to Officer Peterson's
inquiries. Officer Peterson had a back -and -forth
conversation with [appellant] while he was in the
holding cell about consenting to a blood draw.
[Appellant] responded he didn't think there was
anything wrong with his blood but agreed to the blood
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draw. Eventually[, appellant] was transported to the
hospital for a blood draw. At the hospital[, appellant]
stayed in Officer Peterson's custody the entire time.
Officer Peterson witnessed the medical staff talking to
[appellant] about his medical history. The medical
staff spoke with [appellant] in English. [Appellant]
responded to their questions in English. [Appellant]
was in the hospital for an hour and a half. When the
medical staff was not speaking with [appellant],
Officer Peterson was. At no time did [appellant] ask
for assistance with interpretation. At no time during
their hour conversation did Officer Peterson believe
[appellant] could not understand him or had trouble
understanding the English language.
Trial court opinion, 5/30/19 at 2-7 (citations to notes of testimony omitted).
The record reflects that following imposition of sentence, appellant did
not file post -sentence motions. Appellant did, however, file a timely notice of
appeal. The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of filing a
Rule 1925(b) statement, and in accordance with Pa.R.A.P. 1925(c)(4),
counsel filed a statement of intent to file an Anders brief.3 The trial court
then filed a Rule 1925(a) opinion stating that it did not identify any issue of
arguable merit, but that in accordance with Anders procedure, it would await
this court's determination. (Trial court opinion, 6/26/18 at 2.)
Following this court's review of counsel's Anders brief and petition to
withdraw, we concluded that counsel failed to comply with Anders and denied
counsel's petition. Commonwealth v. Bolshakov, No. 1063 EDA 2018,
3 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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unpublished memorandum (Pa.Super. filed February 6, 2019). We instructed
counsel to file either a compliant Anders brief or an advocate's brief within
30 days, at which time we afforded the Commonwealth 30 days to respond.
Appellant's counsel timely filed an advocate's brief, and the Commonwealth
filed a timely response. In his brief, appellant raises the following issue:
The Commonwealth failed to produce sufficient
evidence that [appellant] committed the offense of
Simple Assault pursuant to 18 Pa.C.S.[A.]
§ 2701(a)(4) because the circumstances of the case
and his limited understanding of the English language
raises doubt that he had the requisite mens rea to
intentionally or knowingly commit the acts charged.
Appellant's brief at 7.
At the time this court received counsel's advocate's brief, we did not
have the benefit of the trial court's reasoning in relation to the sufficiency of
the evidence challenge that appellant raises. We, therefore, remanded this
case for the trial court's preparation of a Rule 1925(a) opinion. We have
received the trial court's Rule 1925(a) opinion and are now able to address
appellant's sufficiency challenge on the merits.
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
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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 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 is guilty of assault if he "conceals or
attempts to conceal a hypodermic needle on his person and intentionally or
knowingly penetrates a law enforcement officer . . . during the course of an
arrest or any search of the person." 18 Pa.C.S.A. § 2701(a)(4).
A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances,
he is aware that his conduct is of that
nature or that such circumstances exist;
and
(ii) if the element involves a result of his
conduct, he is aware that it is practically
certain that his conduct will cause such a
result.
18 Pa.C.S.A. § 302(b)(2).
Appellant claims that the Commonwealth failed to prove that appellant
knowingly penetrated Officer Devine because appellant's "limited
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understanding of the English language suggest [sic] that he did not
understand what Officer Devine was saying to him" and "the fact the syringes
were on his person, even if recalled that they were, does not suggest
[penetration] was practically certain." (Appellant's brief at 20.)
In addressing appellant's claim, the trial court explained that
[f]our witnesses testified they interacted with
[appellant] in English. Each witness stated that at no
time did [appellant] ask for assistance with
interpretation. Each witness believed [appellant]
understood them and had no trouble responding
appropriately to their questions in English. From this
testimony the jury concluded [appellant] understood
Officer Devine's instructions and made a knowing
decision not to disclose to Officer Devine he had a
hypodermic needle in his pocket.
Trial court opinion, 5/30/19 at 9-10.
Clearly, the evidence was sufficient to demonstrate that appellant
understood the English language and knowingly decided against informing
Officer Devine that appellant had a hypodermic needle in his pocket.
Additionally, the evidence was sufficient to demonstrate that as a result of
appellant's knowing decision not to disclose to Officer Devine that appellant
had a hypodermic needle in his pocket immediately before Officer Devine
searched appellant's person, appellant was aware that it was practically
certain that his decision would result in Officer Devine being penetrated by
the hypodermic needle.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, it was sufficient to enable the fact -finder to find appellant
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guilty of assault beyond a reasonable doubt because it demonstrated that
appellant knowingly penetrated Officer Devine with a hypodermic needle
during the officer's search of appellant's person.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 7/23/19
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