Com. v. Busby, T.

J-A13024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREE BUSBY :
:
Appellant : No. 1180 EDA 2021
Appeal from the Judgment of Sentence Entered January 22, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004574-2019
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 12, 2022
Appellant, Tyree Busby, appeals from the January 22, 2021 Judgment
of Sentence entered in the Philadelphia County Court of Common Pleas
following his conviction of numerous offenses arising from Appellant’s assault
of his employer, Hartford White. After careful review, we affirm.
The relevant facts, as gleaned from the trial court’s August 25, 2021
Opinion and the Notes of Testimony, and procedural history are as follows.
On May 23, 2019, 73-year-old Mr. White, who operated a cleanout and
removal business, hired 22-year-old Appellant to help him move a
refrigerator. As the two men travelled in Mr. White’s truck from 52nd and
Market Streets in Philadelphia to the site of the refrigerator, they began to
argue about the address and location of the site. Mr. White asked Appellant
to get out of the truck. Appellant responded by punching Mr. White in the
jaw.
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Mr. White stopped the truck, both men stepped out, and Appellant
approached Mr. White, who was disoriented from having been punched in the
face. Appellant then punched Mr. White again, causing him to fall to the
ground. As Mr. White picked himself up, Appellant got into the truck and
drove away without Mr. White. Appellant had never driven the vehicle before
and did not have Mr. White’s permission to do so.
Mr. White ran after Appellant yelling for him to stop. Appellant drove
about 20 feet and stopped the truck. Mr. White then got into the passenger
seat of the truck and Appellant proceeded to drive to City Line Avenue. Once,
while the truck was stopped in traffic, Mr. White reached over and turned off
the engine, and ordered Appellant out of the truck. Appellant again responded
by punching Mr. White in the jaw and restarting the truck’s engine.
Next, Appellant drove to 52nd and Market Streets, where he parked. He
stepped out of the vehicle with the truck’s keys in his hand and demanded
$10 from Mr. White. Mr. White complied with Appellant’s demand for money
in exchange for Mr. White’s keys and Appellant threw the keys on the sidewalk
and walked away.
Mr. White sought treatment for the injuries he sustained to his face the
next day. Appellant’s assault of Mr. White caused Mr. White’s face to swell,
broke Mr. White’s jaw in two places, and broke his dentures, resulting in the
loss of four teeth. Mr. White swallowed at least one of his teeth during the
beating, injuring his throat and limiting him to non-solid foods for a time. At
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the time of trial, more than one year later, Mr. White was still missing four
teeth because he could not afford the dental repairs.
Following this incident, the Commonwealth charged Appellant with
Aggravated Assault, Robbery, Robbery of a Motor Vehicle, Simple Assault,
Recklessly Endangering Another Person (“REAP”), Unauthorized Use of a Motor
Vehicle, Terroristic Threats, Theft by Unlawful Taking, and Receiving Stolen
Property.1 Appellant waived his right to a jury trial, and, on November 4,
2020, the trial court convicted him of the above offenses.2
On January 22, 2021, the court imposed an aggregate sentence of 5 to
10 years’ incarceration. Appellant filed a timely Post-Sentence Motion
challenging the sufficiency and weight of the evidence and the discretionary
aspects of his sentence. Following a hearing, the trial court denied Appellant’s
motion on June 9, 2021.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the trial court err in convicting [Appellant] of [T]heft where
the is no evidence that he intended to deprive [Mr. White] of
his property?
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118 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 3702(a), 2701(a), 2705, 3928(a),
2706(a)(1), 3921(a), and 3925(a), respectively.
2 Only Mr. White testified at Appellant’s bench trial.
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2. Did the trial court err in convicting [Appellant] of [R]obbery
where there was insufficient evidence that he was in the course
of committing a theft?
3. Did the trial court err in convicting [Appellant] of [A]ggravated
[A]ssault?
Appellant’s Brief at 3 (unnecessary language omitted).
Appellant’s issues challenge the sufficiency of the Commonwealth’s
evidence in support of his convictions of Theft, Robbery, and Aggravated
Assault. “A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Our
standard of review is de novo, and our scope of review is plenary.”
Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019).
In reviewing a sufficiency challenge, we determine “whether the
evidence at trial, and all reasonable inferences derived therefrom, when
viewed in the light most favorable to the Commonwealth as verdict winner,
are sufficient to establish all elements of the offense beyond a reasonable
doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). “Further,
a conviction may be sustained wholly on circumstantial evidence, and the trier
of fact—while passing on the credibility of the witnesses and the weight of the
evidence—is free to believe all, part, or none of the evidence.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017). “In
conducting this review, the appellate court may not weigh the evidence and
substitute its judgment for the fact-finder.” Id.-4-
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In his first issue, Appellant asserts that the Commonwealth failed to
present sufficient evidence that Appellant had the requisite mens rea to
commit the offense of Theft. Appellant’s Brief at 8-11.
A person commits the offense of Theft “if he unlawfully takes, or
exercises unlawful control over, moveable property of another with intent to
deprive him thereof.” 18 Pa.C.S. § 3921(a). The Crimes Code defines the
term “deprive” as “[t]o withhold property of another permanently or . . . with
intent to restore only upon payment of reward or other compensation.” Id.
at 3901.
Appellant argues that the Commonwealth presented insufficient
evidence to establish that he intended to permanently deprive Mr. White of
his vehicle. Id. at 8. In particular, Appellant claims that his demand that Mr.
White pay him $10 was not evidence of his withholding Mr. White’s property
with intent to restore it only upon payment but, instead, was merely evidence
of his interest in receiving payment for his time. Id.
In the instant case, the Commonwealth’s evidence showed that
Appellant stole Mr. White’s truck and refused to return it. It was not until Mr.
White paid Appellant $10 that Appellant “returned” the keys. Appellant did so
by throwing the keys on the sidewalk and walking away. Drawing all
inferences from this evidence in favor of the Commonwealth as verdict-winner
it was reasonable for the fact-finder to conclude that Appellant did not intend
to return Mr. White’s property to him unless Mr. White paid him and, therefore,
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that Appellant intended to “deprive” Mr. White of his truck. Accordingly,
Appellant is not entitled to relief on this claim.
In his next issue, Appellant challenges his Robbery conviction. In an
argument predicated on the success of Appellant’s challenge to his Theft
conviction, Appellant asserts that because he “lacked the requisite mens rea
to commit [T]heft, he also did not commit a robbery.” Appellant’s Brief at 11.
A person is guilty of Robbery if “in the course of committing a theft, he
. . . threatens another with or intentionally puts him in fear of immediate
serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii).
Appellant’s only argument in support of his claim that the
Commonwealth did not prove that he committed Robbery is that the
Commonwealth failed to prove that he committed Theft. Having affirmed
Appellant’s conviction of Theft, Appellant’s challenge to his Robbery conviction
also fails.
In his final issue, Appellant claims that the Commonwealth presented
insufficient evidence that Appellant had the requisite mens rea to commit the
offense of Aggravated Assault. Appellant’s Brief at 12.
Under Pennsylvania law, “[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).
Intent to cause serious bodily injury can be proven by wholly circumstantial
evidence, and may be inferred from acts or conduct, or from attendant
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circumstances. Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super.
2008).
The mens rea required for a conviction of Aggravated Assault is malice.
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). “[M]alice is
present under circumstances where a defendant . . . displayed a conscious
disregard for an unjustified and extremely high risk that his actions might
cause death or serious bodily harm.” Id. (citation and internal quotation
marks omitted). As stated above, the Commonwealth may show the intent to
cause serious bodily injury through circumstantial evidence, including the
circumstances surrounding the attack. Commonwealth v. Bruce, 916 A.2d
657, 661 (Pa. Super. 2007). “In determining whether intent was proven in
such circumstances, the fact[-]finder is free to conclude the accused intended
the natural and probable consequences of his actions to result therefrom.” Id.(citation and internal quotation marks omitted).
Appellant argues that there was no evidence that he acted with malice
and intended to cause Mr. White serious bodily injury, but only that Appellant
acted out of “frustration” and “foolishly.”3 Appellant’s Brief at 13. Appellant
further argues that the trial court erred in justifying Appellant’s conviction “not
on intent but solely on [the] injur[ies suffered by Mr. White].” Id. at 14.
Our review of the record indicates that the Commonwealth presented
ample evidence from which the trial court could reasonably infer that Appellant
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3 Appellant does not dispute that his actions caused Mr. White serious bodily
injury.
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intended to cause serious bodily injury as the “natural and probable
consequences of his actions.” In particular, the Commonwealth’s evidence
demonstrated that the 22-year-old Appellant punched 73-year-old Mr. White
in the jaw numerous times, causing swelling to his face, knocking Mr. White
to the ground, breaking his jaw in two places, and breaking four dentures.
The evidence also demonstrated that, at the time of trial, Mr. White was still
suffering from his injuries in that he could not afford the dental work required
to replace his lost teeth. The injuries suffered by Mr. White were the
reasonable and predictable result of Appellant repeatedly punching him in the
face. We, thus, conclude, that the Commonwealth presented sufficient
evidence to prove that Appellant committed the offense of Aggravated Assault.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2022
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