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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`COMMONWEALTH OF PENNSYLVANIA
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`COURTNEY SMITH
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`v.
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`Appellant
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` IN THE SUPERIOR COURT OF
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` No. 1777 EDA 2019
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`Appeal from the Judgment of Sentence Entered June 11, 2019
`In the Court of Common Pleas of Philadelphia County Criminal Division at
`No(s): CP-51-CR-0010235-2017
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`BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
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`MEMORANDUM BY DUBOW, J.: FILED MAY 26, 2020
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`Appellant Courtney Smith appeals from the June 11, 2019 Judgment of
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`Sentence entered in the Court of Common Pleas of Philadelphia County
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`following her non-jury conviction for Aggravated Assault, Recklessly
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`Endangering Another Person (“REAP”), Disarming a Law Enforcement Officer,
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`Simple Assault, and Resisting Arrest.1 Appellant challenges the sufficiency of
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`the evidence to support the Aggravated Assault, REAP, and Disarming a Law
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`Enforcement Officer convictions, and the imposition of a sentence for Simple
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`Assault. After careful review, we affirm in part and vacate in part.
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`We derive the following relevant facts from the trial court’s Pa.R.A.P.
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`1925(a) Opinion and the certified record. On November 10, 2017, Philadelphia
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`Police Officer Victor Rodriguez stopped a pickup truck after a drug surveillance
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`____________________________________________
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`1 18 Pa.C.S. §§ 2702(a)(3), 2705, 5104.1, 2701, and 5104, respectively.
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`unit near West Russell Street in Philadelphia observed Appellant purchase
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`street narcotics, and depart the area as a passenger in the vehicle. Officer
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`Rodriguez placed Appellant in handcuffs and into his police car while he
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`searched the vehicle.
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`When he returned to his car, Officer Rodriguez saw that one of
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`Appellant’s hands was free from the handcuffs. When Officer Rodriguez
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`opened the door to replace the cuff, Appellant said “I’m not going to jail,” and
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`kicked him twice in the chest hard enough to move him out of the door frame.
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`Appellant exited the car, and began tugging on Officer Rodriguez’s service
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`weapon with both hands, but was unable to remove it from the holster.
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`With her left hand still on Officer Rodriguez’s weapon, Appellant
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`attempted to punch him and reach for his groin with her right hand. She then
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`took Officer Rodriguez’s asp, a metal baton, from his belt with her right hand
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`and raised it over her head. Officer Rodriguez grabbed Appellant’s hand before
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`being hit with the baton, and ordered her to the ground. Backup officers
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`arrived, and assisted with placing Appellant in custody. Officer Rodriguez was
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`not injured in the altercation.
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`The Commonwealth charged Appellant with the above crimes. At
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`Appellant’s waiver trial on January 29, 2019, Officer Rodriguez testified
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`consistent with the above recitation of the facts. Appellant also testified,
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`describing the incident quite differently. Appellant denied reaching for Officer
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`Rodriguez’s weapon or asp, and denied punching or kicking him. Rather,
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`Appellant asserted that Officer Rodriguez pulled her out of his police car, threw
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`her to the ground, and straddled her until backup officers arrived.
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`The trial court convicted Appellant of all charged offenses. Relevant to
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`our analysis, the trial court, sitting as fact-finder, expressed that it did not
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`give weight to Appellant’s testimony: “Ma’am (referring to Appellant), you told
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`an outrageous story. This was a credibility issue, and I did not believe you
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`ma’am. I therefore – and I found the officer showed a lot of restraint. I thought
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`the officer was extremely credible.” N.T., 1/29/19, at 67-68.
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`The court sentenced Appellant on June 11, 2019, to an aggregate
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`sentence of 11½ to 23 months of incarceration with immediate parole and
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`credit for time served, followed by one year of reporting probation to run
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`concurrent with each charge. Most important to this appeal, the court ordered
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`the sentence for Simple Assault to be served concurrently with all other
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`imposed sentences.2
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`Appellant raises the following issues on appeal:
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`[1.] Was not the evidence insufficient to convict [A]ppellant of
`[A]ggravated [A]ssault as a felony of the second degree, where
`two kicks to the police officer's vest were no attempt to cause
`bodily injury and [A]ppellant had no intent to cause bodily injury
`but merely to avoid arrest?
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`____________________________________________
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`2 Specifically, the court sentenced Appellant to 11½ to 23 months of
`incarceration for Aggravated Assault, and an identical concurrent sentence for
`Disarming a Law Enforcement Officer. The court sentenced Appellant to
`concurrent terms of one year of probation for the remaining convictions.
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`[2.] Was not the evidence insufficient to convict [A]ppellant of
`[REAP] where [A]ppellant's actions at no time placed the officer in
`danger of death or serious bodily injury?
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`[3.] Was not the evidence insufficient to convict [A]ppellant of
`[D]isarming a [L]aw [E]nforcement [O]fficer where [A]ppellant's
`conduct amounted to no more than resisting arrest?
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`[4.] Where the trial court sentenced [A]ppellant to 11½ to 23
`months [of] confinement followed by one year of probation for
`[A]ggravated [A]ssault, did not the court err in sentencing
`appellant to one year of concurrent probation for Simple Assault
`when the offenses merged at sentencing?
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`Appellant’s Br. at 3.
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`Appellant’s first three issues involve challenges to the sufficiency of the
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`evidence. “A claim challenging the sufficiency of the evidence is a question of
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`law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Our
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`standard of review is de novo, and our scope of review is plenary.”
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`Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019) (citation
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`omitted). Further, we must determine:
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`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 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 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 evidence actually received must be
`considered. Finally, the finder of fact while passing upon the
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`credibility of witnesses and the weight of the evidence produced,
`is free to believe all, part or none of the evidence.
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`Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019).
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`In her first issue, Appellant challenges the sufficiency of the evidence
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`supporting her Aggravated Assault conviction. Appellant argues that she
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`intended only to resist arrest, and, thus, lacked the specific intent to cause
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`bodily injury to Officer Rodriguez. Appellant’s Br. at 9. Appellant conflates
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`motivation and intent, arguing in essence that her motivation to avoid arrest
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`means that she did not possess an intent to commit bodily injury.
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`A person commits Aggravated Assault against a police officer if she
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`“attempts to cause or intentionally or knowingly causes bodily injury to a
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`police officer... in the performance of duty.” Commonwealth v. Hewlett,
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`189 A.3d 1004, 1008 (Pa. Super. 2018); 18 Pa.C.S. § 2702(a)(3). “[T]he
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`Commonwealth has no obligation to establish that the officer actually suffered
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`a bodily injury; rather, the Commonwealth must establish only an attempt to
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`inflict bodily injury, and this intent may be shown by circumstances which
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`reasonably suggest
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`that a defendant
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`intended
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`to cause
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`injury.”
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`Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011) (en banc)
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`(citation and emphasis omitted). A defendant’s alleged subjective motivation
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`for her conduct does not preclude the finding of an intentional act.
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`Commonwealth v. Richardson, 636 A.2d 1195, 1197 (Pa. Super. 1994).
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`Finally, the Crimes Code defines “bodily injury” as “[i]mpairment of physical
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`condition or substantial pain.” 18 Pa.C.S. § 2301.
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`This Court recently addressed a similar issue in Commonwealth v.
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`Brown, in which we affirmed a conviction for Aggravated Assault. Brown,
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`supra at 561. The defendant, Brown, pushed a police officer to the ground
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`while being handcuffed. Id. at 560. Another officer then tackled him, and while
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`on the ground, Brown flailed his arms and struck the tackling officer three
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`times, causing him to have a swollen lip. Id. In affirming, we held that
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`“[w]hether the officer’s swollen lip constitutes a ‘bodily injury’ for purposes of
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`section 2702(a)(3) is irrelevant, since in a prosecution for aggravated assault
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`on a police officer the Commonwealth has no obligation to establish that the
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`officer actually suffered a bodily injury… It was within the jury’s province to
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`find that Brown, by throwing Officer DeBella to the ground and then striking
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`Officer Schiazza repeatedly by wildly flailing his arms as he resisted arrest,
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`intended to cause injury to the officers.” Id.
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`Applying the law and controlling precedent to the present case, it was
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`within the trial court’s province as fact-finder to find that Appellant intended
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`to cause Officer Rodriguez bodily injury by kicking him twice in the chest, and
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`attempting to take his service weapon, punch him, grab his groin, and hit him
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`with a metal baton. It does not matter to our analysis whether Officer
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`Rodriguez actually suffered a bodily injury.
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`Appellant’s argument regarding her subjective motivation is unavailing.
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`Because Appellant’s subjective motivation for her conduct does not negate the
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`fact that it was an intentional act, Appellant is essentially asking this Court to
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`re-weigh the admitted evidence on her intent. Richardson, supra at 1197.
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`It is well-settled that the Superior Court may not re-weigh the evidence and
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`substitute our judgment for that of the finder of fact. Reed, supra at 1119.
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`Accordingly, viewed in the light most favorable to the Commonwealth, we
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`conclude that the admitted evidence was sufficient for the trial court to convict
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`Appellant of Aggravated Assault.
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`In her second issue, Appellant challenges the sufficiency of the evidence
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`underlying her REAP conviction. In this regard, Appellant’s sole assertion is
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`that her actions did not place Officer Rodriguez in danger of death or serious
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`bodily injury. Appellant’s Br. at 11-13.
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`A person commits REAP “if [s]he recklessly engages in conduct which
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`places or may place another person in danger of death or serious bodily
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`injury.” 18 Pa.C.S. § 2705. “Serious bodily injury” is “bodily injury which
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`creates a substantial risk of death or which causes serious, permanent
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`disfigurement, or protracted loss or impairment of the function of any bodily
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`member or organ.” 18 Pa.C.S. § 2301. Intent to inflict serious bodily injury
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`may be inferred from “blows to a portion of the body as vital as the head.”
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`Commonwealth v. Pandolfo, 446 A.2d 939, 941 (Pa. 1982); See also
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`Commonwealth v. Nichols, 692 A.2d 181, 184 (Pa. Super. 1997) (“A
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`baseball bat, when swung at the head, can be a very deadly weapon, and it is
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`well settled that use of a deadly weapon on a vital part of the body is sufficient
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`to establish a specific intent to kill”).
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`The Commonwealth must prove that the defendant had an “actual
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`present ability to inflict harm.” Commonwealth v. Reynolds, 835 A.2d 720,
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`727-28 (Pa. Super. 2003) (citation omitted). The “mere apparent ability to
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`inflict harm is not sufficient [to support a REAP conviction]. Danger, and not
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`merely the apprehension of danger, must be created.” Commonwealth v.
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`Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978) (footnote omitted).
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`In the instant case, the Commonwealth’s evidence showed that
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`Appellant was in close proximity to Officer Rodriguez when she took his metal
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`baton and raised it over her head in an attempt to hit him with it. From this
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`evidence, it was reasonable for the fact-finder to conclude that Appellant had
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`the present ability to strike Officer Rodriguez, and therefore that Appellant
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`created a dangerous condition. Likewise, it was reasonable for the fact-finder
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`to conclude that such a strike to the head could have caused Officer Rodriguez
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`to suffer a serious bodily injury.3 Accordingly, we conclude that the admitted
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`evidence, viewed in the light most favorable to the Commonwealth, was
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`sufficient to convict Appellant of REAP.
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`____________________________________________
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`3 Appellant and Appellee each focus their briefs on Appellant’s attempt to take
`Officer Rodriguez’s service weapon, disagreeing about whether unsnapping
`Officer Rodriguez’s holster was a necessary prerequisite for Appellant to have
`a “present ability to inflict harm,” and thus a REAP conviction. We conclude
`that the fact-finder could convict Appellant of REAP based on her conduct in
`removing and attempting to strike Officer Rodriguez with his baton, and
`decline to address whether unsnapping an officer’s holster is a threshold issue
`to a “present ability to inflict harm.” Cf. Commonwealth v. Mitchell, 554
`A.2d 542 (Pa. Super. 1989) (affirming REAP conviction for attempting to
`remove an officer’s weapon, unsnapping his holster in the process).
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`Before addressing Appellant’s third issue, we must determine whether
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`she properly preserved it on appeal. The trial court issued a Pa.R.A.P. 1925(b)
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`Order on June 24, 2019, directing Appellant to file a Statement of Errors
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`(“Statement”) within 21 days of that Order. Appellant timely filed a Statement
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`on July 12, 2019, challenging the sufficiency of the evidence for the
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`Aggravated Assault and REAP convictions, and the legality of the sentence for
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`Simple Assault. The July 12th Statement also included a request to supplement
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`the Statement after Appellant received the sentencing Notes of Testimony.
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`Statement of Errors, 07/12/19, at ¶ 3.
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`On August 1, 2019, Appellant filed a Supplemental Statement of Errors
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`raising a challenge to the sufficiency of the evidence supporting the Disarming
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`a Law Enforcement Officer conviction. At no point did counsel for Appellant file
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`an application for permission to file the Supplemental Statement. In its
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`1925(a) Opinion issued on August 14, 2019, the trial court addressed the
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`issues raised in Appellant’s July 12th Rule 1925(b) Statement, but not
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`Appellant’s Supplemental Statement filed on August 1st.
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`Pennsylvania Rule of Appellate Procedure 1925 requires appellants to
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`file a Statement of Errors “concisely identify[ing] each error that the appellant
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`intends to assert.” Pa.R.A.P. 1925(b)(4)(ii). Issues not raised in the court-
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`ordered Rule 1925(b) Statement are waived. Id. at 1925(b)(4)(vii). Judges
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`are required to give “at least 21 days from the date of the order’s entry on
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`the docket for the filing and service of the Statement.” Id. at 1925(b)(2)(i).
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`Importantly, “[u]pon application of the appellant and for good cause
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`shown, the judge may enlarge the time period initially specified or permit an
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`amended or supplemental Statement to be filed.” Id. (emphasis added). “The
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`failure to file such an application within the 21-day time limit set forth in Rule
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`1925(b)(2) will result in waiver of all issues not raised by that date.”
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`Commonwealth v. Gravely, 970 A.2d 1137, 1145 (Pa. 2009). A “reservation
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`of right” or other informal request included in a timely 1925(b) Statement is
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`insufficient to avoid waiver of untimely-raised issues. Commonwealth v.
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`Woods, 909 A.2d 372, 377 n.10 (Pa. Super. 2006).
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`Appellant’s counsel here foreclosed review of this third issue, by failing
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`to include it in Appellant’s initial 1925(b) Statement, and by failing to apply
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`for the trial court’s permission to file a Supplemental Statement. As a result,
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`Appellant waived this third issue.4
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`In her remaining issue, Appellant argues, and the Commonwealth does
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`not dispute, that this Court should vacate the sentence for Simple Assault
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`because it should have merged with Aggravated Assault for sentencing.
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`Merger is a question of the legality of a sentence, and consequently, our
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`____________________________________________
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`4 We note that Pennsylvania jurisprudence recognizes a distinction between
`errors by counsel that completely foreclose appellate review (which constitute
`per se ineffectiveness), and those that only partially foreclose review.
`Commonwealth v. Rosado, 150 A.3d 425, 433 (Pa. 2016). Because an
`untimely Supplemental Statement does not completely foreclose review, we
`need not remand this case to the trial court to address the Supplemental
`1925(b) Statement.
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`standard of review is de novo and scope of review is plenary. Commonwealth
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`v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Convictions merge for sentencing
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`when “(1) the crimes arise from a single criminal act; and (2) all of the
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`statutory elements of one of the offenses are included in the statutory
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`elements of the other.” Id. at 833. Further, it is well-settled that the statutory
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`elements of Simple Assault are included in the statutory elements of
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`Aggravated Assault. Commonwealth v. Boettcher, 459 A.2d 806, 811 (Pa.
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`Super. 1983).
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`In the present case, the evidence adduced at trial indicates that the
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`crimes arose from a single criminal episode. As a matter of law, Appellant’s
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`conviction for Simple Assault should have merged with her conviction for
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`Aggravated Assault for the purposes of sentencing.
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`Accordingly, we affirm the conviction for Simple Assault, but vacate the
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`sentence imposed. As noted above, the trial court ordered that the sentence
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`for Simple Assault was to be served concurrent with all other sentences. As a
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`result, our disposition does not upset the sentencing scheme, and we need
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`not remand for re-sentencing. We affirm the Judgment of Sentence with
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`respect to the remaining convictions.
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`Convictions affirmed. Judgment of Sentence affirmed in part, vacated in
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`part.
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`Judgment Entered.
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`Joseph D. Seletyn, Esq.
`Prothonotary
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`Date: 5/26/2020
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