Com. v. Burke, P. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PAUL BURKE, : No. 1636 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 20, 2015,
in the Court of Common Pleas of Pike County
Criminal Division at No. CP-52-CR-0000264-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 12, 2016
Paul Burke appeals from the February 20, 2015 judgment of sentence
entered in the Court of Common Pleas of Pike County after a jury convicted
him of aggravated assault, terroristic threats, simple assault, recklessly
endangering another person, and harassment.1 The trial court imposed an
aggregate sentence of 8½ to 17 years’ imprisonment. We affirm.
The record reflects that in the early morning hours of May 5, 2014,
appellant’s wife, the victim, got out of bed, took her dog out, and proceeded
to make coffee when appellant began calling for her. (Notes of testimony,
11/12/14 at 37.) When the victim went to the bedroom, appellant
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a)(1), 2706(a)(1), 2701(a)(2), 2705, and
2709(a)(1), respectively.
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complained that “[e]verybody hates him.” (Id.) When the victim tried to
comfort him, he reached for a muscle relaxant, and the victim called him a
“baby” for doing so. (Id. at 38.) Appellant angrily responded, “[H]ow dare
you say that to me,” and threw the pill bottle at the victim. He then told the
victim that he wanted to end his life because no one likes him and that
“everybody can go on with their happy old life” without him. (Id. at 39.)
The victim testified that at this point, she became somewhat aggravated and
told appellant that she “really [doesn’t] have a life with [appellant.]” (Id.)
Appellant then “flew off the bed,” “flipped two heaters,” and “with both
fists started pounding [the victim] in every direction.” (Id. at 39-40.)
Appellant began the assault by punching the victim in the face with closed
fists. The victim was unable to count how many times appellant punched
her in the face with closed fists, but estimated “ten whatever.” (Id. at 40.)
At that point, the victim ripped appellant’s shirt “by accident” when she
attempted to get away from him. (Id. at 41.) The victim testified that this
upset appellant because he said it was his “best New York [] shirt.” (Id.)
Appellant then “head-butted” the victim, ripped open both shirts that she
was wearing, and choked her. (Id. at 41, 44.) The victim then felt warm
blood coming down into her bra. (Id. at 41.) The victim testified that
during this incident, she was on the floor in the fetal position attempting to
block appellant from striking her, at which time appellant repeatedly struck
the right side of her torso, down to her right kidney. (Id. at 43.)
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At this point, appellant got up, left the bedroom, and then returned
with a 12-inch chef’s knife. (Id. at 41, 52.) As the victim was on the floor,
appellant stood over her, raised the knife high above her, and stated that he
was going to kill the victim, their children, and his parents. (Id. at 42.)
Appellant then lowered the knife to within 3 inches of the victim’s heart.
(Id. at 53.) The victim then told appellant to “just go.” (Id. at 42.) He
then put the knife down and retreated. (Id.) The victim managed to leave
the residence and drive to the police station. (Id. at 45.) Police called an
ambulance, which transported the victim to a hospital. (Id. at 62, 96.) The
victim suffered a fractured nose and multiple abrasions, lacerations, and
bruises to her face, neck, and torso. (Id. at 48-52.)
The record further reflects that after imposition of sentence, appellant
filed a timely post-sentence motion and a timely supplemental post-sentence
motion. Following a hearing, the trial court denied appellant’s post-sentence
motions. This timely appeal followed.
Appellant raises the following issues for our review:
1. Did the trial court commit reversible error by
refusing to give a requested instruction on
self-defense where the evidence presented by
[appellant] warranted the instruction?
2. Did the sentencing court err by applying the
deadly weapon enhancement to [appellant’s]
conviction for aggravated assault where he did
not use a deadly weapon during the alleged
assault?
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3. Was the evidence insufficient to support
[appellant’s] aggravated assault conviction
where he did not cause, or attempt to cause,
serious bodily injury?
Appellant’s brief at 5.
Appellant first challenges the trial court’s refusal to instruct the jury on
self-defense. “In reviewing a challenge to the trial court’s refusal to give a
specific jury instruction, it is the function of this Court to determine whether
the record supports the trial court’s decision.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014) (en banc), appeal
denied, 104 A.3d 1 (Pa. 2014) (citations omitted). “It has long been the
rule in this Commonwealth that a trial court should not instruct the jury on
legal principles which have no application to the facts presented at trial.”
Id. (citations omitted).
With respect to the issue of self-defense, this court has previously
noted that:
The use of force against a person is justified when
the actor believes that such force is immediately
necessary for the purpose of protecting herself
against the use of unlawful force by the other
person. See 18 Pa.C.S.[A.] § 505(a). When a
defendant raises the issue of self-defense, the
Commonwealth bears the burden to disprove such a
defense beyond a reasonable doubt. While there is
no burden on a defendant to prove the claim, before
the defense is properly at issue at trial, there must
be some evidence, from whatever source, to justify a
finding of self-defense. If there is any evidence that
will support the claim, then the issue is properly
before the fact-finder.
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Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa.Super. 2006) (citation
omitted; brackets in original omitted).
Here, the record reflects that appellant took the stand in his own
defense. Appellant testified that while he was in bed that morning, and for
reasons unknown to him, the victim grabbed and ripped his shirt while
simultaneously calling him an “S.O.B.” (Notes of testimony, 11/13/14 at 23-
25.) Because appellant was “mad that she grabbed [his] shirt,” appellant
grabbed the victim’s shirt and ripped it intentionally. (Id. at 25-26.) At that
point, according to appellant, the victim fell backwards off the bed while
appellant was “attached to her,” and the two “collided on the floor.” (Id. at
30.) Appellant claimed that during this collision, a fan fell over and hit the
victim in the face and “put a mark on her cheek.” (Id. at 35.) Appellant
denied striking the victim’s face and again claimed that the victim’s facial
injuries were caused by the falling fan. (Id. at 36.)
Appellant further explained that a zipper on the victim’s shirt caused
the injuries to the victim’s neck. (Id. at 43-44.) Appellant denied choking
the victim. (Id. at 51.) He also denied striking her 20 to 30 times with
closed fists. (Id.) Appellant further denied holding a chef’s knife over the
victim and threatening to kill her and other family members. (Id. at 51-52.)
Appellant only admitted to grabbing and ripping the victim’s shirt. (Id. at
52.)
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Appellant further testified that the lumps on the victim’s head were
caused when the fan and “other items” fell. (Id. at 71.) He stated that the
bruises on the victim’s torso were “probably” caused when he and the victim
“fell on the shoes,” and that the bruise on the victim’s lower back was
caused “when she fell off the bed onto a pile of shoes and tapes.” (Id. at
73.)
The record fully supports the conclusion that there was no evidence of
self-defense presented at trial. Additionally, the record clearly demonstrates
that appellant’s defense was that he did not cause the victim’s injuries;
rather, his defense was that the victim’s injuries were caused by falling
bodies, a falling fan, and other falling items. Because the legal principles of
self-defense had no application to the facts presented at trial, the trial court
properly refused to instruct the jury on self-defense.
Appellant next complains that the trial court abused its discretion when
it applied the deadly weapon enhancement to appellant’s aggravated assault
conviction. Appellant alternatively complains that the trial court failed to
provide sufficient reasons to justify appellant’s sentence on his aggravated
assault conviction, which was in the aggravated range.
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
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the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
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Here, the record reflects that appellant filed a timely notice of appeal,
properly preserved his sentencing issues in a timely petition for
reconsideration of his sentence, and included a Pa.R.A.P. 2119(f) statement
in his brief. Therefore, we must now determine whether appellant raises a
substantial question.
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338
(Pa.Super. 2015) (citation omitted). “A substantial question exists only
when an appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Id. (citation omitted).
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Id. at 340 (citation omitted).
Appellant’s issues raise substantial questions. See Commonwealth
v. Rhoades, 8 A.3d 912, 916 (Pa.Super. 2010) (“application of the deadly
weapon enhancement presents a substantial question”); see also
Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.Super. 2008) (an
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allegation that the court failed to state adequate reasons on the record for
imposing an aggravated-range sentence raises a substantial question).
Appellant first complains that the trial court erred when it applied the
deadly weapon enhancement when “[n]o reasonable reading of the facts and
the record in this case could support a finding that [appellant] used a deadly
weapon when he allegedly committed the aggravated assault on his wife.”2
(Appellant’s brief at 18.)
A court shall consider the deadly weapon enhancement “[w]hen the
court determines that the offender possessed a deadly weapon during the
commission of the current conviction offense . . . .” 204 Pa.Code
§ 303.10(a)(1). The deadly weapon enhancement defines a deadly weapon
as “[a]ny device, implement, or instrumentality designed as a weapon or
capable of producing death or serious bodily injury where the court
determines that the offender intended to use the weapon to threaten or
injure another individual.” Id. at § 303.10(a)(1)(iii).
2
In reviewing the record, we note that in his Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, appellant contended that the
deadly weapon enhancement could not be applied because the jury did not
return a finding that appellant used a deadly weapon. (Concise statement of
matters complained of on appeal, 6/23/15; Docket #43.) Although
appellant abandoned this argument in his brief, we note that sentencing
challenges involving sentence enhancements do not implicate Alleyne v.
United States, U.S. , 133 S.Ct. 2151 (2013), which requires that
any fact that increases a mandatory minimum sentence must be found by a
jury beyond a reasonable doubt. See Commonwealth v. Ali, 112 A.3d
1210 (Pa.Super. 2015).
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Here, the trial court sentenced appellant on the low end of the
aggravated range with respect to appellant’s aggravated assault and
terroristic threats convictions. The record reflects that in so doing, the trial
court considered, among other things, the presentence investigation report,
appellant’s significant criminal record, appellant’s attempt to shift blame,
and appellant’s lack of remorse. (See notes of testimony, 2/20/15 at
28-30; see also trial court opinion, 7/30/15). The record also establishes
that during the course of appellant’s assault of the victim, he made
terroristic threats while he held a 12-inch chef’s knife over her head,
threatened to kill her, and then placed the knife 3 inches from her heart.
(See notes of testimony 11/12/14 at 41-42, 52-53.) Therefore, appellant
used a deadly weapon during the course of the assault incident. 3 We,
therefore, find no abuse of discretion.
Appellant next claims that the trial court failed to state adequate
reasons on the record for imposing an aggravated-range sentence. The
record belies appellant’s contention.
The record reflects that the victim testified at the sentencing hearing,
as did appellant and two witnesses who testified on appellant’s behalf. Prior
to imposing sentence, the trial court stated that it had the benefit of a
pre-sentence investigation report and noted that it had also presided over
3
While at sentencing the Commonwealth appears to have separated the
deadly weapon enhancement from the aggravated assault charge, it agrees
with the trial court’s application of the enhancement in this appeal.
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appellant’s trial. (Notes of testimony, 2/20/15 at 28.) The trial court further
stated that it reviewed and considered appellant’s pre-sentence
memorandum, letters offered on his behalf, and the victim’s testimony at
the sentencing hearing. Id. The trial court then stated:
THE COURT: . . . . I’ve heard a lot of statements
and testimony today about matters from the past
including [appellant’s] marriage with the victim,
some of which maybe [sic] true, some of which may
not be true, but what the Court’s heard little about
today is what actually happened on the day in
question which was determined by the jury and
those convictions stand as the determination of facts
in this case as the Court instructed the jury.
The best the defense has to offer that I can
hear today is that [appellant] has indicated to the
Court I think on several occasions or at least
attributed the words “What I can recall” and certainly
the Court would note that there’s a significant
criminal record dating back to 1990 through 2005
and then leading up to the present offense. The
Court finds that record to be inconsistent with what’s
being represented about [appellant] here today.
It’s hard to understand in this instance and not
having been the decider of the facts in the case, it’s
hard for a Court to understand how someone in
[appellant’s] position just didn’t walk away that day,
but instead the victim ended up with some serious
injuries, that certainly can be taken up on appeal if
that’s something that’s chosen by [appellant], but
I’m constrained by the jury’s determination on that
issue and the Court agrees with it.
Instead of that, [appellant] made a conscious
decision to engage in physical contact with the victim
resulting in serious bodily injury. I’m being kind
when I say I find the suggestions that the victim’s
injuries were somehow the result of marital problems
or whatever, I think that’s entirely inappropriate in
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this matter. The victim’s injuries didn’t occur
because of her own actions or because the parties
had marital problems, the injuries occurred because
[appellant] inflicted them period.
Id. at 28-30.
In its Rule 1925(a) opinion, the trial court aptly summarized the
above, as follows:
In this case, the Trial Court and the Sentencing
Court were one in [sic] the same. As such, the
Sentencing Court reaped the benefit of observing
[a]ppellant’s demeanor during trial, placing this
Court in a position from which to assess his
character. This Court had the benefit of a pre-
sentence report, [a]ppellant’s Presentence
Memorandum, and multiple letters offered on
[a]ppellant’s behalf with which to determine his
sentence. That this Court took the time to elaborate
so during [a]ppellant’s sentencing is a clear
indication that we considered [a]ppellant’s attempts
to shift blame away from himself, his failure to
accept responsibility for his actions, and his lack of
remorse in sentencing [a]ppellant in the aggravated
range.
Trial court opinion, 11/24/15 at 11.
The record reflects that the trial court placed ample reasons on the
record for its imposition of sentence in the aggravated range. Therefore,
this claim lacks merit.
Appellant finally complains that the evidence was insufficient to
support his aggravated assault conviction.
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
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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 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 may be convicted of aggravated
assault, a first-degree felony, 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.A. § 2702(a)(1); see also Commonwealth v. McClendon,
874 A.2d 1223, 1229 (Pa.Super. 2005). “For aggravated assault purposes,
an ‘attempt’ is found where the accused, with the required specific intent,
acts in a manner which constitutes a substantial step toward perpetrating a
serious bodily injury upon another.” Commonwealth v. Martuscelli, 54
A.3d 940, 948 (Pa.Super. 2012) (citation omitted). The Crimes Code defines
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“serious bodily injury” 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.A.
§ 2301.
Here, the victim testified that appellant punched her in the face with
closed fists numerous times, “head-butted” her, choked her, and repeatedly
punched the right side of her torso, down to her right kidney. The record
further reflects that as a result of this assault, the victim suffered a fractured
nose and multiple abrasions, lacerations, and bruises to her face, neck, and
torso. Viewing this evidence in the light most favorable to the
Commonwealth as verdict winner, it was sufficient to enable the fact-finder
to find beyond a reasonable doubt that appellant attempted to cause serious
bodily injury to the victim and, therefore, sustain his aggravated assault
conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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