Com. v. Johnson, T. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TERESA JOHNSON, : No. 1720 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 6, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001076-2015
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 11, 2017
Teresa Johnson appeals from the judgment of sentence of May 6,
2016, following her convictions of one count each of aggravated assault,
simple assault, possession of an instrument of a crime (“PIC”), and
recklessly endangering another person (“REAP”).1 We affirm.
The Honorable Daniel J. Anders, sitting as finder-of-fact in this
non-jury case, has aptly summarized the facts as follows:
1. [Appellant] assaulted Tammy Webb causing
serious injury to her face and eye
On January 25, 2015, Tammy Webb lived at
308 West Westcomb Street in Philadelphia.
[Appellant] and her daughters Ranesha Johnson
(“Ranesha”) and Jasmine Johnson (“Jasmine”) lived
next to Webb at 310 West Westcomb
Street.[Footnote 1] At 7:30[ a.m.], Webb was
1
18 Pa.C.S.A. §§ 2702(a)(1), 2701(a), 907(a), and 2705, respectively.
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standing in her doorway when she observed Ranesha
drive into a parking spot in front of her house. As
Ranesha parked her vehicle, she scraped the vehicle
of another neighbor. [Appellant] came out of her
house and entered Ranesha’s truck. Ranesha then
drove off with [appellant].
[Footnote 1] Ranesha Johnson and
Jasmine Johnson were co-defendants in
a matter that involved an altercation with
Tammy Webb for which [appellant]
Teresa Johnson was not charged. That
matter was consolidated for trial along
with a separate matter involving
[appellant] Teresa Johnson and
Tammy Webb. Following the waiver trial
on both matters, the trial court entered a
verdict of not guilty on all charges
against Ranesha Johnson and
Jasmine Johnson.
A few minutes after Ranesha and [appellant]
left in their truck, Webb walked to her neighbor’s
house to let him know that Ranesha had scratched
his vehicle with her truck. When she returned from
talking to her neighbor, Webb observed Jasmine
coming out of her house. As Webb started to walk
up the steps to her own house, Jasmine came down
her steps and put her hands in Webb’s face. In
response, Webb put her hands in Jasmine’s face. A
fight between Webb and Jasmine ensued. The fight
ended after Webb’s dogs came out of her house and
went after Jasmine without biting her. Webb called
911 to report the altercation between her and
Jasmine.
Fifteen minutes after calling 911, Webb
observed [appellant] and Ranesha return to the
block in Ranesha’s truck. Ranesha jumped out of the
truck and ran over to Webb’s property. Ranesha
kicked Webb’s screen door and broke it. Ranesha
also had a foot long brick in her hands. [Appellant]
remained on the street as Ranesha ran onto Webb’s
steps and broke her screen door.
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Eventually Philadelphia police officers arrived
at Webb’s house. The police officers took a report of
the incident and instructed Webb to obtain a
restraining order against [appellant], Ranesha and
Jasmine. Webb went back inside her house to get
dressed in order to go to 1501 Arch Street to obtain
a restraining order. As Webb left her house to go to
1501 Arch Street, Ranesha was on her step waiting
for Webb. Ranesha and Webb exchanged words, and
then Ranesha attacked Webb from behind. When
Ranesha attacked Webb, [appellant] was standing on
the sidewalk. As Ranesha was fighting with Webb
and punching her with a closed fist, Jasmine jumped
out of [appellant]’s truck and joined the fight. At
this point, both Jasmine and Ranesha were punching
Webb with closed fists. Webb was swinging back at
Jasmine and Ranesha to defend herself.
Jasmine and Ranesha stopped fighting with
Webb only when Webb’s daughter sprayed both of
them with pepper spray. Webb then put her
daughter into her car and told her son to get into the
car. On cross-examination, Webb agreed that “there
was a little bit of quiet” while she picked up her
pocketbook and put her daughter into the car. As
Webb’s family was ready to leave for 1501 Arch
Street, [appellant] yelled to Webb’s daughter, “Lexis,
we got something for you.” Webb’s son was
standing between [appellant] and Webb. Unable to
get to Webb because Webb’s son was blocking her,
[appellant] removed wooden, horizontal blinds that
were in a nearby trashcan and stabbed Webb in the
face with the blinds. When she stabbed Webb,
[appellant] held the blinds with both hands and
struck them in Webb’s eye in a “jabbing motion
downward.” Although not noted in the transcript,
the trial court recalls that the jabbing motion
demonstrated by Webb was very quick and
forceful.[Footnote 2]
[Footnote 2] In the main, Webb’s
daughter Alexis Webb testified
consistently with Webb’s description of
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how [appellant] struck Webb with the
blinds including that Ranesha’s and
Jasmine’s fight with Webb was over
when [appellant] struck Webb in the eye
with the blinds.
The same police officers who responded to the
first 911 call also responded to the second 911 call
following Webb’s injury. Webb was taken to Einstein
Hospital where she received treatment for her
injuries. Webb had emergency surgery to remove
portions of the blinds that had broken off and were
deeply embedded in her face and eye. Webb
received 20 stitches. Webb’s eye was so swollen
that she could not see out of it for two weeks. Webb
later received plastic surgery to address her injuries
but still has a permanent scar above the eyebrow.
Copies of Webb’s injuries are collectively attached as
Exhibit A.
During her interaction with [appellant],
Jasmine and Ranesha, Webb never threatened them
and did not have a weapon. Webb also testified that
neither her son nor her daughter threatened
[appellant], Jasmine or Ranesha and that neither of
them had a weapon. On cross-examination, Webb
denied that her son ever touched Jasmine including
that her son threw Jasmine into a trash can.
2. [Appellant]’s Testimony At Trial
In relevant part, [appellant] testified that after
Webb’s daughter sprayed Jasmine and Ranesha with
pepper spray, Webb yelled to [appellant], “That’s
what you B’s get. Y’all belong in the trash. Y’all
going to die. I’m going to burn up the house and kill
everybody in it.” In response, [appellant] told Webb
that “her crackhead husband wasn’t going to do
anything to us.” [Appellant] further testified that --
although Webb’s son was trying to restrain Webb --
he was unable to prevent Webb from charging at
[appellant]. In order to defend herself, [appellant]
reached into a nearby trash can and grabbed blinds
and “tossed” it at Webb. On cross-examination by
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the prosecutor, [appellant] testified that she “threw”
the blinds at Webb. The prosecutor described
[appellant]’s reenactment of her throwing of the
blinds as a “light throwing motion.”
As part of [appellant]’s evidence, all parties
stipulated that [appellant] has a reputation for being
law-abiding, peaceful and non-violent.
3. [Appellant]’s 911 call to police
At trial, the prosecutor played a 911 call made
by [appellant] to the police. In that telephone call,
[appellant] states: “My neighbor just jumped my
daughter. My daughter was just jumped three
times. . . . I am on my way home now. I have been
calling about this woman. Yes. And I will, and I’m
going to f[] her up when I get there.”
4. Trial Court’s Credibility Determination
The trial court credited Webb’s testimony,
including that [appellant] jabbed Webb with the
blinds with both hands and so hard that portions of
the blinds broke off and embedded in Webb’s eye
and face. The trial court credited Webb’s testimony
based upon her demeanor, her manner of testifying,
the consistency of her testimony, and the medical
evidence of her injuries.
Trial court opinion, 11/18/16 at 1-4 (citations to the transcripts omitted).
On December 18, 2015, following a bench trial, appellant was found
guilty of the above offenses. A bifurcated sentencing hearing was held on
February 19, 2016 and May 6, 2016. Appellant was sentenced to 11½ to
23 months’ incarceration for aggravated assault, with immediate parole,
followed by 2 years of reporting probation. Appellant also received 4 years
of probation for PIC and 2 years of probation for REAP. The charge of simple
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assault merged. All of appellant’s probationary sentences were run
concurrently for an aggregate sentence of 11½ to 23 months’ incarceration,
with immediate parole, followed by 4 years’ probation.2 No post-sentence
motions were filed. This timely appeal followed on June 4, 2016. Appellant
complied with Pa.R.A.P. 1925(b), and the trial court has filed an opinion.
Appellant has raised the following issues for this court’s review:
(1) Whether the evidence was sufficient to convict
the Appellant of Aggravated Assault F1 where
her only action was a reasonable reaction to
being approached by the [sic] Webb who had
engaged in multiple altercations with
Appellant’s daughters on the same morning of
the incident, where Webb was extremely
combative, where the Appellant remained at all
times during all altercations on the pavement
or in the street, and where the [sic] Webb
stated in her “911” call, “that’s what I wanted
to happen[.”] (Specifically track 16,
Exhibit D15 at trial)?
(2) Whether the verdicts were against the weight
of the evidence when the [sic] Webb was
clearly the aggressor, attacking Appellant’s
daughters, constantly approaching the
daughters, and refused to either enter her
house and remain, or to avoid confrontation
which resulted in a verdict contrary to the
evidence and [which] shocks one’s sense of
justice?
Appellant’s brief at 4.
2
Appellant’s sentence was below the mitigated range of the sentencing
guidelines. (Notes of testimony, 5/6/16 at 13.)
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In her first issue on appeal, appellant challenges the sufficiency of the
evidence to support her conviction of aggravated assault. According to
appellant, the Commonwealth failed to prove intent to cause serious bodily
injury to Webb. Appellant also argues that Webb was the aggressor and
charged at her. Appellant claims that she was simply trying to defend
herself.
We review Appellant’s challenge to the sufficiency of
the evidence under the following, well-settled
standard of review:
A claim challenging the sufficiency of the
evidence presents a question of law.
Commonwealth v. Widmer, 560 Pa.
308, 744 A.2d 745, 751 (2000). We
must determine “whether the evidence is
sufficient to prove every element of the
crime beyond a reasonable doubt.”
Commonwealth v. Hughes, 521 Pa.
423, 555 A.2d 1264, 1267 (1989). We
“must view evidence in the light most
favorable to the Commonwealth as the
verdict winner, and accept as true all
evidence and all reasonable inferences
therefrom upon which, if believed, the
fact finder properly could have based its
verdict.” Id.
Our Supreme Court has instructed:
[T]he 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.
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Moreover, in applying the above test, the
entire record must be evaluated and all
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.
Ratsamy, 594 Pa. 176, 934 A.2d 1233,
1236 n. 2 (2007).
Commonwealth v. Fortune, 68 A.3d 980, 983-984 (Pa.Super. 2013)
(en banc), appeal denied, 78 A.3d 1089 (Pa. 2013), quoting
Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).
Appellant was convicted of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(1), which provides as follows:
(a) Offense defined.--A person is guilty of
aggravated assault if he:
(1) 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). “Serious bodily injury” is 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.A. § 2301.
Here, Webb had emergency surgery to remove pieces of the window
blinds that were embedded in her face. She received 20 stitches. (Trial
court opinion, 11/18/16 at 3.) Webb’s eye was swollen shut for 2 weeks.
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(Id.) Webb had plastic surgery to repair the damage but still has a
permanent scar above her eyebrow. (Id.) This was sufficient to prove that
Webb actually sustained serious bodily injury; therefore, the Commonwealth
was not required to prove specific intent, only that appellant acted at least
recklessly. See Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa.Super.
1997) (“[W]here the victim suffers serious bodily injury, the Commonwealth
need not prove specific intent. The Commonwealth need only prove
appellant acted recklessly under circumstances manifesting an extreme
indifference to the value of human life.” (citations omitted)).
Appellant made a 911 call shortly before the incident, threatening
Webb. (Notes of testimony, 12/10/15 at 129-131.) Later, after Webb had
stopped fighting with appellant’s daughters and was preparing to leave,
appellant shouted, “Lexis, we got something for you,” referring to Webb’s
daughter Alexis. Appellant then grabbed wooden blinds from a trashcan and
stabbed Webb forcefully in the face and eye with a “jabbing motion.” (Id. at
34-39, 86-90, 123-124.) Appellant jabbed Webb so hard with the wooden
blinds that pieces of them broke off and had to be surgically removed from
her eye and face. The trial court, sitting as fact-finder in this non-jury case,
found Webb’s description of the incident to be credible. (Trial court opinion,
11/18/16 at 7.) The trial court did not find appellant’s testimony that she
merely “lightly tossed” the blinds at Webb to be credible. (Id.)
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Furthermore, appellant’s argument that Webb was the aggressor and
that appellant was defending herself and her daughters relies on appellant’s
own self-serving account of the incident which the trial court found
unbelievable. Such credibility determinations are within the exclusive
province of the fact-finder, in this case the trial court, and will not be
disturbed on appeal. Examining all of the evidence in the light most
favorable to the verdict winner, the Commonwealth, it was clearly sufficient
to sustain appellant’s conviction of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(1).
Next, appellant challenges the weight of the evidence. However, from
our review of the record, appellant failed to properly raise this issue in the
trial court. Accordingly, appellant’s weight claim is waived.
Pa.R.Crim.P. 607(A); Commonwealth v. Lofton, 57 A.3d 1270, 1273
(Pa.Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013) (“[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.” (citations omitted)); Commonwealth v.
O’Bidos, 849 A.2d 243, 252 (Pa.Super. 2004), appeal denied, 860 A.2d
123 (Pa. 2004) (weight of the evidence claims must be raised via oral,
written, or post-sentence motions in the trial court for the issue to be
preserved for appeal (citations omitted)). See also Pa.R.A.P. 302(a)
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(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
Nor has appellant complied with Pa.R.A.P. 2117(c), stating how this
issue was properly raised and preserved in the trial court. See
Commonwealth v. Baker, 963 A.2d 495, 502 n.5 (Pa.Super. 2008),
appeal denied, 992 A.2d 885 (Pa. 2010) (“If an appellant has properly
preserved an issue for appellate review, the appellant must include in his or
her brief a ‘statement of the case’ including a ‘statement of place of raising
or preservation of issues.’ Pa.R.A.P. 2117(c). This information must also be
referenced in the argument portion of the appellate brief.
Pa.R.A.P. 2119(e).”). Furthermore, “it is not the responsibility of this Court
to scour the record to prove that an appellant has raised an issue before the
trial court, thereby preserving it for appellate review.” Id. at 502 n.6
(citations omitted).
The record indicates that at the February 19, 2016 bifurcated
sentencing hearing, appellant did present a motion for extraordinary relief,
which was denied “without prejudice in filing an appropriate post-sentence
motion that raises issues regarding the weight and the sufficiency of the
evidence because there’s no basis for an extraordinary relief.” (Notes of
testimony, 2/19/16 at 15.) The trial court explained that a weight of the
evidence challenge should not be brought in a post-trial motion for
extraordinary relief: “Motions for extraordinary relief are for extraordinary
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circumstances only. It’s where an error of law has been made where there’s
some fundamental miscarriage, not a weight of the evidence claim, which is
what you’re attempting to make, or even a mere sufficiency of the
[evidence] claim.” (Id. at 13.) “So the motion for extraordinary relief is
denied without prejudice for you to refile an appropriate post-sentence
motion once we go through with sentencing.” (Id. at 16.)3 Appellant did
not file any post-sentence motions.
We also observe that appellant’s “argument” on the weight claim is
limited to the following sentence (not including recitation of the standard of
review, conclusory statements of law, etc.): “Absence [sic] physical
evidence when reviewed with the nature of [the] injuries, the Appellant was
not attempting to kill the [sic] Webb.” (Appellant’s brief at 24.)
This is the extent of appellant’s argument on the matter. Of course,
appellant was not charged with attempted murder, she was charged with
aggravated assault, which does not require a showing of specific intent to
kill; also, as described thoroughly above, Webb suffered severe and
permanent injuries. So, even appellant’s one-sentence argument makes no
3
See Commonwealth v. Grohowski, 980 A.2d 113, 115-116 (Pa.Super.
2009) (“[Pa.R.Crim.P.] Rule 704(B) is intended to allow the trial judge the
opportunity to address only those errors so manifest that immediate relief is
essential. This Court has repeatedly held that ‘we will not allow such
motions as a ‘substitute vehicle’ for raising a matter that should be raised in
a post-sentence motion.’”), quoting Commonwealth v. Askew, 907 A.2d
624, 627 (Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007)
(citation omitted).
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sense in context of the record. Appellant’s complete failure to develop any
meaningful argument on the matter would result in waiver, even if the issue
were otherwise preserved for appeal. See Commonwealth v.
Murchinson, 899 A.2d 1159 (Pa.Super. 2006) (appellant failed to develop
meaningful argument with specific reference to the record to support his
claims on appeal that the evidence was insufficient to support his convictions
and, thus, waived review of the claims, where appellant recited boilerplate
law and then simply asserted that the evidence at trial fell short of such
law); Pa.R.A.P. 2119(a).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
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