Com. v. Robinson, J. ( 2018 )

J-S71029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOSHUA ROBINSON
Appellant No. 3684 EDA 2016
Appeal from the Judgment of Sentence entered November 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0001134-2011
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 11, 2018
Appellant, Joshua Robinson, appeals from the November 8, 2016
judgment of sentence imposing 29½ to 59 years of incarceration for assault
of a law enforcement officer, unlawful possession of a firearm, recklessly
endangering another person, and possessing an instrument of crime. 1 We
affirm.
The trial court summarized the pertinent facts:
The facts, when viewed in the light most favorable to the
Commonwealth as the verdict winner show that at approximately
five forty-five p.m. on January 8, 2011, Philadelphia Police Officers
[Brian] Pavgouzas and [Brendan] Ryan were travelling
southbound on 60th Street when they observed [Appellant]
walking with a gun on his right side, partially concealed by a
jacket. The patrol car pulled over to the curb and Officer Ryan
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702.1, 6106, 6108, 2705, and 907, respectively.
J-S71029-17
asked [Appellant] to come over to the car. [Appellant] kept on
walking, and Officer Pavgouzas opened his car door. As the door
clicks open [Appellant] took off running and Pavgouzas chased
him. [Appellant] then took the pistol out of his waistband, pointed
it back toward the pursuing police officer and shot twice.
[Appellant] then tossed the gun and kept running until
apprehended a very short time thereafter. Two young children
showed the police where Robinson’s gun landed after being
discarded.
Trial Court Opinion, 5/2/17, at 3 (record citations omitted).
Appellant proceeded to a jury trial, commencing on August 29, 2016
and concluding on September 1, 2016. The jury found Appellant guilty of the
aforementioned offenses but not guilty of aggravated assault.2 On November
8, 2016, the trial court imposed sentence as set forth above. This timely
appeal followed. Appellant argues that his conviction for assault of a law
enforcement officer is unsupported by sufficient evidence and contrary to the
weight of the evidence. Appellant’s Brief at 4. We will consider these issues
in turn.
We begin with Appellant’s challenge to the sufficiency of the evidence,
which we review according to this well-settled standard:
When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in the
light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the crime
was established beyond a reasonable doubt. This Court considers
all the evidence admitted, without regard to any claim that some
of the evidence was wrongly allowed. We do not weigh the
evidence or make credibility determinations. Moreover, any
doubts concerning a defendant's guilt were to be resolved by the
____________________________________________
2 18 Pa.C.S.A. § 2702.
-2-
J-S71029-17
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796 (Pa. 2011).
The Pennsylvania Crimes Code defines assault of a law enforcement
officer as follows: “A person commits a felony of the first degree who attempts
to cause or intentionally or knowingly causes bodily injury to a law
enforcement officer, while in the performance of duty and with knowledge that
the victim is a law enforcement officer, by discharging a firearm.”
18 Pa.C.S.A. § 2702.1(a). Thus, § 2702.1 requires proof of four elements:
(1) the defendant attempted to cause, or intentionally or
knowingly caused, bodily injury, (2) the victim was a law
enforcement officer acting in the performance of his duty, (3) the
defendant had knowledge the victim was a law enforcement
officer, and (4) in attempting to cause, or intentionally or
knowingly causing such bodily injury, the defendant discharged a
firearm.
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012). Only
the first element, regarding attempt, is presently in dispute. We have
addressed that element as follows:
An intent is a subjective frame of mind, it is of necessity
difficult of direct proof[.] [W]e must look to all the evidence to
establish intent, including, but not limited to, [the defendant’s]
conduct as it appeared to his eyes[.] Intent can be proven by
direct or circumstantial evidence; it may be inferred from acts or
conduct or from the attendant circumstances.
The intent for attempt may be shown by circumstances
which reasonably suggest that a defendant intended to cause
[bodily] injury. Thus, in order to prove an attempt under Section
2702.1, the Commonwealth must demonstrate both a substantial
-3-
J-S71029-17
step plus an intent to cause bodily injury to a law enforcement
officer by discharging a firearm.
Commonwealth v. Landis, 48 A.3d 432, 446 (Pa. Super. 2012) (internal
citations and question marks omitted).
In Martuscelli, the defendant engaged police in a shootout while the
defendant was inside his home and several police officers were positioned at
a tree line on the defendant’s property. Id. at 944. The defendant opened
fire on police, who “felt and heard bullets whizzing by them,” and police
returned fire. Id. at 949. After several volleys, during which nobody was
hurt, the defendant surrendered himself. Id. at 944-45. At trial, the
defendant produced evidence that he intended to commit suicide by shooting
over the officers’ heads and provoking return fire. Id. Indeed, he told one of
the police officers as much prior to the shooting. Id. at 944. The officer
concluded the defendant did not intend suicide because he concealed himself
when police returned fire. Id. at 945. We found the evidence sufficient to
support his conviction under § 2702.1. Id. at 950.
Instantly, Appellant, while in flight from Officer Pavgouzas, removed a
pistol from his waist, pointed it behind him, and fired twice. Appellant claims
he was running away, pointed the gun at the ground, never looked in the
direction of Officer Pavgouzas, and did not attempt to shoot him. Officer
Pavgouzas testified that, as he was chasing Appellant from behind, Appellant
retrieved his gun with his right hand, extended his right hand backwards and
fired twice. N.T. Trial, 8/30/16, at 138-39. Appellant did not break stride or
-4-
J-S71029-17
look in Officer Pavgouzas’ direction. Id. at 139-41. Appellant held the gun a
little lower than shoulder height when he fired. Id. at 140. In a radio dispatch
recorded shortly after Appellant’s offense, Officer Pavgouzas stated he was
shot at twice. Id. at 148-49.
In claiming that he did not intend to shoot Officer Pavgouzas, Appellant
asks this Court to draw inferences in his favor, in contradiction of the
applicable standard of review. Viewing the evidence in the light most
favorable to the Commonwealth, we conclude that the record contains
sufficient evidence to support Appellant’s conviction under § 2702.1. Here,
as in Martuscelli, the testifying police officer believed the perpetrator was
shooting to kill, despite the perpetrator’s claim to the contrary. In
Martuscelli, the defendant opened fire on a tree line where the police were
positioned. Thus, in Martuscelli, the defendant’s intent was a matter of
inference based on the cirumstances. The same is true here. Appellant
pointed his gun behind him while Officer Pavgouzas was in pursuit from
behind, and we can infer from those facts that Appellant intended to cause
injury and took a substantial step toward doing so.
We need not reach a different result because Appellant did not break
stride or look in Officer Pavgouzas’ direction. We can infer from the facts of
record that Appellant did not believe he had time, during his flight, to stop
and take aim. Based on all of the foregoing, we conclude the record contains
sufficient evidence in support of Appellant’s conviction under § 2702.1.
-5-
J-S71029-17
Appellant also challenges the weight of the evidence in support of his
conviction under § 2702.1.
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations
omitted).
Appellant argues, once again, that the record contains no evidence of
his intent to injure Officer Pavgouzas. The argument fails for the same
reasons we have already discussed. We note that the record does not support
a conclusion that Appellant shot at the ground. Officer Pavgouzas testified
that the angle of Appellant’s arm was “a little down from straight back” when
Appellant fired. N.T. Trial, 8/30/16, at 154. Officer Pavgouzas did not see
any projectiles hit the ground. Id. at 155. We discern no abuse of discretion
in the trial court’s decision not to award a new trial.
In summary, we have concluded that Appellant’s weight and sufficiency
of the evidence arguments lack merit. We therefore affirm the judgment of
sentence.
Judgment of sentence affirmed.
-6-
J-S71029-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
-7-