Com. v. Robinson, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
TROY ANTHONY ROBINSON,
Appellant No. 807 EDA 2015
Appeal from the Judgment of Sentence February 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005169-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016
Appellant, Troy Anthony Robinson, appeals from the judgment of
sentence entered on February 19, 2015, following his conviction on October
27, 2014, by a jury of aggravated assault, possession of a firearm without a
license, carrying a firearm in public in Philadelphia, and possession of an
instrument of crime (“PIC”), and by the court of possession of a firearm by a
prohibited person via a bifurcated waiver trial. Trial Court Opinion, 2/12/16,
at 2. We affirm.
The trial court summarized the facts of the crime as follows:
On November 24, 2011, at approximately 12:30 PM,
Officer Timothy Fitzgibbon (hereinafter “Officer Fitzgibbon[”]) of
the Philadelphia Police Department responded to a radio call
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*
Former Justice specially assigned to the Superior Court.
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regarding a robbery in progress on Greeby Street in the Oxford
Circle section of Philadelphia, PA. 10/23/2014 Notes of
Testimony (N.T.) at 29. The radio call contained an
accompanying description of four (4) African American males
who were believed to be involved in the robbery. Id. While en
route to the scene in his marked police patrol vehicle, Officer
Fitzgibbon first observed appellant walking southbound on
Cranford Street. Id. at 30. Officer Fitzgibbon’s attention was
initially drawn to appellant due to appellant’s close proximity to
the location of the recent robbery. Id. As Officer Fitzgibbon
drew closer to appellant, he observed appellant conversing on
his cellular phone. Id. at 33. It is at this time that Officer
Fitzgibbon overheard appellant repeatedly state “it’s going
down.” Id.[1] Due to the nature of appellant’s statement, and in
response to report of a very recent robbery nearby, Officer
Fitzgibbon, while still inside his patrol vehicle, asked appellant if
appellant could speak with him for a moment. Id. at 34. In
response to this request, appellant began to walk towards Officer
Fitzgibbon and proceeded to retrieve a firearm from a pocket
located on the left side of his body. Id. 34-35. Appellant then
raised the firearm and pointed it in the direction of Officer
Fitzgibbon and his vehicle. Id. at 35. With appellant now closing
in on Officer Fitzgibbon, Officer Fitzgibbon immediately “threw”
his patrol vehicle into “Drive” and very quickly advanced his
patrol vehicle approximately three (3) to four (4) car lengths up
Passmore Street, away from appellant. Id. at 37-38. At this
time, Officer Fitzgibbon glanced in his rearview mirror and
observed appellant standing in the street behind him with the
firearm still pointed towards his patrol vehicle. Id. at 38.
Believing that he had just heard appellant discharge the firearm,
Officer Fitzgibbon proceeded up Passmore Street at a high rate
of speed. Id. at 38-39.8
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1
Officer Fitzgibbon testified that he parked his car at an angle with his
“driver’s door . . . facing [Appellant] as [Appellant] walked toward” him.
N.T., 10/23/14, at 31. He was “ten feet maybe, give or take a foot or two”
away from Appellant. Id. at 32. The weather was clear, it was daylight,
and the officer’s window was down. Id. at 28, 32–33. Officer Fitzgibbon
subsequently testified that initially, the distance was a bit further. Id. at
47–48.
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This court notes that the record reveals that the
Commonwealth did not produce any evidence which
conclusively established that appellant did, in fact,
discharge the firearm in question.
Upon reaching the top of the block, Officer Fitzgibbon
came in contact with other Philadelphia Police Officers and
provided a description of appellant, which description was then
broadcast over police radio. Id. at 41, 83. Shortly thereafter,
Officer Fitzgibbon proceeded around the block back to Passmore
Street whereupon he encountered appellant again; by this time
appellant had been stopped by Philadelphia Police Sergeant
James Hawe (hereinafter “Sergeant Hawe”). Id. at p.42.
Sergeant Hawe stopped appellant because of appellant’s
resemblance to the flash information received over the radio via
Officer Fitzgibbon. Id. at 83. Upon exiting his patrol vehicle,
Officer Fitzgibbon pointed at appellant and stated “that’s him.”
Id. at 88. As a result of Officer Fitzgibbon’s unequivocal
identification, appellant was placed in police custody. Id. at 88.
A search of the area was then conducted by Officer
Fitzgibbon and his brother officers for a firearm and any fired
cartridge casings. Id. at 49. During the search, Officer
Fitzgibbon observed a firearm underneath a motor vehicle. Id.
This firearm was located approximately five (5) feet from where
Sergeant Hawe had stopped appellant. Id. at 89. Officer
Fitzgibbon subsequently identified the firearm as the black
semiautomatic handgun that had been wielded by appellant. Id.
at 51-52. The Philadelphia Police Crime Scene Unit
photographed the firearm. Id. at 93. Upon further examination
of the firearm, it was determined that the firearm was loaded
with ten (10) live cartridges in the magazine. Id. at 150.
Trial Court Opinion, 2/12/16, at 3–4.
Following Appellant’s conviction of the above-described charges,
sentence was deferred pending a presentence investigation. On January 13,
2015, the trial court sentenced Appellant to an aggregate term of
imprisonment of ten years, three months to twenty years, six months.
Appellant filed a timely motion to modify sentence, which the trial court
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granted. On February 19, 2015, the trial court imposed an aggregate
sentence of nine years, nine months to nineteen years, six months of
imprisonment, as follows: fifteen to thirty months for aggravated assault; a
consecutive term of sixty to 120 months for possession of a firearm by a
prohibited person; a consecutive term of forty-two to eighty-four months for
possession of a firearm without a license; a concurrent term of twelve to
twenty-four months for carrying a firearm in public in Philadelphia; and a
concurrent term of nine to eighteen months for PIC. Reconsideration of
Sentence Order, 2/19/15; Trial Court Opinion, 2/12/16, at 2 n.7. Appellant
filed a timely notice of appeal, and both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following two issues for our review:
1. Was not the evidence insufficient to support [A]ppellant’s
conviction for aggravated assault, where the testimony did
not establish beyond a reasonable doubt that he
specifically intended to place a police officer in fear of
imminent serious bodily injury, when he pointed an
unchambered firearm at a car occupied by a police officer?
2. Did not the trial court err by imposing an unreasonable
and excessive aggregate sentence by imposing consecutive
sentences for aggravated assault (15 to 30 month);
[Violation of the Uniform Firearm Act] VUFA 6105 (60 to
120 months); and VUFA 6106 (42 to 84 months),which
yielded a maximum of almost twenty years for an offense
in which no one was physically harmed?
Appellant’s Brief at 3.
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Appellant’s first issue assails the sufficiency of the evidence supporting
his conviction for aggravated assault. Our standard of review for a
sufficiency-of-the-evidence claim is well settled:
The standard we apply in reviewing the sufficiency of
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 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 own
judgment for that of 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.
Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super.
2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207,
1211 (Pa. Super. 2003)). Furthermore:
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 credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).
Appellant was convicted of aggravated assault as defined in 18 Pa.C.S.
2702(a)(6), which provides as follows:
(a) Offense defined.--A person is guilty of aggravated assault
if he:
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* * *
(6) attempts by physical menace to put any of the
officers, agents, employees or other persons
enumerated in subsection (c), while in the
performance of duty, in fear of imminent serious
bodily injury;
* * *
(c) Officers, employees, etc., enumerated.--The officers,
agents, employees and other persons referred to in subsection
(a) shall be as follows:
(1) Police officer.
18 Pa.C.S. § 2702(a)(6), (c)(1).
Appellant asserts that the evidence fails to establish that he “intended
to place the officer in fear of serious bodily injury. The evidence established
that [Appellant] merely pointed an unchambered handgun at the officer’s
vehicle, but not necessarily at the officer who was inside.” Appellant’s Brief
at 17. Appellant maintains that case law cited by the trial court is
distinguishable because additional facts bearing on state of mind are not
present in this case.
See e.g. Commonwealth v. Little, 614 A.2d 1146, 1152-53 (Pa.
Super. 1992) (armed with a shotgun, the appellant shouted
obscenities in a hostile manner, approached within three feet of
deputies, and ordered officers off her property); Commonwealth
v. Hudgens, 582 A.2d 1352, 1357 (Pa. Super. 1990) (armed
with a sword, the appellant touched the victim in the hand with
the sword, held it within five inches of the victim’s body, and
threatened to “get him”); Commonwealth v. Dicenzo, 393 A.2d
988, 988-89 (Pa. Super. 1978) (armed with a stone, the
appellant threatened to bash the officer’s brains in); see also
Commonwealth v. Wood, 710 A.2d 626 (Pa. Super. 1998)
(specific intent to cause serious bodily injury where appellant
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actually discharged firearm into police vehicle); Commonwealth
v. McCalam, 795 A.2d 412,415 -16 (specific intent to cause
serious bodily injury where appellant, an expert marksman shot
into car and missed victim by three inches).
Unlike Little, Hudgens, and Dicenzo, [Appellant] made no
statements, and unlike Wood and McCalam, [Appellant]
exhibited no conduct beyond mere pointing that bore on a
specific intent to scare Officer Fitzgibbon. As the firearm was
unchambered, his conduct could not have physically harmed
Officer Fitzgibbon.
Appellant’s Brief at 18.
The relevant statute required the Commonwealth to prove that
Appellant attempted by physical menace to put a police officer, while in the
performance of his duty, in fear of imminent serious bodily injury. 18
Pa.C.S. §§ 2702(a)(6), (c)(1). In Commonwealth v. Fortune, 68 A.3d
980, 984 (Pa. Super. 2013), this Court explained:
In the matter sub judice, there is no question that Appellant’s
actions did not cause the victim to sustain actual, serious bodily
injury; therefore, Appellant’s conviction for Aggravated Assault
turns exclusively on whether he attempted to inflict serious
bodily injury upon the victim. In this regard, this Court has
stated the following:
Where the victim does not suffer serious bodily
injury, the charge of aggravated assault can be
supported only if the evidence supports a finding of
an attempt to cause such injury. “A person commits
an attempt when, with intent to commit a specific
crime, he does any act which constitutes a
substantial step toward the commission of that
crime.” 18 Pa.C.S.A. § 901(a). An attempt under
Subsection 2702(a)(1) requires some act, albeit not
one causing serious bodily injury, accompanied by an
intent to inflict serious bodily injury.
Commonwealth v. Matthew, 589 Pa. 487, 909
A.2d 1254 (2006). “A person acts intentionally with
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respect to a material element of an offense when ...
it is his conscious object to engage in conduct of that
nature or to cause such a result.” Id. at 1257–58
(quotation omitted). “As intent is a subjective frame
of mind, it is of necessity difficult of direct proof.”
Id. (citation omitted). The intent to cause serious
bodily injury may be proven by direct or
circumstantial evidence. Id.Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super.
2012) (emphasis added).
Fortune, 68 A.3d at 984–985.
The trial court correctly evaluated Appellant’s sufficiency challenge, as
follows:
In the instant matter, Officer Fitzgibbon testified that after
hearing appellant repeatedly state “it’s going down” while
conversing on his cellular phone, the officer asked if appellant
could speak with him for a moment. N.T. at 33-34. Appellant
responded by producing a firearm from his pocket and pointing it
at Officer Fitzgibbon and his patrol vehicle. Id. at 34 -35. With
his gun drawn and pointed at Officer Fitzgibbon, appellant then
continued to proceed towards the officer. Id. at 37. In response
to [A]ppellant’s actions, Officer Fitzgibbon “floored the gas” and
quickly and immediately fled from the area in his patrol vehicle.
Id. at 38. While doing so, Officer Fitzgibbon glanced in his
rearview mirror and observed appellant standing in the street
with the firearm pointed towards his patrol vehicle. Id.
Examination of the recovered firearm revealed that it was loaded
with ten (10) cartridges in the magazine. Id. at 150.
Trial Court Opinion, 2/12/16, at 12.
Here, in response to the officer’s request to speak with Appellant,
Appellant drew a loaded, semi-automatic weapon from his pocket and
pointed it directly at Officer Fitzgibbon. N.T., 10/23/14, 34–35. Appellant
then quickly moved toward the officer, despite being ten to twenty feet
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away. Id. at 48, 54–55. The officer testified that he “was scared,” and he
“leaned all the way to the right . . . covering myself from being exposed . . .
because I wasn’t sure if he was going to shoot at me.” Id. at 37. Thus, we
have no hesitation in concluding that the evidence supports the jury’s
verdict.
Appellant’s second issue avers that the trial court imposed an
excessive sentence where some of the individual periods of incarceration
were imposed consecutively to each other. Appellant’s Brief at 19. This is a
challenge to the discretionary aspects of his sentence. It is well settled that
a challenge to the discretionary aspects of a sentence is a petition for
permission to appeal, as the right to pursue such a claim is not absolute.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). “An
appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence,” by (1) preserving
the issue in the court below, (2) filing a timely notice of appeal, (3) including
a Rule 2119(f) statement, and (4) raising a substantial question for our
review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015)
(citation omitted).
Appellant has met the first three parts of the four-prong test:
Appellant filed a timely appeal; Appellant preserved the issue in a post-
sentence motion; and Appellant included a statement pursuant to Pa.R.A.P.
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2119(f) in his brief.2 Thus, we assess whether Appellant has raised a
substantial question with respect to the issues he presents.
A determination as to whether a substantial question exists is made on
a case-by-case basis. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013). “A substantial question exists only when the 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.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015), appeal denied, 126 A.3d 1282 (Pa. 2015).
Appellant submits that a substantial question exists in this case
because the consecutive sentences imposed on his convictions resulted in a
manifestly excessive and unreasonable sentence. Appellant’s Brief at 11–12.
We conclude that Appellant has presented a substantial question. See
Dodge, 77 A.3d at 1269 (stating that claims of a manifestly excessive
sentence due to the imposition of consecutive sentences raises substantial
question); Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.
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2
While Appellant included a Pa.R.A.P. 2119(f) statement, Appellant’s Brief
at 11, it is deficient because it fails to articulate how his sentence violates a
particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013). However, because the Commonwealth
has not objected to this deficiency, and because appellate review is not
hampered, we decline to find waiver. Id.- 10 -
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2015) (challenge to the imposition of consecutive sentences as unduly
excessive, together with claim that court failed to consider rehabilitative
needs and mitigating factors presented substantial question).
The imposition of sentence is vested within the sound discretion of the
trial court, which, absent an abuse of that discretion, will not be disturbed on
appeal. “An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Commonwealth v. Colon, 102 A.3d
1033, 1043 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).
Moreover, the decision to impose consecutive rather than concurrent
sentences is left to the discretion of the sentencing court. Commonwealth
v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).
The record reflects that the trial court carefully considered the gravity
of Appellant’s offenses, his rehabilitative needs, the protective needs of the
community, and the impact of Appellant’s crimes on his victim. At the
sentencing hearing, the trial court stated:
In fashioning a sentence, this court has considered the
gravity of the offenses, the rehabilitative needs of [Appellant],
the need[] to protect the community, the prior record score
report, the mental health report, and the appropriate arguments
from the Commonwealth, arguments of the defense, the letter
on behalf of [Appellant] by his mother, as well as [Appellant’s]
allocution.
N.T., 1/13/15, at 35.
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In addressing this issue in its Pa.R.A.P. 1925(a) opinion, the trial court
explained:
[T]his Court measured mitigating factors such as [A]ppellant’s
physical neglect and substance abuse from a young age, against
the actions of [A]ppellant in the instant matter, which this court
referred to as “one of the worst things that can happen in
society.” Id. at 33-34. This court also considered the fact that
[A]ppellant has continuously been under county supervision
since 2000. Id. at 34. Therefore, by engaging in the due
diligence that is required when sentencing a defendant, this
court did not abuse its discretion by imposing [consecutive]
sentences.
Trial Court Opinion, 2/12/16, at 10. Thus, we conclude that the trial court
considered all necessary factors and did not abuse its discretion in imposing
some terms of incarceration to run consecutively and some concurrently.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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