Com. v. Taylor, D. ( 2015 )


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  • J. S06031/15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee          :
    :
    v.                      :
    :
    DARYL TAYLOR,                               :
    :
    Appellant         :     No. 619 EDA 2014
    Appeal from the Judgment of Sentence February 12, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division No(s).: CP-51-CR-0012608-2013
    BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 06, 2015
    Appellant, Daryl Taylor, appeals from the judgment of sentence
    entered in the Court of Common Pleas of Philadelphia County. He challenges
    the sufficiency of the evidence regarding the criminal intent for his bench
    convictions for aggravated assault by physical menace against a parking
    enforcement officer1 and simple assault.2 We affirm.
    The trial court summarized the trial evidence, viewed in the light most
    favorable to the Commonwealth, as follows:
    *
    Former Justice specially assigned to the Superior Court.
    1
    18 Pa.C.S. § 2702(a)(6), (c)(22).
    2
    18 Pa.C.S. § 2701(a)(3).
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    Eddie Evans [(“Complainant”)], a Philadelphia Parking
    Authority Police Officer[,] was on duty, in uniform, on
    September 21, 2013. [N.T. Trial, 2/12/14, at 8, 10]. At
    about 10:15 p.m.[,] he was making his rounds of the
    parking garage on Second Street, between Sansom and
    Walnut Streets in Philadelphia.      [Id. at 9].      He
    encountered [Appellant] and another man who were
    bedding down in the garage. He told them they could not
    stay there. [Id. at 11].
    [Appellant] became belligerent when told he had to
    leave, telling the officer to make him, then coming toward
    the officer with a blade in his hand. [Id. at 12, 13, 14].
    [Appellant] had two inches of the blade displayed, with his
    hand coming towards the officer.          [Id. at 16, 52].
    [Appellant] was holding the blade in his right hand, slightly
    behind his him [sic], making a forward motion toward the
    officer as he approached the officer.         [Id. at 17].
    [Appellant] approached to within inches of the officer. [Id.
    at 14]. During this time[, Appellant] repeatedly told the
    officer he was going to kill him. [Id. at 15, 17, 34-35,
    36]. As the officer backed away, [Appellant] continued to
    come toward the officer. [Id. at 18].
    The wind blew [Appellant’s] hood into his face, enabling
    the officer to grab [Appellant] and push him away to the
    outside[, d]uring which time the officer fell. [Appellant]
    came back around, at which time the officer called for help
    on his radio, because he was fearful of being cut or
    stabbed with the knife. [Id. at 12, 18].
    United States Park Ranger Manchester[3] responded to
    the scene, arrested [Appellant,] and recovered an eight[-]
    inch butter knife from his bag. [Id. at 41].
    Trial Ct. Op., 5/28/14, at 2-3.
    The bench trial commenced on February 12, 2014, at which both
    Complainant and Appellant testified.          Robert Gill, a Philadelphia Parking
    Authority    employee,    also    testified   as   a   rebuttal   witness   for   the
    3
    The park ranger’s first name was not readily apparent in the record.
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    Commonwealth.       The trial court found Appellant guilty of the following:
    aggravated assault, a felony of the second degree; possessing instruments
    of crime,4 a misdemeanor of the first degree; terroristic threats,5 a
    misdemeanor of the first degree; and simple assault, a misdemeanor of the
    second degree. Immediately thereafter, the trial court sentenced Appellant
    on the aggravated assault charge to nine to twenty-three months’
    imprisonment with immediate parole to an in-patient facility, followed by a
    consecutive sentence of three years’ probation. The trial court merged the
    simple assault sentence and did not impose sentences for the other
    convictions.
    On February 21, 2014, Appellant filed a “Motion for Reconsideration,
    Arrest of Judgment, and/or New Trial,” arguing the verdict was against the
    weight of the evidence.        The trial court denied this motion the same day
    without a hearing, but amended Appellant’s sentence to include a waiver of
    probation and supervision fees.
    Appellant filed a timely notice of appeal on February 24, 2014. After
    obtaining an extension of time, he filed a timely court-ordered Pa.R.A.P.
    1925(b) statement of matters complained of on appeal on May 7, 2014. On
    May 28, 2014, the trial court issued its opinion.
    4
    18 Pa.C.S. § 907(a).
    5
    18 Pa.C.S. § 2706(a)(1).
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    Appellant presents one issue on appeal for our review: the sufficiency
    of evidence for his aggravated assault and simple assault convictions.    He
    argues the evidence was insufficient to prove he attempted to put
    Complainant in fear of imminent serious bodily injury by physical menace.
    Although he concedes that he threatened the officer and walked toward him,
    he contends “the facts established that [A]ppellant never brandished what
    was a butter knife, nor attempted to assault the officer in any way.”
    Appellant’s Brief at 7.   Appellant further claims “[h]e never touched or
    attempted to touch the complainant physically.” 
    Id. at 10.
    We disagree.
    The standard of review for a sufficiency of the evidence challenge is
    well-established:
    A claim challenging the sufficiency of the evidence
    presents a question of law. We must determine “whether
    the evidence is sufficient to prove every element of the
    crime beyond a reasonable doubt.”         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.”
    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.        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
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    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. Fortune, 
    68 A.3d 980
    , 983-84 (Pa. Super. 2013)
    (internal citation omitted) (quoting Commonwealth v. Thomas, 
    65 A.3d 939
    , 943 (Pa. Super. 2013)).
    The Pennsylvania Crimes Code provides: “A person is guilty of
    aggravated assault if he . . . 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.”
    18 Pa.C.S. § 2702(a)(6).       Subsection (c) includes parking enforcement
    officers.   18 Pa.C.S. § 2702(c)(22).    The Crimes Code also provides: “A
    person is guilty of assault if he . . . attempts by physical menace to put
    another in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3).
    The Crimes Code further defines “serious bodily injury” as “[b]odily injury
    which creates a substantial risk of death or which causes serious, permanent
    disfiguration, or protracted loss or impairment of the function of any bodily
    member or organ.” 18 Pa.C.S. § 2301.
    As the trial court noted, the elements of aggravated assault under
    Section 2702(a)(6) and simple assault under Section 2701(a)(3) differ only
    in that the aggravated assault subsection requires the victim to be one of
    twenty-seven enumerated “officers, agents, or employees.”        See Trial Ct.
    Op. at 4-5 & n.2; Commonwealth v. Repko, 
    817 A.2d 549
    , 554 (Pa.
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    Super. 2003).6
    The Commonwealth must present the following elements to prove the
    crime of simple assault by physical menace under Section 2701(a)(3):
    (1) that the defendant attempted to put the [victim] in
    fear of imminent serious bodily injury, and took a
    substantial step toward that end, (2) that the defendant
    used physical menace to do this, and (3) that it was the
    defendant’s conscious object or purpose to cause fear of
    serious bodily injury.
    Commonwealth v. Little, 
    614 A.2d 1146
    , 1151 (Pa. Super. 1992).7
    This Court adopted these elements to prove the crime of aggravated
    assault by physical menace of an officer under Section 2702(a)(6). 
    Repko, 817 A.2d at 554
    .     Moreover, “[i]ntent can be proven by circumstantial
    6
    In Commonwealth v. Matthews, 
    870 A.2d 924
    (Pa. Super. 2005) (en
    banc), an en banc panel of this Court overruled Repko to the extent it
    “[stood] for the proposition that the Commonwealth presented insufficient
    evidence of the defendant’s intent [for a Section 2702(a)(1) aggravated
    assault conviction], as a matter of law, where the defendant does not avail
    himself of the opportunity to follow through with the threats.” 
    Id. at 933.
    Upon further review, our Supreme Court agreed with this Court’s disapproval
    of Repko on this issue, but concluded “there [was] no need to overrule”
    Repko because it adhered to Commonwealth v. Alexander, 
    383 A.2d 887
    (Pa. 1978). Commonwealth v. Matthew, 
    909 A.2d 1254
    , 1258 (Pa. 2006)
    (citing 
    Alexander, 383 A.2d at 889
    (creating totality of circumstances test
    and factors to determine whether defendant possessed intent to inflict
    serious bodily injury). This distinction does not apply in the case sub judice
    as Appellant was found guilty of aggravated assault under Section
    2702(a)(6). We further note the Supreme Court’s observation that although
    it spelled the defendant’s name “Matthew,” the Superior Court spelled it
    “Matthews.” 
    Matthew, 909 A.2d at 1256
    n.1.
    7
    This statement was a part of the trial court’s opinion, expressly adopted
    and attached as an appendix in Little. 
    Little, 614 A.2d at 1148
    .
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    evidence and may be inferred from the defendant’s conduct under the
    attendant circumstances.” 
    Id. In Repko,
    a police officer arrived at the defendant’s home in response
    to an ongoing verbal and physical altercation. 
    Id. at 551.
    The defendant
    emerged from his home with one arm around his fiancée’s neck and the
    other carrying a shotgun. 
    Id. The police
    officer “announced himself as an
    officer and ordered [the defendant] to drop his weapon.” 
    Id. The defendant
    did not comply, and instead raised and pointed his shotgun at the officer.
    
    Id. The officer
    repeated his command, at which point the defendant
    released the woman and carried his gun back inside his house. 
    Id. at 551-
    52. The defendant “later re-emerged without the gun and was taken into
    custody without a struggle.”    
    Id. at 552.
      At trial, the officer testified he
    “was very scared” and “felt like [his] life was in jeopardy.” 
    Id. at 554.
    A jury convicted the defendant of, inter alia, aggravated assault by
    physical menace of a police officer under Section 2702(a)(6).      
    Id. at 552.
    On appeal, he challenged the sufficiency of the evidence to support the
    requisite intent for this crime. 
    Id. at 553.
    The defendant argued, inter alia,
    he did not intend to place the officer in fear and that his shotgun was neither
    loaded nor pointed directly at the officer. 
    Id. This Court
    affirmed. We applied Little’s discussion of the sufficiency
    of evidence for simple assault by physical menace.          
    Id. at 555.
        We
    concluded the defendant’s actions of raising and pointing his shotgun at the
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    officer demonstrated intent to place the officer in fear of serious bodily
    injury. 
    Id. This Court
    noted there was no evidence in the record indicating
    the defendant “had any lawful intention when he raised his weapon in
    response to the officer’s directive to drop it.” 
    Id. In the
    instant case, the trial court, who sat as the finder of fact,
    examined the totality of the circumstances in concluding Appellant intended
    to place Complainant in fear of serious bodily injury by physical menace:
    Here, the relevant conduct consisted of [Appellant]
    coming toward the officer with a blade displayed in his
    hand (N.T. [at] 12, 13, 14), with his hand coming towards
    the officer ([id. at] 16), making a forward motion with the
    blade toward the officer as he approached the officer ([Id.
    at] 17) to within inches ([id. at] 14), [and] continuing to
    come toward the officer as he backed away. [Id. at] 18.
    The relevant words were that [Appellant] repeatedly told
    the officer he was going to kill him. [Id. at] 15, 17, 34-
    35, 36. We also note that [Appellant] did not voluntarily
    cease his conduct. Rather, wind blew [Appellant’s] hood
    into his face, enabling the officer to grab him and push him
    away to the outside. [Id. at] 12, 18. During which time
    the officer fell. [Appellant] came back around, at which
    time the officer called for help on his radio, because he
    was fearful of being cut or stabbed with the knife. [Id. at]
    12, 18.[ ]
    Trial Ct. Op. at 6.
    Appellant’s use of a knife, rather than a shotgun, does not warrant a
    different conclusion than we reached in Repko and Little, because a knife
    may similarly place someone in fear of serious bodily injury.               See
    Commonwealth v. Diamond, 
    408 A.2d 488
    , 489-90 (Pa. Super. 1979)
    (finding sufficient evidence to sustain simple assault by physical menace
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    conviction where defendant approached and gripped door handle of victim’s
    car at 4:00 a.m., “especially since [defendant’s] friend was simultaneously
    threatening [the victim] with a knife on the other side of the car”); see also
    N.T. Trial at 49 (Appellant denying he had butter knife at time of incident
    and testifying, “If I was expecting trouble, I think a butter knife is a pure
    choice of weapon.”).
    Appellant’s claim that he “never pulled the knife from his sleeve or
    brandished the knife in any way,” is belied by the record. See Appellant’s
    Brief at 10. As noted by the trial court, Complainant testified that Appellant
    “had two inches of the blade displayed, with his hand coming towards the
    officer.” Trial Ct. Op. at 2-3 (citing N.T. at 16, 52). The jury was tasked
    with weighing the credibility of this testimony and was free to believe all,
    part, or none of this evidence. See 
    Fortune, 68 A.3d at 984
    . Furthermore,
    Appellant’s argument that he “never touched or attempted to touch the
    Complainant physically” is without merit.      See Appellant’s Brief at 10.
    Neither the aggravated assault by physical menace statute nor simple
    assault statute require a defendant to attempt to touch or to actually touch
    his victim. See 18 Pa.C.S. §§ 2701(a)(3), 2702(a)(6).
    Based on the foregoing, we discern no merit to Appellant’s argument
    that the evidence is not sufficient to sustain his convictions for aggravated
    assault by physical menace against an officer and simple assault.     Rather,
    the evidence supports the trial court’s determination that Appellant intended
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    to place the parking enforcement official in fear of serious imminent bodily
    injury.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/6/2015
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