Com. v. Jackson, D. ( 2019 )


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  • J. S02014/19
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                   :
    :
    DONTE JACKSON,                            :          No. 1656 EDA 2016
    :
    Appellant       :
    Appeal from the Judgment of Sentence, May 13, 2016,
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No. CP-51-CR-0010883-2012
    BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 10, 2019
    Donte Jackson appeals from the May 13, 2016 aggregate judgment of
    sentence of 10 to 20 years’ imprisonment imposed after a jury found him
    guilty of aggravated assault by physical menace, possessing an instrument of
    crime (“PIC”), terroristic threats, and simple assault.1 After careful review,
    we affirm.
    The trial court summarized the relevant facts of this case as follows:
    The victim, Courtney Smith, reported that on
    August 27, 2012 at approximately 1:30 p.m. she
    stopped at a grocery store to pick up snack food on
    her way to work as a City of Philadelphia Correctional
    Officer assigned to the City of Philadelphia Curran-
    Fromhold Correctional Facility located at 7901 State
    Road, Philadelphia, PA 19136. As is required by her
    employer, she had been dressed in full uniform with
    her nametag properly displayed. As she entered the
    1   18 Pa.C.S.A. §§ 2702(a)(6), 907(a), 2706(a), and 2701(a), respectively.
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    grocery store, [a]ppellant, who was a stranger to her,
    came from the back of the store toward her and
    looked at her nametag. He immediately began yelling
    at her words that included, “Smith, I don’t know that
    one,” and “You got the nut-ass pepper spray. That
    pepper spray don’t do shit for you in here. Y’all
    nut-ass guards think y’all something and I should
    shoot you right now. I’ll be right back.” After making
    repeated threats and slurs referencing her
    employment, [a]ppellant left the store.
    When Officer Smith walked outside the store toward
    her vehicle that would have transported her directly
    to her job location, [a]ppellant reappeared from
    around the corner, and holding what appeared to be
    a black gun wrapped in a grey towel. He stopped
    Officer Smith from getting to her vehicle and going to
    work. He raised and pointed the muzzle of the gun
    directly at Officer Smith’s torso and stated[,] “I should
    shoot you right now.” Officer Smith stated that the
    gun used by [a]ppellant appeared to be real based
    upon her experience owning a firearm and her
    previous training. At the time, Officer Smith was only
    armed with pepper spray as per her employment
    directives. She escaped by jumping around him and
    into her vehicle. She drove away from the area and
    immediately called police. The next day, Officer Smith
    was transported via police vehicle to the same general
    vicinity of the crime and positively identified
    [a]ppellant, who was wearing the same gray shirt and
    sweat pants that he had worn during the attack.
    A City of Philadelphia S.W.A.T. Officer, Aaron Willis,
    testified that on August 28, 2012 he had been
    assigned as a regular district patrol officer and had
    observed [a]ppellant near 56th and Race Streets in
    Philadelphia. Based upon the flash description of the
    perpetrator, which matched the appearance of
    [a]ppellant, Officer Willis briefly detained [a]ppellant.
    Officer Smith was brought to the location and
    unequivocally     identified     [a]ppellant    as    the
    perpetrator. While Officer Willis was transporting
    [a]ppellant in the police vehicle following the
    identification and arrest, [a]ppellant boastfully blurted
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    “I should have killed that bitch. When I see her again
    I’m going to murder her.”
    Trial court opinion, 4/30/18 at 2-3 (citations to notes of testimony omitted).
    Appellant was charged with the aforementioned offenses, as well as
    recklessly endangering another person (“REAP”)2 and three firearms offenses,
    and proceeded to a jury trial on March 14, 2016.         The REAP charge was
    nolle prossed by the Commonwealth prior to trial. On March 17, 2016, the
    jury found appellant guilty of aggravated assault, PIC, terroristic threats, and
    simple assault, and not guilty of the firearms offenses.3 As noted, appellant
    was sentenced to an aggregate term of 10 to 20 years’ imprisonment on
    May 13, 2016. Appellant did not file any post-sentence motions. This timely
    appeal followed.4
    Appellant raises the following issues for our review:
    A.    Was the evidence insufficient to support the
    guilty verdict for 18 Pa.C.S.A. § 2702(a)(6), as
    2   18 Pa.C.S.A. § 2705.
    3 Specifically, the jury found appellant not guilty of persons not to possess,
    use, manufacture, control, sell, or transfer firearms; firearms not to be carried
    without a license; and carrying firearms on public streets or public property in
    Philadelphia.     See 18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108(a),
    respectively.
    4 Appellant and the trial court have complied with Pa.R.A.P. 1925. We note
    that although represented by counsel, appellant filed a pro se amended
    Rule 1925(b) statement on January 6, 2018, raising nine additional issues.
    We decline to address the issues raised in appellant’s pro se Rule 1925(b)
    statement, as this would constitute improper hybrid representation, and this
    court previously denied appellant’s request to represent himself on appeal by
    order dated December 19, 2017, and specifically directed that appellant be
    represented by counsel on appeal.
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    the assault on the complainant did not occur
    “while in the performance of duty”?
    B.    Did the trial court err in omitting from the
    verdict sheet language that specified that a
    violation of 18 Pa.C.S.A. § 2702(a)(6) requires
    the alleged victim be “in the performance of
    duty”?
    Appellant’s brief at 7.
    Appellant first argues that there was insufficient evidence to sustain his
    conviction for aggravated assault of a corrections officer by physical menace
    because “the assault on [Officer Smith] did not occur ‘while in the performance
    of duty.’” (Id. at 10.) In support of this contention, appellant avers that,
    “when [Officer Smith] stopped to get a pretzel at the corner store/bodega,
    she was not on duty and was not acting in the capacity of a Corrections Officer
    as the bodega is not a correctional facility.” 
    Id. at 12.
    This claim is belied by
    the record.
    Our standard of review in assessing a sufficiency of the evidence claim
    is well settled.
    We must determine whether the evidence admitted at
    trial, and all reasonable inferences drawn therefrom,
    when viewed in a light most favorable to the
    Commonwealth as verdict winner, support the
    conviction beyond a reasonable doubt. Where there
    is sufficient evidence to enable the trier of fact to find
    every element of the crime has been established
    beyond a reasonable doubt, the sufficiency of the
    evidence claim must fail.
    The evidence established at trial need not preclude
    every possibility of innocence and the fact-finder is
    free to believe all, part, or none of the evidence
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    presented. It is not within the province of this Court
    to re-weigh the evidence and substitute our judgment
    for that of the fact-finder. The Commonwealth’s
    burden may be met by wholly circumstantial evidence
    and any doubt about the defendant’s guilt is to be
    resolved by the fact[-]finder unless the evidence is so
    weak and inconclusive that, as a matter of law, no
    probability of fact can be drawn from the combined
    circumstances.
    Commonwealth v. N.M.C., 
    172 A.3d 1146
    , 1149 (Pa.Super. 2017) (citations
    omitted).
    Section 2702 of the Crimes Code defines the offense of aggravated
    assault, in relevant part, as follows:
    (a)    Offense defined.--A person        is   guilty   of
    aggravated assault if he:
    ....
    (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[.]
    18 Pa.C.S.A. § 2702(a)(6).
    The difference between Section 2702(a)(6) and the crime of simple
    assault by physical menace, 18 Pa.C.S.A. § 2701(a)(3), is “the occupation of
    the victim.”   Commonwealth v. Repko, 
    817 A.2d 549
    , 554 (Pa.Super.
    2003), abrogated in part on other grounds by Commonwealth v.
    Matthews, 
    870 A.2d 924
    (Pa.Super.2005) (en banc), affirmed, 
    909 A.2d 1254
    (Pa. 2006). Unlike simple assault by physical menace, the aggravated
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    assault subsection requires that the victim be one of 27 enumerated “officers,
    agents, or employees[.]”      18 Pa.C.S.A. § 2702(a)(6).       An “[o]fficer or
    employee of a correctional institution” is one of the individuals enumerated in
    Subsection (c). 
    Id. at §
    2702(c)(9).
    Viewing the evidence in the light most favorable to the Commonwealth,
    the verdict winner, we find that there was sufficient evidence to support the
    jury’s conclusion that appellant committed an aggravated assault under
    Section 2702(a)(6) when he pointed a gun at a uniformed corrections officer
    who was attempting to reach her workplace. Specifically, our review of the
    record demonstrates that on the afternoon of August 27, 2012, appellant
    repeatedly threatened Officer Smith while she was inside a corner store that
    she had briefly entered on her way to her work at the Curran-Fromhold
    Correctional Facility. (Notes of testimony, 3/15/16 at 70-86.) Officer Smith
    was dressed in full uniform with her correctional officer nametag displayed,
    and appellant clearly targeted Officer Smith because she was wearing an
    officer’s uniform. (Id.) Officer Smith testified that as part of the performance
    of her duties, she was required to dress in full uniform and carry pepper spray
    when going to and from the Curran-Fromhold Correctional Facility. (Id. at
    90-92, 118-120.)    Officer Smith further testified that appellant repeatedly
    chastised and threatened to shoot her for working at a correctional facility,
    stating, “Smith, I don’t know that one . . . Y’all nut-ass guards think y’all
    something and I should shoot you right now, I’ll be right back.” (Id. at 70-86.)
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    The record establishes that when Officer Smith exited the store to travel
    directly to her workplace to begin her shift, appellant reappeared from around
    the corner, pointed a firearm wrapped in a towel at her, and attempted to
    block her from entering her vehicle. (Id. at 86-92.) Contrary to appellant’s
    contention,   it   is   in   this   moment   when   the   alleged   assault   under
    Section 2702(a)(6) occurred, not inside the corner store. It is evident from
    the record that appellant, through the use of menacing or frightening actions,
    and coupled with his prior verbal threats to Officer Smith solely because she
    was a corrections officer, not only intended to interfere with her performance
    of her duties — namely, traveling to the correctional facility to begin her shift
    — but actually did so by causing her to be late. (Id. at 86-92, 118-120.)5
    Based on the foregoing, appellant’s contention that there was
    insufficient evidence to sustain his conviction for aggravated assault under
    Section 2702(a)(6) must fail. See, e.g., Commonwealth v. McFadden, 
    156 A.3d 299
    , 307-308 (Pa.Super. 2017) (finding that there was sufficient
    evidence to support appellant’s conviction for the aggravated assault of a
    uniformed city school crossing guard who was standing on her assigned street
    corner and performing her job tasks), appeal denied, 
    170 A.3d 993
    (Pa.
    2017); 
    Repko, 817 A.2d at 554
    (pointing a gun at an officer constitutes an
    5The record reflects that when appellant was apprehended the following day,
    he acknowledged to Philadelphia S.W.A.T. Officer Aaron Willis that, “I should
    have killed that bitch. When I see her again I’m going to murder her.” (Notes
    of testimony, 3/15/16 at 9-16, 90-98.)
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    attempt by physical menace to place the officer in fear of imminent serious
    bodily injury).
    Appellant’s next claim is that the trial court abused its discretion “in
    omitting from the verdict sheet language that specified that a violation of
    [Section] 2702(a)(6) requires the alleged victim be ‘in the performance of
    duty.’”   (Appellant’s brief at 14.)   Appellant contends that the trial court’s
    failure to specify this element of aggravated assault on the written verdict
    sheet was “unduly prejudicial” and “misleading” to the jury. (Id.) This claim
    is meritless.
    Contrary to appellant’s contention, there is no explicit requirement that
    the trial court set forth each element of the charged offenses on the written
    verdict sheet submitted to the jury. Here, the record reveals that the verdict
    sheets utilized by the trial court in this matter simply identified the crimes for
    which appellant was charged, as the trial court did not want to “place any
    undue emphasis on any element of any particular offense by inserting
    additional verbiage on the verdict sheet.” (Trial court opinion, 4/30/18 at 13.)
    The record further reflects that the trial court adequately instructed the jury
    on the elements of each of these charged offenses at the close of evidence.
    With regard to the aggravated assault charge, the trial court gave the
    following instruction to the jury:
    Now, the next charge is A6, attempt to put
    enumerated official in fear. Let me explain it to you.
    To find [appellant] guilty of this offense, you must find
    all of the following elements have been proven beyond
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    a reasonable doubt:        Number one, [appellant]
    attempted to put Correctional Officer Courtney Smith
    in fear of imminent serious bodily injury. Fear of
    imminent serious bodily injury means fear of an
    impairment of physical or -- I’m sorry. Strike that. It
    means fear of an impairment of physical condition that
    would create a substantial risk of death or that would
    cause serious, permanent disfigurement or protracted
    loss or impairment of the function of any bodily
    member or organ.
    In order to find that [appellant] attempted to put this
    victim in fear of imminent serious bodily injury, you
    must find that he engaged in conduct which
    constituted a substantial step toward causing such
    fear. An act is a substantial step if it is a major step
    toward commission of the crime and one that strongly
    corroborates your belief that [appellant] at the time
    he acted had that firm intent to put that victim in fear
    of that sort of injury. An act can be a substantial step
    even though other steps would have to be taken
    before the crime could actually be carried out.
    Number two, that [appellant] did so by use of physical
    menace. By that I mean [appellant] did some physical
    act that was menacing or frightening. Third, that
    [appellant’s] conduct in this regard was intentional.
    In other words, it was his conscious object or purpose
    to cause fear of imminent serious bodily injury to this
    victim. And, fourth, at the time of [appellant’s]
    actions this victim was acting in the
    performance of her duty as a correctional
    officer.
    Notes of testimony, 3/16/16 at 137-138 (emphasis added).
    “It is well settled that the jury is presumed to follow the trial court’s
    instructions.” Commonwealth v. Cash, 
    137 A.3d 1262
    , 1280 (Pa. 2016)
    (citation omitted), cert. denied,     U.S.     , 
    137 S. Ct. 1202
    (2017). Here,
    appellant has failed to offer any evidence establishing that the jury failed to
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    do so in the instant matter. Accordingly, we discern no abuse of discretion on
    the part of the trial court in electing not to set forth every element of the
    charged offenses on the written verdict sheet.
    For all the foregoing reasons, we affirm the trial court’s May 13, 2016
    judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/10/19
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Document Info

Docket Number: 1656 EDA 2016

Filed Date: 5/10/2019

Precedential Status: Precedential

Modified Date: 5/10/2019