Com. v. Dones, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID T. DONES
Appellant No. 708 MDA 2016
Appeal from the Judgment of Sentence November 3, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001228-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 19, 2016
David T. Dones appeals from the judgment of sentence, entered in the
Court of Common Pleas of Dauphin County, after he was convicted by a jury
of aggravated assault of a police officer1 and disorderly conduct.2 After
careful review, we affirm.
The trial court aptly summarized the relevant facts of this case as
follows:
Harrisburg City Police Officers Mike Rudy and Edwin Powell
responded to a call [at] 310 Hummel Street, Harrisburg, PA
around 4:00 a.m. on December 21, 2014. When the Police
Officers arrived, [Dones] was standing at the top of the third
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(3).
2
18 Pa.C.S. § 5503(a)(4).
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floor covered in blood and was being verbally aggressive toward
[the] police. Once [Dones] finally decided to come downstairs
and outside to be checked by medical personnel, [Dones’] action
began to escalate (i.e.[,] screaming louder, flexing, threatening
people, “you don’t know who you’re messing with, etc.).
[Dones] was cursing and threatening to kill the police officers
that were present on the scen[e]. [Dones] yelled “I’m going to
f*&king kill you” [Dones] was eventually transported to the
hospital.
Once at the hospital, [Dones] again erupted and was screaming,
yelling, [and] thrashing around on the gurney. [Dones] had to
be restrained. Hospital personnel along with several officers and
hospital security attempted to get him to calm down and onto a
hospital bed. While being held down, [Dones] began to lay back
and thrust his legs forward in a kicking motion. [Dones] looked
Officer Powell in the eyes and kicked him pretty hard, knocking
him back a foot. Additionally, [Dones] spit on Officer Powell and
it stuck to his shirt. [Dones] also spit on Christopher
Steinbacher. [Dones] continued to spit until a spit hood was put
on him.
Trial Court Opinion, 9/23/16, at 3 (footnotes and citations to record
omitted).
After a one-day jury trial, Dones was convicted of aggravated assault
of a police officer and disorderly conduct. On November 3, 2015, the court
held a consolidated sentencing hearing on the instant case, as well as on two
other unrelated cases involving Dones.3 Dones was sentenced to 18-84
months’ imprisonment on the aggravated assault charge, with credit for time
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3
Those two unrelated cases are also currently on appeal to this Court. See
Commonwealth v. Dones, 597 MDA 2016 (appeal from judgment of
sentence for simple assault) and Commonwealth v. Dones, 2106 MDA
2015 (appeal from judgment of sentenced for resisting arrest, disorderly
conduct, and public drunkenness).
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served, and a concurrent sentence of 12 months’ probation for the disorderly
conduct charge.
Dones filed a timely post-sentence motion, which the trial court
denied. On April 11, 2016, Dones filed a notice of appeal and, later, a timely
court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Dones presents the following issues for our review:
(1) Did not the lower court abuse its discretion by failing to
grant [Dones] a new trial on the basis that the guilty
verdicts were against the weight of the evidence?
(2) Was the imposition of an aggregate sentence of one year,
ten months, to nine years, clearly unreasonable, so
manifestly excessive as to constitute an abuse of
discretion, and inconsistent with the protection of the
public, the gravity of the offenses, and [Dones’]
rehabilitative needs where the court imposed consecutive
jail sentences both of which were in the aggravated range
of the sentencing guidelines?
Appellant’s Brief, at 8.
Dones first contends that the jury’s aggravated assault verdict was
against the weight of the evidence where the evidence was insufficient to
prove that he caused or attempted to cause bodily injury to a protected class
member who was performing within the scope of his official duties.4
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4
We recognize that Dones’ first issue on appeal is actually a challenge to the
sufficiency, not the weight, of the evidence. Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993) (evidence deemed sufficient to support verdict
when it establishes each material element of crime charged and commission
thereof by accused beyond reasonable doubt).
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When reviewing a sufficiency claim, our Court is required to view the
evidence in the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn from the
evidence. Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). In
applying the above test, the entire record must be evaluated and all
evidence actually received must be considered. Id. Finally, “the trier of fact
while passing upon the credibility of the witnesses . . . is free to believe all,
part or none of the evidence.” Commonwealth v. Hutchinson, 947 A.2d
800, 805-806 (Pa. Super. 2008) (quotation omitted).
Aggravated assault of a police officer or an emergency medical
technician (EMT) is defined as “attempt[ing] to cause or intentionally or
knowingly caus[ing] bodily injury to any of the officers, agents, employees
or other persons enumerated in subsection (c),5 in the performance of duty.”
18 Pa.C.S. § 2702(a)(3).
Here, Dones asserts that, due to a mental health episode, 6 he caused
only relatively minor self-inflicted wounds and kicked his legs for a short
period of time which did not cause any injuries to third persons. While
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5
Under subsection (c) of section 2702, police officers and emergency
medical service personnel are enumerated. 18 Pa.C.S. § 2702(c)(1), (21).
6
Dones states that he “was obviously in the throes of some mental health
episode,” Appellant’s Brief, at 36, during his encounter with the police and
EMTs. However, at trial he did not present any evidence to indicate that his
mental health was of such a nature that a jury could not infer he acted with
the requisite intent under section 2702.
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Dones admits he delivered one kick that “landed on [an officer’s] biceps and
the torso area,” he notes that the area was “protected by his bullet-proof
vest.” Appellant’s Brief, at 36. Accordingly, he claims that these actions do
not amount to aggravated assault and that “it was contrary to the weight of
the evidence for the jury to have made a finding that it was [his] conscious
object to inflict bodily injury on one or more of the alleged victims.” Id. at
36-37. We disagree.
In a prosecution for aggravated assault under section 2702(a)(3), the
Commonwealth has no obligation to establish that the officer actually
suffered a bodily injury; rather, the Commonwealth must establish only an
attempt to inflict bodily injury. Commonwealth v. Marti, 779 A.2d 1177(Pa. Super. 2001) (emphasis added and in original). This intent may be
shown by circumstances which reasonably suggest that a defendant
intended to cause injury. Id.; see also Commonwealth v. Galindes, 786
A.2d 1004, 1012 (Pa. Super. 2001) (“An attempt exists when the accused
intentionally acts in a manner which constitutes a substantial or significant
step toward perpetrating . . . bodily injury upon another.”).
It was within the jury’s province to find that Dones, by kicking,
thrashing, and flailing while he was restrained on a hospital bed, intended to
cause injury to Officer Powell and EMT Steinbacher. Officer Powell testified
that Dones gave him a “mule kick” to the chest that was “pretty hard [and]
knocked [him] back a little bit . . . maybe a foot” even though he was
wearing a bullet proof vest. N.T. Jury Trial, 11/3/15, at 57. The officer also
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testified that Dones “cocked his right leg back and ended up [kicking him] . .
. [s]omewhere on the bicep area.” Id. at 55. EMT Steinbacher testified that
as Dones was yelling obscenities and spitting at him and Officer Powell,
Dones “starting winding up” and tried to kick him. Id. at 75-77.
Viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner, we conclude that there was sufficient
evidence to enable the jury to find beyond a reasonable doubt that Dones
violated section 2702(a)(3).
Dones also claims that there was insufficient evidence to prove that his
actions caused serious public inconvenience, annoyance or alarm.
Specifically, he contends that as the subject of an involuntary mental health
commitment, he cannot be deemed to have committed disorderly conduct.
“A person is guilty of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he
creates a hazardous or physically offensive condition by any act which
serves no legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4).
Instantly, Dones continuously yelled obscenities at and threatened to
kill others and spat in their faces and tried to kick them, while he stood
outside his home and while he was restrained on a gurney in a public
hospital. Dones placed several officers, EMTs, and hospital personnel at
risk for injury and created a physically offensive condition in public.
Commonwealth v. Pringle, 450 A.2d 103, 106 (Pa. Super. 1982)
(shouting profane names and insults at police officers on public street while
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officers attempt to carry out their lawful duties constitutes disorderly
conduct). Moreover, Dones’ loud and offensive behavior caused neighbors
to “com[e] out from about three or four doors down wondering what was
going on.” N.T. Jury Trial, 11/3/15, at 67. See 18 Pa.C.S. § 5503(c) (under
section 5503, “‘public” means “affecting or likely to affect persons in a place
to which the public or a substantial group has access; among the places
included are . . . any neighborhood, or any premises which are open to the
public.”).
Viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner, we conclude that there was sufficient
evidence to enable the jury to find beyond a reasonable doubt that Dones
violated section 5503(a)(4).
In his final issue on appeal, Dones contends that the trial court’s
sentence is inappropriate where “the imposition of consecutive sentences . .
. was so manifestly excessive as to constitute an abuse of discretion.”
Appellant’s Brief, at 24. He also contends that the court focused solely on
the nature of the criminal conduct and discounted a mitigating factor, his
mental health condition.
Our standard of review when a defendant challenges the discretionary
aspects of a sentence is very narrow. We will reverse only where the
defendant has demonstrated a manifest abuse of discretion.
Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996).
However,
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[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test
to invoke the appellate court's jurisdiction when challenging the
discretionary aspects of a sentence. The court conducts a four-
part analysis to determine: (1) whether appellant has filed a
timely notice of appeal; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal defect; and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), citing
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.
2014).
Here, Dones filed a timely notice of appeal from his judgment of
sentence, preserved his discretionary aspect of sentence claim in a timely
post-sentence motion, and included a Pa.R.A.P 2119(f) statement in his
appellate brief. Therefore, we must determine whether he has presented a
substantial question to invoke our appellate review.
While a challenge to the imposition of consecutive rather than
concurrent sentences typically does not present a substantial question
regarding the discretionary aspects of sentence, Zirkle, supra, we have
recognized that a sentence can be so manifestly excessive in extreme
circumstances that it may create a substantial question. Commonwealth
v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010). Moreover, a claim that
a court imposed a sentence in the aggravated range without considering
mitigating circumstances constitutes a substantial question as to the
discretionary aspect of sentencing. See Commonwealth v. Felmlee, 828
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A.2d 1105 (Pa. Super. 2003) (en banc). A claim that a sentencing court
relied on impermissible factors also raises a substantial question.
Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006). Thus, we
conclude that Dones has presented a substantial question.
The trial court chose to run Dones’ aggravated-range aggravated
assault sentence (1½-7 years) consecutively to his aggravated-range
sentence for simple assault (4-24 months) in an unrelated case.7 The trial
court stated its reasons for sentencing on the record as follows:
Even though it does not appear that there are any convictions,
again, there are repeated arrests and many of them are for
batteries. One is for first-degree murder. Apparently, you were
acquitted or it was dismissed – one or the other – but there just
seems to be one episode after the other and it is of some
concern. You arrived in the Harrisburg area and immediately got
yourself involved in three different criminal episodes that
resulted in you standing here today. And, again, it just goes to
speak to this level of violence. This continuation of violence
doesn’t stop. And you say it’s because, well, you were off our
medication and so forth. But I think that particular excuse only
takes you so far. And it seems to me that an appropriate
sentence would be to a state correctional institution.
N.T. Sentencing Hearing, 11/3/15, at 11. In his Rule 1925(a) opinion, the
Honorable President Judge Richard A. Lewis further expounded upon why he
sentenced Dones to two aggravated-range sentences and ran them
consecutively:
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7
That case, which involved a completely distinct set of charges and a
separate jury trial, is also on appeal at 97 MDA 2016.
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[Dones] has a disturbing past that is riddled with past violent
behavior. . . . This continuation of violence does not appear to
end. Additionally, [Dones] shows no remorse whatsoever. This
is troubling as [Dones] continues to act in an aggressive manner
towards others. . . . [Dones] displayed actions of total disregard
to others. He kicked those who were helping him and continued
to spit on others until he was restrained and a spit mask was put
on him. Additionally, in taking into consideration [Dones’]
rehabilitative needs, this Court noted that [Dones] has been on
and off his medication and continues to use that as an excuse to
engage in violent behavior. This [C]ourt believes that that
particular excuse only carries so much weight and has run its
course. As such, the Court fashioned a sentence that takes into
consideration the protection of the public, the gravity of the
offenses, and [Dones’] rehabilitative needs.
Trial Court Opinion, 9/23/16, at 9.
In determining Dones’ sentence, the court carefully considered the
factors set out in 42 Pa.C.S. § 9721(b), that is: the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of Dones. Furthermore, as trial judge, President Judge
Lewis had wide discretion in sentencing and “can, on the appropriate record
and for the appropriate reasons, consider any legal factor in imposing a
sentence in the aggravated range.” Commonwealth v. Stewart, 867 A.2d
589, 593 (Pa. Super. 2005) (citation omitted). A defendant’s prior arrests
are a proper factor to consider in fashioning a sentence. See
Commonwealth v. Allen, 489 A.2d 906 (Pa. Super. 1985). Here, the court
looked at an FBI report detailing Dones’ out-of-state arrests and criminal
dispositions. N.T. Sentencing Hearing, 11/3/15, at 4-5. Moreover, the court
acknowledged the fact that Dones had significant mental health issues, but
found that his failure to consistently take his medications did not outweigh
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the need to protect society from his violent behaviors. Accordingly, we fail
to find that the trial court abused its discretion in sentencing Dones.
Hermanson, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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