Com. v. Davis, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTOPHER L. DAVIS
Appellant No. 3622 EDA 2017
Appeal from the Judgment of Sentence imposed October 23, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006283-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHRISTOPHER L. DAVIS
Appellant No. 210 EDA 2018
Appeal from the Judgment of Sentence imposed October 23, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006282-2015
BEFORE: GANTMAN, P.J.E., STABILE, J. and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 22, 2019
Appellant, Christopher Davis, appeals from the judgment of sentence
imposed on October 23, 2017 in the Court of Common Pleas of Philadelphia
County following his conviction of aggravated assault, 18 Pa.C.S.A. § 2702(a),
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* Former Justice specially assigned to the Superior Court.
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and other offenses. Appellant contends that the trial court abused its
discretion in fashioning Appellant’s sentence and that the evidence was
insufficient to sustain his aggravated assault conviction with respect to one of
his victims (Tomeckia Boone). Following review, we affirm.
The trial court provided the following factual history, which Appellant
incorporated in his brief1 and we recite here in relevant part as follows:
On May 3, 2015, complainant Tomeckia Boone was reportedly
having a family barbeque. She testified to hearing a commotion
while grilling outside and turning around to see her 14-year-old
daughter in a fight with another teen. She then ran to her
daughter and became involved in a fight with another older
woman. At this point, others joined the fight and Appellant
approached Ms. Boone and proceeded to hit her in the left side of
her face using a shotgun, causing her to fall unconscious. Ms.
Boone’s sister, Lateefa Boone, testified to seeing Appellant strike
Ms. Boone, as well as her brother-in-law, Rasheed Collins, who
she testified was frantic and bloody. Lateefa Boone observed him
sitting on the front steps of the home with blood coming from the
back of his head. Rasheed Collins testified to having been on the
ground when he was struck in the face with a shotgun, and
repeatedly punched in his head and face.
At approximately 9:00 [p.m.,] Officers Beck and Marrero were on
duty in the area. Upon arrival at the scene, the officers observed
what appeared to be 100 people in attendance, and a “giant fist
fight” right outside 2410 Turner St. Although [there was]
conflicting evidence about the number of people in attendance and
the type of event occurring[,] Officers Beck and Marrero saw an
African-American female unconscious and face down on the
ground, bleeding from her head, as well as an injured African-
American male. Officer Marrero administered aid to the female,
while Officer Beck followed a man into the home, after bystanders
informed him he had hit people with a rifle. . . .
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1 See Appellant’s Brief, Factual History, at 7.
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Upon regaining consciousness, Tomeckia Boone sustained injuries
of a laceration on the left-side of her face and had to have her ear
surgically glued back on, as well as a minor fracture; she also had
several bruises and scrapes. [Ms. Boone was shown a photo array
the following day and identified Appellant. Lateefa Boone likewise
identified Appellant from a photo array.]
Ms. Boone continued to experience symptoms from being knocked
unconscious. She suffered dizzy spells and [in] April 2016 was
rushed to Hahnemann Hospital where she received CAT scans and
MRIs. She continues to take medication for the dizzy spells and
is under physician’s care. Mr. Collins missed a week and a half of
work.
Trial Court Opinion, 11/14/18, at 2-4 (references to trial transcripts and some
capitalization omitted).
On March 7, 2017, at the conclusion of trial, a jury convicted Appellant
of aggravated assault as a Felony 1 with respect to Tomeckia Boone and as a
Felony 2 with respect to Rasheed Collins. The trial court ordered a pre-
sentence investigation and subsequently sentenced Appellant to an aggregate
sentence that was later corrected to twenty-two and a half to forty-five years’
incarceration. Appellant filed a timely notice of appeal from the judgment of
sentence in the Collins case and, following reinstatement of his appellate
rights, likewise filed a notice of appeal in the Boone case. Both Appellant and
the trial court complied with Pa.R.A.P. 1925. We consolidated the cases for
purposes of this appeal.
Appellant asks us to consider two issues:
A. Did the trial court abuse its discretionary aspects of sentencing
by fashioning an incarceration sentence much longer than that
requested by the Commonwealth, longer than necessary to
ensure the safety of the public, and where the court failed to
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consider mitigating factors such as Appellant’s youth, familial
support, work history, mental health issues (PTSD and anxiety)
as a result of growing up in an environment rife with domestic
violence, and for failing to consider the rehabilitative needs of
the Appellant?
B. Was the evidence insufficient to sustain the guilty verdict for
Aggravated Assault (F1) (complainant Tomeckia Boone) as
there was no evidence complainant sustained serious bodily
injury as complainant was hospitalized for a few hours, suffered
dizzy spells and other non-serious bodily injuries, and where
there was insufficient evidence that Appellant attempted to
inflict serious bodily injury on the complainant, and where the
evidence merely established that at most an (F2) Aggravated
Assault occurred?
Appellant’s Brief at 5.
Appellant’s first issue challenges the discretionary aspects of his
sentence. As this Court recently reiterated:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Nevel, 203 A.3d 229, 247 (Pa. Super. 2019), appeal
granted on other grounds, 2019 WL 3438983 (Pa. July 31, 2019) (quoting
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
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quotations and citations omitted)). With respect to a challenge to the
discretionary aspects of sentence, we have recognized:
“The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d
1247, 1265 (Pa. Super. 2014), appeal denied, 628 Pa. 627, 104
A.3d 1 (2014). “An appellant must satisfy a four-part test to
invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.” Id. We conduct this four-part test to
determine whether:
(1) the appellant preserved the issue either by raising it at
the time of sentencing or in a post[-]sentence motion; (2)
the appellant filed a timely notice of appeal; (3) the
appellant set forth a concise statement of reasons relied
upon for the allowance of appeal pursuant to Pa.R.A.P.
2119(f); and (4) the appellant raises a substantial question
for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013)
(citation omitted), appeal denied, 624 Pa. 679, 86 A.3d 231(2014). “A defendant presents a substantial question when he
sets forth a plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations
omitted), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014).
Id. at 246.
The record confirms that Davis has complied with the first three prongs
of the test. He preserved the issue by raising it in a post-sentence motion
that was denied by operation of law. Following correction of his sentence,
Appellant sought and was granted leave to file an appeal nunc pro tunc. He
then filed a timely notice of appeal and has included a Rule 2119(f) statement
in his brief. Therefore, we must consider whether he has raised a substantial
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question by asserting the “sentence imposed is longer than necessary to
protect the public and failed to take into consideration appellant’s
rehabilitative needs and potential.” Appellant’s Brief at 11.
This Court is not required to accept bald allegations of excessiveness.
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).
Rather, only where the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in
the Sentencing Code or a particular fundamental norm underlying
the sentencing process, will such a statement be deemed
adequate to raise a substantial question so as to permit a grant of
allowance of appeal of the discretionary aspects of the sentence.
Id. (citing Commonwealth v. Koehler, 737 A.2d 225, 244 (Pa. 1999) (party
must articulate why sentence raises doubts that sentence was improper under
the Sentencing Code) (additional citations omitted)).
In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014), we explained that “[i]n determining whether
a substantial question exists, this Court does not examine the merits of
whether the sentence is actually excessive. Rather, we look to whether the
appellant has forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.” Id. at 1270 (citation
omitted). Subsequently, in Commonwealth v. Caldwell, 117 A.3d 763 (Pa.
Super. 2015), we looked to Dodge and other cases before concluding that
Caldwell’s challenge to his sentence as unduly excessive, coupled with his
claim that the court failed to consider his rehabilitative needs, presented a
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substantial question. Id. at 770. We likewise conclude Appellant has
presented a substantial question for our review. Therefore, we grant his
petition for allowance of appeal and address the merits of his sentencing claim,
cognizant that we may reverse only if the sentencing court abused its
discretion or committed an error of law. Nevel, 203 A.3d at 247. We are
also confined by the statutory mandate of 42 Pa.C.S.A. § 9781(c), which
provides:
(c) Determination on appeal.—The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).
Here, Appellant complains that the trial court imposed a sentence “far
in excess of that which was necessary to protect the public, did not take into
proper consideration various mitigating factors and did not take into
consideration Appellant’s rehabilitative needs or potential for full
rehabilitation.” Appellant’s Brief at 13. For those reasons, and because the
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court imposed a sentence “substantially in excess of that requested by the
Commonwealth and that requested by defense trial counsel[,] . . . the trial
court abused its discretion in fashioning Appellant’s sentence.” Id. at 13-14.
From the record, it is clear the trial court considered numerous factors
in fashioning Appellant’s sentence and considered the pre-sentence
investigation report as well. As this Court recently restated:
Where pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A
presentence report constitutes the record and speaks for itself. In
order to dispel any lingering doubt as to our intention of engaging
in an effort of legal purification, we state clearly that sentencers
are under no compulsion to employ checklists or any extended or
systematic definitions of their punishment procedure. Having
been fully informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed.
Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (quoting
Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).
“Accordingly, ‘[w]here the sentencing judge had the benefit of a pre-sentence
report, it will be presumed that he was aware of relevant information
regarding appellant’s character and weighed those considerations along with
the mitigating statutory factors.’” Id. (quoting Commonwealth v. Fullin,
892 A.2d 843, 849–50 (Pa. Super. 2006)).
Here, the trial judge “reviewed the sentencing guidelines, the
presentence report, and placed on the record both this acknowledgement and
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her reason for imposing an aggravated sentence.” Trial Court Opinion,
11/14/18, at 5. The court explained:
Each individual charge was sentenced within the guideline range
and ordered to be served concurrently rather than consecutively
amounting to a final sentence of twenty-two and a half years to
forty-five years. The sentencing court placed on the record the
following reasons for the aggravated sentence: the Prior Record
Score of REVOC;[2] Appellant’s lack of remorse; the fact that both
victims were much smaller than Appellant, and that one was a
woman; the prison tape played by the Commonwealth; the
information contained within the presentence report including the
belief that his candidacy for community supervision was
questionable; the fact that Appellant was out of custody for only
nine months before committing another offense; the serious
nature of the offense itself; and his pattern of violent offenses,
beginning at age fifteen, to the age of twenty years old at the time
of the present offense.
Id. at 6 (citing N.T., Sentencing, 6/27/17, at 17-18).
As the trial court noted, each charge was sentenced within the guideline
range and ordered to be served concurrently. The fact the aggregate sentence
was greater than that requested by the Commonwealth is immaterial.
Further, the court considered the pre-sentence report and, as reflected in the
quoted excerpt, also considered Appellant’s potential for rehabilitation. We
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2 As provided in 204 Pa.Code § 303.4 (Prior Record Score—Categories):
(1) Repeat Violent Offender Category (REVOC). Offenders who
have two or more previous convictions or adjudications for
four point offenses (§ 303.7(a)(1) and § 303.15) and whose
current conviction carries an Offense Gravity Score of 9 or
higher shall be classified in the Repeat Violent Offender
Category.
Id. at § 303.4(a)(1).
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discern no abuse of discretion or error of law in the sentence imposed by the
trial court. Therefore, Appellant’s first issue fails for lack of merit.
In his second issue, Appellant contends the evidence was insufficient to
support a conviction of aggravated assault as an F1 with respect to Tomeckia
Boone. Addressing the standard employed in a challenge to the sufficiency of
evidence, this Court has recognized:
Our standard of review is de novo, and our scope of review is
plenary, because:
a claim challenging the sufficiency of the evidence is a
question of law[.] . . . When reviewing a sufficiency claim
the 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, 560 Pa. 308, 744 A.2d 745, 751
(2000) (internal citations omitted).
Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa. Super. 2018).
In Commonwealth v. Fortune, 68 A.3d 980 (Pa. Super. 2013), this
Court explained:
A person may be convicted of Aggravated Assault graded as a first
degree felony if he “attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference
to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). “Serious
bodily injury” has been defined as “[b]odily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301. For
aggravated assault purposes, an “attempt” is found where an
“accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating
a serious bodily injury upon another.” Commonwealth v. Gray,
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867 A.2d 560, 567 (Pa. Super. 2005), appeal denied, 583 Pa. 694,
879 A.2d 781 (2005). An intent ordinarily must be proven through
circumstantial evidence and inferred from acts, conduct or
attendant circumstances. [Commonwealth v. Thomas, 65 A.3d
939, 944 (Pa. Super. 2013).]
Id. at 984.
Because our standard of review is de novo and the scope of our review
is plenary, it is inconsequential that the trial court dismissed the sufficiency
claim as “wholly without merit” based on its mistaken belief that Appellant
was convicted of aggravated assault as a Felony 2 with respect to Tomeckia
Boone. See Trial Court Opinion, 11/14/18, at 4-5. Regardless, in its opinion,
the trial court recounted that Appellant struck Ms. Boone in the face with a
shotgun and summarized the injuries Ms. Boone sustained. Trial Court
Opinion, 11/14/18, at 3.3 Again, Appellant has accepted the trial court’s
factual history by incorporating it in his brief. Appellant’s Brief at 7; see n. 1,
supra. Because “serious bodily injury” includes a bodily injury that creates a
substantial risk of death or causes serious, permanent disfigurement,
18 Pa.C.S.A. § 2301, a jury could find Ms. Boone’s injury to fall within the
statutory definition.
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3 The Commonwealth states that “Ms. Boone testified that she had lacerations
on her face, and that her ear ‘was split wide open’ such that doctors ‘had to
surgically glue [her] ear back’ (N.T. 3/2/2107). The jury could fairly find this
injury to fall within the statutory definition of serious bodily injury, which
includes ‘permanent disfigurement.’” Commonwealth Brief at 10.
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Moreover, a conviction for aggravated assault is not contingent on a
finding the victim sustained actual serious injuries. In fact, in this case, the
Felony 1 charge was based on the “attempt[] to cause serious bodily injury to
Tomeckia Boone.” Notes of Testimony, Jury Charge, 3/6/17, at 62. As this
Court noted in Fortune, we have recognized that:
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 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 [] (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.Fortune, 68 A.3d at 985 (quoting Commonwealth v. Martuscelli, 54 A.3d
940, 948 (Pa. Super. 2012). In Fortune, we also noted:
The Pennsylvania Supreme Court in Commonwealth v.
Alexander, 477 Pa. 190, 383 A.2d 887 (1978) created a totality
of the circumstances test to be used to evaluate whether a
defendant acted with the necessary intent to sustain an
aggravated assault conviction. In Commonwealth v. Matthew,
589 Pa. 487, 909 A.2d 1254 (2006), that Court reaffirmed the test
and articulated the legal principles which apply when the
Commonwealth seeks to prove aggravated assault by showing
that the defendant attempted to cause serious bodily injury.
Specifically, the Court stated, in relevant part, that:
Alexander created a totality of the circumstances test, to
be used on a case-by-case basis, to determine whether a
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defendant possessed the intent to inflict serious bodily
injury. Alexander provided a list, albeit incomplete, of
factors that may be considered in determining whether the
intent to inflict serious bodily injury was present, including
evidence of a significant difference in size or strength
between the defendant and the victim, any restraint on the
defendant preventing him from escalating the attack, the
defendant's use of a weapon or other implement to aid his
attack, and his statements before, during, or after the
attack which might indicate his intent to inflict injury.
Alexander, at 889. Alexander made clear that simple
assault combined with other surrounding circumstances
may, in a proper case, be sufficient to support a finding that
an assailant attempted to inflict serious bodily injury,
thereby constituting aggravated assault.
Matthew, 909 A.2d at 1257 (citation and quotation marks
omitted). The Court indicated that our case law does not hold that
the Commonwealth never can establish a defendant intended to
inflict bodily injury if he had ample opportunity to inflict bodily
injury but did not inflict it. Rather, the totality of the
circumstances must be examined as set forth by Alexander. Id.Id. at 984.
In Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997), this
Court instructed:
A baseball bat, when swung at the head, can be a very deadly
weapon, and it is well settled the use of a deadly weapon on a vital
part of the body is sufficient to establish a specific intent to kill.
Commonwealth v. Carbone, 524 Pa. 551, 562, 574 A.2d 584,
590 (1990). Clearly, a specific intent to cause serious bodily
injury can be inferred from the same circumstances. See
Commonwealth v. Pandolfo, 300 Pa. Super. 447, 451, 446 A.2d
939, 941 (1982) (blows to a portion of the body as vital as the
head exhibited intent to inflict serious bodily injury).
Id. at 184-85 (footnote omitted).
Considering the totality of the circumstances here, and viewing the
evidence—including all reasonable inferences—in the light most favorable to
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the Commonwealth as verdict winner, we conclude that the evidence was
sufficient for the jury to find Appellant attempted to cause serious bodily injury
to Tomeckia Boone when he struck her in the face with a shotgun. Therefore,
Appellant is not entitled to relief on his sufficiency of evidence challenge.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/19
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