Com. v. Manley, I. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ISIAH J. MANLEY, : No. 3775 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 16, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011254-2015
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 03, 2018
Isiah J. Manley appeals from the November 16, 2016 aggregate
judgment of sentence of 4 to 8 years’ imprisonment, followed by 2 years’
probation, imposed after he was found guilty of aggravated assault,
disarming a law enforcement officer, simple assault, recklessly endangering
another person (“REAP”), resisting arrest, fleeing or attempting to allude a
police officer, driving under the influence of a controlled substance (“DUI”),
possession of a controlled substance, possession of a controlled substance
with the intent to deliver (“PWID”), and possession of drug paraphernalia.1
After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
118 Pa.C.S.A. §§ 2702(a), 5104.1(a)(1), 2701(a), 2705, 5104; 75 Pa.C.S.A.
§§ 3733(a) and 3802(d)(1); and 35 P.S. §§ 780-113(a)(16),
780-113(a)(30), and 780-113(a)(32), respectively.
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On October 5, 2015, Pennsylvania State
Trooper, Phillip Cyphers, was conducting patrol
duties on I-76 in the city and county of
Philadelphia.[] While traveling eastbound past the
City Line Avenue on-ramp toward Montgomery Drive,
he observed a dark Nissan Ultima exit Route 1
southbound on I-76 eastbound, travelling in the left
lane at an excessive rate of speed. He began to
pace the vehicle at 70 miles per hour for 3/10ths of
a mile. He also observed that the vehicle had heavy
window tint all around the vehicle; including a cover
over the plate which prevented Trooper Cyphers
from seeing the license plate (he could only make
out the first two letters, X and P through the tint)
when he pulled behind the vehicle.
After activating his lights and siren,
Trooper Cyphers attempted to pull the vehicle over
for the traffic violations. The vehicle appeared to
pull over to the shoulder of the road near the
Montgomery Drive ramp but then continued to drive
on the shoulder, cross over the ramp, and accelerate
from the officer at a high rate of speed.
Trooper Cyphers followed and the vehicle exited
eastbound 1-76 onto Girard Avenue and a red light.
Traffic was backed up on the ramp, so the vehicle
passed the cars on the right. The light turned green
and the vehicle turned left onto Girard Avenue,
almost striking the front of another vehicle that was
also turning left at the light. As Trooper Cyphers
continued to follow the vehicle, he observed the
vehicle cutting in and out of traffic. At the
intersection of 34th Street and Girard Avenue, the
driver lost control of the vehicle, spinning clockwise,
then counter-clockwise. Regaining control, the
vehicle turned right onto 34th Street toward
University City using both lanes of travel.
Trooper Cyphers stated that the vehicle was
traveling at 80 miles per hour in a 30 mile per hour
zone. Once over the crest of the hill, the driver once
again lost control of the vehicle. Trooper Cyphers
observed the driver hit the brakes, cross over both
lanes of travel in the opposite direction, and strike a
concrete barrier. The vehicle rolled backward across
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the intersection of 34th Street and Mantua Avenue (a
residential area) where it took down the pedestrian
walk sign, then come to a complete stop on the
opposite side of the street facing Trooper Cyphers
who now had a full frontal view of the windshield and
the driver. Trooper Cyphers identified [appellant] as
the driver of the vehicle.
Trooper Cyphers observed [appellant] and the
passenger “frantically” moving about the vehicle,
reaching under the seat, into the glove box, the
center console, and all around the vehicle. The
occupants of the vehicle continued to move even
after Trooper Cyphers yelled for them to stop. He
was not sure what they were trying to find. He then
observed [appellant] get into the backseat and the
passenger exit the vehicle and begin to run. He saw
the passenger holding his hands close to [his] chest
with what appeared to be a white brick that looked
like a “stick of butter.” The white brick fell to the
ground and the passenger was picking up items; he
was falling and dropping everything. He also saw
what appeared to be United States Currency
dropping to the ground. Trooper Cyphers yelled at
the passenger and chased him to the back of the
crashed vehicle. Trooper Cyphers stopped chasing
the passenger because [appellant] was still in the
vehicle.
As he turned his attention back to the vehicle,
Trooper Cyphers observed [appellant] exit the
vehicle and walk toward him. Trooper Cyphers told
him to stop, but [appellant] kept walking toward
him. Still holding his weapon, Trooper Cyphers
decided to take out his Taser because he observed
that the driver’s hands were at his sides and he felt
deadly force was not necessary. [Appellant] would
not obey commands to stop and get on the ground;
he just kept walking toward the Trooper.
Trooper Cyphers approached [appellant], and
[appellant] started to resist and push away from
him. [Appellant] then began to reach for
Trooper Cyphers who was still holding his duty
weapon. Trooper Cyphers pushed away from
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[appellant] to put his gun in its holster and
[appellant] started to run and was turning away from
him. At that time Trooper Cyphers deployed his
[t]aser and struck [appellant] in the chest with
one (1) probe. [Appellant] pulled the probe off and
began to run. Never losing sight of him,
Trooper Cyphers began to chase him down
34th Street until [appellant] made a right onto
Fairmount Avenue. Trooper Cyphers reloaded the
Taser as [appellant] stopped and turned towards
him. He yelled for [appellant] to get on the ground,
but he still did not comply. As [appellant] turned to
run again, Trooper Cyphers tased him for a second
time. Two (2) probes struck, one on his shoulder
blade and the other on his upper back. [Appellant]
then went down on the ground.
[Appellant] continued to resist as
Trooper Cyphers was trying to handcuff him.
[Appellant] kicked and punched at
Trooper Cyphers[,] who was not sure if any of the
kicks or punches actually landed since it was
happening so fast. Trooper Cyphers then felt
[appellant] pulling on his belt “like he was trying to
pull me to the ground.” Both probes were still on
[appellant] so Trooper Cyphers hit the taser again,
but there was no effect. [Appellant] stood right up
and engaged Trooper Cyphers, who was then
disarmed of his Taser; he still had his handcuffs.
Facing each other, [appellant] grabbed behind
Trooper Cyphers[’] head and interlocked both of his
hands, trying to pull Trooper Cyphers down. They
both went down onto the ground and after “wrestling
for a better position,” Trooper Cyphers was able to
get on top of [appellant]. [Appellant] began pulling
down on Trooper Cyphers[’] collar and belt again. At
this point, Trooper Cyphers stated that he felt the
encounter turned from [appellant] trying to get away
and resisting arrest to he was trying to incapacitate
him to get away. Trooper Cyphers was able to stand
up and [appellant] continued to pull on his gear,
pulling him down. Trooper Cyphers struck
[appellant] in the face and that seemed to stop the
struggle; however he was still not complying with
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getting up. A crowd started to gather and
Trooper Cyphers was yelling for help to no avail.
With no one helping him, Trooper Cyphers held onto
[appellant] waiting for back-up. An older gentleman
eventually came over and began talking to
[appellant]. [Appellant] relaxed, rolled over, and
handcuffs were placed on him. Trooper Cyphers
estimated that the encounter lasted approximately
five to seven minutes.
Trial court opinion, 5/19/17 at 2-5 (citations to notes of testimony and
footnotes omitted).
On September 7, 2016, appellant waived his right to a jury and
proceeded to a bench trial. Following a one-day bench trial, the trial court
found appellant guilty of the aforementioned offenses. On November 15,
2016, appellant filed a motion for extraordinary relief that was denied by the
trial court the following day. As noted, appellant was sentenced to an
aggregate term of 4 to 8 years’ imprisonment, followed by 2 years’
probation, on November 16, 2016. Appellant did not file any post-sentence
motions. This timely appeal followed on December 9, 2016. On March 13,
2017, the trial court directed appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant
filed a timely Rule 1925(b) statement on April 3, 2017, and the trial court
filed its Rule 1925(a) opinion on May 19, 2017.
Appellant raises the following issues for our review:
1. Was not the evidence insufficient to prove
beyond a reasonable doubt the charge of
aggravated assault as a felony of the first
degree in that the evidence failed to prove that
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[a]ppellant had caused or attempted to cause
serious bodily injury to a police officer?
2. Was not the evidence insufficient to prove
beyond a reasonable doubt the charge of
disarming law enforcement officer in that the
evidence failed to prove that [a]ppellant had
removed, attempted to remove or deprived the
officer of his use of a [t]aser?
Appellant’s brief at 2.
Appellant first argues that there was insufficient evidence to sustain
his conviction for aggravated assault because “the Commonwealth failed to
prove that appellant [] caused or attempted to cause serious bodily injury to
[Trooper Cyphers].” (Id. at 13.) Appellant avers that Trooper Cyphers
suffered only minor injuries that “occurred during [his] attempt to resist
arrest, which was [his] only purpose.” (Id.)
Our standard of review in assessing whether there was sufficient
evidence to sustain appellant’s convictions is well settled.
In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for 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.
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Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009)
(citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).
Instantly, appellant was convicted of aggravated assault, as a felony of
the first degree, under 18 Pa.C.S.A. § 2702(a). A person will be found guilty
of aggravated assault under Subsection (a)(1) 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[.]” Id. § 2702(a)(1). Likewise,
under Subsection (a)(2), a person will be found guilty of aggravated assault
if he “attempts to cause or intentionally, knowingly or recklessly causes
serious bodily injury to any of the officers, agents, employees or other
persons enumerated in subsection (c) . . . while in the performance of
duty[.]” Id. § 2702(a)(2).2 The term “serious bodily injury” is defined by
statute 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.
Where the victim does not sustain serious bodily injury, the Commonwealth
must prove that the defendant attempted to cause such injury. See
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012)
(stating, “[a]n attempt under Subsection 2702(a)(1) requires some act,
2 A police officer is one of the enumerated persons listed under
Subsection (c). See 18 Pa.C.S.A. § 2702(c)(1).
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albeit not one causing serious bodily injury, accompanied by an intent to
inflict serious bodily injury.”), citing Commonwealth v. Matthew, 909 A.2d
1254, 1257-1258 (Pa. 2006).
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. An intent
ordinarily must be proven through circumstantial
evidence and inferred from acts, conduct or
attendant circumstances.
Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa.Super. 2013)
(en banc) (citations and some internal quotation marks omitted), appeal
denied, 78 A.3d 1089 (Pa. 2013).
Here, it is undisputed that appellant did not cause serious bodily injury
to Trooper Cyphers. Trooper Cyphers testified that following this incident,
he was treated at the hospital for injuries to his knee, as well as several
open wounds to his left hand, one of which appeared to be from a tooth
mark. (Notes of testimony, 9/7/16 at 45, 59.) Thus, the relevant inquiry is
whether appellant acted with the specific intent to cause serious bodily
injury. See Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa.Super.
2006), (stating, “[w]here the victim does not sustain serious bodily injury,
the Commonwealth must prove that the appellant acted with specific intent
to cause serious bodily injury.” (citation omitted)).
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there was sufficient
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evidence from which the trial court could infer that appellant possessed the
requisite intent to cause serious bodily injury to Trooper Cyphers and took a
substantial step toward that end. As noted, the testimony presented at trial
established that appellant wrestled with, kicked and punched, and attempted
to pull Trooper Cyphers down to the ground multiple times by his belt and
collar during the course of their prolonged struggle. (Notes of testimony,
9/7/16 at 39-41, 58.) Trooper Cyphers testified that at one point,
“[appellant] grabbed behind [his] head and . . . interlocked both of his
hand[s]” behind his neck, in an attempt to pull him down. (Id. at 41.) The
record further indicated that this was not a single, isolated interaction.
Trooper Cyphers testified that his struggle with appellant lasted
approximately “five to seven minutes” and he “felt . . . it went from more of
[appellant] trying to get away and resist arrest to the point where he was
trying to incapacitate [him] to get away.” (Id. at 42-43 (emphasis
added).)
Here, the trial court reasoned that, based on the attendant
circumstances, “[i]t is clear from [appellant’s] action of wrapping of [sic] his
hands around Trooper Cyphers[’] neck that he not only intended to get
away, but his intent [was] to do whatever he had to do to get away,
including injuring Trooper Cyphers.” (Trial court opinion, 5/19/17 at 10.) In
rendering its verdict, the trial court further explained as follows:
Once you wrap your hands around the back of
someone’s neck, that’s [sic] indicates not only your
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intent to get away but your intent to do whatever
you have to do to flee and that includes serious
injury or death. That kind of grip is what is known
as a death grip. You will do whatever it takes so
that you are not apprehended.
Notes of testimony, 9/7/16 at 112-113.
Based on the foregoing, we agree with the trial court that appellant
acted with the requisite intent to cause serious bodily injury to
Trooper Cyphers in this case. Accordingly, we find that appellant’s
contention that the Commonwealth failed to present sufficient evidence to
sustain his conviction for aggravated assault must fail. See, e.g.,
Commonwealth v. Dailey, 828 A.2d at 356, 360-361 (Pa.Super. 2013)
(finding that the evidence was sufficient to sustain the defendant’s
conviction for, inter alia, aggravated assault under Section 2702(a)(2),
where it demonstrated that the defendant intended to inflict serious bodily
injury to a corrections officer by striking him twice in the face with a closed
fist, causing him to suffer a cut on his nose, swelling around his left eye, and
bruising).
We now turn to appellant’s claim that there was insufficient evidence
to sustain his conviction for disarming a law enforcement officer “where the
evidence failed to prove that appellant had removed, attempted to remove
or deprived [Trooper Cyphers] of the use of [his] taser.” (Appellant’s brief
at 18.) In support of this contention, appellant avers “there [was] no
testimony whatever [sic] that [he] attempted to grab the weapon,” and that
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the trial court’s rationale disregards the fact that Trooper Cyphers may have
simply “dropped or threw [the taser] away[.]” (Id. at 19-20.)
The crime of disarming a law enforcement officer is set forth in
18 Pa.C.S.A § 5104.1, which provides, in relevant part, as follows:
(a) Offense defined.--A person commits the
offense of disarming a law enforcement officer
if he:
(1) without lawful authorization,
removes or attempts to remove a
firearm, rifle, shotgun or weapon
from the person of a law
enforcement officer or corrections
officer, or deprives a law
enforcement officer or corrections
officer of the use of a firearm, rifle,
shotgun or weapon, when the
officer is acting within the scope of
the officer’s duties; and
(2) has reasonable cause to know or
knows that the individual is a law
enforcement officer or corrections
officer.
Id. at § 5104.1(a).
Here, we find that the evidence, when viewed in the light most
favorable to the Commonwealth, was sufficient to sustain appellant’s
conviction for disarming a law enforcement officer. As recognized by the
trial court, Trooper Cyphers’ testimony at trial created a logical inference
that appellant intended to disarm Trooper Cyphers of his taser during their
ensuing struggle. (See trial court opinion, 5/19/17 at 11.) Moreover,
appellant’s argument disregards the fact that appellant’s actions did, in fact,
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“deprive [Trooper Cyphers] of the use of [his taser]” during the scope of his
official duties. (See 18 Pa.C.S.A § 5104.1(a)(1).) Trooper Cyphers testified
that after he succeeded in getting appellant down on the ground by tasering
him a second time, appellant resisted Trooper Cyphers’ attempt to place him
in handcuffs by rolling away, kicking at him, and punching. (Notes of
testimony, 9/7/16 at 38-39.) Trooper Cyphers noted that during the course
of this struggle, he felt appellant pulling down on his duty belt “like he was
trying to pull [him] to the ground.” (Id. at 39.) After Trooper Cyphers
again tasered appellant, to no avail, appellant stood up and engaged him.
(Id.) Trooper Cyphers testified that at this point, he “was disarmed of [his]
taser” (see id.), but was not entirely sure of how this had occurred:
Q. When [appellant] stood up is he facing you?
A. Correct.
Q. You said -- where is your taser at this point?
A. I had it in my hand and it was disarmed.
Q. How?
A. I’m not sure exactly how but when he came at
me he grabbed onto me and that’s when I lost
the taser.
Id. at 40.
Based on the foregoing, we find that appellant’s contention that there
was insufficient evidence to sustain his conviction for disarming a law
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enforcement officer must fail. Accordingly, we affirm appellant’s
November 16, 2016 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/18
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