Com. v. Warren, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAMIRE WARREN
Appellant No. 1446 EDA 2018
Appeal from the Judgment of Sentence entered April 17, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004926-2017
BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020
Appellant, Damire Warren, appeals from the judgment of sentence
entered on April 17, 2018 in the Court of Common Pleas of Philadelphia County
following his convictions of aggravated assault as a first-degree felony,
possessing instruments of crime (“PIC”), and recklessly endangering another
person (“REAP”).1 Appellant challenges, inter alia, the sufficiency and weight
of the evidence, the characterization of a wooden board as an instrument of
crime, and the grading of his aggravated assault conviction. Upon review, we
affirm.
The trial court summarized the facts presented at Appellant’s bench trial
as follows:
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1 18 Pa.C.S.A. §§ 2702(a), 907(a), and 2705, respectively.
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On May 16, 2017, at approximately 8:00 p.m., Michael Hawkins
(the victim) walked across the street from his home at 1916 South
Beachwood Street to visit his neighbor, Frank Nino. The pair had
only recently begun drinking cans of beer on the front steps of
Nino’s residence when Damire Warren (Appellant) approached
them “mumbling stuff.” The Appellant and Hawkins briefly
exchanged words before the Appellant then walked towards a
nearby pile of debris and picked up a wooden board
(approximately four feet in length, two feet in width, and two
inches thick). Hawkins and Nino had resumed talking with each
another when the Appellant reapproached Hawkins from his left
side and hit him in the face with the board. The blow was so
forceful that it caused the board to break into two pieces.
Hawkins immediately stood up from the steps and chased after
the Appellant, who had retreated behind a nearby van. As
Hawkins walked around the back of the van, the Appellant threw
the remaining piece of the board at him, again striking him in the
head. The impact of the blow caused Hawkins to slip and fall to
the ground, whereby the Appellant immediately stomped on the
victim’s head once with his foot. Nino testified that he witnessed
the Appellant hit the victim in the head with the board the first
time, and then witnessed the victim chase after the Appellant
behind the van, but he was unable to view what occurred once the
two were out of his line of sight. He further testified that Hawkins
did not physically engage the Appellant prior to being hit. After
the incident, he saw the Appellant retreat down the street.
Shortly thereafter, Nino’s son drove Hawkins to the Veterans
Administration Hospital for treatment. Detective Duffy took a
statement from Hawkins and several photographs of his injuries.
Hawkins initially received forty-seven facial stitches the
night of the incident. He later had several surgeries
(beginning a week later) inserting five facial plates, and
some of his teeth were reattached. Moreover, his jaw was
wired shut for approximately eight weeks, requiring him to
consume food through a straw. Furthermore, the victim
testified that he still had lingering numbness on the left
side of his face at the time of trial, nine months after the
incident.
Trial Court Opinion, 3/5/19, at 2-3 (footnotes with citations to notes of
testimony omitted) (emphasis in original).
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At the conclusion of Appellant’s February 16, 2018 bench trial, the court
found Appellant guilty of aggravated assault (F1), PIC and REAP. The court
determined Appellant was not guilty of additional charges of terroristic threats
and simple assault. Notes of Testimony (“N.T.”), Trial, 2/16/18, at 84. The
court ordered a presentence investigation and scheduled sentencing for April
17, 2018, aware that Appellant had a prior record score of five. Id.
On April 17, 2018, the trial court sentenced Appellant to a term of five
and a half to eleven years in prison for aggravated assault, followed by two
years’ probation for PIC. The court did not impose any additional sentence
for REAP, in light of its merger with aggravated assault. N.T., Sentencing,
4/17/18, at 17-18.
Appellant filed a timely notice of appeal on May 3, 2018. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.2
In his brief, Appellant presents five issues for our consideration:
1. Whether the verdict was against the sufficiency and/or weight
of the evidence.
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2 We note that Appellant’s counsel was granted leave to withdraw after filing
a brief on behalf of Appellant. New counsel was appointed and, by letter dated
November 11, 2019, advised this Court that the brief filed by former counsel
was sufficient and no additional filing would be forthcoming. Our review of
the brief reveals that former counsel failed to attach a copy of Appellant’s Rule
1925(b) statement to the brief as required by Pa.R.A.P. 2111(a)(11) and (d).
Clearly, this omission, along with the omission of a proper statement of the
standard and scope of review required by Rule 2111(a)(3), is attributable to
former counsel. Nevertheless, we remind counsel of the requirements of our
appellate rules pertaining to briefs. While the deficiencies are significant, they
do not impede our ability to review Appellant’s issues. Therefore, we shall
consider his claims, to the extent they have been preserved for review.
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2. Whether the court erred in admitting evidence that had a
prejudicial effect that far outweighed any probative value.
3. Whether the court erred [in] failing to negate the charges
against Appellant.
4. Whether the court erred in finding that the board was an
instrument of crime.
5. Whether the court erred in not downgrading the aggravated
assault charge to a felony of the second degree.
Statement of Questions Involved, Appellant’s Brief at 1.
In his first issue, Appellant challenges the sufficiency and weight of the
evidence. With respect to sufficiency of evidence, as this Court reiterated in
Commonwealth v. Fortune, 68 A.3d 980 (Pa. Super. 2013) (en banc):
We review Appellant’s challenge to the sufficiency of the evidence
under the following, well-settled standard of review:
A claim challenging the sufficiency of the evidence presents
a question of law. Commonwealth v. Widmer, 560 Pa.
308, 744 A.2d 745, 751 (2000). We must determine
“whether the evidence is sufficient to prove every element
of the crime beyond a reasonable doubt.” Commonwealth
v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (1989). 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.” Id.Id. at 983.
Appellant was convicted of aggravated assault (FI), PIC and REAP. With
regard to aggravated assault, a person commits that crime as a first-degree
felony if he “attempts to cause serious bodily injury to another, or causes such
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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” is 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.
Viewing the evidence in the light most favorable to the Commonwealth,
we conclude the evidence was sufficient to support Appellant’s aggravated
assault conviction as a first-degree felony. As the trial court explained,
“Appellant picked up a wooden board (“two-by-four”) from a pile of debris and
approached Hawkins before intentionally hitting him on the left side of his face
causing the board to break into two pieces. . . . [T]he victim did nothing
physically to the Appellant prior to the assault.” Trial Court Opinion, 3/5/19,
at 4 (footnotes with citations to notes of testimony omitted). When the victim
gave chase to Appellant, Appellant threw the board at his victim, hitting him
in the head again and causing him to fall to the ground. Id. At that point,
Appellant stomped on the victim’s face. Id.
The evidence was sufficient to find that Appellant attempted to cause
serious bodily injury to his victim and, in fact, caused such injury and
impairment under circumstances that demonstrated his extreme indifference
to the value of human life. Further, due to Appellant’s actions, his victim
suffered injuries and impairment requiring a number of surgeries during which
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five facial plates were implanted, some of the victim’s teeth were reattached,
and his jaw was wired shut for eight weeks. The injuries inflicted by Appellant
constituted serious bodily injuries as defined by the statute. Commonwealth
v. Nichols, 692 A.2d 181, 184 (Pa. Super. 1997) (injury to victim hit with a
baseball bat, requiring jaw to be wired shut for six weeks, constituted
impairment of the function of a bodily member). Moreover, at the time of
trial, nine months after the attack, the victim continued to experience residual
numbness on the left side of his face. Appellant’s challenge to the sufficiency
of evidence supporting his aggravated assault conviction fails.
We find the evidence likewise was sufficient to support Appellant’s
convictions for PIC and REAP. Under 18 Pa.C.S.A. § 907(a), “[a] person
commits a misdemeanor of the first degree if he possesses any instrument of
crime with intent to employ it criminally.” As defined in Section 907(d), an
“instrument of crime” includes, inter alia, “anything used for criminal purposes
and possessed by the actor under circumstances not manifestly appropriate
for lawful uses it may have.” While a wooden board or a two-by-four may
have many lawful uses, striking a person across the face and throwing the
object at a person’s head do not constitute lawful uses. Here, Appellant
possessed the board and intended to—and did—employ it criminally. See,
e.g., Commonwealth v. Tukhi, 149 A.3d 881, 887 (Pa. Super. 2016)
(evidence sufficient to find iron pipe, which was swung at victim, breaking his
arm, was an instrument of crime).
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With regard to REAP, “[a] person commits a misdemeanor of the second
degree if he recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. As
the trial court observed, “Here, the Appellant struck Hawkins in the head with
a wooden board (approximately four feet in length and two inches thick),
demonstrating (at a minimum) a total disregard that a foreseeable and
unjustifiable risk of serious injury would result.” Trial Court Opinion, 3/5/19,
at 7 (footnote omitted). The evidence presented at trial was clearly sufficient
to support Appellant’s REAP conviction.
Appellant also contends his guilty verdicts were against the weight of
the evidence. In order preserve a weight of evidence claim, an appellant must
raise the claim “either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing.” Commonwealth v. Mbewe, 203
A.3d 983, 988 (Pa. Super. 2019) (quoting Commonwealth v. Jones, 191
A.3d 830, 834 (Pa. Super. 2018) (citing Pa.R.Crim.P. 607(A)(1)-(3)). “The
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.” Id. (quoting
Comment to Pa.R.Crim.P. 607). Appellant failed to preserve a weight of the
evidence claim as required. Therefore, the claim is waived.
In his second issue, Appellant argues the trial court erred by admitting
evidence whose prejudicial effect outweighed its probative value. Specifically,
Appellant complains that the court permitted the Commonwealth to question
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Appellant about a juvenile adjudication from 2003. The admission of evidence
is a matter of trial court discretion and we will not reverse an evidentiary ruling
absent an abuse of discretion. Commonwealth v. Hoover, 107 A.3d 723,
729 (Pa. 2014).
Appellant offers only the conclusory statement that “[t]he surrounding
circumstances and the remote nature of the offense certainly made the
prejudicial effect substantially outweigh its probative value, and the Appellant
did not receive written notice of the Commonwealth’s intended use, as
required by Rule 609. Thus, the evidence should not have been permitted.”
Appellant’s Brief at 6. However, as the trial court observed:
[T]he scope of Pa.R.E. 609 is broadly applicable to impeachment
evidence meant to attack the credibility of any witness (i.e. the
witness’s ability to testify truthfully), which is dissimilar from using
the evidence of a conviction to specifically establish whether the
defendant or victim was first aggressor in an assault and battery
case. The comment of Pa.R.E. 609 references 42 Pa.C.S.A.
§ 5918, which provides that a defendant, who testifies on his own
behalf, cannot be cross-examined about prior convictions unless
“he shall have at such trial, personally or by counsel, asked
questions of the witness for the prosecution with a view to
establish his own good reputation or character, or has given
evidence tending to prove his own good character or reputation.”
In the present case, the Appellant questioned the victim on cross-
examination about his previous guilty plea convictions (for making
terroristic threats) to establish that the victim was first aggressor.
The Commonwealth objected and expressly petitioned the court
to allow for rebuttal if the Appellant intended to open the door to
attack his character for the same trait under Pa.R.E.
404(a)(2)(b)(ii). The court concurred with the Commonwealth
and expressly asked the Appellant [via counsel] whether he
understood the same, to which [Appellant’s counsel] responded
affirmatively.
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Accordingly, the Commonwealth questioned the Appellant about
his prior juvenile adjudication of delinquency for simple assault
(pursuant to 42 Pa.C.S.A. § 5918 when a defendant testifies on
his own behalf), a conviction that directly correlated with the
pertinent character trait in an aggravated assault case. Moreover,
the court did not permit the Commonwealth to dwell on the
subject.
Trial Court Opinion, 3/5/19, at 9-10 (footnotes omitted) (emphasis and
alterations in original).
Based on our review of the evidence presented, in the questioning of
both the victim and Appellant, we find no abuse of discretion in the trial court’s
allowance of testimony concerning Appellant’s prior adjudication. Appellant’s
second issue fails for lack of merit.
In his third issue, Appellant alleges error for the trial court’s refusal to
negate charges of aggravated assault, PIC and REAP based on Appellant’s
assertion that his actions were justified. In essence, without citation to legal
authority, Appellant contends the trial court improperly rejected Appellant’s
claim that he acted in self-defense after the victim swung at him with a stick.
We have already determined that the evidence was sufficient to support each
of Appellant’s convictions beyond a reasonable doubt. Appellant’s third issue
does not provide any basis for relief.
Appellant next asserts trial court error for determining that the board
used to strike the victim was an instrument of crime. As explained above, we
determined that the board was used by Appellant for criminal purposes and
was possessed by Appellant under circumstances not manifestly appropriate
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for any lawful purposes it might have. Therefore, we find the evidence was
sufficient for the trial court to conclude the board constituted an instrument
of crime under 18 Pa.C.S.A. § 907. The court did not err in its conclusion.
In his fifth and final issue, Appellant argues the trial court committed
error by not downgrading his aggravated assault charge from a first-degree
to a second-degree felony. As the trial court noted, “The distinguishing factor
between the grading is the degree of severity assigned to the victim’s injury.”
Trial Court Opinion, 3/5/19, at 11. In essence, first-degree aggravated assault
involves an attempt to cause or the causing of “serious bodily injury,” while
second-degree aggravated assault is appropriately charged for an attempt to
cause or the causing of “bodily injury to another with a deadly weapon.”
18 Pa.C.S.A. §§ 2702(a)(1) and 2702(a)(4). As indicated above, Appellant
caused serious bodily injury to his victim requiring several surgeries, the
implanting of five facial plates, the reattachment of teeth, forty-seven
stitches, and the wiring shut of the victim’s jaw for a period of eight weeks.3
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3 Appellant contends the victim claimed injuries but failed to produce medical
records to prove the injuries. As counsel for both parties indicated at trial,
their attempts to procure records from the Veterans Administration Hospital
by subpoena and court order were unsuccessful. N.T., Trial, 2/16/18, at 75.
Regardless, the Commonwealth admitted a photograph of the victim taken by
the investigating detective on the night of the assault. That photograph shows
significant bruising and swelling on the left side of the victim’s face. In
addition, although medical records were not available, the victim credibly
testified as to his injuries and the treatments he endured as a result of the
assault.
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Because the aggravated assault committed by Appellant resulted in serious
bodily injury, he was properly charged with a felony in the first degree.
Appellant is not entitled to relief on any of the claims presented to this
Court. Therefore, we shall affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/20
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