Com. v. Johnson, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYRONE JOHNSON III :
:
Appellant : No. 3329 EDA 2019
Appeal from the Judgment of Sentence Entered October 3, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009387-2017.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 17, 2021
Tyrone Johnson III appeals from the judgment of sentence imposed
following his convictions for aggravated assault against an officer1 and other
related offenses. Upon review, we affirm.
The trial court set forth the pertinent facts as follows:
On September 4, 2017, at approximately 9:30 p.m., Officer
Christopher Haines observed a group of 40-50 ATVs near the 5200
block of Parrish Street, in the city and county of Philadelphia. The
ATVs were riding all over the road and going through red lights.
In his marked police car, in full uniform, Officer Haines activated
his lights after he saw one of the riders hit a pedestrian walking
across the street. Officer Haines observed [Johnson] in the front
of the pack, driving a red ATV. [Johnson] attempted to go around
the officer but hit the edge of the roadway and sidewalk, spun out
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1 18 Pa.C.S.A. § 2702(a)(3).
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and crashed into the back of a white church van parked on 52nd
and Parrish. [Johnson] attempted to restart his ATV but could not
get it to start. Officer Haines got out of his patrol car and watched
[Johnson] go towards the middle of the intersection. Officer
Haines then observed [Johnson] reach towards his waistband and
pocket area.
In [an] attempt to restrain [Johnson], Officer Haines got in front
of [Johnson] but [Johnson] punched him on the left side of his
chest. The impact of the punch was so forceful that the iPhone,
located in his left chest pocket, broke. Officer Haines fell
backwards and got back up. He again moved towards [Johnson].
[Johnson] then took another swing at Officer Haines but the punch
did not connect. [Johnson] then kicked Officer Haines in the
middle of his chest causing Officer Haines to fall back down.
Officer Haines witnessed his partner draw his weapon and order
[Johnson] down to the ground. At this point, there were several
ATVs circling the officers so Officer Haines called for a drop and
assist. Going out of [consciousness], Officer Haines realized that
his wrist had been [run] over. He did not see an ATV ride over
him but his hands and wrist had blood over them. As Officer
[Haines’] partner handcuffed [Johnson], Officer Haines saw an
ATV rider breaking the lights of the patrol car and others ATV
riders screaming and taunting the officers.
During the trial, [Johnson] had a witness testify to what he saw
from across the street, about 25 feet away. The witness, [Calvin
Davis,] knows [Johnson’s] brother and another individual he saw
riding on the ATVs. Davis testified that he saw about 40 or 50
ATV bikes riding in the street. He testified that after [Johnson’s]
ATV crashed, it appeared like Officer Haines, his partner, and
[Johnson] were in a heated argument. He testified that there were
other ATVs revving their engines at the officers. Davis stated that
he did not see [Johnson] kick or punch any officer.
Trial Court Opinion, 6/12/20, at 1-3 (citations omitted). After a bench trial,
the court found Johnson guilty of aggravated assault against an officer, simple
assault, resisting arrest, disorderly conduct, and recklessly endangering
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another person (“REAP”).2 The court sentenced Johnson to 3 to 12 months of
incarceration for aggravated assault followed by 2 years of probation and no
further penalty for the remaining offenses. Johnson filed a post-sentence
motion, which the court denied.
Johnson filed this timely appeal. Johnson and the trial court complied
with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Johnson raises the following single issue:
Whether the trial court erred when it found [Johnson] guilty of
Aggravated Assault (18 § 2702 §§ A), Simple Assault (18 § 2701
§§ A), Recklessly Endangering Another Person (18 § 2705),
Resisting Arrest (18 § 5104) and Disorderly Conduct (18 § 5503
§§ A4) where the Commonwealth failed to present sufficient
evidence at trial to convict [Johnson] beyond a Reasonable Doubt?
Johnson’s Brief at 6.
Johnson challenges the sufficiency of the evidence to sustain all of his
convictions. In reviewing a claim based upon the sufficiency of the evidence,
this Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
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2 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), 5104, 5503(a)(4), and 2705.
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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). “[T]he finder of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none of
the evidence. Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super.
2016) (citing Commonwealth v. Brooks, 7 A.3d 852, 856–57 (Pa. Super.
2010). “Because evidentiary sufficiency is a question of law, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
Regarding his aggravated assault conviction, Johnson specifically argues
that the evidence was insufficient to establish that he attempted to injure
Officer Haines, or that Officer Haines was actually injured as a result of his
interaction with Johnson. Johnson’s Brief at 13.
The Pennsylvania Crimes Code provides that “[a] person is guilty of
aggravated assault if he: . . . attempts to cause or intentionally or knowingly
causes bodily injury to any . . . officers, . . . in the performance of duty[.]”3
18 Pa.C.S.A. § 2702(a)(3). The Code further defines “bodily injury” as
“impairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.
Additionally, this Court has held that “In a prosecution for aggravated assault
on an officer[,] 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, and this intent may be shown
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3 “Officers,” as enumerated under 18 Pa.C.S.A. § 2702(c), include police
officers.
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by circumstances which reasonably suggest that [an appellant] intended to
cause injury.” Commonwealth v. Rahman, 75 A.3d 497, 502 (Pa. Super.
2013) (quotation marks, quotation, and emphasis omitted).
Here, contrary to Johnson’s claim, the Commonwealth presented
sufficient evidence to demonstrate that Johnson attempted or intended to
cause bodily injury to Officer Haines. Officer Haines testified that, after
Johnson crashed his ATV into a parked van, he ran towards Johnson, and tried
to restrain him. Johnson punched him in the chest, breaking his cell phone.
N.T., 3/15/19, at 17-19. As a result of Johnson’s punch, Officer Haines fell
backwards to the ground. Id. at 20. When he got up, Johnson tried again to
hit Officer Haines in the chest, but missed. Id. at 21. Johnson then kicked
Officer Haines in the chest, and he fell back down again. Id. Although Officer
Haines was not injured by Johnson’s assaults, as noted above, the
Commonwealth is not required to show that the officer was actually injured.
Notwithstanding this, the force Johnson used was great enough to knock
Officer Haines to the ground and break his phone. The use of such force and
Johnson’s continuing attack supports the trial court’s conclusion that Johnson
was attempting to or intended to injure Officer Haines. We therefore conclude
that the evidence was sufficient to support Johnson’s conviction for
aggravated assault.
Johnson’s arguments to the contrary are misplaced. He claims that his
witness, Davis, testified that Johnson never made a move toward Officer
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Haines. Johnson believes his interaction with Officer Haines was nothing more
than a scuffle where he merely pushed Officer Haines. Johnson’s Brief at 14.
Essentially, Johnson claims his witness was more credible than Officer
Haines. Johnson actually argues a weight of the evidence claim. “An
argument regarding the credibility of a witness’[ ] testimony goes to the
weight of the evidence, not the sufficiency of the evidence.” Commonwealth
v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014); Commonwealth v. Gibbs,
981 A.2d 274, 281–82 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (2010).
However, Johnson waived any claim regarding the weight of the evidence
because he did not raise it in this appeal.4
Regarding his remaining convictions, upon review of his brief, we
observe that Johnson did not make any arguments regarding the sufficiency
of the evidence. It is well established that the failure to present argument in
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4 If we were to consider it, we note that, although Davis testified he did not
see Johnson punch or kick Officer Haines or see him fall to ground, the trial
court explained that it did not find Davis credible. N.T., 3/15/19, at 69-70.
Davis was friends with Johnson’s brother and knew one of the other ATV
riders. Trial Court Opinion, 6/12/20, at 4-5. Additionally, we note that Davis
observed the incident from a distance, amidst a chaotic scene.
On the other hand, the trial court found Officer Haines’s testimony that
Johnson punched him and kicked him credible. Trial Court Opinion, 6/12/20,
at 4-5. The picture of Officer Haines’ damaged cell phone entered into
evidence was consistent with Officer Haines’ testimony. As the trier of fact,
the court was responsible for making credibility determinations, and thus was
free to reject Davis’ testimony. Roberts, supra. Thus, Johnson’s weight
claim would fail even if he preserved this issue.
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a brief constitutes waiver of the claim on appeal. See, e.g., Commonwealth
v. Sneddon, 738 A.2d 1026, 1028–1029 (Pa. Super. 1999). “When issues
are not properly raised and developed in briefs, when the briefs are wholly
inadequate to present specific issues for review, a court will not consider the
merits thereof.” Commonwealth v. Drew, 510 A.2d 1244, 1245 (Pa. Super.
1986). We therefore find waiver, and do not consider Johnson’s challenge to
his remaining convictions. 5
In sum, based upon our review of the record and viewing the evidence
in the light most favorable to the Commonwealth as the verdict winner, we
conclude that the evidence was sufficient for the trial court to find Johnson
guilty of aggravated assault of a police officer. All of Johnson’s other
convictions stand because he waived any challenge on appeal.
Judgment of sentence affirmed.
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5 Regarding Johnson’s REAP conviction, the trial court, in its 1925 opinion,
reconsidered its decision and concluded that there was insufficient evidence
to sustain it. Trial Court Opinion, 6/12/20, at 6-7. However, the trial court
lacked jurisdiction to modify its decision at the time it issued its opinion, unless
certain exceptions applied, and accordingly could not order any relief. See
generally Pa.R.A.P. 1701(a) and (b). While this Court could consider the trial
court’s conclusion upon appellate review, here, Johnson waived the issue by
not arguing it in his brief. Therefore, Johnson’s conviction for REAP stands.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
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