Com. v. Dargan, M. ( 2021 )

J-S09009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL W. DARGAN :
:
Appellant : No. 1061 EDA 2020
Appeal from the Judgment of Sentence Entered December 5, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002511-2019
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: Filed: April 30, 2021
Appellant, Michael W. Dargan, appeals from the judgment of sentence
entered on December 5, 2019, as made final by the denial of Appellant’s
post-sentence motion on February 26, 2020. We affirm.
The trial court ably summarized the underlying facts of this case:
On March 7, 2019, at about 10:52 a.m., Mr. Mark Sabaj was
driving to work on 1-76 in Philadelphia heavy traffic and while
in the left lane of the highway he noticed two vans, a black
one and a white one, traveling in the opposite lanes of travel.
The driver of the white van, Appellant herein, seemed to be
driving aggressively and he pulled his vehicle in front of the
black van which was being driven by [M.J.S. (hereinafter “the
Victim”)]. The drivers of the vans then pulled onto the
shoulder and the [Victim] . . . exited his vehicle and walked
to the front of his van where he stopped just ahead of it.
Appellant also exited his van and aggressively began walking
toward the [Victim].
When Appellant reached the [Victim], whose hands were at
his side, Appellant suddenly punched the [Victim] twice on
both sides of his head, knocking him to the ground. Sabaj
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did not observe the men say anything to one another before
Appellant struck the [Victim] and described the two punches
Appellant threw as "sucker" punches.
[Sabaj] then saw [Appellant] return to his van and drive
away. Sabaj pulled his vehicle onto the shoulder and climbed
over the median to see what happened to the [Victim]. At
the time, the [Victim] appeared to be having seizures and
had blood coming out of his mouth. [Sabaj] took off his
jacket and put it under the [Victim’s] head. He also called
911. Although the [Victim] eventually gained consciousness
and stood up, he appeared to be in a daze. EMTs arrived
soon thereafter and tended to the [Victim].
The [Victim] could not recall the incident. He spent three
weeks in a hospital and was unconscious for periods of time
while being treated for a cerebral concussion, diffuse axonal
brain injury, and epileptic seizures. The [Victim] had not
suffered from seizures prior to the incident. As a result of the
incident, the [Victim] could no longer work or drive. He also
is required to take seizure medicine for the foreseeable
future.
Trial Court Opinion, 8/13/20, at 1-2.
Following a bench trial, the trial court found Appellant guilty of
aggravated assault, simple assault, recklessly endangering another person,
and disorderly conduct.1 On December 5, 2019, the trial court sentenced
Appellant to serve five to ten years in prison, followed by five years of
probation, for his convictions. N.T. Sentencing, 12/5/19, at 12-13.
On December 9, 2019, Appellant filed a post-sentence motion. Within
this motion, Appellant claimed that the evidence was insufficient to support
his aggravated assault and recklessly endangering another person convictions
because there was no evidence that he “intended to cause serious bodily injury
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 5503(a)(1), respectively.
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or that he recklessly caused serious [sic] where he and the [Victim]
approached each other and while face to face [Appellant] punched [the Victim]
twice.” Appellant’s Post-Sentence Motion, 12/9/19, at 1 (some capitalization
omitted); see also Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa.
Super. 2011) (“[a] motion for judgment of acquittal challenges the sufficiency
of the evidence to sustain a conviction on a particular charge, and is granted
only in cases in which the Commonwealth has failed to carry its burden
regarding that charge”) (quotations and citations omitted).
The trial court denied Appellant’s post-sentence motion on February 26,
2020 and Appellant filed a timely notice of appeal. Appellant raises two claims
on appeal:
1. Whether Appellant’s conviction for aggravated assault was
against the weight of the evidence?
2. Whether the sentencing court abused its discretion when
it sentenced within the sentencing guidelines but the case
involves circumstances where the application of the
guidelines would be clearly unreasonable?
Appellant’s Brief at 4.
Appellant did not raise either his weight of the evidence or his
discretionary aspects of sentencing claim before the trial court; as a result,
both of Appellant’s claims on appeal are waived. See Commonwealth v.
Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (“[a] weight of the evidence
claim must be preserved either in a post-sentence motion, by a written motion
before sentencing, or orally prior to sentencing. Failure to properly preserve
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the claim will result in waiver, even if the trial court addresses the issue in its
opinion”) (quotations and citations omitted); Commonwealth v. Feucht,
955 A.2d 377, 383 (Pa. Super. 2008) (“[t]o preserve issues concerning the
discretionary aspects of sentencing, a defendant must raise them during
sentencing or in a timely post-sentence motion”).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/21
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