Com. v. Cannon, J.

J-A25034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN CANNON,
Appellant No. 1377 EDA 2013
Appeal from the Judgment of Sentence April 8, 2013
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0000684-2012
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 18, 2014
Appellant, John Cannon, appeals from the judgment of sentence
imposed following his bench conviction of aggravated assault (graded as a
felony of the first-degree), possession of an instrument of a crime, terroristic
threats,1 and related charges. We affirm.
We take the relevant facts and procedural history of this case from the
trial court’s November 6, 2013 opinion and our independent review of the
record. Eric Wheeler, Keith Thomas, and Appellant are next-door neighbors
on a cul-de-sac in Norwood, Pennsylvania. Mr. Wheeler has lived in the
neighborhood for approximately four years, and throughout this time,
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a)(1), 907(a), and 2706(a)(1), respectively.
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Appellant has behaved in a hostile and abusive manner towards him by
shouting profanities, playing the drums constantly, blasting heavy metal
music, and calling Mr. Wheeler’s fiancé obscene names when she walks by
his house. Mr. Wheeler has complained to the police on many occasions
about Appellant’s offensive behavior. Appellant has also threatened to shoot
or stab Mr. Thomas and members of his family.
On January 7, 2012, at approximately 9:00 a.m., Mr. Wheeler, Mr.
Thomas, and Thomas’ three sons began organizing and cleaning their
garages while playing the radio. Appellant contacted the police to complain
about noise, and a police officer arrived in response. The radio was not
playing at a high volume, and the officer left when he realized that the
complaint was baseless. Later that day, a police officer again arrived at Mr.
Wheeler’s home in response to Appellant’s noise complaint. Mr. Wheeler and
Mr. Thomas were playing with remote control cars, and Appellant yelled
“nice fucking cars you faggots,” while the officer was in the driveway. (N.T.
Trial, 1/23/13, at 24). The officer left after concluding that the complaint
was baseless.
Mr. Wheeler and Mr. Thomas then went into Thomas’ home to watch
football with a friend and Thomas’ sons. The men began drinking beer and
occasionally went outside to smoke cigarettes. When they were outside,
Appellant shouted profanity-laced insults and threats from his yard.
Appellant was intoxicated and slurring his speech. Mr. Wheeler was not
intoxicated and ignored Appellant.
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The last time that Mr. Wheeler and Mr. Thomas went outside to smoke
cigarettes that evening, Appellant approached the fence between his yard
and Thomas’ yard and yelled “I’ll fuck you up. I’ll fucking kill yous [sic]
both.” (Id. at 33). Mr. Wheeler spoke to Appellant for the first time that
day and said, “just go in mommy’s house.” (Id.). Appellant hurtled over
the fence, landed on his feet, and stabbed at Mr. Wheeler with a knife. Mr.
Wheeler raised his arm in a defensive gesture to protect his neck, and
Appellant stabbed the knife into and through Wheeler’s arm. As Wheeler
bled profusely, Appellant danced around with the knife and pointed at
Thomas and Thomas’ son, telling them that he was going to “slit [their]
fucking throat[s] next.” (Id. at 38; see also id. at 37, 105). Wheeler was
rushed to the hospital and he suffered a severed artery, ligaments, and
tendons, along with trauma to his ulnar nerve, impairing his motion for
months. He experiences numbness in his arm and he has permanent scars.
Police arrested Appellant after the incident and he gave a written
statement claiming Mr. Wheeler attacked him with a knife. He stated that
he grabbed the knife from Wheeler and swung it at him in self-defense.
Appellant proceeded to a bench trial on January 23, 2013, and the
court found him guilty of the above-stated offenses. On April 8, 2013, the
court sentenced Appellant to an aggregate term of not less than ten nor
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more than twenty years’ incarceration, followed by five years’ probation.
This appeal timely followed.2
Appellant raises the following issues for our review:
1. Was not the evidence insufficient to convict Appellant of
aggravated assault as a felony, in as much as Appellant did not
act with the intent to cause serious bodily injury nor under
circumstances manifesting extreme indifference to human life?
2. Did the [trial] [c]ourt error in allowing pervasive testimony
concerning prior bad acts committed by the Appellant?
(Appellant’s Brief, at 2).
In his first issue, Appellant challenges the sufficiency of the evidence
to support his aggravated assault conviction. (See Appellant’s Brief, at 9-
15).3 Appellant argues that the Commonwealth failed to prove that he acted
with the requisite intent because the evidence does not show that he
intended to cause Mr. Wheeler serious bodily injury or that he acted
recklessly demonstrating extreme indifference to human life. (See id. at
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2
Appellant filed a Rule 1925(b) statement contemporaneously with his
notice of appeal on May 6, 2013. See Pa.R.A.P. 1925(b). The court filed a
Rule 1925(a) opinion on November 6, 2013. See Pa.R.A.P. 1925(a).
3
Appellant’s Rule 1925(b) statement challenged both the sufficiency and
weight of the evidence to support the aggravated assault conviction. (See
Rule 1925(b) Statement, 5/06/13, at 1 (stating “The conviction on
Aggravated Assault was against the weight and sufficiency of the evidence
and should be reversed.”)). However, because Appellant abandoned the
weight claim in his brief, we will not address it. (See Appellant’s Brief, at 9-
15); see also Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa.
2011), cert. denied, 132 S.Ct. 267 (2011) (refusing to address claim
appellant raised with trial court but subsequently abandoned in brief).
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12-14). Appellant asserts that the record reflects an “all too common
situation” in which individuals overcome by anger induced by alcohol
overconsumption engaged in a physical altercation where both parties
accidentally sustained injury. (Id. at 13).
Before we may address the merits of Appellant’s issue, we must
determine whether he properly preserved it for our review. The
Commonwealth contends that Appellant waived his sufficiency of the
evidence issue because he did not identify the element(s) of the crime the
Commonwealth failed to prove at trial in his Rule 1925(b) statement. (See
Commonwealth’s Brief, at 9-10). We agree.
[W]hen challenging the sufficiency of the evidence on appeal,
the Appellant’s 1925[(b)] statement must specify the element or
elements upon which the evidence was insufficient in order to
preserve the issue for appeal. Such specificity is of particular
importance in cases where, as here, the Appellant was convicted
of multiple crimes each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable doubt.
Here, Appellant . . . failed to specify which elements he was
challenging in his [Rule] 1925[(b)] statement . . . . While the
trial court did address the topic of sufficiency in its opinion, we
have held that this is of no moment to our analysis because we
apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in
a selective manner dependent on [a party’s] argument or a trial
court’s choice to address an unpreserved claim.
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010) (citations and quotation marks omitted).
Here, Appellant’s Rule 1925(b) statement does not identify which
elements of aggravated assault that the Commonwealth allegedly failed to
prove. (See Rule 1925(b) Statement, 5/06/13, at 1). Instead, as stated
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previously, the statement raises the following generic issue: “The conviction
on Aggravated Assault was against the weight and sufficiency of the
evidence and should be reversed.” (Id.). Although the trial court addressed
the sufficiency issue in its opinion, “this is of no moment to our analysis
because we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion[.]”
Gibbs, supra at 281 (citation omitted). Accordingly, we conclude that
Appellant’s sufficiency challenge is waived. See id.; see also
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013)
(determining that appellant waived sufficiency claim where his “Pa.R.A.P.
1925(b) statement simply provided a generic statement stating ‘[t]he
evidence was legally insufficient to support the convictions’”) (record citation
omitted).
Moreover, even if Appellant did not waive his sufficiency claim, it
would still not merit relief.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
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all evidence actually received must be considered. Finally, the
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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation
omitted).
The Pennsylvania Crimes Code defines the crime of aggravated assault
as follows:
(a) Offense defined.—A person is guilty of aggravated assault
if he:
(1) 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). The Crimes Code defines “serious bodily injury”
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. § 2301.4
To obtain a conviction for aggravated assault when the victim
sustained serious bodily injury, the Commonwealth must
establish that the offender acted intentionally, knowingly, or with
a high degree of recklessness that included an element of
deliberation or conscious disregard of danger. At a minimum,
the Commonwealth must prove that the offender acted with
malice, consciously disregarding an unjustified and extremely
high risk that his actions might cause death or serious bodily
harm. In other words,
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4
The trial court specifically found that “Wheeler’s injuries constituted
‘serious bodily injury’, since they required immediate medical attention and
would have been serious, if not life threatening, had they not received
emergency treatment.” (Trial Ct. Op., at 5).
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[a] defendant must display a conscious
disregard for almost certain death or injury such that
it is tantamount to an actual desire to injure or kill;
at the very least, the conduct must be such that one
could reasonably anticipate death or serious bodily
injury would likely and logically result.
This Court has previously acknowledged that intent can be
difficult to prove directly because it is a subjective frame of
mind. However, the fact-finder is free to conclude that the
accused intended the natural and probable consequences of his
actions to result therefrom.
We must look to all the evidence to establish
intent, including, but not limited to, [the] appellant’s
conduct as it appeared to his eyes. Intent can be
proven by direct or circumstantial evidence; it may
be inferred from acts or conduct or from the
attendant circumstances.
Each case must be evaluated on its own particular facts,
but under appropriate circumstances, even a single punch to the
face can constitute aggravated assault.
Commonwealth v. Faulk, 928 A.2d 1061, 1070 (Pa. Super. 2007), appeal
denied, 944 A.2d 756 (Pa. 2008) (citations and quotation marks omitted).
Here, Mr. Wheeler testified that he was not intoxicated on the night of
the incident, and that Appellant was intoxicated and slurring his words.
(See N.T. Trial, 1/23/13, 26-27, 32). Mr. Wheeler indicated that, after
Appellant had harassed him all day, Appellant jumped a waist-high fence
and attacked him with a knife. (See id. at 33, 35, 70). Mr. Wheeler stated
that he was not armed, and that he raised his arm in a defensive gesture to
protect his neck. (See id. at 34-36, 70, 78). He opined that, if he had not
blocked the knife with his arm, it would have entered the left side of his
neck. (See id. at 87). The force of the impact of the knife on Mr. Wheeler’s
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arm was so great that the knife went through his arm. (See id. at 36). He
stated that after the attack, Appellant danced around with the knife and
pointed it at Thomas and Thomas’ son, telling them that he was “going to
slit [their] fucking throat[s] next[.]” (Id. at 38). Mr. Wheeler further
testified that, because of the attack, he suffered a severed artery, tendons,
and ligaments, and trauma to his ulnar nerve, impairing his motion for
months. (See id. at 40-41). He has permanent scars from the injury, and
he continued to experience numbness as of the date of the trial. (See id. at
36, 41).
Mr. Thomas corroborated Mr. Wheeler’s testimony, stating that
Appellant jumped the fence, stabbed Mr. Wheeler, and then started yelling
“you’re fucking next, Keith.” (Id. at 105; see also id. at 104). Mr. Thomas
understood this to mean that Appellant was going to stab him next. (See
id. at 105).
Appellant testified that he was intoxicated during the incident, and he
indicated his belief that Mr. Wheeler was also intoxicated. (See id. at 200).
He stated that he acted in self-defense when Mr. Wheeler came running at
him with a large six or seven-inch knife, and that he managed to take the
knife away from Wheeler in the struggle. (See id. at 196, 203-04, 228).
Appellant further testified that he put up his hand to protect himself from the
knife, and it accidently went through Wheeler’s arm. (See id. at 204, 229).
However, the trial court concluded that Appellant’s testimony describing his
version of events was not credible. (See Trial Ct. Op., at 5, 9); see also
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Cahill, supra at 300 (stating that it is within province of fact-finder to
assess credibility of witnesses and accept all, part, or none of evidence).
Based on the foregoing, and viewing the evidence in the light most
favorable to the Commonwealth, see Cahill, supra at 300, we would
conclude that Appellant’s challenge to the sufficiency of the evidence lacks
merit. The record supports the trial court’s finding that Appellant committed
an intentional, knowing or reckless act, under circumstances manifesting
extreme indifference to human life when he forcefully stabbed Mr. Wheeler
with a knife, penetrating into and through his arm. (See Trial Ct. Op., at 6
(citing 18 Pa.C.S.A. § 2702(a)(1))). Accordingly, Appellant’s first issue on
appeal would not merit relief, even if we did not find it waived.
In his second issue, Appellant claims that the trial court erred in
allowing evidence of his prior bad acts, in contravention of Pennsylvania Rule
of Evidence 404(b). (See Appellant’s Brief, at 15-20). Appellant maintains
that he is entitled to a new trial because the court allowed Mr. Wheeler, Mr.
Thomas, and police officers to testify about prior incidents where police
responded to complaints involving him. (See id. at 15-16).
Before we may reach the merits of this issue, we must assess whether
Appellant has properly preserved it. The Commonwealth contends that this
issue is waived because Appellant failed to include it in his Rule 1925(b)
statement. (See Commonwealth’s Brief, at 13; Rule 1925(b) Statement,
5/06/13, at 1). Consequently, the trial court did not address the issue in its
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opinion. (See Trial Ct. Op., at 1-11; Commonwealth’s Brief, at 13). We
agree with the Commonwealth that the issue is waived.
Pennsylvania Rule of Appellate Procedure 1925(b) provides, in relevant
part, that “[i]ssues not included in [an appellant’s Rule 1925(b)] Statement .
. . are waived.” Pa.R.A.P. 1925(b)(4)(vii). An en banc panel of this Court
has stated:
Our Supreme Court intended the holding in
[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
as a bright-line rule, such that “failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in
automatic waiver of the issues raised.” Commonwealth v.
Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005) (emphasis
added); see also [Commonwealth v.] Castillo, 888 A.2d
[775, 780 (Pa. 2005)]. Given the automatic nature of this type
of waiver, we are required to address the issue once it comes to
our attention. Indeed, our Supreme Court does not countenance
anything less than stringent application of waiver pursuant to
Rule 1925(b): “[A] bright-line rule eliminates the potential for
inconsistent results that existed prior to Lord, when . . .
appellate courts had discretion to address or to waive issues
raised in non-compliant Pa.R.A.P. 1925(b) statements.” Id.Succinctly put, it is no longer within this Court’s discretion to
ignore the internal deficiencies of Rule 1925(b) statements.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224 (Pa. Super. 2014) (en banc) (emphasis in original).
Here, Appellant’s Rule 1925(b) statement wholly omits the second
issue he discusses in his brief alleging trial court error in allowing prior bad
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act evidence.5 (See Rule 1925(b) Statement, 5/06/13, at 1; Appellant’s
Brief, at 15-20). Therefore, Appellant’s second issue on appeal is waived,
and we may not address it on the merits. See Pa.R.A.P. 1925(b)(4)(vii);
see also Greater Erie Indus. Dev. Corp., supra at 224, 227.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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5
Specifically, Appellant’s Rule 1925(b) statement raises three issues: 1) the
aforementioned weight/sufficiency claim; 2) a claim that the court
incorrectly calculated his prior record score; and 3) a challenge to the
information filed by the Commonwealth. (See Rule 1925(b) Statement,
5/06/13, at 1).
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