Com. v. Wright, K.

J-S63025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KIEFER WRIGHT,
Appellant No. 766 EDA 2015
Appeal from the Judgment of Sentence October 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001845-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 01, 2016
Appellant, Kiefer Wright,1 appeals from the judgment of sentence
entered following his convictions by a jury of aggravated assault, possession
of instruments of crime (“PIC”), firearms not to be carried without a license,
and carrying firearms on public streets or public property in Philadelphia.
We affirm.
The trial court summarized the evidence presented at trial, as follows:
Philadelphia Police Officer Adrian Truitt testified that in the
afternoon of April 19, 2012, he and his partner responded to a
report of a shooting in the vicinity of 56th and Broomall Streets
in the City of Philadelphia. On arriving he encountered two
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The record reveals that Appellant’s actual name is Christopher Wright.
N.T. (Trial), 4/14/14, at 74.
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women, Ms. Sakeyta Greene (Sakeyta) and Ms. Angelina
Brownlee (Angelina), in the street preparing to fight each other.
After separating the women, he placed Sakeyta in his vehicle
and later transported her to the Southwest Detectives Unit to
give a formal statement. He also observed a Pontiac Grand Prix
car, registered to Angelina, parked at the scene which had been
roped off with crime scene tape.
Prior to leaving the scene, Officer Truitt had an opportunity
to observe Angelina and speak to her briefly. He saw no visible
signs of injury to her person and testified that she told him that
she and her boyfriend, “Chris,” had come to the area to defend
her sister, Mary Brownlee, who was upset because she had been
tapped on the “butt”.
Sakeyta testified that on April 19, 2012, at approximately
1:00 p.m., she received a phone call from her cousin, Mary
Brownlee (Mary), complaining that someone had inappropriately
touched her on the “butt”. She then went to Mary’s house,
located at 56th and Broomall Streets and talked to her from the
small “Poppy” store next door. While talking to Mary, she saw
Angelina’s black Pontiac being driven by [Appellant], pull up in
front of the store. When [Appellant] parked the car she noticed
a group of “Boys” approach the driver’s side of the car and
engage in a fight with [Appellant]. On hearing a gunshot she
ran into the store with her infant child who was with her at the
time. She testified that Angelina then drove off, returned alone
a short while later and engaged in a verbal altercation with her
over the incident. The police broke it up before “it got physical.”
Sakeyta was then transported to Southwest Detectives to
give a formal Statement. She acknowledged that as she gave
her statement to Detective Vincent Parker he was typing out her
responses. She also testified that at the end of the interview she
signed each of the three pages of the print out of her statement
after reviewing it on the computer screen.
Philadelphia Police Detective Vincent Parker testified that
on April 19, 2012, at approximately 4:10 p.m., he interviewed
Sakeyta and took her statement regarding the shooting at 56th
and Broomall Streets. When he asked Sakeyta to describe the
incident she replied:
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“I was going to the poppy store to get
something to eat when I saw a black Grand Prix pull
up and park on the same side of the street as the
poppy store, about two doors away from where I
was at. The girl, Angelina Brownlee, was in the front
passenger seat, and the guy, Chris Wright, was
driving. There was no one else in the car. The Guy,
Xzavien, came from across the street and walked
over to the driver window of the car and started
swinging on Chris. I saw Chris point a gun towards
Xzavien and shot him. I heard one gunshot and
Chris ran off and Angelina started driving, circling
around looking for Chris. Everybody started running,
and I was trying to get my son inside of poppy
store.”
She also told him that in addition to Xzavien, the
complainant, “two to three other guys” also approached the car
with him. When he asked Sakeyta if she knew what led to the
shooting she replied: “No, but Angelina’s sister, Mary Brownlee,
told me that someone had smacked her on her butt and that she
was going to get somebody to do something about it.”
At the conclusion of the interview, Detective Parker printed
out a copy of Sakeyta’s statement, had her review it for accuracy
and then sign each page. Detective Parker then had his partner
review the statement to see if he had any additional questions
before Sakeyta was permitted to leave.
The complainant, Xzavien Jennings (Xzavien), testified that
on April 19, 2012, at approximately 1:00 p.m., he was around
the corner from 56th and Broomall Streets talking with a friend
when he heard a commotion and went to see what was
happening. On arriving on 56th Street he saw people “talking
back and forth” and decided to get involved in a fight with them.
He testified further that at some point he heard a gunshot and it
wasn’t until later that he realized that he had been shot in the
back with the bullet exiting through the stomach leaving
permanent scars.
He testified that he was then taken to the Hospital of the
University of Pennsylvania by friends who dropped him off at the
emergency room and was operated on that day. Xzavien denied
any recollection of giving a statement to Detective Mole on the
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morning of the following day. When shown this statement he
denied that it was his signature that was affixed to it.
Philadelphia Police Detective Fred Mole testified that on the
day following the shooting, April 20, 2012, he interviewed the
complainant, Xzavien, in his hospital room at the Hospital of the
University of Pennsylvania at approximately 11:15 a.m. He
described Xzavien as being lucid, coherent and up and about,
despite having been shot the previous day, and willing to give
his statement. When he asked Xzavien to describe the incident
he replied:
“Angela called me over to her at 56th Street
between Broomall and Whitby Streets. I approached
by myself, and I didn’t know what Angel2 wanted.
When I got to the car, the guy who shot me pulled
the gun. I started punching him and Angela. And
then the guy let off four shots. I ran from the scene,
and someone took me to . . . the hospital.”
2
Throughout his testimony, the witness
refers to Angela by that name as well as
Angel and Angelina.
Detective Mole also testified that, as part of the interview,
he displayed a photo array of eight photographs, including one of
[Appellant]. On being shown the array, Xzavien immediately
identified [Appellant] as the shooter and signed it to confirm his
identification of [Appellant].
At the conclusion of the interview Detective Mole had
Xzavien read his statement for accuracy. After reviewing his
statement and making one correction Xzavien signed each page.
Kahdeem Brown (Kahdeem) testified that on April 19,
2012 he was “chillin” at 56th and Broomall Streets when
Angelina’s car pulled up across the street from him. He stated
that “like six, seven dudes, like, went -- they was walking over
to the car. The next thing you know they swinging on whoever’s
in the car, or whatever. And then a shot rang out. Everybody
started running.” After making sure he was safe, he
encountered the complainant, who he knew as “Ooo” on the
street. Realizing that Xzavien had been shot, he put him in a
friend’s car, then drove him to the hospital. Not wanting to get
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further involved, he left after taking him into the emergency
room.
On returning to the scene Kahdeem was detained by the
police and taken to Southwest Detectives where he gave a
statement to Detective Deayoung Park. After giving his
statement he signed each page and returned home.
Philadelphia Police Detective Deayoung Park testified that
he interviewed Kahdeem Brown and took his written statement
on April 19, 2012 with regard to the shooting earlier that day.
He testified that when he asked him what he had seen, Kahdeem
responded:
“I was seating across the poppy store. That’s
when Ricky was calling the girl telling her to bring
the boy back around here that was looking for CJ. So
about an hour later, she comes up pulling up in a
black Grand Prix with the boy driving. So Ooo and
CJ walked over to the Grand Prix and Ooo was
talking to the door, and next thing I knew Ooo was
swinging at the boy in the car. Then I think CJ
opened the car door and Ooo was starting to kick on
the boy and the girl. Then the shots rang out, and
everybody started to run. So we, meaning me and
Ricky, ran around to Malcolm Street, and Ooo was
like, ‘I’m shot, I’m shot.’ And that’s when the cops
started to pull up and kept asking, ‘Who got shot,
who got shot.’ And Ooo was hiding from where he
was bleedings so the cop won’t see. That’s when
Cliffy pulled up and put Ooo in the car and took him
to the hospital. We were coming back, and that’s
when we got pulled over by the cops.”
Before concluding the interview, Detective Park gave
Kahdeem a printed copy of his statement to review and make
corrections. Kahdeem then signed each page of his statement.
[Appellant] testified that on April 19, 2012, at
approximately 1:15 p.m., after leaving school, he picked up his
girlfriend, Angelina, at her sister Mary’s house, at 56th and
Broomall Streets, to take her to work. When Angelina and Mary
got in the car Mary told him, “Some boy had slapped her on her
butt.” When she said she wanted him to do something about it,
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he testified that he got out of the car. “And then we walked in
front of Mary’s house, but there wasn’t nobody out there. There
wasn’t nobody around. So we left. Me and Angelina left. I was
taking her to work. So it’s probably like 1:25.”
[Appellant] testified that they returned shortly after
leaving because Angelina had forgotten her work ID, which she
needed. On returning to Mary’s house he was approached on
the driver’s side of the car by a group of three or four men as he
was backing into a parking space. He testified that he stopped
the car before being fully parked and attempted to talk to the
men when he was hit through the open window and a struggle
ensued. He further testified that during the fight he pulled out
the gun he had been sitting on during the fight and “I just -- I
didn’t even look out the driver’s door. Like, I just shot.” After
firing the shot [Appellant] ran from the scene.
[Appellant] testified that he had purchased the gun
illegally and did not have a license to carry it. He also testified
that he had taken the gun to school that day, keeping it under
the driver’s seat of the car, and had placed it on the seat and
was sitting on it when he returned to Mary’s house.
Trial Court Opinion, 11/19/15, at 3–9 (record references omitted).
The trial court also recounted the procedural history:
On January 25, 2013, [Appellant] was arrested and
charged with, inter alia; 1) Aggravated Assault pursuant to 18
Pa.C.S.A. §2702(a); 2) Firearms not to be Carried Without a
License pursuant to 18 Pa.C.S.A. §6106; 3) Carrying Firearms on
Public Streets or Public Property in Philadelphia pursuant to 18
Pa.C.S.A. §6108; and 4) Possession of an Instrument of a Crime
with Intent pursuant to 18 Pa.C.S.A. 907(a)(PIC). On April 15,
2014, at the conclusion of his jury trial, [Appellant] was found
guilty on all charges. On October 17, 2014, [Appellant] was
sentenced on the charge of Aggravated Assault to a period of
confinement in a state correctional facility of 7 to 15 years.
[Appellant] was also sentenced to concurrent periods of
probation of 5 years on the charge of Carrying a Firearm Without
a License, 5 years on the charge of Carrying a Firearm on the
Streets of Philadelphia and 5 years on the charge of PIC, to be
served consecutively to his period of confinement.
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On August 6, 2014, prior to sentencing, [Appellant]
presented an oral Motion for Extraordinary Relief pursuant to
Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 704(B).
On October 17, 2014, at the conclusion of the hearing held to
consider [Appellant’s] motion and immediately prior to
sentencing, the Court denied [Appellant’s] motion. On October
24, 2014, [Appellant] timely filed a Motion For New Trial and In
Arrest of Judgment and or Judgment of Acquittal and
Reconsideration of Sentence pursuant to the Pennsylvania Rules
of Criminal Procedure, Pa.R.Crim.P. 720. At the conclusion of a
hearing held on February 3, 2015, the Court denied [Appellant’s]
motion.
On March 3, 2015, [Appellant] timely filed the instant
appeal to the Superior Court of Pennsylvania. On March 6,
2015, this Court filed and served on [Appellant] an Order
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, directing [Appellant] to file and serve a Statement of
Errors Complained of on Appeal, within 21 days of the Court’s
Order. On March 27, 2015, [Appellant] timely filed his
Statement of Errors . . . .
Trial Court Opinion, 11/19/15, at 1–2.
Appellant raises eight issues for appellate review: 2
[1.] Was the evidence presented at trial sufficient as a
matter of law to support the conviction for aggravated assault
(18 Pa.C.S.A. § 2702), where the evidence of record did not
establish beyond a reasonable doubt that appellant/defendant
was not justified (under 18 Pa.C.S.A. § 505) in firing a single
shot when the complainant and several other males approached
the car appellant was parked in, began beating appellant, forced
the door nearest appellant open, continued to beat appellant
with fists and began to kick appellant, and did not abate the
attack until the single shot was fired?
[2.] Was the evidence presented at trial sufficient as a
matter of law to support the conviction for possessing an
instrument of crime (18 Pa.C.S.A. § 907), where the evidence of
____________________________________________
2
For convenience, we have numbered Appellant’s issues.
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record did not establish beyond a reasonable doubt that
appellant/defendant was not justified (under 18 Pa.C.S.A. § 505)
in using a firearm to fire a single shot when the complainant and
several other males approached the car appellant was parked in,
began beating appellant, forced the door nearest appellant open,
continued to beat appellant with fists and began to kick
appellant, and did not abate the attack until the single shot was
fired?
[3.] Was the evidence presented at trial sufficient as a
matter of law to support the conviction for aggravated assault
(18 Pa.C.S.A. § 2702), where the evidence of record did not
establish beyond a reasonable doubt that appellant/defendant
caused serious bodily injury to the complainant intentionally,
knowingly, or under circumstances manifesting an extreme
indifference to the value of human life, where appellant did not
instigate the violence, fired a single shot while being beaten by a
number of males who forced their way into appellant’s vehicle
and appellant did not fire additional shots, utilize the vehicle as a
weapon, or pursue or attempt to further injure any of the
attackers?
[4.] With respect to the charge of aggravated assault (18
Pa.C.S.A. § 2702), was the verdict . . . against the weight of the
evidence and so contrary to the evidence that it shocks one’s
sense of justice in light of the circumstances set forth in the
preceding questions?
[5.] With respect to the charge of possessing an
instrument of crime (18 Pa.C.S.A. § 907), was the verdict . . .
against the weight of the evidence and so contrary to the
evidence that it shocks one’s sense of justice in light of the
circumstances set forth in the preceding question?
[6.] Did the trial court deny the appellant/defendant a fair
trial by repeatedly interjecting the Court’s own conclusions
regarding the facts of the case during the charge to the
deliberating jury and, in doing so, interfere with the role of the
jury?
[7.] Did the trial court give an instruction to the jury
during deliberations regarding the charge of justification which
was incomplete, unbalanced, inadequate, unclear, misleading,
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inappropriate, and inaccurate statement of the law and
prejudicial to Defendant?
[8.] With respect to the sentence imposed upon
defendant/appellant by the trial court, did that court abuse its
discretion by imposing an aggregate sentence of not less than 7,
nor more than 15, years of incarceration (followed by 5 years of
probation) upon the defendant where:
(a) the aggravating circumstances cited by the trial
court already resulted in an increased guideline range but
the court imposed a sentence at the top of the aggravated
range of the increased guideline range; and,
(b) the trial court recognized that there are
mitigating circumstances in this case, but imposed a
sentence which is unreasonable under the circumstances of
the case and outside of the sentencing guidelines on the
charge of aggravated assault by imposing a sentence at
the top of the aggravated range of the increased guideline
range?
Appellant’s Brief at 7–9.3
Appellant questions the sufficiency of the evidence to support his
aggravated assault and possession of an instrument of crime convictions
asserting that the Commonwealth failed to disprove his self-defense theory.
He also contends that the evidence was insufficient to establish that he acted
with the requisite mens rea to support a conviction for aggravated assault.
We review evidentiary sufficiency questions under the following
standard:
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3
We observe that Appellant’s Statement of Questions Presented portion of
his Brief is far more detailed than in his Pa.R.A.P. 1925(b) Statement.
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The standard we apply 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
all evidence actually received must be considered. Finally, the
[trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting
Commonwealth v. Jones, 874 A.2d 108, 120–121 (Pa. Super. 2005
(citations omitted)).
With respect to self-defense, we are guided by 18 Pa. C.S. § 505
which sets forth the elements of self-defense:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person.— The use of force upon or toward another person is
justifiable when the actor believes that such force is immediately
necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.
18 Pa.C.S. § 505(a). We also note that our legislature has imposed the
following relevant limitations on the use of self-defense:
(b) Limitations on justifying necessity for use of
force.—
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* * *
(2) The use of deadly force is not justifiable under this
section unless the actor believes that such force is necessary to
protect himself against death, serious bodily injury, kidnapping
or sexual intercourse compelled by force or threat; nor is it
justifiable if:
(i) the actor, with the intent of causing death or serious
bodily injury, provoked the use of force against himself in
the same encounter; or
(ii) the actor knows that he can avoid the necessity of
using such force with complete safety by retreating . . . .
(2.1) Except as otherwise provided in paragraph (2.2), an
actor is presumed to have a reasonable belief that deadly force
is immediately necessary to protect himself against death,
serious bodily injury, kidnapping or sexual intercourse compelled
by force or threat if both of the following conditions exist:
(i) The person against whom the force is used is in the
process of unlawfully and forcefully entering . . . a[n]
occupied vehicle; or the person against whom the force is
used is or is attempting to unlawfully and forcefully
remove another against that other’s will from the . . .
occupied vehicle.
(ii) The actor knows or has reason to believe that the
unlawful and forceful entry or act is occurring or has
occurred.
(2.2) The presumption set forth in paragraph (2.1) does
not apply if:
* * *
(iii) the actor is engaged in a criminal activity or is using
the . . . occupied vehicle to further a criminal activity;
* * *
(2.3) An actor who is not engaged in a criminal activity,
who is not in illegal possession of a firearm and who is attacked
in any place where the actor would have a duty to retreat under
paragraph (2)(ii) has no duty to retreat and has the right to
stand his ground and use force, including deadly force, if:
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(i) the actor has a right to be in the place where he was
attacked;
(ii) the actor believes it is immediately necessary to do
so to protect himself against death, serious bodily injury,
kidnapping or sexual intercourse by force or threat; and
* * *
(d) Definition.--As used in this section, the term
“criminal activity” means conduct which is a misdemeanor or
felony, is not justifiable under this chapter and is related to the
confrontation between an actor and the person against whom
force is used.
18 Pa.C.S. § 505 (b) and (d).
“When a defendant raises the issue of self-defense, the
Commonwealth bears the burden to disprove such a defense
beyond a reasonable doubt.” Commonwealth v. Bullock, 948
A.2d 818, 824 (Pa. Super .2008). The Commonwealth sustains
this burden if it establishes at least one of the following: (1) the
accused did not reasonably believe that he was in danger of
death or serious bodily injury; (2) the accused provoked or
continued the use of force; or (3) the accused had a duty to
retreat and the retreat was possible with complete safety.
Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa.
Super. 2005). The Commonwealth need only prove one of these
elements beyond a reasonable doubt to sufficiently disprove a
self-defense claim. Commonwealth v. Burns, 765 A.2d 1144,
1149 (Pa. Super. 2000).
Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009). See
also Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012) (before a
defendant can be excused from using deadly force, he must reasonably
believe that he is in imminent danger, must be free from fault in provoking
or escalating the altercation that led to the offense, and did not violate the
duty to retreat); Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super.
2012) (“[I]f the defender did not reasonably believe deadly force was
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necessary[,] he provoked the incident, or he could retreat with safety, then
his use of deadly force in self-defense was not justifiable.”) (citation
omitted). “It remains the province of the jury to determine whether the
accused’s belief was reasonable, whether he was free of provocation, and
whether he had no duty to retreat.” Commonwealth v. McClendon, 874
A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted).
The trial court analyzed Appellant’s self-defense claim as follows:
[Appellant] testified that when he first came on the scene to take
Angelina Brownlee to work, he had been asked to do something
about an offense committed against her sister, Mary Brownlee.
Finding no one to talk to, he left. He also testified that when he
later returned to the area to get Angelina’s work ID, he had no
reason to fear anything was about to happen, yet, despite this
state of affairs, he testified that he felt he needed to be sitting
on top of the loaded gun he illegally possessed.
On returning to the scene, [Appellant] had not fully parked
the car when they were approached by [a] group of men who
attacked them from the driver’s side only. Although he and
Angelina had been attacked and beaten through the open door
and window of the car, he described their injuries as “nothing
extravagant,” agreeing that they were not sufficient to cause
him “to have to take a handgun out, and shoot someone in the
stomach.” In addition, there was no evidence presented that
any of their assailants were armed with anything but their fists.
When a defendant uses greater force than was reasonably
necessary to protect against death or serious bodily injury, his
use of unreasonable force renders his claim of self-defense
unavailable. Truong, Supra.
Sakeyta’s testimony that she had gone to visit Mary after
receiving a call from Mary telling her that she had been
improperly touched on the “butt”, and, that when she saw
[Appellant] pull up in the car she knew [Appellant] was also “on
the way”, supports the conclusion that [Appellant] came on the
scene prepared to fight in defense of Mary’s honor. This
conclusion that [Appellant] came upon the scene prepared to
fight is supported by her sworn statement to Detective Parker
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that as the complainant approached the car she saw [Appellant]
“point a gun towards Xzavien and shot [sic] him.”
The complainant, Xzavien Jennings, in his statement to
Detective Mole, stated that he had been called to the scene by
Angelina. He also stated that when he got to the car “the guy
who shot me pulled a gun. I started punching him and Angela.”
It is clear, on viewing the evidence in a light most
favorable to the verdict winner, the evidence was sufficient for
the jury to have concluded that when [Appellant] arrived on the
scene it was his intent to use the loaded gun he was sitting on to
defend the honor of Mary Brownlee. Furthermore, by
[Appellant’s] own admission that his and Angelina’s injuries were
“nothing extravagant” and not sufficient to cause him “to have to
take a handgun out, and shoot someone in the stomach” was
sufficient for the jury to conclude that he “did not reasonably
believe that he was in danger of death or serious bodily injury.”
Additionally, [Appellant’s] testimony that he had not fully parked
the car and that the attack came only from the driver’s side was
sufficient to support the conclusion that not only did he have an
avenue of escape open to him, but, that he chose to remain and
engage in the fight that ensued.
A review of the record makes it clear [Appellant’s]
complaint falls of its own weight.3 The evidence was sufficient
for the jury to have concluded that [Appellant] came on the
scene sitting on a loaded gun he was prepared to use, that he
chose not to retreat, but instead opted to engage in the fight,
that the injuries sustained were not sufficient to reasonably put
him in immediate fear of death or serious bodily injury, that he
acted recklessly without regard to the consequences in shooting
the gun into a crowd and that he overreached in using a loaded
gun to a fist fight. The Commonwealth met its burden in
disproving [Appellant’s] claim of self-defense beyond a
reasonable doubt.
3
Court notes that [Appellant’s] claim of self-defense
was weakened further by his admission at trial that
he was raising the defense of justification for the first
time on the stand and that he had not discussed the
issue with trial counsel prior to the commencement
of trial.
Trial Court Opinion, 11/19/15, at 15–17 (record references omitted).
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Appellant’s first argument is that the evidence failed to establish
beyond a reasonable doubt that his actions were not justified under 18
Pa.C.S. § 505. Because the evidence is clear that Appellant did not
reasonably believe he was in danger of death or serious bodily injury, we
disagree.
The requirement of a reasonable belief encompasses two
aspects, one subjective and one objective. First, the defendant
“must have acted out of an honest, bona fide belief that he was
in imminent danger,” which involves consideration of the
defendant’s subjective state of mind. Second, the defendant’s
belief that he needed to defend himself with deadly force, if it
existed, must be reasonable in light of the facts as they
appeared to the defendant, a consideration that involves an
objective analysis. Commonwealth v. Light, 458 Pa. 328, 326
A.2d 288 (1974).
Mouzon, 53 A.3d at 751–752.
Regarding Appellant’s subjective belief that he was in danger,
Appellant admitted that his and Ms. Brownlee’s injuries were “nothing
extravagant” and agreed that there was not sufficient cause “to have to take
a handgun out, and shoot someone in the stomach.” N.T., 4/14/14, at 98–
99. This admission alone was sufficient for the jury to conclude that
Appellant did not reasonably believe that he was in danger of death or
serious bodily injury.
Appellant does not offer a rebuttal to his admission that his injuries
were slight and that he was not justified in producing a gun and firing.
Instead, Appellant focuses on an objective analysis—that his belief that he
needed to defend himself with deadly force was reasonable in light of the
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facts as they appeared to him. Appellant avers that the eyewitness
testimony at trial demonstrated that at least four men stormed his vehicle
and began punching him and Ms. Brownlee and forced their way into the
vehicle. Citing Commonwealth v. Glover, 449 A.2d 662 (Pa. Super. 1982)
and Commonwealth v. Gregory, 406 A.2d 539 (Pa. Super. 1979),
Appellant asserts that authority from this Court indicates that the above-
described attack would warrant a reasonable person to believe that the
attackers attempted to cause serious bodily injury.
We observe that the credibility of eyewitnesses’ trial testimony was
challenged because it was inconsistent with their statements to the police
recorded after the shooting. At trial, Sakeyta Greene testified that she
observed “about ten” boys around the car holding Appellant and Ms.
Brownlee and saw them throwing punches. N.T. (Trial), 4/10/14, at 62, 64.
She denied seeing anyone with a gun. Id. at 65. However, in her
statement to the police, Ms. Greene related: “the guy Xzayvien came across
the street and walked over to the driver window and started swinging on
[Appellant]. I saw [Appellant] point a gun towards Xzayvien and shot him.”
Id. at 80; Commonwealth Exhibit C 14.
The victim, Xzayvien Jennings, represented at trial that he observed a
commotion at 56th and Broomall Streets involving four or five people. N.T.
(Trial Volume II), 4/11/14, at 65, 67. Mr. Jennings explained that when he
approached the group, words were being exchanged, and he became
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involved because he “just wanted to fight.” Id. at 68. Mr. Jennings denied
seeing anybody with a gun and claimed he did not realize he had been shot
until he discovered blood on his shirt. Id. at 70–71. This testimony
contradicted Mr. Jennings’s statement to police the day after the shooting
wherein he recounted: “I approached [the vehicle] by myself . . . . When I
got to the car the guy who shot me pulled a gun. I started punching him
and Angela and then the guy let off four shots.” Id. at 89; Commonwealth
Exhibit C 12.
The third eyewitness, Kahdeem Brown, told the jury that he was
present at 56th and Broomall Streets on the day of the shooting and saw
“six, seven dudes walking over to the car.” N.T. (Trial Volume II), 4/11/14,
at 200. This recollection is at odds with Mr. Brown’s statement to police that
he saw only two people approach Ms. Brownlee’s vehicle. Id. at 219;
Commonwealth Exhibit C 5.4
A witness’s prior inconsistent statement could be admitted as
substantive evidence “when the statement had been given under oath at a
formal legal proceeding, reduced to writing and signed by the declarant, or
recorded verbatim contemporaneously with the making of the statement.”
Commonwealth v. Ragan, 645 A.2d 811, 818 (Pa. 1994).
____________________________________________
4
All three eyewitnesses signed their respective police statements.
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The trial court herein instructed the jury on this legal maxim,
informing them:
[Y]ou are permitted to accept and consider the prior written
statements of any witness . . . and you may treat it in the same
manner as you would any other evidence. . . . [I]t is entirely up
to you to decide whether to accept the statements in whole or in
part and to decide what weight, if any, to give them.
N.T. (Trial Volume III), 4/14/14, at 138–139.
Thus, it was within the province of the jury to determine the credibility
of the eyewitnesses’ trial testimony in light of their prior inconsistent
statements, particularly because other evidence indicated that these
witnesses could have been influenced improperly by Appellant and Ms.
Brownlee. During cross-examination, Appellant was confronted with
recordings and transcripts of telephone calls between him and Ms. Brownlee
while he was incarcerated. In a call on January 28, 2013, Appellant
indicated to Ms. Brownlee that he did not want Sakeyta Greene to appear in
court because she had given a statement to police that Appellant shot Mr.
Jennings. N.T. (Trial Volume III), 4/14/14/, at 103. Ms. Brownlee
responded, “Cuz she show up, she gon’ turn up missing.” Id. at 104;
Commonwealth Exhibit 33. On January 31, 2013, Appellant, referring to Mr.
Jennings, stated to Ms. Brownlee, “He got to point that finger, and if he
point that finger, you already know what’s going to happen to him.” Id. at
105. Appellant also admitted that his reference to Mr. Jennings in a
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subsequent February 5, 2013 call concerned trying to persuade Mr. Jennings
not to appear in court. Id. at 113.
After observing the demeanor of the eyewitnesses and hearing the
recordings of the prison telephone calls, it is apparent that the jury resolved
the conflicts in the evidence favorably to the Commonwealth. As we are also
obligated to view contradictory testimony to the Commonwealth’s
advantage, we conclude that sufficient evidence demonstrated that
Appellant’s actions were not justified in this matter. See Commonwealth
v. Sanchez, 848 A.2d 977, 982 (Pa. Super. 2004) (in sufficiency of evidence
review, conflicts in testimony are resolved in favor of the verdict winner).5
Appellant next offers that the limits on use of force detailed in 18
Pa.C.S. § 505(b), colloquially known as the “castle doctrine,” are not
applicable herein because he was not engaged in “criminal activity” as
defined by the statute. The Commonwealth urges that this argument is
waived because Appellant did not invoke the castle doctrine at trial.
Additionally, we observe that Appellant’s Rule 1925(b) statement does not
mention either subsection 505(b) or the castle doctrine but merely states
____________________________________________
5
We further note that the precedent cited by Appellant to support his claim
that a reasonable person would believe that he needed to defend himself
with deadly force is not persuasive. Both Glover, 449 A.2d 662, and
Gregory, 406 A.2d 539, discuss whether the evidence demonstrated that
the actors attempted to cause serious bodily injury sufficient to sustain
convictions for aggravated assault. Neither appellant in those cases
propounded a self-defense claim.
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that “[t]he evidence presented at trial was insufficient to show that
[Appellant] attempted to cause serious bodily injury to another, or caused
such injury intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life.” Appellant’s
Pa.R.A.P. 1925(b) Statement, 3/27/15, at unnumbered 1. Finally, the trial
court did not reference the applicability of the castle doctrine in its
discussion of the sufficiency of the evidence supporting Appellant’s
justification defense.6 While these factors all indicate that Appellant has
waived his castle doctrine argument, it also fails on the merits.
As delineated above, use of deadly force is justifiable if the actor
believes that such force is necessary to protect himself against serious bodily
injury. 18 Pa.C.S. § 505(a). An actor is presumed to have such reasonable
belief if the person against whom the force is used is in the process of
unlawfully or forcefully entering an occupied vehicle. 18 Pa.C.S. §
505(b)(2.1)(i). However, section 505(b)2.1’s presumption does not apply if
the actor is engaged in criminal activity. 18 Pa.C.S. § 505(b)(2.2)(iii).
“Criminal activity” is defined as “conduct which is a misdemeanor or felony,
is not justifiable under this chapter and is related to the confrontation
____________________________________________
6
In the portion of its Pa.R.A.P. 1925(a) opinion discussing the jury
instructions, the trial court explained that it did not include an instruction on
the castle doctrine, because “in view of the evidence at trial . . . it didn’t
apply.” Trial Court Opinion, 11/19/15, at 28.
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between an actor and the person against whom force is used.” 18 Pa.C.S. §
505(d).
Appellant’s contention that he was not engaging in criminal activity
when he shot Mr. Jennings is indefensible. First, Appellant confessed that he
illegally possessed a firearm, graded as a felony of the third degree under
18 Pa.C.S. § 6106(a)(1). He likewise admitted that there was insufficient
cause “to have to take a handgun out, and shoot someone in the stomach.”
N.T., 4/14/14 (Volume III), at 98–99. Finally, Appellant’s discharge of his
firearm was indisputably related to the confrontation between himself and
the victim herein. Thus, Appellant’s activity under scrutiny clearly
constituted criminal activity as that term is defined in 18 Pa.C.S. § 505(d). 7
____________________________________________
7
Appellant’s argument that the language of 18 Pa.C.S. § 505(b)(2.3)
instructs that illegal possession of a firearm is not criminal activity is
untenable. That subsection reads as follows: “An actor who is not engaged
in a criminal activity, who is not in illegal possession of a firearm and who is
attacked in any place where the actor would have a duty to retreat under
paragraph (2)(ii) has no duty to retreat under certain circumstances.” 18
Pa.C.S. § 505(b)(2.3). Appellant suggests that the use of the phrases
“engaged in criminal activity” and “not in illegal possession of a firearm” in
the same sentence requires a conclusion that “‘illegal possession of a
firearm’ is not, per se, ‘criminal activity’ for purposes of § 505(b). If it were,
the use of both phrases consecutively in § 505(b)(2.3) would be redundant
. . . .” Appellant’s Brief at 26. Appellant fails to note, however, that
subsection 505(b)(2.3) relates to circumstances when an actor’s duty to
retreat is not required and has no bearing on whether the actor’s activity is
considered criminal in nature.
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Considering the evidence in the light most favorable to the
Commonwealth, we conclude that the Commonwealth met its burden of
disproving Appellant’s claim of self-defense. After presentation of conflicting
evidence, the jury was entitled to reject Appellant’s claim that he, either
subjectively or objectively, reasonably believed that his life was in imminent
danger. Additionally, Appellant did not demonstrate that his use of force
was justifiable under the castle doctrine. Hence, Appellant’s contrary claim
that the Commonwealth failed to meet its burden to negate his justification
defense lacks merit.
Appellant next argues that the evidence was insufficient to establish
that he acted with the requisite mens rea to support his aggravated assault
conviction. The trial court rejected this argument, reasoning:
[Appellant] was found guilty of Aggravated Assault
pursuant to 18 Pa.C.S.A. 2702(a)(1) which provides in part that,
(a) “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.”
* * *
“A person acts intentionally with respect to a material
element of an offense when...it is his conscious object to engage
in conduct of that nature or to cause such a result. As intent is a
subjective frame of mind, it is of necessity difficult of direct
proof. The intent to cause serious bodily injury may be proven
by direct or circumstantial evidence.” Commonwealth v.
Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (Citations omitted).
Our Superior Court in Commonwealth v. Jackson, 955 A.2d
441, 446 (Pa. Super. 2008) citing its decision in
Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887,
889 (1978), reiterated the law of Pennsylvania that the test to
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be applied in “determining whether a defendant, who was
charged under the attempt provision of the aggravated assault
statute, possessed the intent to inflict serious bodily injury” is a
totality of the circumstances test. Among the issues to be
considered is any “evidence of significant difference in size or
strength between the defendant and the victim... the
defendant’s use of a weapon or other implement to aid his attack
and statements or actions that might indicate his intent to inflict
injury. Id.
The Commonwealth presented sufficient evidence to
support [Appellant’s] conviction on the charge of aggravated
assault. [Appellant], by his own admission shot through the open
door of his car into the group of men surrounding his vehicle
striking the complainant in the back. The Court notes that
[Appellant’s] act, regardless of his intent, in and of itself
constitutes “an act of gross recklessness for which he must
reasonably anticipate that death to another is likely to result.”
Commonwealth v. Malone, 354 Pa. 180, 183, 47 A.2d 445,
447 (1946); In accord; Commonwealth v. Coleman, 455 Pa.
508, 508, 318 A.2d 716, 717 (1974), Commonwealth v.
Seibert, 424 Pa. Super. 242, 622 A.2d 361 (1993). It is equally
clear that shooting complainant in the back created a
“substantial risk of death” and the resulting scar constitutes a
“permanent disfigurement.”
Trial Court Opinion, 11/19/15, at 11–13.
Appellant does not deny that he fired a shot that struck the victim.
Instead, Appellant takes the position that the discharge of his weapon was
understandable in light of the fact that he was under attack by a violent
group of at least four men. He further offers that because he: 1) did not
produce the gun as the group approached his car; 2) did not brandish the
gun as the men beat Appellant and his girlfriend; and 3) fired only one shot
after the attack escalated, there was not sufficient evidence to establish that
either he shot Mr. Jennings knowingly or intentionally or that he acted with
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the necessary malice to support an aggravated assault conviction. Appellant
further avers that the fact that he fired only one shot demonstrates that he
exercised restraint sufficient to undermine any conclusion that he acted
knowingly, willingly, or with malice as required by the aggravated assault
statute.
We are unpersuaded by Appellant’s stance that his firing of a gun
indicates restraint, as opposed to demonstrating a reckless indifference to
life. This Court has stated:
Where the victim suffers serious bodily injury, the
Commonwealth is not required to prove specific intent.
Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super.
1997) (citing Commonwealth v. Hlatky, 426 Pa.Super. 66,
626 A.2d 575 (1993), appeal denied, 537 Pa. 663, 644 A.2d
1200 (1994)).
The Commonwealth need only prove [the defendant]
acted recklessly under circumstances manifesting an
extreme indifference to the value of human life.
Hlatky, [supra] at 581. For the degree of
recklessness contained in the aggravated assault
statute to occur, the offensive act must be
performed under circumstances which almost assure
that injury or death will ensue. [O'Hanlon, supra
at 482, 653 A.2d at 618].
Nichols, supra (emphasis added).
Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007).
Similarly, we held in Commonwealth v. Payne, 868 A.2d 1257 (Pa. Super.
2005) that:
the Commonwealth was not required to prove appellant acted
with the “specific intent” to cause [a victim’s] injuries. . . . Since
appellant actually caused [the victim’s] serious bodily injury,
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the Commonwealth, at a minimum, had to prove that the
appellant caused these injuries “recklessly under circumstances
manifesting extreme indifference to the value of human life.” In
other words, the Commonwealth had to prove that appellant
acted with malice.
To prove malice, “it must be shown that the defendant
consciously disregarded an unjustified and extremely high risk
that his actions might cause death or serious bodily harm.” This
state of mind may be inferred “from conduct, recklessness of
consequences, or the cruelty of the crime.” In following, under
our caselaw, we have extraordinarily well established
precedent stating that if a gun discharges and the bullet
strikes the victim, the intentional act of pointing the gun
and aiming it at a vital part of the human body creates the
presumption of malice.
Id. at 1261 (citations omitted) (emphases added). See also
Commonwealth v. Wesley, 860 A.2d 585, 593 (Pa. Super. 2004) (“By
causing serious bodily injury to the victim with a gun, namely, wounding the
victim in the back, Appellant committed aggravated assault.”).
Here, the jury heard conflicting testimony as to the number of
individuals involved in attacking Appellant and the timing of Appellant’s
firearm discharge. It is solely within the province of the factfinder to
determine a witness’s credibility. Commonwealth v. Page, 59 A.3d 1118,
1130 (Pa. Super. 2013). The jury also heard undisputed testimony that
Appellant shot Mr. Jennings in the back actually causing serious bodily
injury. Additionally, Appellant discharged his weapon and struck the victim,
thus creating an assumption of malice. Accordingly, there was sufficient
evidence that Appellant acted with the requisite mens rea to support his
aggravated assault conviction.
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Appellant’s third and fourth allegations of error are that his convictions
of aggravated assault and possession of an instrument of crime are against
the weight of the evidence. Appellant has waived review of these issues
because he failed to specify the reasons why these verdicts were contrary to
the weight of the evidence in his Pa.R.A.P. 1925(b) Statement.
In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015),
this Court addressed whether an assertion in a 1925(b) statement that
“[t]he verdict of the jury was against the weight of the evidence” was too
imprecise to preserve the issue for review. Id. at 1249. The appellant in
Freeman failed to specify in his Rule 1925(b) statement which verdict was
contrary to the weight of the evidence, or offer specific reasons as to why
those verdicts were contrary to the evidence’s weight. We determined that
the appellant waived review of his weight of the evidence challenge because
the phrasing of this issue was “too vague to allow the court to identify the
issues raised on appeal” and was “the functional equivalent of no Concise
Statement at all.” Id.; see also Commonwealth v. Seibert, 799 A.2d 54,
62 (Pa. Super. 2002) (holding that appellant waived his challenge to the
weight of the evidence where his 1925(b) statement merely asserted that
“[t]he verdict of the jury was against the weight of the credible evidence as
to all of the charges.”).
Here, too, Appellant failed to specify in his 1925(b) Statement the
reasons why the verdicts for aggravated assault and possession of a firearm
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were against the weight of the evidence. Instead, Appellant asserted only
that these verdicts were “against the weight of the evidence to such a
degree as to shock one’s conscience and sense of justice.” Appellant’s
Pa.R.A.P. 1925(b) Statement, 3/27/15, at unnumbered 2. As in Freeman,
Appellant’s failure to offer specific reasons why the verdicts were contrary to
the weight of the evidence results in waiver of these two issues.
Waiver also defeats consideration of Appellant’s sixth and seventh
arguments that the trial court erred in its instruction to the jury regarding
the charge of justification and that the trial court interjected its own
conclusions regarding the facts of the case, resulting in an unfair trial.
These claims are waived due to Appellant’s failure to object to the trial
court’s jury charge and Appellant’s failure to move for a mistrial in a timely
fashion.8
Appellant concedes that his trial counsel did not object to the jury
charge prior to deliberations. He also admits that trial counsel offered no
objection to the court’s comments to the jury during his instruction about
the evidence and law. Appellant’s Brief at 36. Thus, any challenges to the
content of or omissions from the trial court’s jury instructions are waived.
____________________________________________
8
We note that Appellant’s Rule 1925(b) statement does not explicitly
challenge the trial court’s denial of the mistrial motion. However, we will
flexibly interpret Appellant’s claim that the trial court interfered with the role
of the jury and denied Appellant a fair trial as preserving this question for
appellate review.
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See Commonwealth v. Garang, 9 A.3d 237, 245 (Pa. Super. 2010)
(defendant did not preserve trial court’s alleged failure to instruct jury that
defendant could not be convicted of conspiracy, in prosecution for attempted
homicide and related offenses, where defense counsel failed to object to jury
instruction). Thus, Appellant confines his argument regarding the jury
instructions to the point in the proceedings where he alleged he objected to
the trial court’s instructions and moved for a mistrial.
It is essential to view Appellant’s argument in the context of the trial’s
timeline. After the jury had retired and deliberated for a few hours, it
requested the court to clarify the laws defining aggravated assault,
justification, self-defense, and possession of an instrument of crime. N.T.,
4/15/14, at 4. The court then re-instructed the jury on the elements of
these offenses and defenses. After the supplemental instructions were
received by the jury, the trial court asked counsel: “Does anyone have
anything additional before the jury goes out to deliberate?” Id. at 29.
Defense counsel did not respond and certainly, at this time, did not lodge
any objection to the trial court’s supplemental instructions. Four hours later,
defense counsel orally motioned for a mistrial based upon the trial court’s
supplemental jury instructions. N.T. 4/15/14, at 30–33. Counsel did not
object to the specific content of the supplemental instructions; instead,
defense counsel asserted: “Judge, I would respectfully submit [you] gave
the jurors no other alternative but to convict [Appellant] on all charges,” and
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he requested the court to grant a mistrial “based on the conversation you
had with the jury earlier this morning.” Id. at 31. After a brief recess, to
ensure that his motion was properly preserved, defense counsel again
stated: “Judge, I would respectfully submit that you gave the jury no other
alternative but to find [Appellant] guilty on all charges. So with that, Judge,
I would make a motion for a mistrial . . . .” Id. at 35. Noting the
announcement that the jury had reached a verdict and explaining that it did
not agree with defense counsel that it “overstep[ped] its bounds,” the trial
court denied the mistrial motion. Id. at 34–36.
We begin by noting that defense counsel did not object to the trial
court’s supplemental jury instructions prior to the jury resuming its
deliberations. Counsel’s failure to object to the jury instruction at this
moment is fatal to Appellant’s claim that the trial court interfered with the
role of the jury. Pennsylvania Rule of Criminal Procedure 647(C) provides
that: “No portions of the charge nor omissions from the charge may be
assigned as error, unless specific objections are made thereto before the
jury retires to deliberate.” Pa.R.Crim.P. 647 (C); see also Commonwealth
v. Laird, 989 A.2d 610, 646 (Pa. 2010) (appellant’s failure to object to jury
instruction before it retired to deliberate resulted in waiver). Trial counsel
herein similarly did not object to the trial court’s charge prior to the jury
returning to deliberate after the trial court addressed its questions;
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accordingly, even if defense counsel objected to the specific instruction
contemporaneously with his motion for a mistrial, the claim is waived.
Appellant’s additional contention that the trial court abused its
discretion when it displayed partiality to the Commonwealth’s case,
indicated the trial court’s personal evaluation of the evidence, suggested a
guilty verdict, and expressed an opinion as to Appellant’s guilt is, in fact, a
challenge to the trial court’s denial of his motion for a mistrial. Albeit for
different reasons, this challenge to the court’s comments to the jury is
likewise waived.
Pennsylvania Rule of Criminal Procedure 605(B) provides: “When an
event prejudicial to the defendant occurs during trial only the defendant may
move for a mistrial; the motion shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for reasons of manifest
necessity.” Pa.R.Crim. P. 605(B); Commonwealth v. Walker, 954 A.2d
1249, 1254 (Pa. Super. 2008); see also Commonwealth v. Smith, 410
A.2d 787, 790 (Pa. 1980) (holding that a motion for a mistrial made two to
three minutes after the allegedly prejudicial event was untimely). A decision
to refuse a mistrial is reviewed for an abuse of discretion. Commonwealth
v. Manley, 985 A.2d 256, 266–267 (Pa. Super. 2009).
As detailed above, defense counsel remained silent after the trial court
issued its supplemental instructions to the jury. Four hours later, counsel
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presented its initial motion for a mistrial. At this point, the court became
aware that the jury had reached a verdict.
Appellant’s motion for a mistrial was made too late, and therefore
review of its denial is waived under Pa.R.Crim.P. 605(B). Here, Appellant
claims that he received an unfair trial due to the trial court’s remarks to the
jury in its supplemental instructions. Yet, four hours of deliberation time
passed before he moved for a mistrial or otherwise objected. Appellant
should have requested the mistrial when cued by the trial court after it
responded to the jurors’ questions: “Does anyone have anything additional
before the jury goes out to deliberate?” N.T. (Trial), 4/15/14, at 29. Having
failed to do so, Appellant waived any objection to the trial court’s denial of
his mistrial motion.
Appellant’s final issue concerns his sentence and he described it in his
Rule 1925(b) Statement as follows: “[Appellant’s] sentence is unduly harsh
and excessive.” Appellant’s 1925(b) Statement, 3/17/15, at unnumbered 2.
While the trial court mused that this vague assertion of error waived the
sentencing issue, it nevertheless discussed the issue on the merits, as
follows:
Prior to imposing sentence, it was agreed by counsel, that
on the charge of aggravated assault, [Appellant’s] prior record
score (PRS) was 0 and, based on the serious injury to the
complainant, the Court found that the offense gravity score
(OGS) was 11. It was also determined that, employing the
deadly weapons enhancement, the guidelines recommended a
range of 54 to 72 months [plus or minus] 12 months
incarceration. It was further agreed that [Appellant] was not
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RRRI eligible. Prior to imposing sentence the Court reviewed
[Appellant’s] Presentence Investigation report (PSI), listened to
argument of counsel, and considered [Appellant’s] statement.
[Appellant’s] PSI, dated 6/25, 2014, discloses that
[Appellant] has a high school diploma as well as some college
credits. He has had no discernible taxable employment since
2008 and was discharged from the Army Reserve in 2012 on
“Other Than Honorable” conditions. (PSI, pg. 2) It also reveals,
despite his PRS of 0, that as an adult he has had three criminal
arrests and convictions. (PSI, pg. 3)
In imposing sentence, the Court stated for the record:
“[I] agree with counsel that there are both
aggravating and mitigating circumstances in this
case. As aggravated assaults go, this is a serious
aggravated assault because of the injury.
[Appellant’s] prior record score does not fully reflect
his criminal history because of the events pointed
out by the D.A.
[Appellant] says he’s sorry, but he’s still
couching his regret in terms of he’s sorry for what
has happened to him. Regardless of whether the
victim was wrong or whether he was right is the way
he puts it. That’s not acceptance of responsibility,
and that’s certainly no indication of a mindset toward
rehabilitation. He just wants to get away with this.
He doesn’t want to go to prison. He wants to be out
on [the] street. Well, who does want to go to
prison? So I’ve listened to his presentation. It was
not terribly persuasive.”
[* * *]
“With regard to the aggravated assault, the
D.A.’s recommendation is not unreasonable. I don’t
think that 10 years is necessary to fulfill the
purposes of sentencing to deter [Appellant] from
future conduct and to make the point that what he
did was serious in this case, a significant injury to
the complainant.”
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Furthermore, as noted by counsel for the Commonwealth,
there is abundant evidence on the record that [Appellant]
attempted to distort the judicial process by trying “to get to each
of the witnesses in this case and influence them to not come to
the preliminary hearing, to change their testimony, and even
threatening them on these phone calls what was going to
happen to them if they came to court and testified.” As noted
above, this is supported by the numerous discrepancies between
the trial testimony of the Commonwealth’s witnesses and their
statements given to police shortly after his shooting of the
complaining witness.
It is clear that [Appellant] has not taken responsibility for
his shooting, which could have resulted in death, of the
complainant. On viewing the totality of circumstances,
[Appellant’s] sentence of 84 to 180 months of incarceration
followed by five years probation is within the aggravated range
of the guidelines and, under the circumstances of the instant
matter, is appropriate and not unduly harsh and excessive.”
Trial Court Opinion, 11/19/15, at 31–33 (record references omitted).
On appeal, Appellant expands his challenge to the trial court’s
sentence and now complains that the sentence imposed was excessive
because “the aggravating circumstance cited by the trial court already
resulted in an increased guideline range,” and although the “trial court
recognized that there were mitigating circumstances” it imposed a sentence
at the top of the aggravated range. Appellant’s Brief at 9.
Because Appellant claims that his sentence is excessive, he does not
question its legality; rather, he challenges its discretionary aspects.
Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010).
Appellant’s challenge to the discretionary aspect of his sentence does not
entitle him to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
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1064 (Pa. Super. 2011) (citation omitted). Before this Court can address
such a discretionary challenge, an appellant must satisfy a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.
Appellant herein filed a timely notice of appeal and preserved his issue
in a post-sentence motion. Additionally, Appellant’s brief includes a concise
statement of reasons relied upon for allowance of appeal with respect to the
discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).
Appellant’s Brief at 43–45. Thus, we turn to whether Appellant presents
substantial questions that the sentence appealed from is not appropriate
under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa. Super. 2011). A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process. Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.
Super. 2015). We have held that a claim that the sentencing court relied on
impermissible factors, by considering factors already included in the
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sentencing guidelines raises a substantial question. Commonwealth v.
Simpson, 829 A.2d 334, 338 (Pa. Super. 2003). Additionally, this Court
has held that a substantial question exists when a sentencing court imposed
a sentence in the aggravated range without considering mitigating factors.
Rhoades, 8 A.3d at 919 n.12. Based on our review of the foregoing
precedent, we conclude that Appellant has raised substantial questions
regarding the sentence. Thus, we grant his petition for allowance of appeal
and address the merits of his claim.
Our standard of review is well-settled:
[I]mposition of sentence is vested in the discretion of the
sentencing court and will not be disturbed by an appellate court
absent a manifest abuse of discretion.” Commonwealth v.
Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citation omitted). “An
abuse of discretion is more than just an error in judgment and,
on appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Id. (citation omitted). “If
the sentence is ‘not unreasonable,’ the appellate court must
affirm.” Id. (citation omitted).
Simpson, 829 A.2d at 336.
Although Appellant purports that the trial court considered the
seriousness of the injury to the victim as an aggravating circumstance, a
close reading of the trial court’s comments from the sentencing proceeding
does not support such a conclusion. The court stated: “I agree with counsel
that there are both aggravating and mitigating circumstances in this case.
As aggravated assaults go, this is a serious aggravated assault because of
the injury. [Appellant’s] prior record score does not fully reflect his criminal
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history because of the events pointed out by the D.A.” N.T. (Sentencing),
10/17/14, at 42. This statement is readily construed as the trial court’s
summation of the factors it considered in imposing sentence: 1) there were
aggravating and mitigating circumstances; 2) the injury resulting from the
aggravated assault was serious in nature, and 3) because of crimes
committed after the offenses at issue, the prior record score was not a
reliable indicator of Appellant’s criminal disposition. Thus, it appears that
the trial court’s reference to the seriousness of the injury related back to its
assessment of the offense gravity score. The trial court did not indicate that
it was considering the extent of the injury as an aggravating factor.
However, even if the trial court’s reference to the seriousness of the
injury could be construed as a double enhancement, it would not necessarily
constitute an abuse of discretion. We have explained that:
It is impermissible for a court to consider factors already
included within the sentencing guidelines as the sole reason for
increasing or decreasing a sentence to the aggravated or
mitigated range. Trial courts are permitted to use prior
conviction history and other factors already included in the
guidelines if, they are used to supplement other extraneous
sentencing information.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(quoting Simpson, 829 A.2d at 339) (citations omitted and emphases in
original).
Our review of the sentencing hearing reveals the trial court did not rely
on the seriousness of the injury as the sole reason for imposing a sentence
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above the aggravated guidelines range. Rather, as noted above, the trial
court considered this factor only in the context of Appellant’s failure to
accept full responsibility for his actions. N.T. (Sentencing), 10/17/14, at 43–
44. Therefore, because the seriousness of the injury was not the only factor
the court relied upon in imposing an enhanced sentence, Appellant is entitled
to no relief.
Similarly, Appellant’s claim that the trial court abused its discretion
when it imposed a sentence in the aggravated range despite its finding of
mitigating circumstances is not sustainable. In sentencing Appellant, the
trial court indicated that it “reviewed the sentencing guidelines and . . . the
presentence report.” N.T. (Sentencing), 10/17/14, at 41. “Where the
sentencing judge had the benefit of a pre-sentence report, it will be
presumed that he was aware of relevant information regarding an
appellant’s character and weighed those considerations along with the
mitigating statutory factors.” Commonwealth v. L.N., 787 A.2d 1064,
1071–1072 (Pa. Super. 2001). Additionally, the trial court considered the
serious nature of the aggravated assault perpetrated by Appellant and the
fact that the prior record score did not accurately reflect Appellant’s criminal
behavior. N.T. (Sentencing), 10/17/14, at 42. Finally, the court considered
the amount of time necessary “to fulfill the purposes of sentencing to defer
[Appellant] from future conduct . . . .” Id. at 43.
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Appellant offers no support from the record that the trial court did not
consider relevant mitigating facts, except that the sentence imposed was in
the aggravated range. Furthermore, the trial court specifically recognized
that mitigating circumstances existed. N.T. (Sentencing), 10/17/14, at 42.
Regardless, the trial court “was only obligated to consider mitigating
circumstances, not to accept or appreciate them.” Commonwealth v.
Fullin, 892 A.2d 843, 850 (Pa. Super. 2006). Therefore, we conclude that
the trial court properly considered the nature and circumstances of the
offense and history and characteristics of Appellant when it imposed a
sentence in the aggravated range of the sentencing guidelines.
For all of these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2016
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