Com. v. Taylor, D.

J. S06031/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARYL TAYLOR, :
:
Appellant : No. 619 EDA 2014
Appeal from the Judgment of Sentence February 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0012608-2013
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 06, 2015
Appellant, Daryl Taylor, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County. He challenges
the sufficiency of the evidence regarding the criminal intent for his bench
convictions for aggravated assault by physical menace against a parking
enforcement officer1 and simple assault.2 We affirm.
The trial court summarized the trial evidence, viewed in the light most
favorable to the Commonwealth, as follows:
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(6), (c)(22).
2
18 Pa.C.S. § 2701(a)(3).
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Eddie Evans [(“Complainant”)], a Philadelphia Parking
Authority Police Officer[,] was on duty, in uniform, on
September 21, 2013. [N.T. Trial, 2/12/14, at 8, 10]. At
about 10:15 p.m.[,] he was making his rounds of the
parking garage on Second Street, between Sansom and
Walnut Streets in Philadelphia. [Id. at 9]. He
encountered [Appellant] and another man who were
bedding down in the garage. He told them they could not
stay there. [Id. at 11].
[Appellant] became belligerent when told he had to
leave, telling the officer to make him, then coming toward
the officer with a blade in his hand. [Id. at 12, 13, 14].
[Appellant] had two inches of the blade displayed, with his
hand coming towards the officer. [Id. at 16, 52].
[Appellant] was holding the blade in his right hand, slightly
behind his him [sic], making a forward motion toward the
officer as he approached the officer. [Id. at 17].
[Appellant] approached to within inches of the officer. [Id.
at 14]. During this time[, Appellant] repeatedly told the
officer he was going to kill him. [Id. at 15, 17, 34-35,
36]. As the officer backed away, [Appellant] continued to
come toward the officer. [Id. at 18].
The wind blew [Appellant’s] hood into his face, enabling
the officer to grab [Appellant] and push him away to the
outside[, d]uring which time the officer fell. [Appellant]
came back around, at which time the officer called for help
on his radio, because he was fearful of being cut or
stabbed with the knife. [Id. at 12, 18].
United States Park Ranger Manchester[3] responded to
the scene, arrested [Appellant,] and recovered an eight[-]
inch butter knife from his bag. [Id. at 41].
Trial Ct. Op., 5/28/14, at 2-3.
The bench trial commenced on February 12, 2014, at which both
Complainant and Appellant testified. Robert Gill, a Philadelphia Parking
Authority employee, also testified as a rebuttal witness for the
3
The park ranger’s first name was not readily apparent in the record.
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Commonwealth. The trial court found Appellant guilty of the following:
aggravated assault, a felony of the second degree; possessing instruments
of crime,4 a misdemeanor of the first degree; terroristic threats,5 a
misdemeanor of the first degree; and simple assault, a misdemeanor of the
second degree. Immediately thereafter, the trial court sentenced Appellant
on the aggravated assault charge to nine to twenty-three months’
imprisonment with immediate parole to an in-patient facility, followed by a
consecutive sentence of three years’ probation. The trial court merged the
simple assault sentence and did not impose sentences for the other
convictions.
On February 21, 2014, Appellant filed a “Motion for Reconsideration,
Arrest of Judgment, and/or New Trial,” arguing the verdict was against the
weight of the evidence. The trial court denied this motion the same day
without a hearing, but amended Appellant’s sentence to include a waiver of
probation and supervision fees.
Appellant filed a timely notice of appeal on February 24, 2014. After
obtaining an extension of time, he filed a timely court-ordered Pa.R.A.P.
1925(b) statement of matters complained of on appeal on May 7, 2014. On
May 28, 2014, the trial court issued its opinion.
4
18 Pa.C.S. § 907(a).
5
18 Pa.C.S. § 2706(a)(1).
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Appellant presents one issue on appeal for our review: the sufficiency
of evidence for his aggravated assault and simple assault convictions. He
argues the evidence was insufficient to prove he attempted to put
Complainant in fear of imminent serious bodily injury by physical menace.
Although he concedes that he threatened the officer and walked toward him,
he contends “the facts established that [A]ppellant never brandished what
was a butter knife, nor attempted to assault the officer in any way.”
Appellant’s Brief at 7. Appellant further claims “[h]e never touched or
attempted to touch the complainant physically.” Id. at 10. We disagree.
The standard of review for a sufficiency of the evidence challenge is
well-established:
A claim challenging the sufficiency of the evidence
presents a question of law. We must determine “whether
the evidence is sufficient to prove every element of the
crime beyond a reasonable doubt.” We “must view
evidence in the light most favorable to the Commonwealth
as the verdict winner, and accept as true all evidence and
all reasonable inferences therefrom upon which, if
believed, the fact finder properly could have based its
verdict.”
Our Supreme Court has instructed:
[T]he 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. 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
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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. Fortune, 68 A.3d 980, 983-84 (Pa. Super. 2013)
(internal citation omitted) (quoting Commonwealth v. Thomas, 65 A.3d
939, 943 (Pa. Super. 2013)).
The Pennsylvania Crimes Code provides: “A person is guilty of
aggravated assault if he . . . attempts by physical menace to put any of the
officers, agents, employees or other persons enumerated in subsection (c),
while in the performance of duty, in fear of imminent serious bodily injury.”
18 Pa.C.S. § 2702(a)(6). Subsection (c) includes parking enforcement
officers. 18 Pa.C.S. § 2702(c)(22). The Crimes Code also provides: “A
person is guilty of assault if he . . . attempts by physical menace to put
another in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3).
The Crimes Code further defines “serious bodily injury” as “[b]odily injury
which creates a substantial risk of death or which causes serious, permanent
disfiguration, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
As the trial court noted, the elements of aggravated assault under
Section 2702(a)(6) and simple assault under Section 2701(a)(3) differ only
in that the aggravated assault subsection requires the victim to be one of
twenty-seven enumerated “officers, agents, or employees.” See Trial Ct.
Op. at 4-5 & n.2; Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.
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Super. 2003).6
The Commonwealth must present the following elements to prove the
crime of simple assault by physical menace under Section 2701(a)(3):
(1) that the defendant attempted to put the [victim] in
fear of imminent serious bodily injury, and took a
substantial step toward that end, (2) that the defendant
used physical menace to do this, and (3) that it was the
defendant’s conscious object or purpose to cause fear of
serious bodily injury.
Commonwealth v. Little, 614 A.2d 1146, 1151 (Pa. Super. 1992).7
This Court adopted these elements to prove the crime of aggravated
assault by physical menace of an officer under Section 2702(a)(6). Repko,
817 A.2d at 554. Moreover, “[i]ntent can be proven by circumstantial
6
In Commonwealth v. Matthews, 870 A.2d 924 (Pa. Super. 2005) (en
banc), an en banc panel of this Court overruled Repko to the extent it
“[stood] for the proposition that the Commonwealth presented insufficient
evidence of the defendant’s intent [for a Section 2702(a)(1) aggravated
assault conviction], as a matter of law, where the defendant does not avail
himself of the opportunity to follow through with the threats.” Id. at 933.
Upon further review, our Supreme Court agreed with this Court’s disapproval
of Repko on this issue, but concluded “there [was] no need to overrule”
Repko because it adhered to Commonwealth v. Alexander, 383 A.2d 887
(Pa. 1978). Commonwealth v. Matthew, 909 A.2d 1254, 1258 (Pa. 2006)
(citing Alexander, 383 A.2d at 889 (creating totality of circumstances test
and factors to determine whether defendant possessed intent to inflict
serious bodily injury). This distinction does not apply in the case sub judice
as Appellant was found guilty of aggravated assault under Section
2702(a)(6). We further note the Supreme Court’s observation that although
it spelled the defendant’s name “Matthew,” the Superior Court spelled it
“Matthews.” Matthew, 909 A.2d at 1256 n.1.
7
This statement was a part of the trial court’s opinion, expressly adopted
and attached as an appendix in Little. Little, 614 A.2d at 1148.
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evidence and may be inferred from the defendant’s conduct under the
attendant circumstances.” Id.
In Repko, a police officer arrived at the defendant’s home in response
to an ongoing verbal and physical altercation. Id. at 551. The defendant
emerged from his home with one arm around his fiancée’s neck and the
other carrying a shotgun. Id. The police officer “announced himself as an
officer and ordered [the defendant] to drop his weapon.” Id. The defendant
did not comply, and instead raised and pointed his shotgun at the officer.
Id. The officer repeated his command, at which point the defendant
released the woman and carried his gun back inside his house. Id. at 551-
52. The defendant “later re-emerged without the gun and was taken into
custody without a struggle.” Id. at 552. At trial, the officer testified he
“was very scared” and “felt like [his] life was in jeopardy.” Id. at 554.
A jury convicted the defendant of, inter alia, aggravated assault by
physical menace of a police officer under Section 2702(a)(6). Id. at 552.
On appeal, he challenged the sufficiency of the evidence to support the
requisite intent for this crime. Id. at 553. The defendant argued, inter alia,
he did not intend to place the officer in fear and that his shotgun was neither
loaded nor pointed directly at the officer. Id.
This Court affirmed. We applied Little’s discussion of the sufficiency
of evidence for simple assault by physical menace. Id. at 555. We
concluded the defendant’s actions of raising and pointing his shotgun at the
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officer demonstrated intent to place the officer in fear of serious bodily
injury. Id. This Court noted there was no evidence in the record indicating
the defendant “had any lawful intention when he raised his weapon in
response to the officer’s directive to drop it.” Id.
In the instant case, the trial court, who sat as the finder of fact,
examined the totality of the circumstances in concluding Appellant intended
to place Complainant in fear of serious bodily injury by physical menace:
Here, the relevant conduct consisted of [Appellant]
coming toward the officer with a blade displayed in his
hand (N.T. [at] 12, 13, 14), with his hand coming towards
the officer ([id. at] 16), making a forward motion with the
blade toward the officer as he approached the officer ([Id.
at] 17) to within inches ([id. at] 14), [and] continuing to
come toward the officer as he backed away. [Id. at] 18.
The relevant words were that [Appellant] repeatedly told
the officer he was going to kill him. [Id. at] 15, 17, 34-
35, 36. We also note that [Appellant] did not voluntarily
cease his conduct. Rather, wind blew [Appellant’s] hood
into his face, enabling the officer to grab him and push him
away to the outside. [Id. at] 12, 18. During which time
the officer fell. [Appellant] came back around, at which
time the officer called for help on his radio, because he
was fearful of being cut or stabbed with the knife. [Id. at]
12, 18.[ ]
Trial Ct. Op. at 6.
Appellant’s use of a knife, rather than a shotgun, does not warrant a
different conclusion than we reached in Repko and Little, because a knife
may similarly place someone in fear of serious bodily injury. See
Commonwealth v. Diamond, 408 A.2d 488, 489-90 (Pa. Super. 1979)
(finding sufficient evidence to sustain simple assault by physical menace
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conviction where defendant approached and gripped door handle of victim’s
car at 4:00 a.m., “especially since [defendant’s] friend was simultaneously
threatening [the victim] with a knife on the other side of the car”); see also
N.T. Trial at 49 (Appellant denying he had butter knife at time of incident
and testifying, “If I was expecting trouble, I think a butter knife is a pure
choice of weapon.”).
Appellant’s claim that he “never pulled the knife from his sleeve or
brandished the knife in any way,” is belied by the record. See Appellant’s
Brief at 10. As noted by the trial court, Complainant testified that Appellant
“had two inches of the blade displayed, with his hand coming towards the
officer.” Trial Ct. Op. at 2-3 (citing N.T. at 16, 52). The jury was tasked
with weighing the credibility of this testimony and was free to believe all,
part, or none of this evidence. See Fortune, 68 A.3d at 984. Furthermore,
Appellant’s argument that he “never touched or attempted to touch the
Complainant physically” is without merit. See Appellant’s Brief at 10.
Neither the aggravated assault by physical menace statute nor simple
assault statute require a defendant to attempt to touch or to actually touch
his victim. See 18 Pa.C.S. §§ 2701(a)(3), 2702(a)(6).
Based on the foregoing, we discern no merit to Appellant’s argument
that the evidence is not sufficient to sustain his convictions for aggravated
assault by physical menace against an officer and simple assault. Rather,
the evidence supports the trial court’s determination that Appellant intended
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to place the parking enforcement official in fear of serious imminent bodily
injury.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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