Com. v. Dixon, Jr., R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT DARRYL DIXON, JR.
Appellant No. 1846 MDA 2014
Appeal from the Judgment of Sentence June 16, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003141-2013
BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 04, 2015
Robert Darryl Dixon, Jr., appeals from the judgment of sentence
entered on June 16, 2014, in the Court of Common Pleas of Lancaster
County, following his conviction by a jury on charges of simple assault and
aggravated assault.1 Dixon received an effective sentence of two to five
years’ incarceration followed by five years of probation.2 This term of
confinement represents an aggravated range sentence. In this timely
appeal, Dixon claims there was insufficient evidence to support his
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2701(a)(1) and 2704(a)(4), respectively.
2
Dixon received two to five years plus probation on the aggravated assault
conviction and a concurrent term of six months to two years’ incarceration
for simple assault.
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conviction of aggravated assault and that the trial court abused its discretion
in sentencing him on the aggravated assault charge. After a thorough
review of the submissions by the parties, relevant law, and the certified
record, we affirm.
On May 28, 2013, Dixon sent a text message to his estranged
paramour and mother of two of his children, Tavon Trowery, indicating he
wanted to visit his children. She replied that it was too late, the children
needed to sleep, and she had to get up early to go to work the next day.
Despite being told not to visit, Dixon appeared at Trowery’s home. He
attempted to enter through the back door, but it was locked. He peered
through the kitchen window, where Trowery was doing dishes. She told him
to leave. Dixon went to the basement door to gain entry. Trowery
attempted to block access to the kitchen by putting a chair under the
doorknob of the basement/kitchen door and then moving the refrigerator to
block the door. Neither of those efforts deterred Dixon.
Upon his entry into the kitchen, Trowery picked up a kitchen knife to
defend herself. However, she put it down to call 9-1-1. A struggle ensued
during which Dixon picked up a knife and pushed Trowery against the
refrigerator. The knife was pressed to her throat. As they struggled, Dixon
cut Trowery’s thumb. Although the cut was described by a medical doctor as
minor, it was sufficient to cause bleeding and a scar. During the
confrontation, Dixon punched Trowery multiple times in the face, dragged
her by her hair, and held her in a chokehold. As he held her, he leaned
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against her with such force the she suffered a separated shoulder. Dixon
fled the scene prior to the arrival of the police. Police officers testified at
trial that the kitchen was in a state of disarray when they arrived; a table
was overturned, cutlery was scattered over the floor, the refrigerator was
askew and a chair was broken.
In his first claim, Dixon argues there was insufficient evidence to
support his conviction of aggravated assault, specifically claiming,
the evidence did not show that he intentionally or knowingly
caused the cut on Tayvon Trowery’s hand, that he attempted to
cause bodily injury to Ms. Trowery with a deadly weapon, that
the knife Mr. Dixon was alleged to have been holding was a
deadly weapon, or that the minor cut on Tayvon Trowery’s hand
constituted bodily injury[.]
Appellant’s Brief at 5.
In examining this claim, we are guided by our oft-repeated standard of
review:
With respect to such claims, we consider the evidence in the
light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
2005). In that light, we decide if the evidence and all reasonable
inferences from that evidence are sufficient to establish the
elements of the offense beyond a reasonable doubt. Id. We keep
in mind that it was for the trier of fact to determine the weight of
the evidence and the credibility of witnesses. Id. The jury was
free to believe all, part or none of the evidence. Id. This Court
may not weigh the evidence or substitute its judgment or that of
the factfinder. Id.Commonwealth v. Devries, 112 A.3d 663, 669 (Pa. Super. 2015).
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Relevant to this matter, a person commits aggravated assault when he
“attempts to cause or intentionally or knowingly causes bodily injury to
another with a deadly weapon.” 18 Pa.C.S. § 2702(a)(4).
First, Dixon argues the evidence failed to prove he intended or
knowingly caused the cut on Trowery’s hand. Intent can be demonstrated
circumstantially, through the totality of the circumstances. See
Commonwealth v. Hall, 830 A.2d 537 (Pa. 2003) (intent to cause serious
bodily injury within contest of aggravated assault may be proven by direct or
circumstantial evidence); Commonwealth v. Caterino, 678 A.2d 389 (Pa.
Super. 1996) (intent to cause serious bodily harm may be shown by
circumstances surrounding the incident). Here, the evidence showed Dixon
literally broke into the home by breaking the basement door, pushed aside a
chair and refrigerator to get to the victim, and pushed the victim up against
the refrigerator while holding a knife to her throat, ultimately cutting her
thumb. Immediately thereafter, he dragged her by the hair, punched her
repeatedly, put her in a chokehold and separated her shoulder. Under these
circumstances, the jury could properly infer that Dixon’s intent in holding
Trowery at knifepoint and cutting her thumb was not benign. Accordingly,
there was sufficient evidence to prove Dixon’s intent to cut Trowery.
A second aspect of Dixon’s claim is that there was no evidence of
intent to harm in placing the knife against Trowery’s throat. Essentially,
Dixon argues he had the opportunity to harm Trowery, but did not, thereby
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evidencing his lack of intent. The argument is unavailing in light of the
totality of the circumstances demonstrated above and our Supreme Court’s
decision in Commonwealth v. Mathews, 909 A.2d 1254 (Pa. 2006), that
determined it is for the jury to determine whether the failure to follow
through on the opportunity to cause injury demonstrated a lack of intent or
merely a change of mind.3
Next, Dixon argues there was insufficient evidence to prove the knife
was a deadly weapon. It is true that the knife was not positively identified
by Trowery. However, Trowery did state that it was a kitchen knife and the
evidence positively demonstrated that it was sharp enough to cut her
thumb. These facts would allow the jury to infer the knife was a sharp
kitchen knife, such as a paring knife, rather than a typical blunt table knife.
Further, the manner in which the object is used can help define the object as
a deadly weapon. See generally, Commonwealth v. Sanders, 280 A.2d
598 (Pa. Super. 1971) (broken bottle can be a deadly weapon). Here, Dixon
used the knife to cut Trowery and held it to her throat while holding her
against the refrigerator and yelling, “Do you want to stab me?” In light of
the foregoing, we believe there was sufficient evidence to determine the
knife qualified as a deadly weapon.
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3
We note that this aspect of Dixon’s argument was not contained in his
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. While this is
cause for waiver, we have addressed the claim in that it might be considered
as fairly contained as part of the lack of intent claim.
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Next, Dixon claims the cut on Trowery’s thumb does not qualify as
“bodily injury.” Dixon is not entitled to relief on this issue. The jury was
properly instructed that Dixon could be convicted of aggravated assault if he
attempted to cause Trowery bodily injury with a deadly weapon.4 The trial
judge further instructed the jury that to find Dixon made such an attempt,
they must determine he took a substantial step toward cause Trowery bodily
injury. The evidence is sufficient to support conviction under this scenario.
As with the prior aspects of this claim, the totality of the circumstances
allowed the jury to find Dixon had taken a substantial step in causing injury
to Trowery, with a deadly weapon, by holding her against the refrigerator
with a knife to her throat. See Commonwealth v. Donton, 654 A.2d 580(Pa. Super. 1995) (loading a gun and driving 90 miles to wife’s abode,
without firing gun or aiming it, constituted a substantial step toward causing
bodily injury).
Because there was sufficient evidence to find Dixon attempted to
cause Trowery bodily injury, we need not determine whether the cut was
sufficient to meet the statutory definition of bodily injury.
Finally, Dixon raises a challenge to the discretionary aspects of his
sentence. Specifically, he claims the trial court relied upon incorrect
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4
Dixon has made no argument in his brief regarding “attempt”, therefore
this aspect of the claim has been waived. Further, the issue was not raised
in Dixon’s Pa.R.A.P. 1925(b) statement of matter complained of on appeal.
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sentencing guidelines, failed to state adequate reasons for imposition of the
sentence, and failed to consider mitigating factors.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Commonwealth
v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court's jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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, 42 Pa.C.S.A. § 9781(b).
Id.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014).
All four elements have been met. Regarding the existence of a
substantial question, we note that an incorrect application of the guidelines
is one of the three statutorily listed reasons for vacating a sentence,
accordingly, the allegation of same raises a substantial question. 42 Pa.C.S.
§ 9781. See also, Commonwealth v. Whitmore, 860 A.2d 1032 (Pa.
Super. 2004) (failure to state adequate reasons on the record presents a
substantial question); Commonwealth v. Hyland, 875 A.2d 1175 (Pa.
Super. 2005) (court cannot impose aggravated range sentence without
considering mitigating factors).
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Although Dixon has properly raised substantial questions for our
review, the record belies his assertions and he is not entitled to relief.
First, although the trial court did misstate the guidelines in its opinion
denying Dixon’s motion to modify sentence and Pa.R.A.P. 1925(a) opinion,
the certified record demonstrates the trial court issued the sentence based
upon the correct guidelines. Dixon had a prior record score of one and the
offense gravity score for aggravated assault, 18 Pa.C.S. § 2702(a)(4), is
eight. The sentencing matrix produces a standard range minimum sentence
of between 12 to 18 months’ incarceration; an aggravated range minimum
sentence is between 21 to 27 months. The offense gravity score for simple
assault, 18 Pa.C.S. § 2701(a)(1) is three. Accordingly, the standard range
minimum sentence is restorative sanctions to six months’ incarceration; an
aggravated range minimum sentence is three to nine months’ incarceration.5
At sentencing, the trial court was initially under the belief Dixon had a
prior record score of two, which would have produced in incorrect minimum
sentence. However, the trial court was corrected and the proper guideline
sentences were placed before the trial court. See N.T. Sentencing Hearing,
6/16/2014, at 15-16. Because the trial court did not base its sentence upon
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5
The guideline ranges are based upon the sentencing matrix found at 204
Pa.Code § 303.16(a); the offense gravity scores are found at 204 Pa.Code §
303.15.
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an incorrect reading of the sentencing guidelines, Dixon is not entitled to
relief.
We will address Dixon’s final two claims, the allegation of failure to
state adequate reasons for sentencing and failure to consider mitigating
circumstances, together.
Our review of the notes of testimony from the sentencing hearing,
specifically pages 21 – 27, reveal a thoughtful and considered approach to
Dixon’s sentence. The allegations of a failure to state adequate reasoning
and a failure to consider mitigating circumstances are disproven by even a
cursory reading of those pages. We will refrain from reiterating the entire
statement, but we will quote relevant comments from the trial judge:
There is a lot to consider, Mr. Dixon. That is one advantage that
I think I have when I have been able to sit through the trial and
hear the facts and then hear the jury’s verdict and from that
glean that the jury is satisfied what has been proven beyond a
reasonable doubt and what the charge is, what the convictions
are about, because I’ve heard all of the evidence that’s been
presented. And I have the benefit of the additional records.[6]
In this instance, it is unfortunate that you had a lengthy history,
but it did give me a lot of information and I hope a lot of
accurate insight.
A couple of distinct things come out in reviewing your juvenile
records. You are an intelligent, able, capable young man, and
you have been since you have first been in the juvenile system.
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6
This refers to the Pre-Sentence Investigation, which the trial court
reviewed, but which was sealed due to the references to Dixon’s juvenile
record and counseling and rehabilitation reports. Those documents were not
transmitted to our Court.
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When it suits your book, however, you will be passive or
unavailing of treatment opportunities that were put your way or
counseling or rehabilitation opportunities because it’s not what
you want to do.
There was one of the evaluations that even questioned your
academic abilities. I thought, you know, you are able to be so
passive that you can snow an otherwise fairly good psychologist
into believing that you’re limited.
I know you’re not and the psychiatric and later psychological
evaluations, the KidsPeace records, the discharge from The Inn
all indicate a young man who, if he had wanted to, could have
reflected and made changes.
You came out of the juvenile system. So basically, I mean from
2001 on, we have a continuous involvement with the juvenile
system or the adult criminal system. With the exception of a
2008 retail theft, all of them are violent, all of them are assaults,
disorderly conduct, harassment, reckless endangerment.
As I go through them, one of the things that worries me is that I
see this pattern continuing. You continually seem to rely on and
even escalate violence to deal with your life.
I’m telling you, I mean, it’s just not going to work. It’s going to
keep you in and out of places like this. Eventually you’re going
to run into the wrong person.
If you continue on with the attitude that these actions indicate
you have held for so long, someone bigger and meaner is just
going to take you out. I would hate to see that because it would
leave children fatherless and it would take from us someone with
abilities who, if he really made an effort, could be a talented,
productive member of the community.
So I see these issues with authority. Those are clear. I see this
escalation in the violence over time, the more serious charges
that are coming, the more aggressive expressions of violence.
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But of grave concern is the fact that the events that took place
that led to the convictions we are discussing now happened just
21 days after you pled guilty on the simple assault charge that is
the basis of the probation violation.[7]
That does make the Court sit up and take notice. It’s not right,
it’s not good, it’s not safe for any individuals who come in your
path to disagree with you. That’s dangerous. It’s dangerous for
them and for you, and it’s serious. And it’s bad for the
community to think that they’ve got to know who to avoid
because he’s going to go off.
N.T. Sentencing Hearing, 6/16/2014, at 21-24.
We believe the above exerpt amply demonstrates that the trial court
considered all relevant factors in sentencing, including mitigating factors.
Additionally, the trial court provided, on the record, a proper statement of
reasons for issuing the aggravated range sentence. Therefore, Dixon is not
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
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7
Dixon had earlier assaulted the mother of one of his other children.
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