Com. v. Taylor, M.

J-S71038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MAURICE TAYLOR
Appellant No. 2521 EDA 2015
Appeal from the Judgment of Sentence March 16, 2012
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s):CP-51-CR-0004838-2011
CP-51-CR-0004855-2011
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 23, 2017
Appellant, Maurice Taylor, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas at
docket number 4855-2011,1 following his bench trial conviction for
aggravated assault (a first-degree felony),2 persons not to possess
firearms,3 firearms not to be carried without a license,4 unlawful restraint,5
*
Former Justice specially assigned to the Superior Court.
1
Appellant was convicted at three different dockets, each stemming from a
separate altercation between Appellant and the victim, Alisa Gardner. At
docket number 4838-2011, the trial court convicted Appellant of aggravated
assault (a second-degree felony), possessing an instrument of crime, simple
assault, and recklessly endangering another person. At docket number
4859-2011, the court convicted Appellant of theft and harassment.
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 6105(a)(1).
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carrying firearms in public in Philadelphia,6 possessing an instrument of
crime,7 simple assault,8 recklessly endangering another person,9 false
imprisonment,10 and possession of a weapon.11 Appellant challenges the
sufficiency of the evidence for aggravated assault. We affirm.
The trial court’s opinion summarizes the relevant facts of this case as
follows:
On April 8, 2011, at approximately 12:20 p.m., Police
Officer David O’Connor responded to a call for a person
with a gun at 848 East Chelten Avenue. The officer met
with [the victim] a few houses away from that address.
She had bruising to her face, and she was teary eyed. Her
hair looked like it had been pulled, the bottom left corner
of her lip was cut open, and her clothing was in disarray.
A few moments later, Appellant was spotted walking down
Locust Street and was identified by [the victim] as her
assailant. After a struggle with police, Appellant was
arrested, and police confiscated a firearm from his
belongings.
According to [the victim], Appellant held her against her
will inside the residence, held a firearm to her head, and
4
18 Pa.C.S. § 6106(a)(1).
5
18 Pa.C.S. § 2902(a)(1).
6
18 Pa.C.S. § 6108.
7
18 Pa.C.S. § 907(a).
8
18 Pa.C.S. § 2701(a)(1).
9
18 Pa.C.S. § 2705.
10
18 Pa.C.S. § 2903(a).
11
18 Pa.C.S. § 907(b).
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threatened to kill her. He also slapped her, kicked her and
stomped on her. During this incident, Gardner sustained
two broken ribs, bruising to her face and a laceration to
her liver.
Trial Ct. Op., 3/4/16, at 3 (record citations omitted).
On January 30, 2012, the court convicted Appellant of the above
offenses at docket number 4855-2011. The court sentenced Appellant at
this docket on March 16, 2012, to an aggregate sentence of six to fourteen
years’ imprisonment.12 Appellant did not file post-sentence motions.
On September 24, 2012, Appellant timely filed a pro se Post Conviction
Relief Act (“PCRA”) petition, which alleged, inter alia, that trial counsel was
ineffective for failing to file a direct appeal. PCRA counsel entered his
appearance and filed an amended petition and memorandum requesting that
Appellant’s direct appeal rights be reinstated nunc pro tunc. Thereafter,
Appellant filed a pro se motion for the removal of PCRA counsel based on
ineffectiveness.13 Appellant filed a notice of appeal nunc pro tunc on August
18, 2015. On October 8, 2015, the court subsequently granted Appellant’s
12
The court also sentenced Appellant to a concurrent two-and-one-half to
five years’ imprisonment at docket number 4838-2011, and a consecutive
five years’ probation at docket number 4859-2011.
13
A review of the record reveals the court did not dispose of Appellant’s pro
se motion for removal, and PCRA counsel continues to represent Appellant
on this appeal.
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request to have his direct appeal rights reinstated nunc pro tunc.14 The
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
On March 4, 2016, the court filed a responsive opinion, in which it
determined that it had erred in finding there was sufficient evidence that the
victim suffered serious bodily injury. Trial Ct. Op. at 4. Rather, the court
concluded there was sufficient evidence that Appellant attempted to cause
serious bodily injury to the victim. Id. at 5.
Appellant raises the following issue for our review:
Did the Commonwealth prove beyond a reasonable doubt
that . . . Appellant had the specific intent to cause serious
bodily injury to the complaining witness?
Appellant’s Brief at 8.
Appellant argues there was insufficient evidence to convict him of
aggravated assault because the Commonwealth failed to prove he acted with
a specific intent to cause serious bodily injury to the victim. Appellant
14
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).
Nevertheless, “[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5).
Instantly, Appellant filed his notice of appeal nunc pro tunc on August 18,
2015. However, the court did not reinstate his direct appeal rights until
October 8, 2015. Therefore, we will relate forward Appellant’s premature
notice of appeal to October 8, 2015, to resolve any jurisdictional
impediments. See id.
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claims the evidence did not indicate the victim sustained any serious injuries
or that Appellant used a firearm or any weapon on the victim. Appellant
further contends that, even if he had used a firearm, merely pointing a gun
at the victim would have established no more than simple assault. Appellant
maintains the court erred in finding his actions constituted an attempt to
cause serious bodily injury. Appellant concludes this Court should reverse
his aggravated assault conviction and remand for resentencing. We
disagree.
Our review of sufficiency of the evidence is governed by the following
principles:
As this case involves a question of law, our scope of review
is plenary. Our standard of review is de novo.
* * *
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. [A]ll of the evidence and any
inferences drawn therefrom must be viewed in the light
most favorable to the Commonwealth as the verdict
winner.
* * *
In applying this standard, [the reviewing court must] bear
in mind that: the Commonwealth may sustain its burden
by means of wholly circumstantial evidence; the entire trial
record should be evaluated and all evidence received
considered, whether or not the trial court’s ruling thereon
were correct; and the trier of fact, while passing upon the
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credibility of witnesses and the weight of the proof, is free
to believe all, part, or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(citations and quotation marks omitted).
The Pennsylvania Consolidated Statutes define aggravated assault, in
relevant part, as follows:
§ 2702. Aggravated assault
(a) Offense defined.―A person is guilty of aggravated
assault if he:
(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value of
human life[.]
18 Pa.C.S. § 2702(a)(1). This Court has defined “serious bodily injury” as
“[b]odily injury which creates a substantial risk of death or which causes
serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Commonwealth v. Holley, 945
A.2d 241, 247 (Pa. Super. 2008) (citation and quotation marks omitted).
“The Commonwealth, in sustaining an aggravated assault conviction, need
only show the defendant attempted to cause serious bodily injury to
another, not that serious bodily injury actually occurred.” Commonwealth
v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001) (citations and footnote
omitted).
Further,
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[w]here the victim does not sustain serious bodily
injury, the Commonwealth must prove that the
appellant acted with specific intent to cause serious
bodily injury. The Commonwealth may prove intent
to cause serious bodily injury by circumstantial
evidence. In determining whether the
Commonwealth proved the [a]ppellant had the
requisite specific intent, the fact-finder is free to
conclude the accused intended the natural and
probable consequences of his actions to result
therefrom. A determination of whether an appellant
acted with intent to cause serious bodily injury must
be determined on a case-by-case basis.
An intent is a subjective frame of mind, it is of
necessity difficult of direct proof[.] We must look to
all the evidence to establish intent, including, but not
limited to, appellant’s conduct as it appeared to his
eyes[.] Intent can be proven by direct or
circumstantial evidence; it may be inferred from acts
or conduct or from the attendant circumstances.
Moreover, depending on the circumstances even a
single punch may be sufficient.
Holley, 945 A.2d at 247 (citations omitted). Moreover, “[a]ttempt, for
aggravated assault purposes, is found where the accused intentionally acts
in a manner which constitutes a substantial or significant step toward
perpetrating serious bodily injury upon another.” Galindes, 786 A.2d at
1012 (citation and quotation marks omitted).
This Court has held that “we cannot sustain a conviction for
aggravated assault where the Commonwealth only demonstrates that the
defendant pointed a gun at someone.” Commonwealth v. Matthews, 870
A.2d 924, 929 (Pa. Super. 2005) (en banc) (citation omitted). Nevertheless,
in Matthews, a panel of this Court concluded, “a defendant’s failure to avail
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himself of an opportunity to inflict serious bodily injury is not dispositive but
merely one circumstance to be considered in the totality of the
circumstances.” Id. at 932, 933 (holding there was sufficient evidence to
sustain the appellant’s conviction for aggravated assault where the
appellant’s actions of shoving a loaded firearm into an unsuspecting
motorist’s throat, restraining the motorist by pointing the firearm at his
throat, and expressing an intent to kill the motorist constituted a substantial
step toward the infliction of serious bodily injury).
While a defendant’s failure to follow through with a threat
may permit the fact-finder to conclude that a defendant
only intended to frighten, and never possessed the intent
to commit serious bodily injury, it may also permit the
fact-finder to infer that the defendant possessed the intent
and, under the circumstances, changed his mind. If the
remaining circumstantial evidence of record, when viewed
in the light most favorable to the Commonwealth, would
permit the fact-finder to reach the latter conclusion, we
may not reweigh the evidence and substitute our judgment
for the fact-finder.
Id.
Instantly, after reviewing the record in the light most favorable to the
Commonwealth, we conclude there is sufficient evidence to sustain
Appellant’s conviction of aggravated assault. See Ratsamy, 934 A.2d at
1236. An examination of Appellant’s conduct, which included kicking and
stomping the victim’s body and holding a loaded firearm to her head,
establishes Appellant’s intent to take a substantial step toward causing
serious bodily injury to the victim. See Holley, 945 A.2d at 247; Galindes,
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786 A.2d at 1012. Thus, considering the totality of the circumstances, which
includes the victim’s broken rib and lacerated liver, Appellant’s arguable
failure to avail himself of the opportunity to inflict more severe bodily injury
to the victim does not entitle him to relief. See Matthews, 870 A.2d at
932; Galindes, 786 A.2d at 1012. Accordingly, we affirm Appellant’s
conviction for aggravated assault.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2017
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