Com. v. Avergun, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEF AVERGUN
Appellant No. 1484 EDA 2016
Appeal from the Judgment of Sentence November 16, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010957-2011
BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED APRIL 19, 2017
Josef Avergun appeals from the judgment of sentence imposed on
November 16, 2012, the Court of Common Pleas of Philadelphia County,
following his conviction by the trial judge on charges of aggravated assault,
simple assault and recklessly endangering another person.1 Avergun was
sentenced to three to six years’ incarceration.2 Avergun’s appellate rights
were reinstated pursuant to a PCRA petition he filed after trial counsel had
failed to file a timely appeal. In this appeal, Avergun raises three issues.
They are: (1) the evidence was insufficient to support the aggravated
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702(a)(3), 2701(a) and 2705, respectively.
2
Specifically, three to six years’ incarceration was imposed for aggravated
assault. The other crimes merged with the aggravated assault charge.
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assault charge as the Commonwealth failed to prove mens rea or that the
victim was an employee or officer of the county jail; (2) the sentence is
manifestly unreasonable; and (3) the trial court erred in not reinstating his
right to file an amended post-sentence motion, thereby allowing him to
challenge the discretionary aspects of his sentence. After a thorough review
of the submissions by the parties, the certified record, and relevant law, we
affirm.
The facts underlying Avergun’s conviction are simply related. 3 The
victim of this attack, Phyllis Taylor, received a stipend as a chaplain serving
the Jewish community of the Philadelphia prison system. Between October,
2010 and July, 2011, Chaplain Taylor spent approximately 30 hours doing
one-on-one ministry with Avergun. On July 12, 2011, Chaplain Taylor
visited Avergun at the Philadelphia Industrial Correction Center. Avergun’s
cellblock was on lock down at the time. Chaplain Taylor was escorted to
Avergun’s cell by Correction Officer Amir Khan. CO Kahn opened Avergun’s
cell door and stood approximately two feet behind Chaplain Taylor. Kahn
witnessed Avergun hit Chaplain Taylor with a straight jab to her face. The
punch knocked her back against the wall, broke her nose, and damaged her
teeth and mouth. She testified she had no recollection of being hit; only
____________________________________________
3
Unless otherwise noted by specific citation, these facts are taken from the
trial court’s Pa.R.A.P. 1925(a) opinion, dated 6/13/2016. Our independent
review has confirmed these facts are supported by the certified record.
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finding herself against the wall, saying, “I can’t breathe. Give me a
minute.”4 Chaplain Taylor was taken to Jeanes Hospital for treatment. She
could not eat regular food for several weeks and suffered pain for more than
one month. At the time of the assault, Chaplain Taylor was almost 70 years
old, was five feet, four inches tall and weighed one hundred fifteen pounds.
Avergun testified on his own behalf. He claimed he did not hit
Chaplain Taylor. He supposed she had a pre-existing medical condition and
limited funds for medical care. He further speculated that Chaplain Taylor
was claiming she was injured on the job to obtain medical benefits, perhaps
through a civil lawsuit. See, N.T. Trial, 8/9/2012, at 72-77.5
The standard of review for a challenge to the sufficiency of the
evidence is well settled and oft repeated.
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. In assessing Appellant's sufficiency
challenge, we must determine whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner,
together with all reasonable inferences therefrom, the trier of
fact could have found that the Commonwealth proved [each]
element of the crime beyond a reasonable doubt. The evidence
need not preclude every possibility of innocence and the fact-
finder is free to believe all, part, or none of the evidence
presented.
____________________________________________
4
Although Chaplain Taylor did not specifically remember Avergun punching
her, she testified that, given the circumstances, she deduced that is what
happened. See N.T. Trial, 8/9/2012, at 46-47.
5
All notes of trial are from 8/9/2012.
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Commonwealth v. Kennedy, 151 A.3d 1117, 1121 (Pa. Super. 2016)
(citations omitted).
Avergun was convicted of violating 18 Pa.C.S. § 2701(a)(3), which
states in relevant part:
(a) Offense defined.--A person is guilty of aggravated assault if
he:
(3) attempts to cause or intentionally or knowingly causes
bodily injury to any of the officers, agents, employees or
other persons enumerated in subsection (c), in the
performance of duty;
…
(c) Officers, employees, etc., enumerated.--The officers, agents,
employees and other persons referred to in subsection (a) shall
be as follows:
9) Officer or employee of a correctional institution, county
jail or prison, juvenile detention center or any other facility
to which the person has been ordered by the court
pursuant to a petition alleging delinquency under 42
Pa.C.S. Ch. 63 (relating to juvenile matters).
18 Pa.C.S. § 2702(a)(3), (c)(9).
In the first aspect of his appeal, Avergun claims the Commonwealth
failed to prove that Chaplain Taylor was an employee of the county
jail/correctional institution. This argument is unavailing.
Chaplain Taylor testified she received a stipend to minister to the
Jewish community housed in the Philadelphia Prison system and had been so
employed for eleven years. Specifically:
Chaplain Taylor: I am a stipended chaplain in the Philadelphia
prison system. I am what’s called a system-wide chaplain,
which means I cover all of the jails and I am the chaplain for the
Jewish community for those who are ill, those [who] are acutely
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grieving because I’m also a registered nurse and hospice in
palliative care.
N.T. Trial, 8/9/2012, at 16.
Chaplain Taylor: I am a lay person, but appointed. I have letters
of appointment authorizing me to be present as the Jewish
representative in the prisons.
Id. at 17.
Chaplain Taylor: Let me explain a little bit about chaplaincy
because I think it’s helpful. When I said it was a stipended job,
it’s really I call it a love job. It is a position that I’m called to.
The pay for that is minimum wage, no benefits whatsoever, no
vacation, no health care, no anything at all.
Id. at 19.
Additionally, as noted above, as part of his defense, Avergun himself
conceded Chaplain Taylor was employed to work in the prison system,
claiming she was attempting to use her employment as a method of
obtaining medical coverage.
While the Commonwealth did not present any paystubs from the
prison system or income tax forms, Chaplain Taylor’s testimony, accepted by
the trial court as fact finder, regarding her paid duties within the prison
system was sufficient to prove her status as an employee of a correctional
institution/county jail pursuant to 18 Pa.C.S. § 2702 (c)(9). Accordingly,
Avergun is not entitled to relief on this aspect of his claim.
Next, Avergun argues the Commonwealth failed to prove he
intentionally or knowingly caused bodily injury to Chaplain Taylor.
Specifically, Avergun argues:
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In this case the Commonwealth also failed to prove beyond a
reasonable doubt that the defendant intended to cause bodily
injury because there was no reason for the defendant to want to
strike the complainant and the defendant testified that he did
not strike the complainant. It is just as reasonable to assume
based on the evidence that the contact between the defendant
and the complainant was accidental.
Appellant’s Brief at 9.
This argument is unconvincing. The Commonwealth need not prove
why a defendant wants to harm a person to prove the harm was intentional.
“The Commonwealth is not required to prove mens rea by direct evidence.
Frequently such evidence is not available. In such cases, the Commonwealth
may rely on circumstantial evidence.” Commonwealth v. Collington, 615
A.2d 769, 770 (Pa. Super. 1992).
Avergun is correct that no direct evidence of animosity toward
Chaplain Taylor was presented at trial. However, none was required.
Rather, the evidence presented at trial proved that Avergun punched the
chaplain in the face, with a straight jab, that carried sufficient force to break
her nose and damage her mouth. The punch knocked the chaplain back into
a wall and hit her with such force that she had no direct memory of having
been punched. The trial court accepted this evidence as circumstantial proof
that Avergun had intentionally or knowingly harmed the chaplain. We find
no error of law in this determination.
We will address Avergun’s last two issues together. Avergun claims
the trial court erred in not reinstating his right to file a motion to reconsider
sentence thereby allowing him the opportunity to challenge the discretionary
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aspects of his sentence. Avergun also challenges the discretionary aspects
of his sentence.
After sentence was imposed, Avergun filed a post-sentence motion
challenging the weight and sufficiency of the evidence as well as raising
several complaints of ineffective assistance of counsel. This motion was
denied. However, Avergun’s then-counsel failed to perfect his appeal. This
led Avergun to file a petition pursuant to the Post Conviction Relief Act, 42
Pa.C.S. § 9541 et seq. The result of that petition was an agreement
between the Commonwealth and Avergun reinstating his appellate rights.
See Docket Entry, 5/5/2016. The specifics of this agreement are not found
in the certified record. The docket entry merely notes that BY AGREEMENT
(our emphasis) Avergun’s appellate rights were reinstated. There is no
mention that the agreement encompassed the right to file an additional
post-sentence motion. Because the agreement between Avergun and the
Commonwealth did not specifically permit Avergun to file another post-
sentence motion, we cannot fault the trial court for failing to grant Avergun
that privilege.
Because Avergun did not preserve any objection to his sentence in the
court below, he has waived that claim. We note:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to determine: (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, Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016).
Accordingly, Avergun is not entitled to relief on his challenges to his
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
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