Com. v. Ghee, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEMONI LARON GHEE,
Appellant No. 347 MDA 2014
Appeal from the Judgment of Sentence September 18, 2013
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0000065-2013
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 17, 2014
Appellant, Jemoni Laron Ghee, appeals from the judgment of sentence
entered on September 18, 2013, following his conviction of aggravated
assault.1 On appeal, Appellant challenges the weight of the evidence and
the legality of his sentence. For the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s January 24, 2014 opinion.
The co-defendants in this matter are Jemoni L. Ghee (No.
65-2013) and Jelani L. Ghee (66-2013). They were charged by
way of criminal complaint by Pennsylvania State Police —
Chambersburg on November 8, 2011. They were both charged
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2702(a)(1).
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with Criminal Attempt to Commit Homicide,[2] Aggravated
Assault, Robbery,[3] and Simple Assault.[4] The cases were
consolidated for purposes of trial. The matter was tried to a jury
on August 12 through August 15, 2013. The jury found the
defendants guilty of aggravated assault, and not guilty as to the
remaining charges. The defendants were sentenced on
September 18, 2013.
Both defendants filed timely post sentence motions and
requested that the briefs not be due until transcripts of the trial
have been produced. The transcripts have been filed and all
parties have submitted their briefs. The matter is now ready for
decision. The facts relevant to these post sentence motions are
the same, but the issues raised as to each defendant are
different. Therefore, the issues in the discussion section below
will be identified as to each defendant.
* * *
Many of the facts of this case are undisputed unless
otherwise noted. On November 7, 2012, the Defendants and the
victim, Clarence Green, traveled from Franklin County to the
Hollywood Casino in Dauphin County. Jelani drove, [Appellant]
sat in the front passenger seat, and Clarence Green sat in the
rear passenger side seat. While driving, the three drank beer
and smoked marijuana. At the casino, Green had gambled and
lost all of the money he had on hand, and asked to borrow
Jelani’s vehicle so that he could locate a Western Union in order
to retrieve money that a friend had wired to him. Green,
unfamiliar with the area, got lost and took a long amount of
time. Upon returning to the casino, Green noticed the Ghee
brothers walking along the side of the road. Green stopped to
pick them up, and Jelani again drove the vehicle back towards
Franklin County. There appeared to be no bitterness about the
length of time Green had taken. Green gave Jelani money for
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2
18 Pa.C.S.A. § 901(a).
3
18 Pa.C.S.A. § 3701(a)(1)(i).
4
18 Pa.C.S.A. § 2701(a)(1).
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gas, and the three continued to drink and smoke marijuana, and
stopped for food.
According to the Ghee brothers, at some point, Green
accused [Appellant] of slipping a pill in his drink. He then
punched Jelani in the back of the head. Green denies this
argument ever happened. Soon after, Jelani parked the vehicle
along Wibymarch Drive[,] which is a dark, not often traveled
road. Green believed they had stopped in order to take a
bathroom break along the side of the road. After exiting the
vehicle, Green testified that [Appellant] had come from behind
him and wrapped his arm around Green’s neck. Green then
testified that Jelani began kicking and punching him, and told
Green, “you’re gonna die, nigger.” He said that Jelani then hit
him in the head with an object. Green said that he began
bleeding immediately after the first hit and that it was difficult
for him to breath. The brothers wrestled Green to the ground.
As the beating continued, Green testified that he heard Jelani
ask if [Appellant] had broken Green’s neck yet. [Appellant]
replied that he thought he had, but it didn’t break yet. After
another attempt, Green felt a pop in his neck and his body went
limp. He stopped struggling and recalls the brothers removing
his watch and removing items from his pockets, including
money. The Ghee brothers drove away and Green staggered
across the road to a cornfield where he laid down waiting for a
vehicle to drive by. He estimated it was about 10-15 minutes
before a car came and that it was very cold. After flagging down
a vehicle, he was taken to Chambersburg Hospital, however, due
to the extent of his injuries, he was taken by helicopter to York
Hospital. He testified that he was in the hospital for
approximately 10 days. He suffered a broken hyoid bone in his
neck, a split liver, [six] broken ribs, and had a filter installed in
his chest to prevent blood clots. On cross examination, Green
admitted that he had not originally told police that the snap in
his neck is what made him go limp. Rather, he had done it as a
way to “play dead.” Further, he testified that he told police that
he said [Appellant] put a pill in a bottle, possibly for himself; but
did not say that [Appellant] put a pill in a bottle that was
intended for Green to drink.
Jelani testified that following Green’s accusation of
[Appellant] putting a pill in Green’s drink, and Green punching
Jelani in the head, the argument escalated and Jelani parked the
car on the side of Wibymarch Drive. Green exited the car with
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his hands up, prepared to fight. Green and Jelani began fighting
and Green took Jelani down. [Appellant] attempted to break up
the fight, but Green then wrestled [Appellant] down. Jelani then
began punching Green, but Green continued to punch
[Appellant]. Jelani then wrapped his arm around Green’s neck,
choking him, to pull him off. Once Green stopped fighting back,
the brothers ran to the car and drove away. Jelani testified that
Green chased after the car. The Ghee brothers then called a
mutual friend and told them that Green may need a ride home.
Dr. Michael Hughes, trauma surgeon at York Hospital
testified for the Commonwealth. He stated that Green was
found to have a broken hyoid bone in his neck, fractured ribs,
and a severe liver injury. He also had other minor injuries such
as abrasions and a laceration on his forehead. The liver injury
was graded a level [five] injury on a scale of [one] through [six],
[six] being the highest with a high risk of fatality. This type of
injury normal comes from blunt force trauma. The [hyoid] injury
normally occurs from some sort of force being applied to the
neck, such as strangulation. On cross examination, he testified
that he did not personally check to see if the [hyoid] was,
indeed, broken or if it had never naturally fused together in the
first place. Dr. Hughes did testify that it is the radiologist who
would check such a detail, and that the radiologist would look to
determine [if] the bone had a more jagged or smooth edge in
determining if the bone was recently fractured, or if it had never
fused.
Dr. Jonathan Arden, forensic pathologist testified as an
expert for the defendants. He stated that the hyoid fracture was
not a fracture but, rather, was a natural gap between the two
bones that normally fuse together. He testified that he has seen
thousands of hyoid bones and testified that it is not uncommon
for a hyoid bone not to fuse until later in life. Upon reviewing all
the medical records and radiologist’s report, he noted that the
bone had smooth edges which indicates that there was no break.
A break would show rough or jagged edges on the bone. Dr.
Arden also discussed the injuries to Green’s ribs and liver. He
stated that the skin abrasions in that area did not indicate that
Green was kicked or punched there. Nor were they consistent
with the type of injuries one would receive if [he] were dragged
by the neck along a road. Rather, they were consistent with the
type of abrasions one would receive after being struck by a car.
Dr. Arden testified, at length, the reasons for his [belief] that
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these injuries were likely caused by being struck by a vehicle
and not caused by the fight that occurred between Green and
the Ghee brothers.
A nurse from York Hospital also testified that the abrasions
on Green’s skin appeared to be what is referred to as “road rash”
which can be caused when an individual is struck by a vehicle on
a paved road.
(Trial Court Opinion, 1/24/14, 1-4).
On September 18, 2013, the trial court sentenced Appellant as a
second-strike offender to a period of incarceration of not less than ten years
nor more than twenty years. The trial court found that Appellant’s previous
conviction for “malicious wounding” in Virginia, constituted a crime of
violence. (See N.T. Sentencing, 9/18/13, at 7).
Appellant filed timely post-sentences motions, which the trial court
denied on January 24, 2014. The instant, timely appeal followed. On
February 27, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). After
receiving several continuances, Appellant filed a timely Rule 1925(b)
statement on March 17, 2014. On March 31, 2014, the trial court filed an
opinion referencing its January 24, 2014 opinion. See Pa.R.A.P. 1925(a);
(see also Trial Court Opinion, 3/31/14, at unnumbered page 1).
On appeal, Appellant raises the following questions for our review:
1. Did the trial court err in denying Appellant’s post[-]sentence
motion when the jury’s guilty verdict was against the weight
of the evidence?
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2. Did the trial court err in concluding that the two strike rule
was applicable when the two (2) offenses used to apply the
two strike rule are not equivalent to one another?
(Appellant’s Brief, at 5) (footnote omitted).
In his first issue, Appellant challenges the weight of evidence, alleging
that Green’s testimony was not credible and that the physical evidence did
not support Green’s version of the events. (See Appellant’s Brief, at 19-20).
We disagree.
Our scope and standard of review of a weight of the evidence claim is
as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted). “Thus, the trial
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court’s denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949
A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation
omitted).
In its opinion denying Appellant’s post-sentence motions, the trial
court explained its reasoning for rejecting Appellant’s weight of the evidence
claim. (See Trial Ct. Op., 1/24/14, at 5-6). Further, the record reflects that
the jury chose to credit Green’s testimony and the testimony of the
Commonwealth’s expert witness, and reject the testimony of Jelani Ghee
and the defense expert witness. This Court cannot substitute our judgment
for that of the trier of fact. See Commonwealth v. Holley, 945 A.2d 241,
246 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). Further,
the jury, sitting as finder of fact, was free to believe the Commonwealth’s
witnesses and to disbelieve the defense witnesses. See Commonwealth v.
Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to
make credibility determinations, and the finder of fact may believe all, part,
or none of a witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024,
1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation
omitted).
Thus, after a thorough review of both the trial court’s opinion and the
record in this matter and we conclude that the trial court did not commit a
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palpable abuse of discretion in rejecting Appellant’s claim. Therefore,
Appellant’s weight of the evidence claim fails.
Appellant’s second argument challenges the trial court’s imposition of
the mandatory minimum sentence prescribed by the second strike provision
of the Pennsylvania Sentencing Code, 42 Pa.C.S.A. § 9714(a)(1). (See
Appellant’s Brief, at 21-26). The statute states, in pertinent part,
(a) Mandatory sentence. —
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of this
title or other statute to the contrary. Upon a second
conviction for a crime of violence, the court shall give the
person oral and written notice of the penalties under this
section for a third conviction for a crime of violence. Failure
to provide such notice shall not render the offender ineligible
to be sentenced under paragraph (2).
42 Pa.C.S.A. § 9714(a)(1).
Appellant argues that the trial court erred in treating his out-of-state
conviction for “malicious wounding” as a second strike under these sections
because his prior offense, which the court accepted as a “first strike” was
not “an equivalent crime to Pennsylvania’s [a]ggravated [a]ssault statue,
which is an enumerated offense, and therefore the ten year mandatory
confinement sentence imposed upon him was in error.” (Appellant’s Brief, at
24).
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In Commonwealth v. Greene, 25 A.3d 359, (Pa. Super. 2011) (en
banc), affirmed, 81 A.3d 829 (Pa. 2013), this Court discussed Pennsylvania’s
strikes scheme as follows:
Where the prior convictions arise from a crime committed
outside of Pennsylvania, the convictions are considered a crime
of violence if they are equivalent to one of the Pennsylvania
statutorily-delineated crimes of violence. See 42 Pa.C.S. §
9714(g). Those crimes include:
murder of the third degree, voluntary
manslaughter, aggravated assault as defined in 18
Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
assault), rape, involuntary deviate sexual
intercourse, aggravated indecent assault, incest,
sexual assault, arson as defined in 18 Pa.C.S. §
3301(a) (relating to arson and related offenses),
kidnapping, burglary of a structure adapted for
overnight accommodation in which at the time of the
offense any person is present, robbery as defined in
18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
robbery), or robbery of a motor vehicle, or criminal
attempt, criminal conspiracy or criminal solicitation
to commit murder or any of the offenses listed
above[.]
42 Pa.C.S. § 9714(g). Thus, the Pennsylvania recidivist statute
is specifically targeted to encompass a narrow set of inherently
dangerous criminal behaviors, and both directs and limits a
sentencing court’s inquiry. This Court, therefore, must focus on
the elements of the crimes of which Appellant was convicted in
[Virginia] and determine whether those crimes are substantially
equivalent to a crime of violence in our recidivist statute.
The issue before us is one of statutory construction that
implicates the legality of the sentence imposed.[5] As a result,
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5
Counsel for Appellant acknowledged that prior counsel failed to include this
claim in his Rule 1925(b) statement, but requested review in the interest of
judicial economy. (See Appellant’s Brief, at 5 n. 1). However, an appellant
(Footnote Continued Next Page)
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our standard of review is de novo and our scope of review is
plenary. Further, we are required to strictly construe criminal
statutes. Any doubt as to a criminal statute's meaning is to be
resolved in favor of the defendant. In [Commonwealth v.]
Northrip [985 A.2d 734 (Pa. 2009)], our Supreme Court was
faced with determining whether a New York arson statute was
substantially equivalent to our arson statute. Therein, the Court
stated:
In determining whether a foreign state’s
statute is equivalent to a Pennsylvania crime under
Section 9174, we hold that the sentencing court is to
apply the test this Court articulated in
[Commonwealth v.] Shaw [744 A.2d 739 (Pa.
2000)]. Thus, the court must consider “the elements
of the foreign offense in terms of classification of the
conduct proscribed, its definition of the offense, and
the requirements for culpability.” [Shaw supra,] at
743 (citation omitted). With respect to the
underlying policy of the statutes, we hold that
analysis of policy considerations is appropriate,
though not controlling.
Id. [at 740]. As noted in Shaw, supra, and quoted with
approval by the Northrip Court,
the court may want to discern whether the
crime is malum in se or malum prohibitum, or
whether the crime is inchoate or specific. If it is a
specific crime, the court may look to the subject
matter sought to be protected by the statute, e.g.,
protection of the person or protection of the property.
It will also be necessary to examine the definition of
the conduct or activity proscribed. In doing so, the
court should identify the requisite elements of the
_______________________
(Footnote Continued)
cannot waive a legality of sentence claim. See Commonwealth v.
Dickson, 918 A.2d 95, 99 (Pa. 2007). This Court has held that challenges
to mandatory minimum sentences implicate the legality of sentencing. See
Commonwealth v. Henderson, 938 A.2d 1063, 1065 n.1 (Pa. Super.
2007), appeal denied, 954 A.2d 575 (Pa. 2008).
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crime—the actus reus and mens rea—which form the
basis of liability.
Having identified these elements of the foreign
offense, the court should next turn its attention to
the Pennsylvania Crimes Code for the purpose of
determining the equivalent Pennsylvania offense. An
equivalent offense is that which is substantially
identical in nature and definition [to] the out-of-state
or federal offense when compared [to the]
Pennsylvania offense.
Shaw, supra at 743 (brackets in original); Northrip, supra at
378.
Greene, supra at 360-62.
Appellant does not dispute that he was convicted in November 2010 of
shooting, stabbing, etc., with intent to maim, kill, etc. in violation of Va.
Code Ann. § 18.2-51. (See Appellant’s Brief, at 24). This statute provides:
If any person maliciously shoot, stab, cut, or wound any person
or by any means cause him bodily injury, with the intent to
maim, disfigure, disable, or kill, he shall, except where it is
otherwise provided, be guilty of a Class 3 felony. If such act be
done unlawfully but not maliciously, with the intent aforesaid,
the offender shall be guilty of a Class 6 felony.
Va. Code Ann. § 18.2-51. Here, Appellant was convicted of aggravated
assault pursuant to 18 Pa.C.S.A. § 2702(a)(1), which provides:
An individual 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.A. § 2702(a)(1). Similarly to 42 Pa.C.S.A. § 9714(a)(1), Virginia
law provides for repeat felony offender enhancement for individuals who
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commit second or subsequent crimes of violence. One of the crimes listed is
malicious wounding. See Va. Code Ann. § 19.2-297.1(A)(d). Thus, like
aggravated assault, malicious wounding is considered a crime of violence.
See Va. Code Ann. § 18.2-46.1 (defining “act of violence” to mean felony
offenses described in subsection A of § 19.2-297.1).
For purposes of a conviction for aggravated assault, “[s]erious bodily
injury” is defined 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.” 18 Pa.C.S.A. §
2301. For purposes of a conviction for malicious wounding, Virginia law
requires that the injury be committed “with the intent to maim, disfigure,
disable, or kill.” Va. Code Ann. § 18.2-51. Thus, we conclude tht Virginia’s
malicious wounding is a substantially equivalent crime to Pennsylvania’s
aggravated assault. Therefore, Appellant’s claim that the trial court wrongly
sentenced him as a second-strike offender must fail. See Greene, supra at
360-62. Appellant’s second claim lacks merit.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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