Com. v. Fitzgerald, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONALD DALE FITZGERALD, JR., :
:
Appellant : No. 1180 WDA 2019
Appeal from the Judgment of Sentence Entered July 18, 2019
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001696-2018
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 09, 2020
Ronald Dale Fitzgerald, Jr. (“Fitzgerald”), appeals from the judgment
of sentence entered following his convictions of aggravated assault, simple
assault, resisting arrest, disorderly conduct, and harassment.1 We affirm.
On June 17, 2018, Uniontown Police Officer Jennifer Field (“Officer
Field”) and three other officers were dispatched to assist emergency medical
services with an unresponsive adult male in the area of 66 Dunlap Street in
Uniontown, Pennsylvania. Upon arrival, Officer Field observed an
approximately 35-year-old man, later identified as Fitzgerald, lying on the
ground unresponsive, and surrounded by a crowd of onlookers. Officer Field
approached Fitzgerald, knelt down next to him, and attempted to rouse him
with verbal and physical stimulation. Officer Field performed a “sternum
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1 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), 5104, 5503(a)(1), 2709(a)(1).
J-S11032-20
rub”2 on Fitzgerald, which prompted Fitzgerald to roll onto his stomach,
produce a mixture of laughter and growling noises, and kick his feet. Officer
Field stood up and stepped away from Fitzgerald. Fitzgerald suddenly
sprang to his feet, lunged at Officer Field, and punched her in the face with a
closed fist. The punch knocked Officer Field off-balance, and caused her to
fall into and strike a nearby tree trunk, then fall to the ground. As a result
of the attack, Officer Field suffered bruising to her face and arm, and
abrasions on her arm.
The other officers instructed Fitzgerald to give them his hands, and
attempted to restrain Fitzgerald. Fitzgerald did not comply, and began
flailing his arms and kicking his legs. The officers eventually gained control
of Fitzgerald, with the use of two sets of handcuffs, and placed him under
arrest.3
Fitzgerald was subsequently charged with, and following a jury trial
found guilty of, the above-mentioned offenses. The trial court sentenced
Fitzgerald to an aggregate term of 36 to 72 months in prison, with credit for
time served. Fitzgerald filed a post-sentence Motion to modify his sentence,
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2 Officer Field testified at trial that a “sternum rub” consists of rubbing a
closed fist on the unresponsive individual’s chest. See N.T., 7/10-11/19, at
12. She testified that a sternum rub is standard procedure for assessing an
unresponsive person’s level of responsiveness. See id. at 16.
3 The record indicates that Fitzgerald was transported by ambulance to the
hospital, but is unclear whether Fitzgerald was treated by medical personnel,
or had his blood tested for any substances.
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which the trial court denied. Fitzgerald filed a timely Notice of Appeal and a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained
of on appeal.
On appeal, Fitzgerald raises the following questions for our review:
1. Whether the evidence was legally and factually sufficient to
prove that [Fitzgerald] had the requisite intent to commit the
crime of aggravated assault[?]
2. Whether the evidence was legally and factually sufficient to
prove that [Fitzgerald] had the requisite intent to commit the
crime of simple assault[?]
3. Whether the evidence was legally and factually sufficient to
prove that [Fitzgerald] had the requisite intent to commit the
crime of resisting arrest[?]
4. Whether the evidence was legally and factually sufficient to
prove that [Fitzgerald] had the requisite intent to commit the
crime of disorderly conduct[?]
5. Whether the trial court committed an abuse of discretion by
sentencing [Fitzgerald] above the aggravated range[?]
Brief for Appellant at 4.
In Fitzgerald’s first four claims, he alleges that the evidence was
insufficient to prove that he committed the crimes of aggravated assault,
simple assault, resisting arrest, and disorderly conduct. See Brief for
Appellant at 11. In all four claims, Fitzgerald argues that he could not form
the requisite intent of each crime because he was involuntarily intoxicated at
the time of the incident. Id. at 8-11. Fitzgerald claims that prior to the
incident, he had smoked a cigarette which, unbeknownst to him, contained a
mind-altering substance. Id. at 8. According to Fitzgerald, the cigarette
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was given to him by a third party; Fitzgerald thought the cigarette was a
normal tobacco cigarette; and the third party did not tell him that the
cigarette contained a mind-altering substance. Id.
When considering a challenge to the sufficiency of the evidence, we
determine
whether[,] viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the 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. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the finder of fact[,] while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, or part or none of the
evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
Here, Fitzgerald has failed to cite any legal precedent stating that
involuntary intoxication is a cognizable defense in Pennsylvania. Indeed, the
only legal support that Fitzgerald cites regarding involuntary intoxication is
Pennsylvania Suggested Standard Criminal Jury Instruction 8.308C, which,
by its text, only applies to driving under the influence offenses under 75
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Pa.C.S.A. § 3802. See Pa.SSJI (Crim) 8.308C. As our research has
disclosed no cases from this Court or our Supreme Court recognizing the
defense of involuntary intoxication for the crimes of which Fitzgerald was
convicted, we are constrained to find that Fitzgerald’s first four claims lack
merit.4
In his fifth claim, Fitzgerald alleges that the trial court abused its
discretion in sentencing him above the aggravated range and in considering
impermissible sentencing factors. See Brief for Appellant at 12.
Fitzgerald’s claim challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
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4 Even if involuntary intoxication was a viable defense to the crimes of which
Fitzgerald was convicted, we would conclude that Fitzgerald’s claims lack
merit. Involuntary intoxication is an affirmative defense, which Fitzgerald
was required to prove by a preponderance of the evidence. See
Commonwealth v. Collins, 810 A.2d 698, 701 (Pa. Super. 2002) (stating
that “when a defense is asserted that relates to the defendant’s mental state
or information that is peculiarly within the defendant’s own knowledge and
control, the general rule is that the defendant has the burden of proving the
defense by a preponderance of the evidence.”). Here, the only evidence
produced by Fitzgerald was his own self-serving testimony that he had
smoked what he thought was a tobacco cigarette, which he received from a
third party, and the next thing he remembered was waking up in the
hospital. Fitzgerald presented no medical records showing that he had
ingested a mind-altering substance, or testimony from the third party that
the cigarette contained a mind-altering substance. The jury was instructed
regarding involuntary intoxication, and found Fitzgerald guilty of each of the
aforementioned charges. See N.T., 7/10-11/19, at 61-65; see also
Melvin, supra. The jury was free to assess Fitzgerald’s credibility, and we
will not substitute our judgment for that of the jury. See Commonwealth
v. Sanchez, 36 A.3d 24, 39 (Pa. Super. 2011) (stating that “this Court
cannot substitute its judgment for that of the jury on issues of
credibility….”).
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appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). “Instead, such challenges are considered petitions
for allowance of appeal.” Commonwealth v. Clemat, 218 A.3d 944, 959
(Pa. Super. 2019). Prior to reaching the merits of a discretionary sentencing
issue,
[this Court conducts] 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, 42 Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Fitzgerald filed a timely Notice of Appeal and raised his
sentencing claim in a post-sentence Motion. However, Fitzgerald failed to
include a Rule 2119(f) Statement in his brief, and fails to make any legal
argument, or cite any relevant case law in support, that his claim violates a
specific provision of the Sentencing Code or a particular fundamental norm
underlying the sentencing process. See Pa.R.A.P. 2119(f) (stating, in part,
that “[a]n appellant who challenges the discretionary aspects of a sentence
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in a criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.”); Commonwealth v. Sauers, 159
A.3d 1, 16 (Pa. Super. 2017) (denying an appellant’s petition for allowance
to appeal the discretionary aspects of his sentence where the appellant’s
concise statement failed to “articulate the manner in which the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.”).
Nevertheless, this Court has overlooked an appellant’s failure to
comply with Rule 2119(f) where the appellee does not object to the omission
and a substantial question is evidenced from the appellant’s brief. See
Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010). Here,
the Commonwealth did not object to Fitzgerald’s omission, and Fitzgerald’s
claim that the trial court considered impermissible sentencing factors raises
a substantial question. Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa.
Super. 2006). Therefore, will address the merits of his claim.
Fitzgerald alleges that the trial court abused its discretion by
sentencing him above the aggravated guideline range, and by improperly
considering “previous adjudications and previous convictions that don’t make
up part of [Fitzgerald’s] 5 point prior record point score.” Brief for Appellant
at 12. Fitzgerald directs us to the trial court’s statements at sentencing
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relating to Fitzgerald’s prior juvenile delinquency adjudications and prior
convictions. See N.T., 7/18/19, at 3-9.
Initially, the trial court was free to consider Fitzgerald’s prior juvenile
adjudications in making its sentence. See 204 Pa. Code § 303.6(c)(2)
(providing the guidelines for the inclusion of a prior juvenile adjudication in
the calculation of a prior record score, and stating that “[n]othing in this
section shall prevent the court from considering lapsed prior adjudications at
the time of sentencing.”).5
Additionally,
although the sentencing guidelines are an important factor in
sentencing, they are but only one factor when determining an
individualized sentence:
The guidelines have no binding effect, create no
presumption in sentencing, and do not predominate over
other sentencing factors—they are advisory guideposts
that are valuable, may provide an essential starting point,
and that must be respected and considered; they
recommend, however, rather than require a particular
sentence.
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5 To the extent that Fitzgerald challenges the trial court’s consideration of
“prior convictions” that were not included in Fitzgerald’s prior record score,
the record is unclear as to what, if any, prior convictions the trial court
considered that were not included in the prior record score. See N.T.,
7/18/19, at 3-9. Because we can only consider facts that are contained in
the record, we find this claim waived. See Commonwealth v. Brown, 161
A.3d 960, 968 (Pa. Super. 2017) (stating that “our review is limited to those
facts which are contained in the certified record and what is not contained in
the certified record does not exist for purposes of our review.” (quotation
marks omitted)).
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Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (brackets
omitted). Therefore, our inquiry is whether the trial court appropriately
applied the factors set forth in the Sentencing Code, 42 Pa.C.S.A. § 9721(b).
See id.
Here, our review of the record discloses that the trial court properly
considered all of the statutory factors before sentencing Fitzgerald. See
N.T., 7/18/19, at 3-9 (wherein the trial court addressed the facts of the
case, the sentencing guidelines, Fitzgerald’s prior record score, and
Fitzgerald’s statements made at sentencing); Commonwealth v.
McClendon, 589 A.2d 706, 712 (Pa. Super. 1991) (setting forth the factors
that a trial court should consider when sentencing a defendant). Moreover,
the trial court was informed by a pre-sentence investigation report. See
N.T., 7/18/19, at 3-9; Commonwealth v. Downing, 990 A.2d 788, 794
(stating that “where the trial court is informed by a pre-sentence report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”). Accordingly, Fitzgerald’s discretionary
sentencing claim fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2020
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