Com. v. Jackson, C.

J-A25024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CASEY LAMONTAE JACKSON :
:
Appellant : No. 492 WDA 2021
Appeal from the Judgment of Sentence Entered January 27, 2021
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000560-2020
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: MARCH 16, 2022
Appellant, Casey Lamontae Jackson, appeals from the judgment of
sentence entered in the Mercer County Court of Common Pleas, following his
jury trial conviction for aggravated assault.1 We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows:
On April 14, 2020, Hermitage Police filed a criminal
complaint, which alleged that Appellant had struck the
victim with a vehicle. By Information, on June 19, 2020,
Appellant was charged with one count of aggravated
assault, a felony of the first degree, in violation of 18
Pa.C.S.A. § 2702(a)(1) and one count of aggravated
assault, a felony of the second degree, in violation of 18
Pa.C.S.A. § 2702(a)(4).
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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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On September 14, 2020, at the pretrial conference,
Appellant rejected a plea offer to a reduced offense,
expressed his desire to proceed to trial, and waived his right
to counsel because he wanted to proceed pro se. Standby
counsel was appointed, in an abundance of caution, and trial
was scheduled.
The trial commenced on September 21, 2020 and ended the
following day with the jury’s verdict of guilty of aggravated
assault in violation of 18 Pa.C.S.A. § 2702(a)(1) and not
guilty of aggravated assault in violation of 18 Pa.C.S.A. §
2702(a)(4). The verdict slip did not specify whether the
aggravated assault in violation of § 2702(a)(1) was
aggravated assault—attempt to cause serious bodily injury
[(“SBI”)] or aggravated assault—causing [SBI2]. On
January 26, 2021, the [trial court] sentenced Appellant on
aggravated assault—attempt to cause [SBI], which carried
the lower offense gravity score. Appellant was sentenced to
22 to 44 months’ imprisonment.
On February 3, 2021, Appellant requested an extension of
time to file a post sentence motion, and the [trial court
expressly] granted his request [on February 5, 2021]. On
March 4, 2021, Appellant filed a post-sentence motion for a
new trial. On April 14, 2021, the court held a hearing on
Appellant’s post-sentence motion, and after considering
arguments the court denied the motion. On April 15, 2021,
Appellant timely filed a Notice of Appeal and a Statement of
Errors Complained of on Appeal.
(Trial Court Opinion, filed 6/14/21, at 1-3).
Appellant raises the following issue for our review:
Did the trial court err holding that it was the jury’s clear
intent to find Appellant guilty of aggravated assault,
attempting to cause serious bodily injury under 18 Pa.C.S.A.
[Section] 2702(a)(1)?
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2 The statute provides, “[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.A. § 2702(a)(1).
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(Appellant’s Brief at 7).
Appellant argues that it is unclear from the verdict sheet whether the
jury found Appellant guilty of aggravated assault—attempt to cause SBI or
aggravated assault—causing SBI. Appellant claims that after the verdict was
recorded, the trial court improperly “molded the verdict to reflect the jury
intended to convict [Appellant] of attempting to cause [SBI].” (Id. at 15).
Appellant maintains that “it was inappropriate for the [trial] court to infer the
intent of the jury where the only evidence to support this inference or
conclusion is a finding that sufficient evidence existed to support the charge
of attempting to cause [SBI].” (Id. at 13). Specifically, Appellant submits
that it is unclear whether the jury found that Appellant acted with the specific
intent required for an attempt conviction. Appellant concludes that the court
erred under these circumstances, and that this Court should award him a new
trial. We disagree.
As a preliminary matter, we recognize generally that the “failure to make
a timely and specific objection before the trial court at the appropriate stage
of the proceedings will result in waiver of the issue.” Commonwealth v.
Houck, 102 A.3d 443, 451 (Pa.Super. 2014). Specifically, failure to object to
language on the verdict sheet results in waiver of any challenge to the verdict
sheet on appeal. Commonwealth v. duPont, 730 A.2d 970, 984-85
(Pa.Super. 1999), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d
276 (2000) (holding appellant waived challenge to allegedly “misleading”
verdict sheet” where he did not object to verdict sheet prior to jury
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deliberations).
Instantly, prior to the jury’s deliberations, the trial court showed
Appellant and the Commonwealth the verdict sheet it intended to give to the
jury. (See N.T. Trial, 9/22/20, at 72-73). The trial court took care to explain
the contents of the verdict sheet to Appellant and asked if he had any
objections to its form. Id. Appellant indicated that he did not. Id. Based on
Appellant’s acquiescence, the trial court utilized the proffered general verdict
sheet, which did not specify whether the jury convicted Appellant of
aggravated assault—attempt to cause SBI, or aggravated assault—causing
SBI. Appellant’s failure to object to the verdict sheet at the time of trial
constitutes waiver of his issue on appeal.3 See duPont, supra.
Further, the trial court ensured that Appellant was not prejudiced at
sentencing based on the lack of specificity in the verdict sheet. Recognizing
that it provided the jury with a general verdict sheet, the trial court sentenced
Appellant in accordance with the guidelines for aggravated assault—attempt
to cause SBI, which carried a lower offense gravity score than the offense of
aggravated assault—causing SBI. See Commonwealth v. Riley, 811 A.2d
610 (Pa.Super. 2002) (affirming defendant’s conviction for conspiracy but
remanding for resentencing where verdict sheet did not delineate whether jury
convicted defendant of conspiracy to commit burglary or conspiracy to commit
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3 Moreover, notwithstanding Appellant’s complaint on appeal, he appears to
concede in his brief that the Commonwealth presented sufficient evidence to
sustain his conviction for aggravated assault—attempt to cause SBI. (See
Appellant’s Brief at 13, 18).
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theft; in light of general verdict slip, trial court was obligated to sentence
defendant for lesser underlying offense). Accordingly, Appellant’s issue is
waived, and he is not entitled to relief.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/16/2022
____________________________________________
4 Appellant’s reliance on Commonwealth v. Dzvonick, 450 Pa. 98, 297 A.2d
912 (1972) is misplaced. There, the jury specifically convicted the defendant
of assault with intent to maim but all parties conceded that there was
insufficient evidence to sustain the conviction. Our Supreme Court held there
was insufficient evidence to sustain the “assault” verdict, and that to the
extent the trial court “molded the verdict” to reflect defendant’s guilt of
attempted assault with intent to maim, such action was impermissible
because it would “be a substitution of an entirely new verdict never found by
the jury for the verdict it did in fact return.” Id. at 103 n.5, 297 A.2d at 915
n.5. Here, the jury clearly found Appellant guilty of aggravated assault
generally under Section 2702(a)(1) (without specifying attempt to cause SBI
or causing SBI), and the trial court did not alter or substitute the verdict
returned by the jury.
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