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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEAN HANTON,
Appellant No. 334 EDA 2014
Appeal from the Judgment of Sentence December 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009933-2011
BEFORE: BOWES, JENKINS, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015
Deon Hanton appeals from the judgment of sentence of six to twelve
years imprisonment that the trial court imposed after he was convicted of
aggravated assault, three violations of the Uniform Firearms Act (“VUFA”),
and possession of an instrument of crime (“PIC”). We affirm.
The trial court provided a comprehensive review of the proof adduced
in support of the described convictions:
On June 15th, 2011, at about 11:45 p.m., in the area of 59th
Street and Lansdowne Avenue in Philadelphia, Hakeem McGill
saw and spoke briefly with the defendant. Both men had
attended seventh grade at Richard Allen Charter School. As the
men were about to go their separate ways, McGill asked if the
defendant needed any marijuana. The defendant declined the
offer and McGill began to walk home.
Soon thereafter, the defendant yelled at McGill and asked if
he was selling four bags of marijuana for fifteen dollars. When
McGill indicated he was, the defendant pulled a gun out of the
track bag he was carrying and pointed it at McGill. The
*
Retired Senior Judge assigned to the Superior Court.
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defendant ordered McGill to give him the marijuana. As McGill
attempted to grab the gun from defendant, the defendant
stepped back and shot McGill in the leg. McGill immediately ran
away; while he was running he heard the defendant fire a
second shot. McGill ran to 1703 Edgewater Street where [he]
encountered a woman in her car whom he requested call his
mother and 911.
At approximately 11:50 p.m., in response to a radio call,
Police Officer Sokha Soy arrived at 1703 North Edgewood Street.
Officer Soy found McGill sitting on the steps to the residence.
Officer Soy observed that McGill had a gunshot wound to his left
ankle. McGill explained that he had been shot on the 5900 block
of Lansdowne Avenue, about three blocks away. McGill was
transported to the University of Pennsylvania hospital. McGill
was treated for a perforating gunshot wound to his left ankle.
On June 16, 2011, at approximately 3:30 a.m., Detective
Robert Conway picked McGill up from the hospital and took him
to the crime scene at 59th Street and Lansdowne Avenue.
McGill directed Detective Conway to the area where he was shot.
In the schoolyard near a dumpster Detective Conway found one
45-caliber fired shell casing, a black knit hat, three Ziploc
packets of marijuana and some beer cans. Across the street
from the casing, in front of 1534 North 59th Street, Detective
Conway found a jacket belonging to McGill.
That same day, at about 2:00 p.m., Detective Orlando Ortiz
showed McGill a series of photographs. McGill identified the
defendant. Later that evening, at 10:25 p.m., McGill gave a
formal statement to police. During this statement, McGill
identified the defendant from a photo array, which contained a
more recent photo of the defendant than the one he was
previously shown.
Trial Court Opinion, 3/12/14, at 2-3 (citations to record omitted). Police
obtained an arrest warrant for Appellant. On July 6, 2011, Philadelphia
Police Officer Michael Alice saw and recognized Appellant, who was on the
600 block of North Union Street. Appellant fled when Officer Alice attempted
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to effectuate an arrest. The officer pursued Appellant, who entered a house
located at 659 Union Street. After Appellant was forcibly evicted by its
occupants, the officer took him into custody.
Based on this evidence, a jury convicted Appellant of first-degree
felony aggravated assault, carrying an unlicensed firearm, carrying a firearm
on a public street or property in Philadelphia, and PIC. The trial court then
found Appellant guilty of persons not to possess a firearm. Appellant
proceeded to sentencing on December 19, 2013, when he received an
aggregate term of six to twelve years incarceration in this matter. This
appeal followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement, but Appellant failed to comply with that directive. Upon his
petition, we subsequently remanded for the filing of a statement nunc pro
tunc. This document in question was filed, and the matter is now ready for
resolution. Appellant raises the following allegations on appeal:
1. Was not the evidence insufficient to convict appellant of
aggravated assault, graded as a felony of the first degree, where
the evidence did not support a finding that appellant attempted
to cause serious bodily injury because he kept his gun pointed
down towards the ground during the incident, shot the
complainant once in the ankle and never verbally threatened the
complainant in any way?
2. Was not the appellant's sentence invalid where it was
based on an unconstitutional mandatory minimum statute,
specifically, 42 Pa. C.S. § 9712 [,which pertains to] Sentences
for offenses committed with firearms, that has been rendered
void and unenforceable pursuant to Commonwealth v.
Newman, 2014 WL 408805 (August 20, 2014) (en banc) and
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Commonwealth v. Valentine, 2014 WL 4942256 (Pa. Super.
October 3, 2014)?
Appellant’s brief at 4.
Appellant’s first position is that the evidence was insufficient to
support a conviction under 18 Pa.C.S. § 2702(a)(1), a first-degree felony,
and that, instead, his “actions constitute an aggravated assault, graded as
felony of the second degree under 270[2](a)(4).” Appellant’s brief at 16.
We first set forth the pertinent standard and scope of review as to this
claim:
“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.” Commonwealth v. Murray, Pa. , 83
A.3d 137, 151 (2013). We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the jury to find every element of a
crime beyond a reasonable doubt. Commonwealth v. Cahill,
95 A.3d 298, 300 (Pa.Super. 2014).
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
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evidence produced, is free to believe all, part or none
of the evidence.
Id.
Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa.Super. 2015).
The pertinent portions of § 2702 are as follows:
(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;
....
(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon[.]
18 Pa.C.S. § 2702. “Aggravated assault under subsection (a)(1), (2) and
(9) is a felony of the first degree. Aggravated assault under subsection
(a)(3), (4), (5), (6), (7) and (8) is a felony of the second degree.” 18
Pa.C.S. § 2702(b). Serious bodily injury is defined by the Crimes Code as
“bodily 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. § 2301.
In this case, Appellant maintains that he did not cause the victim
serious bodily injury and that the Commonwealth failed to prove that he
attempted to cause such injury. It is established that, “Where the injury
actually inflicted did not constitute serious bodily injury, the charge of
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aggravated assault can be” sustained only when the evidence supports a
finding the defendant’s actions toward the victim were “accompanied by the
intent to inflict serious bodily injury.” Commonwealth v. Alexander, 383
A.2d 887, 889 (Pa. 1978); see also Commonwealth v. Matthew, 909
A.2d 1254 (Pa. 2006).
When we examine “whether [the] evidence established intent to cause
serious bodily injury,” that inquiry “must be determined on a case-by-case
basis. Because direct evidence of intent is often unavailable, intent to cause
serious bodily injury may be shown by the circumstances surrounding the
attack.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007)
(citations omitted); see also Matthew, supra; Commonwealth v.
Fortune, 68 A.3d 980 (Pa.Super. 2013) (en banc).
Appellant maintains that he did not commit first-degree felony
aggravated assault because he “neither aimed his gun at the complainant's
vital organs nor verbally threatened the complainant in any way.
Throughout the course of their interaction, [Appellant] kept the gun pointed
at the complainant's feet.” Appellant’s brief at 15-16. Acknowledging that
the victim reported that a second shot was fired at him as he fled, Appellant
insists that no inference can be made either that he fired the shot or that it
was aimed at the victim.
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We reject Appellant’s sufficiency claim. Mr. McGill stated that
Appellant removed a gun from a bag that he was carrying and pointed it at
him. When the victim tried to grab the gun, Appellant stepped backward
and shot at the victim’s leg. The bullet struck his ankle, but Mr. McGill
managed to run. As he was running, the victim heard Appellant firing a
second shot. When a defendant shoots in a person’s direction, regardless of
whether the gun is aimed at the head or torso, such conduct evidences
intent to cause serious bodily injury. Commonwealth v. McCalman, 795
A.2d 412 (Pa.Super. 2002) (defendant’s convictions of aggravated assault
under § 2702(a)(1) upheld when he shot in direction of the victims, even
though no bullets struck them); Commonwealth v. Galindes, 786 A.2d
1004, 1012 (Pa.Super. 2001) (“Even though [the victim] was not struck by
any bullets, the act of firing a gun toward him constitutes an attempt to
cause serious bodily injury.”); see also Commonwealth v. Matthews, 870
A.2d 924, 929 (Pa.Super. 2005), aff’d on other grounds sub nom.
Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006) (“[I]n instances
where the defendant has both drawn and fired (or drawn and misfired) a
gun, we have consistently held” that the Commonwealth has demonstrated
that the defendant attempted to inflict serious bodily injury for purposes of §
2702(a)(1).). In this case, Appellant shot at Mr. McGill’s leg, striking him in
the ankle. The inferences from the evidence establish that Appellant fired a
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second shot in the direction of the victim as the victim was fleeing. Hence,
we reject his challenge to the sufficiency of the evidence as to aggravated
assault.
Appellant next maintains that he was sentenced under a statute
declared unconstitutional in Alleyne v. United States, U.S. , 133 S.Ct.
2151 (2013), Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)
(en banc) and Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super.
2014); see also Commonwealth v. Ferguson, 107 A.3d 206 (Pa.Super.
2015). Specifically, he suggests that his aggravated-assault sentence was
premised upon application of 42 Pa.C.S. § 9712, which imposes a mandatory
minimum sentence of five years incarceration on offenses committed when
the defendant visibly possessed a firearm during the offense and when the
defendant placed the victim in reasonable fear of death or serious bodily
injury. This statute is unconstitutional under the noted case law.
Appellant’s position fails because the sentencing court herein did not
apply that statute. The sentencing in question occurred on December 19,
2013, and review of that transcript establishes that no one even mentioned
§ 9712. Instead, the court expressly stated that it was not applying any
mandatory minimum sentence due to the firestorm created by the Alleyne
decision, which held that a defendant’s right to a jury determination beyond
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a reasonable doubt applies to any fact required to apply a mandatory
minimum.
When he committed these crimes, Appellant was on probation for
committing the crime of possession with intent to deliver (“PWID”), and the
probation court had relinquished jurisdiction of the violation-of-probation
(“VOP”) case to this court. N.T. Sentencing, 12/19/13, at 21. Appellant had
a prior record score of two that did not reflect two juvenile arrests for PWID.
The Commonwealth noted that Appellant was a habitual participant in the
drug-dealing culture in Philadelphia and was declared delinquent for starting
a fire at his school.
The Commonwealth agreed to apply an offense gravity score of ten
rather than eleven to the aggravated assault conviction since there was a
dispute as to whether the ankle wound amounted to serious bodily injury.
Using the deadly-weapon-used sentencing matrix, the guidelines called for a
sentence of fifty-four to sixty-six months imprisonment for aggravated
assault. The guidelines for the remaining offenses were: thirty-six to forty-
eight months for the persons-not-to-possess; four to thirty-six months for
possession of a firearm without a license; three to four months for carrying a
firearm on a public street or property in Philadelphia; and restorative
sanctions to nine months for PIC.
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The court had a presentence report and outlined its consideration of
the appropriate factors. It found that Appellant violated probation by
commission of the offenses herein. Id. at 26. The court noted that
Appellant made a poor impression on the presentence investigator, who
found that Appellant minimized his role in this case, denied the seriousness
of shooting at someone, and “felt that there was nothing wrong with [his]
lifestyle.” Id. at 28. Defense counsel spoke in mitigation of sentence,
Appellant’s mother asked the court to be lenient, and Appellant exercised his
right to allocution.
The court sentenced Appellant to five to ten years imprisonment for
the aggravated assault and a consecutive aggregate sentence of one to two
years on the VUFA and PIC offenses, which was a downward departure from
the guidelines. The court explained its decision:
[THE COURT]: Now, [Appellant], I’m not done. You may
think that’s a hard sentence, but actually I have to justify on the
record the reason why I gave you so little time for the gun case,
because the guidelines I should be giving you are 3 to 6 years.
And the reason why I am deviating downwards is because
I did give you a sentence squarely within the standard
range for the aggravated [assault] sentence.
Id. at 33 (emphasis added). The court imposed a VOP sentence of one to
two years imprisonment, consecutive to the term of incarceration imposed in
the present case. The court then specifically delineated:
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Counsel, for your benefit, that is a standard range sentence and
that's the sentence I was giving irrespective of any mandatory-
minimum. And whatever's going to happen to the mandatory-
minimum is going to happen. But that is the sentence I'm giving
based upon not a mandatory-minimum but the guidelines
based upon your client's offense gravity score and prior record
score.
Id. at 36 (emphasis added).
As Appellant’s position that he was sentenced pursuant to a mandatory
minimum sentencing statute is refuted by the record, we reject his challenge
to his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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Com. v. Hanton, D.
Combined Opinion