J-S12004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JOHNSTONE
Appellant No. 1181 EDA 2013
Appeal from the Judgment of Sentence March 20, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011422-2012
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 28, 2015
Appellant, Anthony Johnstone, appeals from the judgment of sentence
imposed in the Philadelphia County Court of Common Pleas on his
convictions of aggravated assault1 and related offenses. He claims the
evidence was insufficient to sustain his conviction or impose a mandatory
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a). Although the Commonwealth did not proceed under
a specific subsection of the aggravated assault statute, the trial court found
Appellant guilty, in relevant part, because it “believe[d] he attempted to
cause serious bodily injury.” N.T., 1/28/13, at 71. Therefore, we analyze
this case as if the court found him guilty under Subsection (a)(1) of the
aggravated assault statute. See 18 Pa.C.S. § 2702(a)(1) (attempt to cause
serious bodily injury).
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“second strike” minimum sentence under 42 Pa.C.S. § 9714(a).2 We affirm
in part, but vacate the sentence and remand for resentencing.
The trial court summarized the facts underlying Appellant’s conviction
as follows:
On June 24, 2012, at around 12:40 a.m., Ieisha Carter
[(“Complainant”)], her friend Dawn Johnstone
(“Johnstone”), Johnstone’s goddaughter Amber Brown
(“Brown”), and Johnstone’s husband[, Appellant], were
leaving a wedding reception located in the area of 8000
Germantown Avenue in the City and County of
Philadelphia. They all rode in Johnstone’s truck and drove
towards [Appellant’s] house. [Complainant], who was
asked by Johnstone to drive the truck, sat in the driver’s
seat. Johnstone sat in the front passenger seat; Brown sat
in the driver’s side rear, and [Appellant] was seated in the
rear on the passenger side. Prior to entering the truck,
Johnstone and [Appellant] had an argument, but the
argument ended after leaving the reception.
[Complainant], Johnstone, and [Appellant] had been
drinking at the reception.
As [Complainant] started to drive the vehicle toward
Johnstone’s home, [Appellant] told Johnstone he wanted to
return to the reception. Johnstone replied “I’m not
staying,” and the vehicle grew silent. [Complainant]
testified that [Appellant] then leaned forward, placed both
his hands around Johnstone’s throat from the rear
passenger seat, and began choking her. [Complainant]
saw [Appellant] grab Johnstone’s throat, pulled the vehicle
over, and parked, having only driven a block away from
the wedding reception. With her seatbelt still engaged,
[Complainant] reached out to her right side and attempted
to hit [Appellant] with open palms to get him off of
Johnstone. [Appellant] then stopped choking Johnstone
and began punching [Complainant] in the face and
forehead with closed fists. [Appellant] punched
[Complainant] approximately five to ten times. As
2
The Commonwealth has not filed an appellee’s brief.
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[Appellant] was punching [Complainant, she] attempted to
get [him] off of her by hitting him. [Complainant] testified
that the pain was hurting so much that she leaned over to
the front against the steering wheel and saw blood
dripping down. [Appellant] did not stop punching
[Complainant] until she leaned forward, placing her
beyond [Appellant’s] reach. [Complainant] started to
bleed. [Appellant] then exited the vehicle and walked
away. At some point during, or shortly after the
altercation, Brown called the police with [Complainant’s]
cell phone.
The police picked up [Appellant] from further down the
street and brought him back to the vehicle in handcuffs.
One of the female officers instructed [Complainant] to exit
the truck and informed her that she needed to go to the
hospital. The police transported [Complainant] to
Chestnut Hill Hospital, where she stayed for approximately
4-5 hours accompanied by Johnstone. [Complainant]
received five stitches on her forehead just next to her left
eyebrow. Both her eyes were swollen and puffy, and she
missed two weeks of work due to her injuries.
[Complainant] testified she was in pain for months
following the incident, and occasionally still suffers from
sharp shooting pains to her forehead where the stitches
were located.
Trial Ct. Op., 6/16/14, at 1-3 (record citations omitted).
Appellant was charged with aggravated assault, simple assault, and
reckless endangerment with respect to Complainant.3 On January 28, 2013,
he proceeded to a nonjury trial, and the trial court found him guilty of all
charges. After the court entered its verdict, the Commonwealth asserted it
was prepared to proceed to an immediate sentencing hearing. N.T.,
1/28/13, at 73. After Appellant requested a continuance for the preparation
3
18 Pa.C.S. §§ 2701(a), 2705.
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of a presentence investigation report (“PSI”) and a mental health report, the
following exchange occurred:
[Commonwealth]: . . . This is my understanding a second
strike case [under 42 Pa.C.S. 9714(a)]. I just need to
know whether there’s going to be—if he will be contesting
the previous conviction. I’ll need a certification and the
Quarter Sessions File.
[Appellant’s Counsel]: I would ask for one.
[Commonwealth]: Okay.
Id. at 73-74. The court granted the request for continuance and the
preparation of the presentence reports.
On March 20, 2013, the trial court convened a sentencing hearing.
The court confirmed the parties received the PSI. N.T., 3/20/13, at 2. The
court asked whether “this [was] a second strike case.” The Commonwealth
responded, “Yes,” and requested an aggregate ten to twenty year sentence
with no additional probation. Id. at 2-3. Appellant did not object to the
accuracy of the PSI or the application of the mandatory “second strike”
sentence under Section 9714(a). Id. at 3. After hearing from
Complainant,4 Appellant, and Appellant’s counsel, the court sentenced
Appellant as follows:
[M]y hands are tied with the mandatory sentence. I’m
sure you’re aware of that from your previous convictions.
4
Complainant disagreed with the imposition of a ten-year mandatory
minimum sentence. N.T., 3/20/13, at 4 (“When I heard ten to twenty, my
heart just dropped. That bothered me.”).
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I’m sure they told you about the strikes and with the
second strike, there comes a mandatory sentence. . . .
* * *
. . . Well, as mandated by the law, it’s 10 to 20 years of
incarceration [for aggravated assault.5] I will give credit
for time served and indicate he’s work release eligible.
Id. at 8. Appellant did not object. Id.
Appellant did not file post-sentence motions, but filed a timely notice
of appeal on April 19, 2013. He complied with the court’s order to submit a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant presents the following questions for our review:
Was not the evidence insufficient to convict [A]ppellant
of aggravated assault . . . as there was no evidence of
serious bodily injury, attempt to cause it or evidence that
[A]ppellant specifically intended to inflict serious bodily
injury under circumstances manifesting extreme
indifference to the value of life?
Did not the [trial] court err by imposing a “second
strike” sentence under 42 Pa.C.S. § 9714 where the
Commonwealth failed to prove any prior predicate
conviction?
Appellant’s Brief at 4.
Appellant first claims the evidence was insufficient to sustain his
conviction for aggravated assault. He argues the Commonwealth failed to
prove he caused serious bodily injury or acted with “an extreme indifference
to life” tantamount to malice. Id. at 12, 17. No relief is due.
5
The court merged the simple assault conviction and imposed no further
penalty for reckless endangerment. Order, 3/20/13.
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The principles governing our review are well settled.
In reviewing a claim regarding the sufficiency of the
evidence, an appellate court must determine
whether the evidence was sufficient to allow the fact
finder to find every element of the crimes charged
beyond a reasonable doubt. In doing so, a reviewing
court views all the evidence and reasonable
inferences therefrom in the light most favorable to
the Commonwealth. Furthermore, in applying this
standard, the Commonwealth may sustain its burden
of proof by means of wholly circumstantial evidence.
. . . Additionally, we note that the trier of fact, while
passing on the credibility of witnesses and the weight
of the evidence, is free to believe all, part, or none of
the evidence.
. . . 18 Pa.C.S. § 2702(a)(1) . . . provides, “A person is
guilty of aggravated assault if he . . . 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.” Serious bodily injury is defined 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.
Commonwealth v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010) (en banc)
(some citations omitted) (emphasis added).
[W]here the victim does not suffer serious bodily injury,
the charge of aggravated assault can be supported only if
the evidence supports a finding of an attempt to cause
such injury. “A person commits an attempt when, with
intent to commit a specific crime, he does any act which
constitutes a substantial step toward the commission of
that crime.” An attempt under Subsection 2702(a)(1)
requires some act, albeit not one causing serious bodily
injury, accompanied by an intent to inflict serious bodily
injury. “A person acts intentionally with respect to a
material element of an offense when . . . it is his
conscious object to engage in conduct of that nature or to
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cause such a result[.]” “As intent is a subjective frame of
mind, it is of necessity difficult of direct proof.” The intent
to cause serious bodily injury may be proven by direct or
circumstantial evidence.
Commonwealth v. Fortune, 68 A.3d 980, 985 (Pa. Super. 2013) (en banc)
(citations omitted), appeal denied, 78 A.3d 1089 (Pa. 2013).
Instantly, Appellant focuses on the mens rea necessary to sustain an
aggravated assault conviction when serious bodily injury results. However,
the record supports the trial court’s determination that “[t]he repeated and
relentless nature of [Appellant’s] attack coupled with the accumulating
physical damage that [Complainant] sustained with each blow is sufficient
evidence of an attempt to inflict serious bodily injury.” See Trial Ct. Op. at
5 (emphasis added). Complainant testified Appellant, from the backseat of
the vehicle, punched her about the face and head five to ten times with a
closed fist. N.T., 1/28/13, at 22-23. Complainant was in the driver’s seat
and wearing her seatbelt at the time. Appellant only stopped punching her
after she leaned forward in pain, but beyond his reach. Id. at 24-25. Thus,
having reviewed the record in a light most favorable to the Commonwealth,
we discern no merit to Appellant’s contention that the evidence was
insufficient to sustain his conviction for aggravated assault.
Appellant next contends the trial court erred in its application of
Section 9714 when sentencing. Appellant’s Brief at 21. He argues “the
Commonwealth failed to place anything into evidence [at the sentencing
hearing] to prove the existence of a ‘first strike[.’]” Id. at 25. The trial
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court, in its Pa.R.A.P. 1925(a) opinion, states it reviewed the PSI, as well as
related “docket sheets,” and found Appellant had a prior conviction for a
crime of violence, namely, “robbery.” Trial Ct. Op. at 6. For the reasons
that follow, we remand this matter for resentencing.
Section 9714 states, in relevant 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. . . .
* * *
(d) Proof at sentencing.—Provisions of this section
shall not be an element of the crime and notice thereof to
the defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth’s intention to
proceed under this section shall be provided after
conviction and before sentencing. The applicability of this
section shall be determined at sentencing. The sentencing
court, prior to imposing sentence on an offender under
subsection (a), shall have a complete record of the
previous convictions of the offender, copies of which shall
be furnished to the offender. If the offender or the
attorney for the Commonwealth contests the accuracy of
the record, the court shall schedule a hearing and direct
the offender and the attorney for the Commonwealth to
submit evidence regarding the previous convictions of the
offender. The court shall then determine, by a
preponderance of the evidence, the previous convictions of
the offender and, if this section is applicable, shall impose
sentence in accordance with this section.
42 Pa.C.S. § 9714(a)(1), (d).
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Under Section 9714, a “crime of violence” means, in relevant part,
“aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) [and]
robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii), or (iii) . . . .” 42
Pa.C.S. § 9714(g). Robbery under Section 3701(a)(1)(i) through (iii) are
felonies of the first degree.6 See 18 Pa.C.S. § 3701(b)(1). Otherwise,
robbery is a felony of the second or third degree, unless, after February
2014, the object of any robbery is a drug.7
Preliminarily, we consider whether Appellant preserved his challenge to
the application of Section 9714 when he did not (1) object to the accuracy of
the PSI at sentencing, (2) include the PSI in the certified record, or (3)
6
Sections 3701(a)(1)(i) through (iii) state:
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him
in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit
any felony of the first or second degree[.]
18 Pa.C.S. § 3701(a)(1)(i)-(iii).
7
Robbery under Section 3701(a)(1)(iv) (inflicts or threatens bodily injury) is
a second-degree felony and under Section 3701(a)(1)(v) (taking property by
force however slight), a third-degree felony. 18 Pa.C.S. § 3701(a)(1)(iv),
(v), (b)(1). The Pennsylvania General Assembly recently designated all
types of robbery as first-degree felonies when the object of the offense is a
controlled substance or designer drug. 18 Pa.C.S. § 3701(b)(2) (eff. Feb.
21, 2014).
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object to the sentence before the trial court. The following principles are
relevant.
First, “[a] properly crafted PSI . . . must address . . . a full description
of any prior criminal record of the offender.” Commonwealth v. Flowers,
950 A.2d 330, 333 n.2 (Pa. Super. 2008); see also Commonwealth v.
Martin, 351 A.2d 650, 658 n.26 (Pa. 1976). “A presentence report
constitutes part of the record and speaks for itself. It is presumed to be
valid and need not be supported by evidence unless and until it is challenged
by the defendant.” Commonwealth v. Masip, 567 A.2d 331, 336 (Pa.
Super. 1989) (citations omitted). The failure to object to the content of a
PSI before sentencing may result in waiver of an appellate challenge. See
Commonwealth v. Bryant, 458 A.2d 1010, 1011 (Pa. Super. 1983).
Similarly, to the extent a trial court relies on a PSI as “a complete record of
the previous convictions of the offender” under Section 9714(d), the party
disputing the PSI has a duty to contest the accuracy of the record before the
trial court will receive additional evidence. See 42 Pa.C.S. § 9714(d).
Second, it is well settled that the appellant is responsible for ensuring
the the record to be reviewed by this Court is complete. Commonwealth
v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc). The failure to
provide portions of a record relevant to an issue on appeal may result in
waiver of a claim. Id. (“In the absence of an adequate certified record,
there is no support for an appellant’s arguments and, thus, there is no basis
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on which relief could be granted.”). We note, however, the disclosure of a
PSI requires court action. See Pa.R.Crim.P. 703(D) & cmt. Moreover, this
Court may direct the certification and transmission of a supplemental record
to correct an omission from the record by error, breakdown in court
processes, or accident. See Pa.R.A.P. 1926(b)(1).
Third, although challenges to the discretionary aspects of a sentence
are waivable, challenges to the legality of the sentence cannot be waived.
Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007) (en
banc). Generally, the application of a mandatory minimum sentence goes to
the legality of the sentence. See Commonwealth v. Vasquez, 715 A.2d
468, 471 (Pa. Super. 1998) (citations omitted); accord Commonwealth v.
Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (noting “narrow
class of cases already considered to implicate illegal sentence” includes
mandatory minimum sentencing), appeal denied, 95 A.3d 277 (Pa. 2014).
In light of the foregoing precepts, we conclude Appellant’s challenge to
the application of Section 9714 raises a nonwaiveable claim regarding the
legality of the sentence. See Vasquez, 715 A.2d at 471; accord Watley,
81 A.3d at 118. As such, we decline to find waiver based on Appellant’s
failures to object to the application of Section 9714 at the time of sentencing
or in a post-sentence motion. See id. Moreover, although an objection to
the accuracy of a PSI should be raised in the trial court in the first instance,
it does not preclude this Court from reviewing the record to determine
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whether there was sufficient evidence to apply a mandatory minimum. See
id. For the reasons noted below, we further conclude that the omission of
the PSI does not preclude this Court from reviewing an undiminished record
and have thus requested and received the PSI from the trial court. See
Pa.R.A.P. 1926; Pa.R.Crim.P. 703(D) & cmt. Thus, we proceed to consider
Appellant’s challenge to the trial court’s application of Section 9714.
Issues related to the legality of a sentence raise questions of law.
Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014).
Therefore, our standard of review is de novo, and our scope of review is
plenary. Id.
Although not discussed by Appellant, we initially note that the fact of a
prior conviction remains an exception to the prohibitions against judicial
fact-finding at the time of sentencing. See Watley, 81 A.3d at 117 & n.3
(discussing, inter alia, Alleyne v. United States, 133 S. Ct. 2151 (2013),
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Commonwealth v.
Aponte, 855 A.2d 800 (Pa. 2004)). In Aponte, for example, the
Pennsylvania Supreme Court explained, “Where . . . the judicial finding is a
fact of a prior conviction, submission to a jury is unnecessary, since the prior
conviction is an objective fact that was initially cloaked in all the
constitutional safeguards and is now a matter of public record.” Aponte,
855 A.2d at 811. The Court observed that “[t]he fact of a prior conviction
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stands alone; it does not require a presumption—it either exists as a matter
of public record or it does not.” Id.
As framed by Appellant and the trial court, the principal issue on
appeal is whether the record sustains the court’s determination that
Appellant was previously convicted of a crime of violence.8 See 42 Pa.C.S. §
9714(a)(1), (g). At the outset, we are compelled to observe that the record,
without the benefit of the PSI, supports Appellant’s contention that the
Commonwealth failed to support its request for sentencing under Section
9714 with a proffer. The record contains no reference to the alleged prior
conviction on which the Commonwealth requested the imposition of the
mandatory sentence. See N.T., 1/28/13, at 73-74 (indicating
Commonwealth’s post-trial oral notice of its intent to pursue “second strike”
sentence); N.T., 3/20/13, at 2, 8. Neither the Commonwealth nor the trial
court expressly referred to the PSI as a “complete record” containing the
fact of a prior conviction. See N.T., 3/20/13, at 2-3, 8. Instead, the trial
court, for the first time in its Pa.R.A.P. 1925(a) opinion, asserted it found a
prior conviction for a crime of violence based on the PSI. Trial Ct. Op. at 6.
As noted above, we have received the PSI as a supplemental record,
and our review reveals the following. The Department of Adult Probation
and Parole included a prior record score checklist. See Prior Record Score—
8
Appellant does not dispute that the instant conviction for aggravated
assault constitutes a “crime of violence” for the purposes of Section 9714.
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6th Edition, 3/14/13. The checklist indicated Appellant had one prior
conviction for “Robbery (F1) (4 points).” Id. The PSI investigator also
attached a narrative of Appellant’s criminal history, in which she stated she
reviewed Appellant’s “adult probation and parole record[,]” “two prior
Presentence Reports[,]” and records from SCI-Graterford. PSI, Criminal
History, 3/14/13, at 1. The investigator entered the following notation:
Arrest: 05-09-1998 (age 20)
CHARGES: Robbery (2 counts), Burglary (2 counts),
Possessing Instruments of Crime, Possessing Instruments
of Crime—weapon; docket CP-51-CR-0603021-1998.
DISPOSITION: On July 22, 1998, [Appellant] pled guilty
before the Honorable Gregory Smith and was sentenced to
11 ½ months to 23 months incarceration followed by three
years consecutive probation. . . .
* * *
PRIOR RECORD SCORE: Robbery (F1)
Id.9
9
The investigator indicated that Appellant violated his parole and/or
probation on this conviction due to open matters and new offenses. PSI,
Criminal History, 3/14/13, at 1. Appellant was recommitted on June 21,
2001, to serve the unexpired portion of his sentence and a consecutive
three-year probationary period. Id. On May 21, 2003, probation was
revoked and a new sentence of one and one-half to three years’
imprisonment was imposed to run consecutive to his other sentences. Id.
He was initially paroled on March 31, 2006, but recommitted for violations in
2007 and 2008. Id. According to the PSI, he “maxed out his sentence on
May 2, 2009 under parole #SH-9164.” Id.
The investigator stated Appellant’s prior adult record included thirteen
arrests, five convictions, nine commitments, seven violations of probation
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Thus, the only indication that Appellant was previously convicted of a
prior crime of violence under Section 9714(g) was the PSI investigator’s
conclusion that Appellant’s 1998 conviction counted as a four-point “Robbery
(F1)” on his prior record score. However, the investigator’s narrative
indicated only that Appellant was charged with two counts of “robbery,”
without reference to a specific subsection, and “pleaded guilty” to
unspecified charges.
Based on the present record, we cannot conclude the PSI contained a
sufficient description of Appellant’s conviction to apply Section 9714. See
Flowers, 950 A.2d at 333 n.2. Although the PSI established Appellant’s
prior conviction in 1998, it did not establish that conviction constituted a
crime of violence under Section 9714(g). See 42 Pa.C.S. § 9714(g). Aside
from assigning the conviction a prior record score of four and suggesting the
grade of the conviction was a first-degree felony, the PSI contained no self-
sustaining facts that the 1998 conviction was for robbery under Sections
3701(a)(i) through (iii).10 Cf. Commonwealth v. Gordon, 942 A.3d 174,
and parole, and six revocations. Id. However, the 1998 conviction on
charges of robbery was the sole basis for applying Section 9714.
10
Furthermore, although Appellant did not object at sentencing, he clearly
placed the Commonwealth on notice that he intended to contest whether he
had a predicate “first strike” conviction, and the Commonwealth stated its
intent to provide official records regarding the prior conviction. See N.T.,
1/28/13, at 73-74. We note that this Court previously “stressed the
importance of proof through official documents” when applying a mandatory
minimum sentence based on prior convictions. Cf. Commonwealth v.
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182 (Pa. 2007) (plurality) (noting distinction between “fact of a prior
conviction” and “facts about prior convictions”); Aponte, 855 A.2d at 811.
Thus, the trial court did not have before it “a complete record of the
previous convictions of the offender” to sentence under Section 9714.11 See
42 Pa.C.S. § 9714(a), (d), (g).
Because we conclude the record was inadequate to apply the
mandatory minimum sentence under Section 9714(a), we vacate the
judgment of sentence and remand for resentencing to permit consideration
of whether Appellant’s prior conviction involved a crime of violence.12
Perkins, 538 A.2d 930, 932 (Pa. Super. 1988) (holding Commonwealth did
not satisfactorily establish prior out-of-state driving under the influence
conviction where notation in PSI was based on defendant’s admissions).
11
We note that the trial court also took notice of the docket sheets
associated with Appellant’s prior conviction. Trial Ct. Op. at 6. Those docket
sheets were not contained in the PSI or made part of the record.
12
The PSI investigator may ultimately be correct in the determination that
the 1998 conviction involved a robbery graded as a first-degree felony and
assigning a prior record score of four. See 204 Pa.Code. §§ 303.7(a)(1)
(listing completed crimes of violence under Section 9714(g) as four point
offenses); 303.15 (listing robbery under Sections 3701(a)(1)(i)-(iii) as four
points on prior record score, with robbery under the remaining subsections
scored as one to three). That legal conclusion, if supported by a proper
record, could warrant application of Section 9714(a) under the
circumstances of this case.
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Judgment of sentence affirmed in part and vacated in part. Case
remanded for resentencing. Jurisdiction relinquished.
Judge Shogan joins the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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Com. v. Johnstone, A.
Combined Opinion