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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAWN MARIE BALL
Appellant No. 1909 MDA 2014
Appeal from the Judgment of Sentence June 11, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000979-2010
BEFORE: BOWES, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 12, 2016
Appellant, Dawn Ball, appeals from the judgment of sentence1 entered
in the Lycoming County Court of Common Pleas following her convictions for
aggravated harassment by a prisoner,2 simple assault,3 and harassment.4
Appellant contends the sentence violates her state and federal constitutional
*
Former Justice specially assigned to the Superior Court.
1
Appellant purported to appeal from the October 15, 2014 order denying
her post-sentence motion. “However, when timely post-sentence motions
are filed, an appeal properly lies from the judgment of sentence made final
by the denial of post-sentence motions.” Commonwealth v. Kuykendall,
2 A.3d 559, 560 n.1 (Pa. Super. 2010). Accordingly, we have amended the
caption.
2
18 Pa.C.S. § 2703.1.
3
18 Pa.C.S. § 2701(a)(1).
4
18 Pa.C.S. § 2709(a)(1).
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rights and that the evidence was insufficient to sustain her conviction for
simple assault. We affirm. We deny counsel’s application to withdraw
without prejudice.
We adopt the recitation of facts and procedural history as set forth by
the trial court. Trial Ct. Op., 7/7/15, at 1-3.5 On June 11, 2014, the court
sentenced Appellant to nine to eighteen months’ imprisonment in a state
correctional institution, consecutive to the one to eight year prison sentence
she was already serving. On June 26, 2014, Appellant filed a post sentence
motion requesting the court to “grant leave for Defense to file a Post
Sentence Motion Nunc Pro Tunc.” Appellant’s Post Sentence Mot. Nunc Pro
Tunc, 6/26/14 at 1 ¶6. On July 10, 2014, the court granted the motion to
file post trial motion nunc pro tunc. The court denied the motion on October
15, 2014. On October 16, 2014, the court denied additional issues Appellant
raised pro se. This timely appeal followed. Appellant filed a court-ordered
5
In its opinion and order denying Appellant’s post sentence motion the trial
court noted
[b]y way of background, the charges were filed against
[Appellant] on April 1, 2010. Reaching trial was a long and
tortured process. The case has and continues to be
complicated by [Appellant’s] institutional behaviors, [her]
demands on counsel, [her] relationship with counsel,
[Appellant’s] mistrust of counsel, [her] barrage of written
correspondence to the [c]ourt, a plethora of motions
relating in large part to representation of [A]ppellant, and
the [c]ourt seeking information from appropriate
professionals with respect to [Appellant’s] mental health.
Trial Ct. Op., 10/15/14, at 1.
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Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a responsive opinion.
Appellant raises the following issues for our review:
1. Were the Appellant’s State and Federal Constitutional
rights violated when she was sentenced to an aggregate
term of state incarceration for less than a two (2) year
sentence?
2. Was there significant evidence to support a conviction
concerning “substantial pain” required for Simple Assault
and was there a nexus between liquid at the prison and
irritation in the eye?
Appellant’s Brief at 4.
First, “Appellant argues that the sentencing Court has violated her
constitutional rights in that the aggregation of her sentences is not
applicable as the sentencing courts were separate sovereigns.” Id. at 11.
In support of this contention, she avers that the first sentence of one to
eight years was entered in Northampton County,6 while the instant
contested sentence was imposed in Lycoming County. Id. at 13. Appellant
concludes that she “should have been sentenced under 42 Pa.C.S.A. §
9761[7] and not 42 Pa.C.S.A. § 9757.”8 Id.
6
CP-48-0000621-2007.
7
Section 9761 provides:
(b) Sentences imposed by other sovereigns.─If the
defendant is at the time of sentencing subject to
imprisonment under the authority of any other
sovereign, the court may indicate that imprisonment
under such other authority shall satisfy or be credited
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against both the minimum and maximum time imposed
under the court’s sentence. If the defendant is released by
such other authority before the expiration of the minimum
time imposed by the court, he shall be returned to a
correctional institution of the Commonwealth to
serve the time which remains of the sentence. If the
defendant is released after the minimum time has elapsed,
he shall be considered for parole on the same basis as a
prisoner who has served his minimum time in a
correctional institution of the Commonwealth. If the
defendant is released after the maximum time imposed
under the sentence of imprisonment he shall be deemed to
have served his sentence.
42 Pa.C.S. § 9761(b) (emphasis added).
8
We note that Appellant raised the following issue in her Rule 1925(b)
statement:
[Appellant’s] constitutional rights under equal protection
incorporated through the 14th Amendment of the U[.]S[.]
Constitution were violated when the [c]ourt relied on
Commonwealth vs. Tilghman, 543 Pa. 578 (1996) and
Commonwealth v. Harris, 620 A.2d 1175 (Pa. Super
1993) and 42 Pa.C.S.A. § 9761 in its order dated August
1, 2014 . . . .
Concise Statement of Matters Complained of on Appeal Pursuant to
Pa.R.Crim.P. 1925(b) (emphasis added).
Instantly, the trial court noted that Appellant did not raise this issue in
her written or oral post sentence motions and “question(ed) whether this
issue has been properly preserved for appellate review.” Trial Ct. Op.,
7/7/15, at 4. We note that Appellant is challenging the legality of her
sentence. See Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011)
(citing In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding when sentencing
issue “centers upon a court’s statutory authority” to impose a sentence,
rather than the “court’s exercise of discretion in fashioning” the sentence,
the issue raised implicates the legality of the sentence imposed));
Commonwealth. v. Hall, 652 A.2d 858, 860 n.2 (Pa. 1995) (citation
omitted) (“aggregating consecutive sentences is mandatory; since this is not
discretionary with the trial court, this interpretation of 42 Pa.C.S.A. Section
9757 does not violate the separation of powers doctrine”)). Therefore, it is
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Our review is governed by the following principles: “Issues relating to
the legality of a sentence are questions of law[.] . . . Our standard of review
over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (citation
omitted), appeal denied, 121 A.3d 494 (Pa. 2015).
Pennsylvania statutory law provides:
Whenever the court determines that a sentence
should be served consecutively to one being then
imposed by the court, or to one previously imposed,
the court shall indicate the minimum sentence to be
served for the total of all offenses with respect to
which sentence is imposed. Such minimum shall not
exceed one-half of the maximum sentence imposed.
42 Pa.C.S.A. § 9757. Our Commonwealth Court has
interpreted this statute to mandate automatic aggregation
of sentences once the trial court imposes a consecutive
non-waivable. See Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa.
2007) (holding “if the sentence clearly implicates the legality of sentence,
whether it was properly preserved below is of no moment, as a challenge to
the legality of sentence cannot be waived.”).
Furthermore, we note that the trial court’s August 1st amended order
provided, in pertinent part, as follows:
This sentence shall run consecutively to any and all
sentences that [Appellant] is presently serving, including
but not limited to the 1-8 year sentence imposed by
Northampton County . . . . These sentences shall
aggregate, making [Appellant’s] sentence in this case a
state sentence. See 42 Pa.C.S. § 9757 . . . . Therefore,
[Appellant] shall remain incarcerated in a state correctional
facility.
Amended Order, 8/1/14, at 2 (emphasis added).
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sentence. Gillespie v. Commonwealth Department of
Corrections, [ ] 527 A.2d 1061, 1065 ([Pa. Cmwlth.]
1987) . . . .
Commonwealth v. Harris, 620 A.2d 1175, 1179 (Pa. Super. 1993); see
also Commonwealth v. Tilghman, 673 A.2d 898, 901-02 (Pa. 1996)
(holding consecutive sentence should be aggregated pursuant to Section
9757). “Section 9757, however, clearly by its terms, referring specifically to
previously imposed sentences, applies to sentences imposed at different
times by different courts.” Gillespie, 527 A.2d at 1066.9
Instantly, the trial court opined: “The court also notes that it did not
rely on 42 Pa.C.S.A. § 9761 in its order dated August 1, 2014; it relied on 42
Pa.C.S.A. § 9757. . . . Where, as here, consecutive sentences were imposed
by two courts of common pleas, the sentences aggregate as a matter of
law.” Trial Ct. Op., 7/7/15, at 4.
Section 9757 is applicable in the instant case because Appellant was
sentenced by two courts of common pleas, viz., Northampton County and
Lycoming County. See Gillespie, 527 A.2d at 1066. Therefore, the
sentences are aggregated. See 42 Pa.C.S. § 9757; Tilghman, 673 A.2d at
901-02, Harris, 620 A.2d at 1179; Gillespie, 527 A.2d at 1066.
Lastly, Appellant contends “the evidence at trial was insufficient to
support [her] conviction for simple assault because no evidence was
9
We note that “[a]lthough decisions of the Commonwealth Court are not
binding on this Court, we may rely on them if we are persuaded by their
reasoning.” NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296,
320 (Pa. Super. 2012).
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presented the C.O. George’s eye pain constituted substantial pain.”
Appellant’s Brief at 14. Appellant states: “Correctional Officer George
testified that on December 7, 2009 she was working in the Restrictive
Housing Unit. While passing [Appellant’s] cell, she was hit in the face with a
liquid, which got in her eyes, nose and mouth.” Id. at 15 (citation to the
record omitted and emphasis added).
In support of her argument that the trial court erred in indicating that
C.O. George testified she immediately felt irritation, Appellant notes that
“the testimony at trial indicates that C.O. George sought medical treatment
on December 7, 2009, 5 days later.”10 Id. at 15-16 (emphasis added).
Appellant avers “[t]here was no indication or expert testimony at trial that
the liquid caused the irritation.” Id. at 16.
The standard of review for a challenge to the sufficiency of the
evidence is de novo, as it is a question of law. Commonwealth v.
Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict.
* * *
10
We note that Appellant ostensibly refers to the incident which occurred on
December 2, 2009, for which no medical treatment was required.
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When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt.
Id. at 1235-36, 1237 (citations and quotation marks omitted).
The Pennsylvania Crimes code defines simple assault as follows:
(a) Offense defined.─ Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
18 Pa.C.S. § 2701(a)(1). Bodily injury is defined as “impairment of physical
condition or substantial pain.” 18 Pa.C.S. § 2301 (emphasis added). “The
Commonwealth need not establish that the victim actually suffered bodily
injury; rather, it is sufficient to support a conviction if the Commonwealth
establishes an attempt to inflict bodily injury. This intent may be shown by
circumstances which reasonably suggest that a defendant intended to cause
injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.
1994) (citation omitted). In Richardson, this Court found the evidence
sufficient to support a conviction for simple assault where the defendant
punched the police officer in the face which caused the officer “to suffer a
sore jaw for a couple of days but did not require him to go to a hospital or to
miss work.” Id.
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At trial, Corrections Officer Maurica George testified that on
December 2, 2009 she was assigned to the RHU. N.T., 9/20/12, at 33.
She handed out and collected meal trays from the inmates. Id. at 32. She
testified, inter alia, as follows:
[The Commonwealth]: How are the meal trays given to the
inmates in the RHU?
A: They’re wheeled in and you take a tray and you open
the wicket and you hand a tray to the inmate.
Q: And then how do you collect the trays?
A: Do the reverse. You open the wicket and the inmate
hands you the tray.
THE COURT: Can you tell the jury what a wicket is?
[The Commonwealth]: Your Honor, I will show a picture
shortly.
THE COURT: All right.
* * *
[The Commonwealth]: I’m going to show you a second
photograph . . . . Does this appear to be an accurate
portrayal of the wicket that would have been in
[Appellant’s] cell door?
A: That is the food. It’s actually known as a food aperture
but we just shorten it to wicket.
Q: And you would have handed her a tray through that
opening?
A: Yes.
Q: And when you went to retrieve the tray what
happened?
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A: [Appellant], appeared to me, handing me the tray. As I
took the tray then she spit on me.
Q: Where did the spit hit you?
A: In the right portion of my shirt.
* * *
Q: . . . [W]ere you also working on December 7th?
A: Yes, I was.
Q: And during the afternoon did you hand out meal trays
in the RHU?
A: Yes, I did.
Q: Did you attempt to hand [Appellant] a meal tray?
A: Attempted to.
Q: Would she accept it from your hand?
A: No. She stated, I’m not taking a tray from a nigger.
Q: Later that day did you collect meal trays from the
neighboring [c]ells?
A: Yes, I did. I was at cell four[11] collecting that tray.
Q: What happened while you were near cell four?
A: Well, as I lift cell four, since December 2nd she spit on
me I wasn’t taking a chance so I was walking around like
this to go to cell six.
Q: You’re tracing an arc in front of the cell?
11
Appellant was in cell five. See N.T., 9/20/12, at 50, 165. The trial court
noted that at times cell five is referred to as cell 1005. They are references
to the same cell. Id. at 195-96.
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A: Yeah. It wasn’t a straight shot. I arced around to go to
cell six to collect that tray, and about right here is where
you I [sic] something hit me and it was liquid. And then it
got into my eyes right here and got into my nose, my
mouth. It drenched─it drenched the whole of my right
side.
Q: Did you see where the liquid came from?
A: Yes.
Q: Where did [sic] come from?
A: It came from right there.
Q: Is there a crack in the door there?
A: Yes, there is.
Q: . . . What does this picture depict, if you can tell?
A: That’s the wicket, part of the wicket.
Q: And on the right side of the wicket does there appear to
be a gap?
A: Yeah, there’s a gap like right [sic].
* * *
Q: After the liquid struck you did you hear anything from
[Appellant]?
A: Yes. She called me a nigger. She said . . . that she
was going to kill me. She was banging on her door. She
just continued to tirade. Most of it was that I was a
nigger.
* * *
Q: Did you experience any pain after the substance
went in your eye?
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A: Yes. I was─it was burning. My eyes were irritated
for quite a while and then I had some pain in the
right eye.
Q: Did you seek any medical treatment?
A: Yes. I went to the infirmary first and then I went
out to Muncy Valley where they took blood. They
washed it out again and they evaluated my [sic] and
gave me a shot.
Q: Did you miss any work?
A: Yes.
Q: How long did the pain last?
A: After I went back to work I still had pain.
Q: Did it last more than a day?
A: It lasted for more than a day. It lasted more than
a week.
* * *
[Appellant’s Counsel]: So what did you do immediately
after you were struck?
A: Shock.
Q: . . . What did you physically do?
* * *
A: I think my partner─I went over to my partner or my
partner came over to me and he─I don’t remember what
he said. And then I went up to the bubble because we
couldn’t find the eye station.
* * *
Q: What’s the bubble?
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* * *
A: Our control center in the RHU has like a control center
where the doors are all controlled there. You can’t get into
a door without them letting you in or out, so I went up
there because they had an eye station up there.
Q: By eye─what are you talking about when you say eye
station?
A: When you get something in your eyes, when your eyes
are burning you have to flush it out because you don’t
want that irritant to damage your eye. So I had to go to
where I knew there was a station.
Q: And did you flush your eye with the eye─
A: I flushed my eye upstairs, as well as the infirmary
because it was still burning. And then at the hospital.
* * *
Q: . . . Was your vision affected at all?
A: Yes.
N.T., 9/20/12, at 33, 35-36, 39-41, 43-45, 55-56, 60 (emphases added).
Corrections Officer Greg Pickering testified, inter alia, as follows:
[The Commonwealth]: Do you recall if you were working
on December 7th 2009?
A: Yes. I was.
* * *
Q: Do you recall being near Corrections Officer George that
day?
A: Yes, I do.
Q: And where were you standing when you were close to
her?
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A: I was in back of her.
Q: Where was she standing?
A: She was─we were─if I remember right, I think we were
either collecting or giving out trays at that point. I was
right behind her as we were helping out.
Q: Did you observe an incident involving Ms. George?
A: Yes.
Q: What did you see?
A: I witnessed an unknown substance, a liquid, come out
of a cell door which was housing a certain person that’s
here in the courtroom, and also witnessed some verbal
exchange between [Appellant] toward Ms. George.
* * *
Q: And did you see who was inside the cell the liquid came
out of?
A: Yes. [Appellant] was inside.
Id. at 110-112.
Instantly, the record viewed in the light most favorable to the
Commonwealth reveals that Appellant attempted to cause, or intentionally,
knowingly or recklessly caused, bodily injury to C.O. George. See 18
Pa.C.S. § 2701(a)(1). After being stuck with the liquid in her eye, C.O.
George experienced burning in her eyes, went to the hospital, missed work
and had pain in her right eye for more than one week. See 18 Pa.C.S. §
2301; Richardson, 636 A.2d at 1196. After careful consideration of the
entire record, we hold the evidence believed by the jury was sufficient to
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sustain a simple assault conviction. See Ratsamy, 934 A.2d at 1235-36.
Accordingly, having discerned no error of law, we affirm. See id. at 1235.
Judgment of sentence affirmed. Application to Withdraw as Counsel
denied without prejudice.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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