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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CURTIS GREENE
Appellant No. 991 EDA 2014
Appeal from the Judgment of Sentence November 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007001-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 15, 2016
Appellant Curtis Greene appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
guilty plea to persons not to possess firearms, firearms not to be carried
without a license, carrying firearms on public streets in Philadelphia,
possession of an instrument of crime, simple assault, and recklessly
endangering another person (“REAP”),1 and his bench trial convictions for
aggravated assault, endangering the welfare of a child (“EWOC”), terroristic
threats, tampering with or fabricating physical evidence, and resisting
arrest.2 We affirm.
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1
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, 907(a), 2701(a), and 2705.
2
18 Pa.C.S. §§ 2702(a), 4304(a)(1), 2706(a)(1), 4910(1), and 5104.
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The trial court set forth the relevant factual history as follows:
This was a domestic dispute between [Appellant] and
Vashti Thomas (“Thomas”) that escalated into a shooting.
During the trial, the Commonwealth presented testimony
from the complaining witness, Thomas, as well as from
[police officer] Charlton, Sergeant Green and Detective
Slobodian[3] from the Philadelphia Police Department.
Thomas and [Appellant] were living at 216 South 53rd
Street in Philadelphia, [Appellant’s] father’s house. Notes
of Testimony (“N.T.”), Aug. 16, 2013 at 23. On March 11,
2012, [Officer] Charlton responded to a radio call and
arrived on the scene. Id. at 61. [Officer] Charlton
observed [Appellant] being pushed out of the home. Id.
[Officer] Charlton and his partner, [Officer] John Sweeney
exited their vehicle and approached [Appellant], who was
kicking the front door. Id. at 62-63. When the officers
asked what the problem was, [Appellant] said, “everything
is fine, me and my girlfriend are just having a fight.” Id.
at 62. Thomas opened the door and said: “This mother
fucker just shot me[,”] indicating [Appellant]. Id.
[Appellant] attempted to leave and was handcuffed. Id. at
63. As the officers lifted [Appellant] he spat in Thomas’
face and Thomas spat back. Id. When he was placed in
the patrol car, [Appellant] tried to kick out the window.
Id. at 65.
The incident began [earlier in the] evening when
[Appellant] and Thomas began arguing. Id. at 25. After
several hours of fighting, [Appellant] went upstairs to go to
sleep. Id. at 25, 40. [When he woke up], the argument
resumed.[4] Id. at 25-26. [Appellant] threw something at
Thomas and the two began to tussle. Id. at 27-28.
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3
Officer Charlton, Sergeant Green and Detective Slobodian did not provide
their first names when they testified at trial. N.T., 8/16/2013, at 60, 70, 75.
4
The trial court states Appellant fell asleep and the argument resumed the
next morning. Opinion, 10/10/2014, at 3-4 (“1925(a) Opinion”). Although
Appellant did fall asleep, he woke up, and the fight resumed, 30-40 minutes
after he fell asleep. N.T., 8/16/2013, at 46.
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Thomas grabbed a nearby bottle of bleach and poured it
on [Appellant]. Id. at 28-29. [Appellant] started
screaming for Thomas to leave. Id. at 29. To get away
from [Appellant], Thomas went into the hallway on the
second floor and [Appellant] followed. Id. at 30. Thomas
heard a gunshot while she was running down the steps;
[Appellant] had fired his gun down the steps in her
direction. Id. at 31, 37, 49.
[Appellant] pursued Thomas downstairs and onto the
porch, where he fired again, striking Thomas’ right Achilles
heel. Id. at 31-32, 37. She fell down onto the porch and
[Appellant] followed her outside. Id. at 32. Thomas went
back into the house, shut the door on [Appellant] and
called the police. Id. at 33.
Thomas was treated at the University of Pennsylvania. Id.
at 33 -35. She testified that doctors could not remove the
bullet without amputating her foot, so the fragments
remain in her Achilles heel permanently. Id. at 34, 38.
At trial, the Commonwealth introduced evidence of
[Appellant’s] prior interaction with Thomas. Thomas
testified that on July 7, 2010, she and [Appellant] were at
[Appellant’s] father’s house on South 53rd Street. Id. at
19. [Appellant] had gone through Thomas’ phone to see
who was texting her. Id. An argument ensued. Id.
[Appellant] pulled out a shotgun, pointed it at Thomas and
told her to leave. Id. Thomas grabbed her children, ran
outside and waited for a ride, as [Appellant] continued to
argue with her from the front porch. Id. at 19-22.
Opinion, 10/10/2014, at 3-4 (“1925(a) Opinion”). On August 19, 2012,
following a bench trial, the trial court found Appellant guilty of aggravated
assault, terroristic threats, tampering with evidence, resisting arrest, and
EWOC. The trial court found Appellant not guilty of corrupting a minor.
On November 15, 2013, the trial court sentenced Appellant to 10 to 20
years’ imprisonment for the aggravated assault conviction and concurrent
terms of 5 to 10 years’ imprisonment for the persons not to possess a
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firearm conviction, 2 ½ to 5 years’ imprisonment for the firearms not to be
carried without a license conviction, 2 ½ to 5 years’ imprisonment for the
EWOC conviction, 1 to 2 years’ imprisonment for the carrying a firearm on
public streets in Philadelphia conviction, 1 to 2 years’ imprisonment for the
possession of an instrument of crime conviction, 1 to 2 years’ imprisonment
for the terroristic threats conviction, 1-2 years’ imprisonment for the
tampering with or fabricating physical evidence conviction, and 1-2 years’
imprisonment for the resisting arrest conviction. The simple assault and
REAP conviction merged for sentencing purposes.
On November 25, 2013, Appellant filed a post-sentence motion. On
February 21, 2014, Appellant filed a notice of appeal, which this Court
quashed as interlocutory because the trial court had not yet addressed the
post-sentence motion. On March 25, 2014, the trial court denied the post-
sentence motion. Appellant filed a timely notice of appeal. Both Appellant
and the trial court complied with Pennsylvania Rule of Appellate Procedure
1925.
On February 11, 2015, Appellant requested remand to allow him to file
a supplement statemental of errors complained of on appeal to include a
claim based on Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314
(U.S.2013). On March 17, 2015, this Court remanded the case, vacated the
briefing schedule, and permitted Appellant to supplement his statement of
errors complained of on appeal. The trial court issued a supplemental
1925(a) opinion on August 5, 2015, addressing Appellant’s Alleyne claims.
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Appellant raises the following issues on appeal:
A. Did not the lower court erroneously find Appellant guilty
of aggravated assault, 18 Pa.C.S.[] §2702, graded as a
felony of the first degree, where the Commonwealth failed
to establish that the complainant, Vashti Thomas, suffered
serious bodily injury when she was shot in the foot, or that
Appellant intended to cause serious bodily injury, and in
consequence of this error, did not the lower court err when
it determined that Appellant caused serious bodily injury,
and was therefore subject to an offense gravity score of
eleven under the Sentencing Guidelines for the charge of
aggravated assault?
B. Did not the lower court err and abuse its discretion
when it imposed a sentence of ten to twenty years’
incarceration following a bench trial where the sentence
was manifestly excessive and unreasonable, the court
failed to examine and investigate adequately Appellant’s
background, character, and rehabilitative needs, and failed
to state adequate reasons on the record for imposing such
a sentence?
C. Did not the lower court err when it sentenced Appellant
pursuant to 42 Pa.C.S.[] §9712 (Sentences for offenses
committed with firearms), since under the United States
Supreme Court’s holding in Alleyne v. United States,
133 S. Ct. 2151 (2013), and this Court’s ruling in
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
2014), portions of §9712 are facially unconstitutional and
are nonseverable from the remaining provisions of the
statute?
Appellant’s Brief at 4-5.
Appellant’s first claim alleges the Commonwealth failed to present
sufficient evidence to establish he inflicted serious bodily injury upon
Appellant or that he intended to cause serious bodily injury, and, therefore,
the Commonwealth failed to establish Appellant committed aggravated
assault. Appellant’s brief at 17.
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We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether 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.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth
v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this
standard, “we may not weigh the evidence and substitute our judgment for
the fact-finder.” Id.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny 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.” Id. “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id.
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582.
Further, “the trier of fact[,] while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none
of the evidence.” Id.
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A defendant 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. § 2702(a)(1). “For
aggravated assault purposes, an ‘attempt’ is found where the accused, with
the required specific intent, acts in a manner which constitutes a substantial
step toward perpetrating a serious bodily injury upon another.”
Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super.2012)
(quoting Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa.Super.2003)).
“Serious bodily injury” is defined as “[b]odily 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.
Appellant maintains the evidence established he fired the gun twice,
into an upstairs wall and on the porch, when he pointed and fired the gun at
the concrete floor. Appellant’s Brief at 18. He argued the victim was shot
once in the ankle, and she testified that Appellant did not point the gun at
her and that Appellant fired the gun to frighten her. Id. Appellant notes the
victim also explained the bullet could not be retrieved from the ankle, but it
caused her no pain and that she required no treatment following her release
from the hospital. Id. Further, the bullet did not interfere with her daily
activities and she did not believe the bullet would lead to future
repercussions. Id. Appellant concludes there was no evidence the victim
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suffered serious bodily injury or that he had the specific intent to cause
serious bodily injury. Id. at 18-24.
The Commonwealth presented sufficient evidence to establish beyond
a reasonable doubt that Appellant intended to cause the victim serious
bodily harm. Appellant and the victim were arguing. Appellant grabbed the
victim by the hair, and pinned her down. N.T., 8/16/2013, at 28. The
victim poured bleach on Appellant. Id. When the victim attempted to
gather her children, Appellant said she was “not getting the kids” and she
“better get out.” Id. at 29-30. Appellant pulled out a gun, and fired it. Id.
at 31. The victim ran to the stairs, and Appellant ran after her. Id.
Appellant shot at the victim again as the victim was exiting the house. Id.
at 32. The victim testified that Appellant only fired the gun to frighten her.
Id. at 54. However, as the trial court noted, the victim was already fleeing
from Appellant when he fired the shots. 1925(a) Opinion, at 7. Regardless
whether Appellant aimed the gun at the cement or at the victim, because he
fired a gun in the direction of the victim, a finder of fact could find Appellant
intended to cause serious bodily injury to the victim. See Commonwealth
v. McCalman, 795 A.2d 412, 417 (Pa.Super.2002) (“in carelessly
brandishing and shooting a firearm, [Appellant] clearly displayed an attempt
to cause ‘serious bodily injury’ as contemplated by the statute”).5
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5
Because we find Appellant intended to cause serious bodily injury, we need
not address whether Appellant caused serious bodily injury.
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Further, because the Commonwealth presented sufficient evidence to
support the trial court’s finding that Appellant was guilty of aggravated
assault pursuant to 18 Pa.C.S. § 2702(a)(1), the court properly graded the
offense as a first degree felony. 18 Pa.C.S. § 2702(b) (“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”).
Appellant’s next issue challenges the discretionary aspects of his
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011) (quoting Commonwealth v. Sierra, 752
A.2d 910, 912 (Pa.Super.2000)). Before this Court can address a
discretionary challenge, we must engage in a four-part analysis to
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064.
Appellant raised his discretionary aspect of sentence issue in a timely
post-sentence motion and filed a timely notice of appeal. Further,
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Appellant’s brief includes a statement of reasons relied upon for allowance of
appeal pursuant to Rule 2119(f). We must therefore determine whether
Appellant’s brief raises a substantial question.
“The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.
Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists
where a defendant raises a “plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72
(Pa.Super.2012)).
Appellant maintains the sentence was excessive and based on
inappropriate reasons since the trial court ignored all mitigating evidence,
focused on punishment and retribution, and calculated an incorrect offense
gravity score. Appellant’s Brief at 13-14. Appellant maintains the trial court
improperly imposed the deadly weapons enhancement and imposed an
excessive sentence. Id. Appellant’s issue raises a substantial question.
See Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa.Super.2014)
(appellant raised substantial question when he alleged sentence was
excessive and court failed to consider mitigating circumstances);
Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.Super.2010)
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(“application of the deadly weapon enhancement presents a substantial
question”).
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010).
(quoting Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)).
“An abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citing Commonwealth v.
Walls, 926 A.2d 957 (Pa.2007)). “A sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question, but the record as a whole must reflect the
sentencing court’s consideration of the facts of the crime and character of
the offender.” Id. at 1283 (citing Commonwealth v. Malovich, 903 A.2d
1247 (Pa.Super.2006)). Further, “[w]here pre-sentence reports exist, we
shall . . . presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa.Super.2014) (quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa.1988)).
In the 1925(a) opinion, the trial court explained:
At sentencing, the [c]ourt considered [Appellant’s] prior
interaction with Thomas when he pointed a shotgun at her
in 2010. Additionally, the [c]ourt considered the
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applicability of a five year mandatory minimum sentence
under 42 Pa.C.S.[] § 9712, for offenses committed with
firearms. In fashioning an appropriate sentence, the
record reflects that the [c]ourt also considered the
following: the Presentence Investigation report, the Mental
Health evaluation, [Appellant’s] prior involvement with the
criminal justice system, and the sentencing guidelines.
The [c]ourt also considered the complaining witness,
Vashti Thomas’ testimony, her letter to the [c]ourt and
[Appellant’s] support from members of his family.
Additionally, the court considered that a deadly weapon
was used, the consequences of what happened, the safety
of the victim, the prospect of [Appellant’s] rehabilitation[,]
and whether [Appellant] had the opportunity to address
his issues in the past.
1925(a) Opinion, at 13 (citations to record omitted).
The trial court did not abuse its discretion when it sentenced Appellant.
Because Appellant used a firearm during the commission of aggravated
assault, the trial court properly applied the deadly weapon sentencing
guideline enhancement. See 204 Pa.Code § 303.10. Further, prior to
imposing the 10 to 20 year sentence, the trial court considered the
mitigating factors presented at the sentencing hearing, as well as Appellant’s
pre-sentence investigation report and mental health evaluation.
In Appellant’s last issue, he claims the trial court erred when it
sentenced him pursuant to the mandatory minimum sentence contained in
42 Pa.C.S. § 9712, which has been held unconstitutional. Appellant’s Brief
at 27-31. He further maintains the trial court erred when it maintained that
the deadly weapon enhancement could still be applied, as the deadly
weapon enhancement also was unconstitutional. Id.
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In Alleyne v. United States, the Supreme Court of the United States
found that any fact, other than a prior conviction, that triggers a mandatory
minimum sentence is an element of the offense that must be found by a jury
beyond a reasonable doubt. 133 S.Ct. 2151, 2160-62, 1260 n.1 (U.S.2013).
Pursuant to Alleyne, this Court has found 42 Pa.C.S. § 9712, which provides
a mandatory minimum for use of a firearm while committing a crime of
violence, unconstitutional.6 Commonwealth v. Valentine, 101 A.3d 801,
811-12 (Pa.Super.2014). The trial court sentenced Appellant to 10 to 20
years’ imprisonment for the aggravated assault conviction, above the five-
year mandatory minimum contained in section 9712. The sentence,
therefore, was constitutional. Commonwealth v. Zeigler, 112 A.3d 656,
662 (Pa.Super.2015) (where sentence imposed exceeds mandatory
minimum, the sentence does not present a constitutional problem, as trial
court did not apply the unconstitutional mandatory minimum).
Further, this Court has found Alleyne does not impact the use of the
sentencing enhancements, as sentencing guideline enhancements do “not
bind the trial court to impose any particular sentencing floor.”
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super.2015); accord
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10
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6
The sentencing hearing occurred after the issuance of Alleyne, but prior to
issuance of this Court’s decisions addressing the constitutionality of
Pennsylvania’s mandatory minimum statutes.
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(Pa.Super.2014) (en banc). Therefore, the trial court did not err by applying
the deadly weapon enhancement.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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