J-S02037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE ROBERT GRIFFIN
Appellant No. 300 EDA 2015
Appeal from the Judgment of Sentence entered October 21, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0001372-2014
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED April 27, 2016
Appellant, Tyrone Robert Griffin, appeals from the judgment of
sentence the Court of Common Pleas of Montgomery County entered
October 21, 2014. Appellant argues the Commonwealth failed to prove he
intended to commit aggravated assault and challenges the discretionary
aspects of his sentence, alleging the sentencing court failed to take into
account the circumstances surrounding the underlying facts. We disagree.
Accordingly, we affirm the judgment of sentence.
The trial court summarized the factual and procedural background of
the instant matter in its Pa.R.A.P. 1925(a) opinion of March 27, 2015, which
we incorporate here by reference. Trial Court Opinion, 3/27/15, at 1-6.
Briefly, Appellant, an inmate, was punched in the face by another inmate.
Appellant attempted to respond in kind, but Officer David Landis, a
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correctional officer present at the scene, was able to prevent it. Following
the incident, two officers accompanied Appellant to the infirmary, and other
officers escorted the aggressor to the section’s supervisor. While walking to
the infirmary, Appellant seized an opportunity to “get at” the aggressor.
When Appellant saw the door opening into the office where the attacker was
held, Appellant ran toward that office. Corporal Brian Smith was standing by
the office door. Despite being ordered to stop by the two officers escorting
Appellant to the infirmary, Appellant kept running “full sprint” toward the
office. Upon seeing Appellant coming toward him, Corporal Smith lowered
his right shoulder, bracing for the impact. Eventually, Appellant slammed
into Corporal Smith. After the initial impact, Appellant tried to spin to get
around Corporal Smith. Corporal Smith was able to block Appellant,
preventing him from getting around the officer. A struggle ensued, which
resulted in the two falling on the ground, with Corporal Smith landing on his
right shoulder. As result of the impacts, Corporal Smith suffered severe
injuries to his right shoulder, requiring surgery and extensive rehabilitation.
On October 15, 2014, a jury found Appellant guilty of aggravated
assault (bodily injury)1 and, on October 21, 2014, the trial court sentenced
him to a term of two years to ten years’ imprisonment. Following the
sentencing, Appellant, despite being represented by counsel, filed a pro se
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1
The jury found Appellant not guilty of aggravated assault – serious bodily
injury.
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motion for reconsideration, which the trial court denied. On November 19,
2014, counsel filed a petition to withdraw as counsel. On the same day,
Appellant filed a pro se “motion for direct appeal,” which the clerk of court
and the trial court treated as a notice of appeal. On January 2, 2015, the
trial court granted counsel’s petition to withdraw, and appointed the
Montgomery County Public Defender’s Office to represent Appellant on
appeal. This appeal followed. Both the trial court and Appellant complied
with Rule 1925.
On appeal, Appellant raises two issues: (i) The Commonwealth did not
establish beyond a reasonable doubt that Appellant attempted or
intentionally or knowingly caused bodily injury to Corporal Smith, and (ii)
the sentencing court abused its discretion in imposing a maximum sentence,
which exceeds the guidelines, without adequately considering the facts
giving rise to the instant matter.
We review a sufficiency claim pursuant to the following standard:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
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Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
At issue here is whether the Commonwealth presented sufficient
evidence to show that Appellant acted with the required mens rea. A
defendant may be convicted of aggravated assault under Subsection
2702(a)(3) of the Crimes Code if he “attempt[ed] to cause or intentionally or
knowingly causes bodily injury to [an] officer[ ] . . . in the performance of
duty.” 18 Pa.C.S.A. § 2702(a)(3).2 Appellant conceded that Corporal Smith
suffered bodily injuries as result of the impact with Appellant. Appellant,
however, argues that he did not attempt to cause, nor knowingly or
intentionally caused, bodily injury to Corporal Smith. Appellant argues the
impact between the two was accidental.
In reviewing the evidence offered at trial, the trial court found the
impact was all but accidental. The trial court noted:
Appellant wanted to “get at” [the aggressor] when he saw him in
the supervisor’s office while being escorted to medical.
However, Corporal Smith was in his way. The evidence was
sufficient to show either that Appellant intentionally caused
Corporal Smith bodily injury in order to get him out of the way to
get to [the aggressor] or that he knowingly caused Corporal
Smith bodily injury when he ran full force into him. Corporal
Smith took a defensive stance in order to impede Appellant’s
charge. Appellant refused to stop when ordered to do so by the
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2
Subsection 2702(a)(3) applies to the assault of police officers, firefighters,
probation/parole officers, sheriffs, prison authorities, judges, and numerous
other public servants enumerated in Section 2702(c).
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other officers. The incident only came to an end when Appellant
was finally secured by Corporal Smith and the other officers not
on Appellant’s own volition.
Trial Court Opinion, 3/27/15, at 12.
We agree with the trial court’s analysis. Accordingly, we conclude the
trial court did not err in rejecting Appellant’s sufficiency of the evidence
claim.
Next, Appellant contends the sentencing court abused its discretion in
imposing a maximum sentence exceeding the sentencing guidelines.
Appellant’s Brief at 18-22. The trial court did not address this, finding it
waived because Appellant failed to properly and timely raise it. Trial Court
Opinion, 3/27/15, at 13-14. In fact, the trial court noted that the pro se
post-sentence motion Appellant filed while still represented was a nullity,
which resulted in a waiver. Id. The trial court is correct. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).
Even if we were to conclude that Appellant preserved this issue for our
review,3 the claim would be nonetheless without merit. The sentencing
judge, who also presided over the trial, stated he considered “the
presentence report, the guidelines, and [Appellant]’s character.”
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3
For standard of review and discretionary aspects claim requirements, see,
e.g., Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014) (en banc).
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Commonwealth’s Brief at 14.4 Appellant emphasizes that the sentencing
court should have weighed in his favor the fact that the jury acquitted him
on the aggravated assault (serious bodily injury) charge. Appellant’s Brief at
20-21. Appellant fails to explain how his acquittal of one crime has any
bearing on the sentence for the crime of he was convicted (aggravated
assault – bodily injury).5 If anything could be surmised from the acquittal,
one might think that the jury believed he intended to harm Corporal Smith,
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4
Although Appellant is challenging the discretionary aspects of his sentence,
he failed to provide this Court with the notes of testimony of the sentencing
hearing. As both parties cite to it, it is clear the transcript exists. However,
it is not in the record before us. It is Appellant’s duty to ensure the record is
complete for our review. See, e.g., Commonwealth v. Bongiorno, 905
A.2d 998, 1000 (Pa. Super. 2006). Despite the deficiency, we are able to
address the contention.
5
Indeed, our Supreme Court noted:
Federal and Pennsylvania courts alike have long recognized that
jury acquittals may not be interpreted as specific factual findings
with regard to the evidence, as an acquittal does not definitively
establish that the jury was not convinced of a defendant’s guilt.
Rather, it has been the understanding of federal courts as well
as the courts of this Commonwealth that an acquittal may
merely show lenity on the jury’s behalf, or that the verdict may
have been the result of compromise, or of a mistake on the part
of the jury. Accordingly, the United States Supreme Court has
instructed that courts may not make factual findings regarding
jury acquittals and, thus, cannot upset verdicts by speculation or
inquiry into such matters.
Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014) (internal
citations and quotation marks omitted).
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the only difference being the extent of the injuries inflicted (“serious bodily
injury” vs. “bodily injury”).
Additionally, on the merits, as noted by Appellant, the sentencing
judge also presided over the trial “less than one week prior to sentencing.”
Appellant’s Brief at 20. The record, therefore,
establishes that the court was fully informed of all the mitigating
factors at play herein.[6] We presume that the court, which was
in possession of those facts, applied them in this case. The
sentencing court merely chose not to give the mitigating factors
as much weight as Appellant would have liked . . . . We cannot
re-weigh the sentencing factors and impose our judgment in the
place of the sentencing court.
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation
omitted).
In light of the foregoing, we conclude that the discretionary aspect
challenge, to the extent it is properly before us, is without merit.
Judgment of sentence affirmed.
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6
Furthermore, as noted above, the sentencing court stated it considered the
pre-sentence investigation report. “Where pre-sentence reports exist, we
shall continue to 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.
Devers, 546 A.2d 12, 18 (Pa. 1988).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2016
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