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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID T. DONES
Appellant No. 597 MDA 2016
Appeal from the Judgment of Sentence November 3, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003653-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 05, 2017
David T. Dones appeals from the judgment of sentence, entered in the
Court of Common Pleas of Dauphin County, entered after a jury convicted
him of simple assault (M-2).1 After careful review, we affirm.
The trial court aptly summarized the relevant facts of the case as
follows:
Jaime Maldonado, a 68[-]year[-]old resident at 310 Hummel
Street, Harrisburg, Pennsylvania[,] testified to the events that
occurred on the evening of February 26, 2015. Mr. Maldonado is
the step-grandfather to [Dones]. [Dones] lives with Mr.
Maldonado. Mr. Maldonado and [Dones] had been drinking and
talking in the kitchen when the two started to have a
disagreement. Mr. Maldonado le[ft] the kitchen area and [went]
to sit on the living room couch. [Dones] followed Mr. Maldonado
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2701(a)(1).
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and started beating Mr. Maldonado up. Mr. Maldonado lost a
tooth, had two black eyes, and had to get a stitch in his
forehead. Mr. Maldonado remembers being repeatedly punched
before being knocked unconscious. Mr. Maldonado was taken to
the hospital where he was released after 3-4 hours. The
Commonwealth also introduced photographs of Mr. Maldonado
when he was in the hospital.
Juana Rivera, whose step-grandfather is Mr. Maldonado, also
testified that she saw [Dones] repeatedly hitting Mr. Maldonado
in the face. Ms. Rivera was upstairs attending to her
grandmother when she heard some commotion downstairs.
When she went downstairs, she saw Mr. Maldonado “on the sofa
laid out flat. He was cold. There was blood all over. His face
was swollen, blood all over.” Ms. Rivera testified that [Dones]
was screaming and yelling that “[Mr. Maldonado] needs to
respect me.” Finally, Ms. Rivera testified that there were no
bruises or injuries on [Dones’] face. The final witness to testify
for the Commonwealth was Officer Marchand Pendelton. When
Officer Pendelton arrived on the scene, [Dones] was standing
there with his hands in the air holding his identification. Officer
Pendelton could see facial injuries on Mr. Maldonado but could
not see any bruises on [Dones’] face.
The defense offered Mr. Dones’ testimony. [Dones] testified to
his version of the events and that it was Mr. Maldonado who
“came at me” and that he was in [“]defense mode.” On cross-
examination, the Commonwealth introduced a picture of [Dones]
after the incident.
Trial Court Opinion, 12/6/16, at 2-4 (footnotes and citations to record
omitted).
After a two-day jury trial, Dones was convicted of simple assault 2 and
sentenced to serve 4 to 24 months in prison and to pay the costs of
prosecution and a $200 fine. He filed timely post-sentence motions that
were denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(b). Dones
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2
Dones was acquitted of public drunkenness. 18 Pa.C.S. § 5505.
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filed a timely notice of appeal, in which he raises the following issues for our
review:
(1) Did not the lower court abuse its discretion by failing to grant
[Dones] a new trial on the basis that the guilty verdict . . . [was]
against the weight of the evidence?
(2) Did not the court err in refusing to instruct the jury[3] as
requested by the Defendant on the legal points set forth in
section 3.18 of Pennsylvania Suggested Standard Criminal Jury
Instructions, which addresses the manner in which the jurors
should exercise restraint in reviewing inflammatory photographs
that were admitted at trial?
(3) Was the imposition of an aggregate sentence of one year,
ten months, to nine years, clearly unreasonable, so manifestly
excessive as to constitute an abuse of discretion, and
inconsistent with the protection of the public, the gravity of the
offenses, and defendant’s rehabilitative needs where the court
imposed consecutive jail sentences both of which were in the
aggravated range of the sentencing guidelines.
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3
In Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013), our
Court stated:
In reviewing a challenge to the trial court’s refusal to give a
specific jury instruction, it is the function of [the appellate] court
to determine whether the record supports the trial court’s
decision. In examining the propriety of the instructions a trial
court presents to a jury, [the appellate court’s] scope of review
is to determine whether the trial court committed a clear abuse
of discretion or an error of law which controlled the outcome of
the case.
Id. at 667.
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In his first issue, Dones argues that his simple assault4 conviction is
against the weight of the evidence where there was no independent witness
to the incident, he struck the victim in self-defense, and the victim’s
testimony “was hampered by severe inconsistencies.” Appellant’s Brief, at
37.
We review a trial court’s decision in not ordering a new trial for an
abuse of discretion. Commonewealth v. Olsen, 82 A.3d 1041, 1049 (Pa.
Super. 2013). We cannot assess witness credibility, because the jury is
entitled to believe all, some, or none of the witnesses' testimony. Id.
Moreover,
[t]he trial court will only award a new trial when the jury’s
verdict is so contrary to the evidence as to shock one’s sense of
justice. In turn, we will reverse a trial court's refusal to award a
new trial only when we find that the trial court abused its
discretion in not concluding that the verdict was so contrary to
the evidence as to shock one’s sense of justice. In effect, the
trial court’s denial of a motion for a new trial based on a weight
of the evidence claim is the least assailable of its rulings.
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4
Simple assault is defined in our Crimes Code as:
(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).
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Id. (internal quotations and citations omitted). Moreover, with regard to
self-defense:
The use of force against a person is justified when the actor
believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force
by the other person. See 18 Pa.C.S. § 505(a). When a
defendant raises the issue of self[-]defense, the Commonwealth
bears the burden to disprove such a defense beyond a
reasonable doubt. While there is no burden on a defendant to
prove the claim, before the defense is properly at issue at trial,
there must be some evidence, from whatever source, to justify a
finding of self[-]defense. If there is any evidence that will
support the claim, then the issue is properly before the fact
finder.
Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa. Super. 2003).
At trial, the victim testified that Dones came in to the living room and
began “beating [him] up” with his closed fists “all over [his] face.” N.T. Jury
Trial, 10/27/15, at 25-26. The victim testified that Dones eventually
“knocked [him] out” and that he was in pain after the incident. Id. at 26.
The victim required emergency room care, which included a stitch to his
forehead; he also suffered two black eyes and lost a tooth from the incident.
Moreover, Rivera, the victim’s granddaughter, testified that she witnessed
Dones “hitting [the victim]” and that she asked Dones to stop because she
“thought [Dones] had killed [the victim] because he was completely [out] . .
. out. He was bleeding all over the place.” Id. at 48-49. Rivera testified
that Dones “was on top of the [victim] . . .[l]eaning against [him] . . . hitting
him, just hitting him . . . using both fists.” Id. at 50-52.
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Dones, on the other hand, testified that he and the victim got into a
heated argument and that the victim “basically came at [him] and . . .
[Dones] attempted to stop him [and he] couldn’t stop [him so] that’s when
[Dones] actually went in motion and . . . had no choice but to put hands on
him and hit him back.” Id. at 98-100.
Instantly, the Commonwealth presented ample evidence that the
victim sustained bodily injuries, while Dones exhibited few to no injuries
after the incident. See 18 Pa.C.S. § 2701(a)(1) (“a person is guilty of
assault if he attempts to cause or intentionally, knowingly or recklessly
causes bodily injury to another.”). Based on the evidence, the jury, as fact-
finder, chose to believe the Commonwealth’s version of events over that of
Dones and to disbelieve his claim of self-defense. Reynolds, supra. The
jury was in the best position to assess the credibility of the witnesses’
testimony. Because the record supports the jury’s verdict, the trial court
did not abuse its discretion in denying a new trial based on a weight of the
evidence challenge.
In his second issue on appeal, Dones contends that the trial court
improperly refused to give the jury a cautionary instruction regarding
inflammatory photographs of the injuries suffered by the victim that were
admitted at trial.
When considering the admissibility of photographs of a victim, which
by their very nature can be unpleasant, disturbing, and even brutal, the trial
court must engage in a two-step analysis:
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First a [trial] court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has relevance and
can assist the jury's understanding of the facts. If the
photograph is inflammatory, the trial court must decide whether
or not the photographs are of such essential evidentiary value
that their need clearly outweighs the likelihood of inflaming the
minds and passions of the jurors.
Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation
omitted). In order to render a photograph inflammatory, the depiction must
be of such a gruesome nature or be cast in such an unfair light that it would
tend to cloud an objective assessment of the guilt or innocence of the
defendant. Commonwealth v. Hubbard, 372 A.2d 687, 697 (Pa. 1977).
However, “[t]he fact that blood is visible does not necessarily require a
finding that a photograph is inflammatory.” Commonwealth v. Lewis, 567
A.2d 1376, 1382 (Pa. 1989). Moreover, “[c]urative instructions are not
always necessary, or even desirable. A court must assure a defendant a fair
trial. A judge has discretion to give or not give curative instructions.”
Commonwealth v. Pezzeca, 749 A.2d 968, 971 (Pa. Super. 2000).
Instantly, the court admitted into evidence two photographs depicting
the victim after the assault. The photographs depict the bloody forehead
and bruised and swollen face of the victim immediately after his altercation
with Dones. The court found that the photographs were not inflammatory in
nature, were highly probative as they directly related to the requisite
elements of simple assault, and they established that Dones “recklessly
caused bodily injury to another.” Trial Court Opinion, 12/6/16, at 4-5.
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While the photographs may be considered by some to be
inflammatory in nature, they are clearly relevant to show the injuries
sustained by the victim at the hands of Dones. Here, we find that the trial
judge did not abuse his discretion by failing to give the jury a curative
instruction regarding the photographs. While the pictures depicted blood
and bruises on the victim’s face, they were not so inflammatory that the jury
could not objectively weigh their value and arrive at a just verdict.
Sandusky, supra (trial court not required to give every charge requested
by parties and its refusal to give requested charge does not require reversal
unless defendant was prejudiced by refusal).
In his final issue on appeal, Dones contends that the trial court’s
sentence is inappropriate where “the imposition of consecutive sentences . .
. was so manifestly excessive as to constitute an abuse of discretion.”
Appellant’s Brief, at 24. He also contends that the court focused solely on
the nature of the criminal conduct and discounted a mitigating factor, his
mental health condition.
Our standard of review when a defendant challenges the discretionary
aspects of a sentence is very narrow. We will reverse only where the
defendant has demonstrated a manifest abuse of discretion.
Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996).
However,
[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test
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to invoke the appellate court's jurisdiction when challenging the
discretionary aspects of a sentence. The court conducts a four-
part analysis to determine: (1) whether appellant has filed a
timely notice of appeal; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal defect; and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), citing
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.
2014).
Here, Dones filed a timely notice of appeal from his judgment of
sentence, preserved his discretionary aspect of sentence claim in a timely
post-sentence motion, and included a Pa.R.A.P 2119(f) statement in his
appellate brief. Therefore, we must determine whether he has presented a
substantial question to invoke our appellate review.
While a challenge to the imposition of consecutive rather than
concurrent sentences typically does not present a substantial question
regarding the discretionary aspects of sentence, Zirkle, supra, we have
recognized that a sentence can be so manifestly excessive in extreme
circumstances that it may create a substantial question. Commonwealth
v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010). Moreover, a claim that
a court imposed a sentence in the aggravated range without considering
mitigating circumstances constitutes a substantial question as to the
discretionary aspect of sentencing. See Commonwealth v. Felmlee, 828
A.2d 1105 (Pa. Super. 2003) (en banc). A claim that a sentencing court
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relied on impermissible factors also raises a substantial question.
Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006). Thus, we
conclude that Dones has presented a substantial question.
The trial court chose to run Dones’ aggravated-range sentence for
simple assault (4-24 months) consecutively to his aggravated-range
aggravated assault sentence (1½-7 years) in an unrelated case.5 The trial
court stated its reasons for sentencing on the record as follows:
Even though it does not appear that there are any convictions,
again, there are repeated arrests and many of them are for
batteries. One is for first-degree murder. Apparently, you were
acquitted or it was dismissed – one or the other – but there just
seems to be one episode after the other and it is of some
concern. You arrived in the Harrisburg area and immediately got
yourself involved in three different criminal episodes that
resulted in you standing here today. And, again, it just goes to
speak to this level of violence. This continuation of violence
doesn’t stop. And you say it’s because, well, you were off your
medication and so forth. But I think that particular excuse only
takes you so far. And it seems to me that an appropriate
sentence would be to a state correctional institution.
N.T. Sentencing Hearing, 11/3/15, at 11. In his Rule 1925(a) opinion, the
Honorable President Judge Richard A. Lewis further expounded upon why he
sentenced Dones to two aggravated-range sentences and ran them
consecutively:
[Dones] has a disturbing past that is riddled with . . . violent
behavior. . . . This continuation of violence does not appear to
end. Additionally, [Dones] shows no remorse whatsoever. This
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5
That case, which involved a completely distinct set of charges and a
separate jury trial, is also on appeal at 708 MDA 2016.
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is troubling as [Dones] continues to act in an aggressive manner
towards others. . . . [Dones] displayed actions of total disregard
to his step-grandfather. He repeatedly punched his step-
grandfather in the head. Additionally, in taking into
consideration [Dones’] rehabilitative needs, this [c]ourt noted
that [Dones] has been on and off his medication and continues
to use that as an excuse to engage in violent behavior. This
court believes that that particular excuse only carries so much
weight and has run its course. As such, the [c]ourt fashioned a
sentence that takes into consideration the protection of the
public, the gravity of the offenses, and [Dones’] rehabilitative
needs.
Trial Court Opinion, 12/6/16, at 9.
In determining Dones’ sentence, the court carefully considered the
factors set out in 42 Pa.C.S. § 9721(b), that is: the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of Dones. Furthermore, as trial judge, President Judge
Lewis had wide discretion in sentencing and “can, on the appropriate record
and for the appropriate reasons, consider any legal factor in imposing a
sentence in the aggravated range.” Commonwealth v. Stewart, 867 A.2d
589, 593 (Pa. Super. 2005) (citation omitted). A defendant’s prior arrests
are a proper factor to consider in fashioning a sentence. See
Commonwealth v. Allen, 489 A.2d 906 (Pa. Super. 1985). Here, the court
looked at an FBI report detailing Dones’ out-of-state arrests and criminal
dispositions. N.T. Sentencing Hearing, 11/3/15, at 4-5. Moreover, the court
acknowledged the fact that Dones had significant mental health issues, but
found that his failure to consistently take his medications did not outweigh
the need to protect society from his violent behaviors. Accordingly, we find
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that the trial court did not abuse its discretion in sentencing Dones.
Hermanson, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2017
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