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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONTE JACKSON, : No. 1656 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 13, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010883-2012
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 10, 2019
Donte Jackson appeals from the May 13, 2016 aggregate judgment of
sentence of 10 to 20 years’ imprisonment imposed after a jury found him
guilty of aggravated assault by physical menace, possessing an instrument of
crime (“PIC”), terroristic threats, and simple assault.1 After careful review,
we affirm.
The trial court summarized the relevant facts of this case as follows:
The victim, Courtney Smith, reported that on
August 27, 2012 at approximately 1:30 p.m. she
stopped at a grocery store to pick up snack food on
her way to work as a City of Philadelphia Correctional
Officer assigned to the City of Philadelphia Curran-
Fromhold Correctional Facility located at 7901 State
Road, Philadelphia, PA 19136. As is required by her
employer, she had been dressed in full uniform with
her nametag properly displayed. As she entered the
1 18 Pa.C.S.A. §§ 2702(a)(6), 907(a), 2706(a), and 2701(a), respectively.
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grocery store, [a]ppellant, who was a stranger to her,
came from the back of the store toward her and
looked at her nametag. He immediately began yelling
at her words that included, “Smith, I don’t know that
one,” and “You got the nut-ass pepper spray. That
pepper spray don’t do shit for you in here. Y’all
nut-ass guards think y’all something and I should
shoot you right now. I’ll be right back.” After making
repeated threats and slurs referencing her
employment, [a]ppellant left the store.
When Officer Smith walked outside the store toward
her vehicle that would have transported her directly
to her job location, [a]ppellant reappeared from
around the corner, and holding what appeared to be
a black gun wrapped in a grey towel. He stopped
Officer Smith from getting to her vehicle and going to
work. He raised and pointed the muzzle of the gun
directly at Officer Smith’s torso and stated[,] “I should
shoot you right now.” Officer Smith stated that the
gun used by [a]ppellant appeared to be real based
upon her experience owning a firearm and her
previous training. At the time, Officer Smith was only
armed with pepper spray as per her employment
directives. She escaped by jumping around him and
into her vehicle. She drove away from the area and
immediately called police. The next day, Officer Smith
was transported via police vehicle to the same general
vicinity of the crime and positively identified
[a]ppellant, who was wearing the same gray shirt and
sweat pants that he had worn during the attack.
A City of Philadelphia S.W.A.T. Officer, Aaron Willis,
testified that on August 28, 2012 he had been
assigned as a regular district patrol officer and had
observed [a]ppellant near 56th and Race Streets in
Philadelphia. Based upon the flash description of the
perpetrator, which matched the appearance of
[a]ppellant, Officer Willis briefly detained [a]ppellant.
Officer Smith was brought to the location and
unequivocally identified [a]ppellant as the
perpetrator. While Officer Willis was transporting
[a]ppellant in the police vehicle following the
identification and arrest, [a]ppellant boastfully blurted
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“I should have killed that bitch. When I see her again
I’m going to murder her.”
Trial court opinion, 4/30/18 at 2-3 (citations to notes of testimony omitted).
Appellant was charged with the aforementioned offenses, as well as
recklessly endangering another person (“REAP”)2 and three firearms offenses,
and proceeded to a jury trial on March 14, 2016. The REAP charge was
nolle prossed by the Commonwealth prior to trial. On March 17, 2016, the
jury found appellant guilty of aggravated assault, PIC, terroristic threats, and
simple assault, and not guilty of the firearms offenses.3 As noted, appellant
was sentenced to an aggregate term of 10 to 20 years’ imprisonment on
May 13, 2016. Appellant did not file any post-sentence motions. This timely
appeal followed.4
Appellant raises the following issues for our review:
A. Was the evidence insufficient to support the
guilty verdict for 18 Pa.C.S.A. § 2702(a)(6), as
2 18 Pa.C.S.A. § 2705.
3 Specifically, the jury found appellant not guilty of persons not to possess,
use, manufacture, control, sell, or transfer firearms; firearms not to be carried
without a license; and carrying firearms on public streets or public property in
Philadelphia. See 18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108(a),
respectively.
4 Appellant and the trial court have complied with Pa.R.A.P. 1925. We note
that although represented by counsel, appellant filed a pro se amended
Rule 1925(b) statement on January 6, 2018, raising nine additional issues.
We decline to address the issues raised in appellant’s pro se Rule 1925(b)
statement, as this would constitute improper hybrid representation, and this
court previously denied appellant’s request to represent himself on appeal by
order dated December 19, 2017, and specifically directed that appellant be
represented by counsel on appeal.
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the assault on the complainant did not occur
“while in the performance of duty”?
B. Did the trial court err in omitting from the
verdict sheet language that specified that a
violation of 18 Pa.C.S.A. § 2702(a)(6) requires
the alleged victim be “in the performance of
duty”?
Appellant’s brief at 7.
Appellant first argues that there was insufficient evidence to sustain his
conviction for aggravated assault of a corrections officer by physical menace
because “the assault on [Officer Smith] did not occur ‘while in the performance
of duty.’” (Id. at 10.) In support of this contention, appellant avers that,
“when [Officer Smith] stopped to get a pretzel at the corner store/bodega,
she was not on duty and was not acting in the capacity of a Corrections Officer
as the bodega is not a correctional facility.” Id. at 12. This claim is belied by
the record.
Our standard of review in assessing a sufficiency of the evidence claim
is well settled.
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom,
when viewed in a light most favorable to the
Commonwealth as verdict winner, support the
conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find
every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the
evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is
free to believe all, part, or none of the evidence
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presented. It is not within the province of this Court
to re-weigh the evidence and substitute our judgment
for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence
and any doubt about the defendant’s guilt is to be
resolved by the fact[-]finder unless the evidence is so
weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa.Super. 2017) (citations
omitted).
Section 2702 of the Crimes Code defines the offense of aggravated
assault, in relevant part, as follows:
(a) Offense defined.--A person is guilty of
aggravated assault if he:
....
(6) attempts by physical menace to put
any of the officers, agents,
employees or other persons
enumerated in subsection (c), while
in the performance of duty, in fear
of imminent serious bodily injury[.]
18 Pa.C.S.A. § 2702(a)(6).
The difference between Section 2702(a)(6) and the crime of simple
assault by physical menace, 18 Pa.C.S.A. § 2701(a)(3), is “the occupation of
the victim.” Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.Super.
2003), abrogated in part on other grounds by Commonwealth v.
Matthews, 870 A.2d 924 (Pa.Super.2005) (en banc), affirmed, 909 A.2d
1254 (Pa. 2006). Unlike simple assault by physical menace, the aggravated
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assault subsection requires that the victim be one of 27 enumerated “officers,
agents, or employees[.]” 18 Pa.C.S.A. § 2702(a)(6). An “[o]fficer or
employee of a correctional institution” is one of the individuals enumerated in
Subsection (c). Id. at § 2702(c)(9).
Viewing the evidence in the light most favorable to the Commonwealth,
the verdict winner, we find that there was sufficient evidence to support the
jury’s conclusion that appellant committed an aggravated assault under
Section 2702(a)(6) when he pointed a gun at a uniformed corrections officer
who was attempting to reach her workplace. Specifically, our review of the
record demonstrates that on the afternoon of August 27, 2012, appellant
repeatedly threatened Officer Smith while she was inside a corner store that
she had briefly entered on her way to her work at the Curran-Fromhold
Correctional Facility. (Notes of testimony, 3/15/16 at 70-86.) Officer Smith
was dressed in full uniform with her correctional officer nametag displayed,
and appellant clearly targeted Officer Smith because she was wearing an
officer’s uniform. (Id.) Officer Smith testified that as part of the performance
of her duties, she was required to dress in full uniform and carry pepper spray
when going to and from the Curran-Fromhold Correctional Facility. (Id. at
90-92, 118-120.) Officer Smith further testified that appellant repeatedly
chastised and threatened to shoot her for working at a correctional facility,
stating, “Smith, I don’t know that one . . . Y’all nut-ass guards think y’all
something and I should shoot you right now, I’ll be right back.” (Id. at 70-86.)
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The record establishes that when Officer Smith exited the store to travel
directly to her workplace to begin her shift, appellant reappeared from around
the corner, pointed a firearm wrapped in a towel at her, and attempted to
block her from entering her vehicle. (Id. at 86-92.) Contrary to appellant’s
contention, it is in this moment when the alleged assault under
Section 2702(a)(6) occurred, not inside the corner store. It is evident from
the record that appellant, through the use of menacing or frightening actions,
and coupled with his prior verbal threats to Officer Smith solely because she
was a corrections officer, not only intended to interfere with her performance
of her duties — namely, traveling to the correctional facility to begin her shift
— but actually did so by causing her to be late. (Id. at 86-92, 118-120.)5
Based on the foregoing, appellant’s contention that there was
insufficient evidence to sustain his conviction for aggravated assault under
Section 2702(a)(6) must fail. See, e.g., Commonwealth v. McFadden, 156
A.3d 299, 307-308 (Pa.Super. 2017) (finding that there was sufficient
evidence to support appellant’s conviction for the aggravated assault of a
uniformed city school crossing guard who was standing on her assigned street
corner and performing her job tasks), appeal denied, 170 A.3d 993 (Pa.
2017); Repko, 817 A.2d at 554 (pointing a gun at an officer constitutes an
5The record reflects that when appellant was apprehended the following day,
he acknowledged to Philadelphia S.W.A.T. Officer Aaron Willis that, “I should
have killed that bitch. When I see her again I’m going to murder her.” (Notes
of testimony, 3/15/16 at 9-16, 90-98.)
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attempt by physical menace to place the officer in fear of imminent serious
bodily injury).
Appellant’s next claim is that the trial court abused its discretion “in
omitting from the verdict sheet language that specified that a violation of
[Section] 2702(a)(6) requires the alleged victim be ‘in the performance of
duty.’” (Appellant’s brief at 14.) Appellant contends that the trial court’s
failure to specify this element of aggravated assault on the written verdict
sheet was “unduly prejudicial” and “misleading” to the jury. (Id.) This claim
is meritless.
Contrary to appellant’s contention, there is no explicit requirement that
the trial court set forth each element of the charged offenses on the written
verdict sheet submitted to the jury. Here, the record reveals that the verdict
sheets utilized by the trial court in this matter simply identified the crimes for
which appellant was charged, as the trial court did not want to “place any
undue emphasis on any element of any particular offense by inserting
additional verbiage on the verdict sheet.” (Trial court opinion, 4/30/18 at 13.)
The record further reflects that the trial court adequately instructed the jury
on the elements of each of these charged offenses at the close of evidence.
With regard to the aggravated assault charge, the trial court gave the
following instruction to the jury:
Now, the next charge is A6, attempt to put
enumerated official in fear. Let me explain it to you.
To find [appellant] guilty of this offense, you must find
all of the following elements have been proven beyond
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a reasonable doubt: Number one, [appellant]
attempted to put Correctional Officer Courtney Smith
in fear of imminent serious bodily injury. Fear of
imminent serious bodily injury means fear of an
impairment of physical or -- I’m sorry. Strike that. It
means fear of an impairment of physical condition that
would create a substantial risk of death or that would
cause serious, permanent disfigurement or protracted
loss or impairment of the function of any bodily
member or organ.
In order to find that [appellant] attempted to put this
victim in fear of imminent serious bodily injury, you
must find that he engaged in conduct which
constituted a substantial step toward causing such
fear. An act is a substantial step if it is a major step
toward commission of the crime and one that strongly
corroborates your belief that [appellant] at the time
he acted had that firm intent to put that victim in fear
of that sort of injury. An act can be a substantial step
even though other steps would have to be taken
before the crime could actually be carried out.
Number two, that [appellant] did so by use of physical
menace. By that I mean [appellant] did some physical
act that was menacing or frightening. Third, that
[appellant’s] conduct in this regard was intentional.
In other words, it was his conscious object or purpose
to cause fear of imminent serious bodily injury to this
victim. And, fourth, at the time of [appellant’s]
actions this victim was acting in the
performance of her duty as a correctional
officer.
Notes of testimony, 3/16/16 at 137-138 (emphasis added).
“It is well settled that the jury is presumed to follow the trial court’s
instructions.” Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016)
(citation omitted), cert. denied, U.S. , 137 S.Ct. 1202 (2017). Here,
appellant has failed to offer any evidence establishing that the jury failed to
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do so in the instant matter. Accordingly, we discern no abuse of discretion on
the part of the trial court in electing not to set forth every element of the
charged offenses on the written verdict sheet.
For all the foregoing reasons, we affirm the trial court’s May 13, 2016
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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