Com. v. Johnson, T.

J-S52039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JOHNSON :
:
Appellant : No. 2793 EDA 2018

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JOHNSON :
:
Appellant : No. 849 EDA 2019

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JOHNSON :
:
Appellant : No. 850 EDA 2019
J-S52039-19

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JOHNSON :
:
Appellant : No. 851 EDA 2019

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JOHNSON :
:
Appellant : No. 852 EDA 2019

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :

-2-
J-S52039-19

:
:
TERRY JOHNSON :
:
Appellant : No. 853 EDA 2019

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JOHNSON :
:
Appellant : No. 854 EDA 2019

Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001794-2014,
CP-51-CR-0001795-2014, CP-51-CR-0001796-2014,
CP-51-CR-0001797-2014, CP-51-CR-0001799-2014,
CP-51-CR-0001800-2014, CP-51-CR-0001801-2014

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 22, 2020

Terry Johnson appeals the judgment of sentence entered following his

convictions for seven counts of Assault of Law Enforcement Officer, eight

counts of Recklessly Endangering Another Person, and one count each of

Aggravated Assault, Persons Not to Possess, Use, Manufacture, Control, Sell

-3-
J-S52039-19

or Transfer Firearms, and Possessing Instruments of Crime.1 We affirm on the

basis of the trial court opinion.

The trial court aptly summarized the facts of this case, and we adopt

and incorporate its summary herein. See Trial Ct Op., filed 12/11/18, at 1-7.

At the close of trial, the trial court found Johnson guilty of the aforementioned

offenses and sentenced him to an aggregate term of 20 to 40 years’

incarceration. Johnson filed a post sentence motion, which the trial court

denied.

This timely appeal followed. Johnson filed seven notices of appeal listing

all seven docket numbers on each notice. We placed this case on “hold”

pending resolution of our en banc consideration of whether his doing so

violated Commonwealth v Walker, 185 A.3d 969, 971 (Pa. 2018) (directing

prospectively that “where a single order resolves issues arising on more than

one docket, separate notices of appeal must be filed for each case”). We have

since determined such actions are consistent with Walker, and we therefore

address the merits of this appeal. See Commonwealth v. Johnson, -- A.3d

--, 2020 WL 3869723 (Pa.Super. 2020) (en banc).

Johnson raises the following claims before this Court:

I. Is not the evidence insufficient as a matter of law to
sustain more than two convictions for assault of law
enforcement officer where the evidence failed to prove
that [Johnson] fired more than two shots in the
general direction of the police, and no other evidence
demonstrated a specific intent to injure more than two
____________________________________________

1 18 Pa.C.S.A. §§ 2702.1(a), 2705, 2702, 6105(a)(1), and 907, respectively.

-4-
J-S52039-19

of the many officers positioned outside his home such
that he could not have had the requisite mens rea for
more than two individuals?

II. Did the trial court misinterpret 42 Pa.C.S.[A]. §
9719.1 to require a mandatory minimum sentence,
whereas properly interpreted, this statute does not
require any mandatory minimum sentence at all, but
requires a mandatory maximum sentence (of not less
than 20 years)?

Johnson’s Br. at 4 (answer of the trial court omitted).

Johnson’s first claim is a challenge to the sufficiency of the evidence. He

maintains that “where the evidence proves that Johnson fired two shots into

a crowd of seven officers, without more, the evidence is therefore sufficient to

prove that he intended bodily injury to two different officers only, not seven.”

Id. at 18.

Our standard of review for a sufficiency claim is de novo. See

Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). We must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth and making all reasonable inferences in its favor, the evidence

was sufficient to establish every element of each offense. Id. at 420-21.

The trial court characterized Johnson’s claim – that Johnson “only fired

two shots at the police and thus, could only be convicted of two counts of the

crime of the assault upon a law enforcement officer” – as “manifest[ing] a

myopic view of the evidence.” Trial Ct. Op. at 10. The court explained that the

prosecution presented “a plethora of evidence” that Johnson fired many more

than two shots at police.

-5-
J-S52039-19

[That evidence consisted of the testimony of several officers
indicating that they heard projectiles ricocheting off of metal
in close proximity to them and their observations of
[Johnson] firing shots in their direction. It also consisted of
evidence that at least two cars were damage by [Johnson’s]
gunfire and a window across the street from [Johnson’s]
residence was broken.

Id. at 10. It also noted that Johnson admitted firing a gun outside but claimed

that he did not know that he was firing at police officers. Id. at 11. Our review

of the certified record confirms the trial court’s assessment that there was

evidence that Johnson fired numerous shots, and affirm on the basis of its

opinion. See id. at 7-11.

Next, Johnson alleges that the trial court “misinterpreted Section 9719.1

to require a mandatory minimum sentence[.]” Johnson’s Br. at 27. He argues

that the trial court erroneously determined that the mandatory minimum

sentence for assault on a law enforcement officer was 20 years. See id.

Rather, according to Johnson, the statute “only requires a mandatory

maximum sentence of anywhere between 20 and 40 years.” See id.

Johnson’s claim raises a challenge to the legality of his sentence. Our

standard of review of such a claim is de novo, and our scope of review is

plenary. See Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa.Super.

2013) (“a challenge to the application of a mandatory minimum sentence is a

non-waiveable challenge to the legality of the sentence”).

The trial court also rejected this claim. See Trial Ct. Op. at 12. The court

looked to the language of the statute, which provides that “[a] person

convicted of the following offense shall be sentenced to a mandatory term of

-6-
J-S52039-19

imprisonment as follows: 18 Pa.C.S. § 2702.1(a) (relating to assault of law

enforcement officer)--not less than 20 years.” 42 Pa.C.S.A. § 9719.1(a). The

trial court concluded that the language was unambiguous, and after reviewing

case law, it determined that the provision requires a mandatory minimum

sentence of 20 years for assault of a law enforcement officer, and that

Johnson’s sentences were not illegal. Trial Ct. Op. at 12-13 (citing

Commonwealth v. O’Brien, 514 A.2d 618, 620 (Pa.Super. 1986)

(concluding “[t]he words ‘not less than’ used in [Section 9718] unambiguously

connote a minimum term of imprisonment”), and Commonwealth v. Reid,

117 A.3d 777, 780, 785 (Pa.Super. 2015)).

The trial court’s reasoning on this point is consistent with case law and

supported by the certified record. Trial Ct. Op. at 11-13. We thus affirm the

trial court’s rejection of Johnson’s sentencing claim on the basis of the trial

court’s opinion, and affirm the judgment of sentence. See id. at 1-13.

Judgment of sentence affirmed.

Judge Ott did not participate in the consideration or decision of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2020

-7-
J-S52039-19

-8-
)

,.
)
) Circulated 08/31/2020 01:18 PM
'l

? ;�
;·
,. . IN THE ,COURT OF CQMMON PLEAS .
lt111 af"c11g·:( �!).
lr,;�..
FIRST JUDICIAL DISTRICT .OF PENNSYLVANIA 'C::· · · .
TRIAL DIVISION.;CRIMINAL SECTION r,§0ifj};>'0,-.. '°tY12,•.
l'1;. �:..r
�_.;.r_..fr'lt..,'. �i
t:-,. / .... •'·1},.·:�-�-1),;·�'}f -!J� f4I
COMMONWEALTH OF PENNSYLVANIA : PHILADELPHIA COURT .:.;:�tiJ�J{?�i.c�t.c."@�$
: OF COMMON PLEAS it-; d/',i� 'ts'
: CRIMINAL TRIAL DIVISION ,,.,_., · ... ,

v. : CP·Sl-CR-0001794-2014
: CP-51-CR-0001795-2014
: CP-51-CR-0001796-2014
: CP-51-CR-0001797-2014
TERRY JOHNSON : CP·Sl-CR-0001799-2014
: CP-51-CR.0001800-2014
: CP-51-CR-0001801.;2014
.. . ··, .I
CP·51-CR·OOO 1794·2014 .Comm. �. Johnson,-Teny,
. Opu1ion

OPINION
111111111111111111111111
.. 820080.1591
MINEHART,J

Terry Johnson (hereinafter "Appellant") appeals from the Judgment of sentence imposed

by this Court on September 5, 2018. For the reasons set forth below, it is suggested that the

judgment of sentence be affirmed.

PROCEDURAL HISTORY

On.December 15, 2014, following a waiver trial before this Court, Appellant was found

guilty of aggravated assault, graded as a felony of the first degree, possession of a firearm by a

prohibited person, possessing instruments of crime, generally, and recklessly endangering

another person as of CP·S l-CR-0001794-2014, and assault of a law enforcement officer, graded

as a felony of the first degree, and recklessly endangering another person as of CP�s-1-CR-
1
0001795-2014, CP-51-CR-0001796�2014, CP-51-CR-0001797-2014 , CP-51-CR-0001799-

2014, CP-51-CR-0001800-2014, arid CP-5l-CR-D001800-2014. On September 5, 2018, after

1
Appellant was found guilty of two counts each of assault. of a law enforcement office and recklessly and
endangering another person as of CP-51-CR-0001797-2014. ·
this Court denied appellant's Motion for Extraordinary.Relief this Court then imposed sentences

of ten to twenty years' incarceration on the aggravated assault conviction as of CP-51�CR-

OOOi 794-2014, and
.
twenty to ·forty
\' .
years' 'incarceration
.
on the assault on a law enforcement
'
officer convictions.2 AU sentences.were directed to run concurrently with one another; Verdicts

without further penalty were entered on the remaining charges. After he was sentenced, appellant

filed a notice of appeal and a court ordered Pa.R.A.P. 1925(b) statement.

FACTUAL HISTORY

In October of 2013, Mr. Drake Matteucci resided in a basement apartment located inside

a Southwest Philadelphia residence situated at 2610 Daggett Street. Appellant and his family

resided in the upper floors of the residence. During the early morning hours of October 61h,

Matteucci was awakened by the sound of gunfire and went upstairs to the living room of the

residence to investigate. Appellantthen came down the stairs from the structure's upper floors

with a gun in his hand, which he was waving around. Appellant; who was visibly agitated and

seemed panicked, said that, "We have a situation.", and told Matteucci; who asked him what was

going on, that he had to g�. Appellant continued to wave his. arms toward Matteucci and as he

did so, the gun fired and the bullet struck Matteucci in his leg. Matteucci wrapped his leg in a

blanket and appellant· went back upstairs.

Matteucci called 911 and then made his way to the residence's back door at which time a

police officer grabbed him and had him duck down behind a car. Matteucci told police that

appellant and his family resided in the houseafter which hewas taken by ambulance to a nearby

hospital. When Matteucci exited the house, he observed police cars and numerous police officers

taking cover behind parked cars.

2 The sentences imposed on the assault on a law enforcement officer convictions were imposed in accordance with
18 Pa.C.S § 9;19.L

2
 On October 6, 2013� at about 2:50 a.m., Philadelphia Police OfficerDeshawn Long and·
. '; . . .
his partner, Officer Corey Green, both of whom were in full police uniform, were on patrol.in a

marked police· vehicle the area of 65th Street and Buist Avenue when they heard three gunshots.

They traced. the sound of the gunfire to the 260.0 block, of Daggett Street, The officers- were
. . ..
directed to 2610 Daggett Street (appellant's residence) by a woman who lived on the block and

when they proceeded to that location a person Officer Long believed to be a woman opened a

curtain or blind on a basement window but quickly shut .it after the officers announced

themselves as police officers. When the officers heard additional gun shots corning, they

believed, from inside the residence, Officer Long retrieved the officers' police vehicle, a

Chevrolet Tahoe, which had its emergency flashers oh, and drove it up to a residence just past

appellant's residence so it could · be used as cover. At about this time, a radio call went out

concerningthe shots the officers heard.

While positioned behind their police vehicle, Officer Long saw a male he later identified

as appellant on an upper floor of his residence pacing back and forth in front of a window behind

a sheer curtain while using the spot light on his vehicle. He also 'heard two or three additional
gunshots come from inside appellant's house and a gun shot that went by his ear that sounded
like it had ricocheted off of a vehicle parked very near his police ve�icle. After other officers

arrived, Officer Long heard additional shots striking metal. directly behind him and his partner,

Officer Green.

At some point Officer Long spoke with Matteucci who related that he had been shot by
his friend as his friend was waving around a gun after his friend said there was a "situation."

Officer Long did not hear additional gun shots after he spoke to Matteucci.

Philadelphia Poi ice Officer Dwayne Cooksey and his partner were directed to go to the

3

-·--- .. ------�-------�-------··- --···------·�----·-�-·-··-·--·-·--·--·---- .
2600 block of Daggett Street following the report of gunfire on that block. Upon arrival. Officer

Cooksey 'saw several _other police offi�ers and Officers Long's and.. Green's vehicle stopped in

the middle.of'the street Officer Cooksey. 'Yas advised· by other offlcers that when officers tried to

make contact with whoever was Inside the residence, they heard gunshots inside the house. Then,

as those officers walked away from Officer Cooksey, a male began firing at him and the other

offic�rs from a second .flo�r window; The shots struck the· hc)Us�· directly behind Officer

Cooksey. Although he took cover, Officer Cooksey saw the shooter, who was thereafter

identified as appellant, walking back and forth in front of the three second floor windows.

Appellant fired shots out of those windows each time he walked by one of them after which he

would withdraw from the window. When members of the Philadelphia's Swat Team arrived,

Officer Cooksey who had been taking cover behind cars parked on the block, was ushered safely

off the block.

Philadelphia Police Sergeant Philip Sprague, Jr., was the assigned street supervisor the

night of the incident herein. As a result thereof, he went to the 2600 block of Daggett Street and

spoke to officers Long and Green who advised him about what was occurring, Sergeant Sprague

and two other officers went to 2010 Daggett arid as they were knocking on the front door; the

detective heard three gunshots inside the residence which prompted him and the other officers to

retreat from the residence.

Detective Sprague took cover behind Officer's Long's Tahoe and while there, he saw a

woman stick her head out of a second floor window., look in both directions, and then go back

.into the residence. The detective then heard. three gunshots inside the residence which prompted

him to declare a "barricade situation." Following this, while· the 'detective was speaking to his

lieutenant, Officer Long warned hii:n to duck and pushed him down. The detective then heard

4
 what he believed to be a bullet striking.metal behind him. While at the scene, the detective heard

police officers announce that they were police more than ten times. He also was informed that
Matteucci had exited the residence along with the woman, who. was later ide�tified as Crystal

Johnson, appellant's wife, he saw stick her head ·outsid� of the window. She had three children

with her.

Philadelphia Police Officer Owen Schaffer and his partner also responded to the 2600

block of Daggett Street during the night of the incident. He .and his partner secured· the rear of

2010 Daggett Street and while doing so Officer Shaffer heard numerous gun shots that came in

scattered bursts. He and his partner took cover behind some parked cars and from that position,

Officer Shaffer .saw a black male, who was later identified as appellant, stick his head out of a

second floor. window and look up and down tlie driveway that ran behind the houses situated

there. He was on police radio and heard officers speaking over the radio that the gunshots Officer

Shaffer heard had been fired from the front of the residence. The officer also saw children

looking outside of a window and he asked them to come downstairs 'and exit the rear of the
l
house. Matteutucci then exited the residence followed by a woman and three children.

When Matteucci and the woman exited 'ihe residence Sergeant Michael Davis, who also

went to the·scene and observed numerous police orncers taking cover, spoke to the woman after

she, Matteucci, and the children were moved to a safe location. She related that "Terry" was the

only person still inside the residence. Sergeant Davis also spoke to Matteucci and he said that

that .. Terry" shot him out that he did not know why because he and Terry were friends. After

Matteucci left the premises, the sergeant heard additional gun shots after Matteucci exited the

house.

Sergeant Davis went to the front of the property after appellant had been removed from

"5

····�·- , .. __._...... ·--· ····-···--···-···-�······-----,·-·� ..-- -- ····-·-······ . ··---·----�-··· •· ,., , ,., -- ,.,0--..-·.. ··-········· � .
 the property. He observed that two cars parked in front of the property and a window across the
street from it had been struck and damaged by gun shots. Police officers had taken refuge behind

one of the two vehicles when the shots were being fired out of the house.

An examination of Daggett. Street and appellant's residence conducted after the incident

ended resulted in the. discovery of numerous bullet strike .marks outside the residence in various

locations, projectiles and bullet strike marks in numerous locations inside, the residence, and a

fired cartridge case on the roof of the front porch of the residence. In the basement, police

collected a copper bullet fragment and in a bedroom they recovered a live .45 caliberround, a AS

caliber semiautomatic Handgun with an empty magazine, and two fired cartridge cases. Finally,

police . observed what was believed to be powdered cocaine on a vanity in a bedroom and

recovered a fired projectile from the residence situated across the street from appellant's

residence at 2607 Daggett Street.

The parties stipulated thatafter a cameraon a motorized robot the SWAT team deployed

inside appellant's residence relayed that appellant was unconscious and laying i11 a second floor

front bedroom near a hand gun, SWAT members entered the residence and took appellant into

custody. Appellant was taken to a hospital for treatment for a possible drug overdose. It was also

stipulated that the .45 caliber weapon found inside the residence near where appellant was

apprehended was operable and that the two fired cartridge cases collected from the front

bedroom, the fired cartridge case found on the roof of the porch, and one found in appellant's

pants pocket each were fired in the above referenced .45 caliber hand gun. Finally, the parties

stipulated that two bullets, _one found inside appellant's residence and one found inside of 2607

Daggett Street, a residence located across the street from appellant' s residence, were fired from

the .45 caliber handgun.

. ·-····-�·.�·, .. ·-······-..·····--·· ······-.�---·-··············•·"' .. ···�·--· .... ,.�·-··········· ··---···· ... -. .....••. - .. ··-· ..
 Appellant testified in his own defense. He indicated that the incident resulted from his

over inge�tion of cocaine, cryst�I methamphetamine, and P�rcocet. At about 2:3.0 .a.m., he began

hearing stuff outside his frontdoor and seeing flashes, which prompted him to send his wife into

the room where his children were sleeping. As a result of a prior incident that occurred in 2011,

during which he was shot fourtimes in a home invasion he thought that something similar was

again occurri�g. He panicked when he looked out of his window and saw people moving around

so he called some people, including his brother, and 'told him that he believed that he W8$ under

attack. His brother, who owned the house, told him where he could' find a gun and upon
retrieving it, he locked himself in a bedroom and began firing it -inside �e residence because he

thought people were there. He then fired it outside at the persons he saw moving around, He

denied knowing that the persons outside his residence were police officers andindicated that had

he. known that, he never would have fired shots at them.

Crystal Johnson confirmed that appellant had not been himself since he was shot in 20 u

and that he was addicted to drugs. According to her, appellantbe�an acting paranoid the night of

the incident and accused her of cheating on him. In response she went into a bedroom and fell

asleep but was awakened by the sound ofgunfire,

DISCUSSION

In his l925(b) statement, Appellant first asserts the following:

Was the evidence insufficient as a matter of Jaw to sustain
more than two convictions for assault of law enforcement
officer, because the· Commonwealth's evidence . failed to
prove beyond a reasonable doubt that Appellant fired more
than two shots in the general direction of the officers, and thus
could not have had a specific intent to injure each of the seven
officers - l.e., that because no evidence demonstrates
Appellant's specific intent to injure any individual officer as
opposed to the officers generally, a concurrent intenttheory of
liability cannot justify a finding of seven counts ofassault of

7
 . . . .

law enforcement officers unless the evidence proves beyond a
reasonable doubt that Appellant fired at least · seven shots
towards all seven officers?

Appellant's Pa.R.A.P. 1925(b) Statement, Issue a,

The Pennsylvania Supreme Court has provided the· following standard· of review for

sufficiency of the evidence claims:

[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. .. [A]ll of the evidence and
any inferences drawn therefrom must be viewed· in the light most
favorable to the Commonwealth as the verdict winner;

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-1236 (Pa. 2007) (emphasis in original).

The Commonwealth need not establish guilt to a mathematical certainty, and it may

sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Duncan, 932

A.2d 226, 231 (Pa. Super. 2007) (citation omitted). A reviewing court may not substitute its

judgment for that of the fact findet, and where the record contains support for the convictions,

they may not be disturbed. Id. Lastly, the finder of fact is free to believe .some, a:11, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).

In Commonwealth v. Bailey, 292 A.2d 345, 346 (Pa. 1972) the Supreme Court of

Pennsylvania discussed the standard by which the validity of a convictionis to be judged:

To sustain .a conviction, the facts and circumstances which the
Colillllonwealth prove must be established beyond a reasonable
doubt. Although the Commonwealth does not have to establish
guilt to a mathematical certainty, and may in the proper case rely
wholly on circumstantial evidence, the conviction. must be based
on more than mere suspicion or conjunction.

The crimeof assault upon a.law enforcement officer is defined as follows:
 (a) Assault of a law enforcement officer in the first degree--A
person commits a felony of the 'first degree who attempts to cause
or intentionally or knowingly causes bodily injury to a law
enforcement officer, while in the performance df duty and with
knowledge that the victim is a · law enforcement officer, by
discharging a firearm.

(b) Penalties.v-Nctwithstanding section l l 03(1). (relating to
sentence of imprisonment for felony), a person convicted under
.subsection (a) shall be sentenced Jo a term of-imprisonment fixed
by the court at not more than 40 years.

(c) Definitions.v-As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:

"Law enforcement officer." The term shall have the. same meaning
as the term "peace officer" is given under section 501 (relating to
definitions).

"Firearm." As 'defined under 42 Pa.C.S. § 97l2(e) (relating to

sentences for offenses committed with firearms).

18 P�.C.S. § 2702.1. "�odily Injury" is defined as "Impairment of physical condition or

substantial pain;" 18 Pa.C.S. § 2301. "Firearm" is defined in 42 Pa.C.S. § 9712 (constitutionally

preempted) asi'[ajny weapon, Including a starter gun, which will or is designed to or may readily

be converted to expel a projectile by the action of an explosive or the expansion of gas therein."

In Commonwealth v. Landis, 48 A.3d 432 (Pa. Super. 2012) (en bane). the Superior

Court held that in order to prove this crime the Commonwealth must establish the following

elements:

(I) the defendant attempted to cause, or intentionally or
knowingly caused, bodily injury; (2) the victim was a law
enforcement officer acting in the performance of his duty; (3)
the .defendant. had knowledge the victim was · a law
enforcement officer, and (4) in attempting to cause; or
intentionally or knowingly causing such bodily injury, the
defendant discharged a firearm.

Landis, 48 A.3d at 445.

9
 . Instantly, because none of the police victims were injured, the Commonwealth was

obliged to prove that appellant discharged a firearm to attempt to :c1use bodily injury to the seven

police officers named in the bills of information as v_icti�s ofappellant's criminal.actions. "A

person commits an attempt' when, with intent to commit a specific crime, he 'does any act which

constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901(a);

Commonw.ealth v. Hali, 830 A.2d at 541. The intent to cause bodily ·injury or serious bodily

injury may be shown by direct or circumstantial evidence, Commonwealth v. Hall, 830 A.2d at

542, and therefore, "may be inferred from acts or conduct or from the attendant circumstances."

Landis, 48 A.3d at 446.

The application of these standards to the evidence presented by the Commonwealth leads

ineluctably to the conclusion that there is no merit to Appellant's first claim, First, the premise

of the issue, that appellant.only fired two shots at the police and thus, could only be convicted of

two counts of the crime of assault upon a law enforcement officer, manifests a myopic reading of

the. evidence. Although the Commonwealth was able to present definitive proof that two

projectiles were fired at the police based on their discovery and collection of ballistic evidence, it

presented a plethora of evidence proving beyond a reasonable doubt that appellant fired

numerous shots at the officers who responded to the radio call about the incident herein. That

evidence consisted of the testimony of several officers indicating that they heard projectiles

ricocheting off of metal in close proximity to them and their observations of appellant firing

shots in their direction. It also consisted of evidence that at least two cars were damaged by

appellant's gunfire and a window across the street from appellant's residence was broken.

In addition, the Commonwealth presented evidence · proving that appellant had

knowledge thatthe victims were police officers. That evidence included the fact that most, if not

10

··-.. ·� ······-·-- , �-················"'""'""""" _ , -··>-···-····�·· ..- ·--·-········••"·"-"''·�··----·--..�- ..-·..•···-·········, ----··• _ - --� �-·-- _. __ -.•. -- ., -······ -·-""' ---·- � -,. , ,__ _ .
all of the officers were in uniform, sever�l officers �o�ced ·theiris�lves to be police officers,

and the emergency lights on the police vehicles were on during the incident.

Finally, appellant himself conceded that he fired shots at the officers albeit that he did

know that the persons at whom he shotwere police officers. Although �e indicated that he would

not have do�e so had he .'.known that they �ere police ·officer;, .this Court found th�t'testimony
. .
incredible given the number of officers who responded to the scene, the numerous times the

police announced their identity, and the fact that several police cars had their emergency lights

on during the incident. Accordingly, it is respectfully suggested that the evidence was sufficient

to sustain all seven convictions for assault upon a law enforcement.officer and that appel1ant be

denied relief with respect to this claim.

In his final two claims, appellant challenges the legality of the twenty to forty year

sentences imposed on the assault upon a law enforcement officer convictions as follows:

b. Did the trial court impose an illegal sentence by improperly
interpreting 42 Pa.C.S. § 9719.1 to require a "mandatory term
ofimprisonmentvof "not less than 20 years" be applied to the
minimum term of incarceration as opposed to the maximum
term of incarceration and a proper statutory construction leads
to the conclusion that the mandatory term of imprisonment
must be applied to the maximum sentence in such a situation,
i.e .., that the maximum sentence imposed may not be less than
zo years?

c. Did the trial court impose an illegal sentence by improperly
interpreting 42 Pa.C.S. § 9719.1 to require a "mandatory term
of imprisonment" of "not less -ihan 20 years" be applied to
the minimum term of incarceration whereas the Pennsylvania
Supreme Court in Cornmonweaith v. Glover, I 56t A.2d ,114
(Pa 1959) held that the meaning of a statute providing for a
mandatory term of imprisonment of "not less than" a term of
years must be applied to the maximum sentence, and
subsequent Superior Court cases interpreting other similar
mandatory provisions are either distinguishable, or if not,
should be overruled?

11
 · Under 42 Pa.C.S. § 9719. l(a), a pe�son convicted of assault of a law enforcement officer

pursuant to ,18 Pa.C.S. § 2702.l(a), "shall be sentenced to a mandatory term of imprisonment" of
! . • •
• •

"not less than 20 years." In the above issues, appellant asserts that the statute is ambiguous

regarding whether .the required twenty year sentence refers to the maximum imposable sentence

or the minimum imposable sentence, as this Court determined! and that the holding of the

Pennsylvania Supreme Court in Glover, supra, supports his interpretation of section 9719.l(a)

that it refers to the minimum. imposable sentence and not the maximum one. Appellant is

mistaken.

The law in Pennsylvania is clear that penal statutes are to be strictly construed. 1 Pa.C.S.
§ 1928(b)(1). Wherethere are ambiguities in a penal statute's wording the law mandates that any

ambiguity be resolved in favor of lenity, i.e., in favor of the accused. Commonwealth v. Booth,

766 A.2d 843, 846 (Pa. 2001) (internal citations omitted). Here the statute is not ambiguous

because it is well settled that the phrase "not less than" refers to the minimum imposable

sentence not the maximum sentence. Commonwealth v. _01Brien) 514 A.2d 618 {Pa. Super.

1986); Commonwealth v. Maderia; 982 A.2d 81 (Pa Super. 2009).

In Commonwealth v. O'Brien, 514 A.2d 618 {Pa. Super. 1986), the Superior Court

addressed a similar claimthat raised by appellant herein and held that the words "not less than"

"unambiguously connote a minimum term of imprisonment." O'Brien, 514 A2d at 620. It added

that, "[I]t strains all notions of common sense to suggest that 'not less than' can reasonably be

interpreted as meaning 'maximum.' "Jg.

Although O'Brien concerned mandatory minimum sentences imposed pursuant to 42

Pa.C.S. § 9718, which thereafter was deemed unconstitutional P.ursuant to Alleyrie v. United

12
States, 570 U.S. 99 (2013),the section ofthose statutes found to violate the holding of Alleyne is

not found in section 42 Pa.C.S. § 9719.l(a). SeeCommonwealthv. Reid, 117 A.3d'777, 785 (Pa.

Super. 2015) ("Section 9719.l does not
.
require proof of any additional
.
elements beyond those

already requir�d to convict a. defendant ofassault of a law enforcement officer in the firstdegree
under 18 Pa.C.S. § 2702. l(a). "). Clearly, based on the foregoing, the "not less than" language

from Section 97.18 in O'Brien applies to the "not less than" .language of Section 9719.1 and

mandates a twenty-year mandatory minimum sentence for a conviction for assault of a law

enforcement officer. ·

Appellant's claim that the Glover, supra, case supports his position is incorrect. In

O'Brien, supra, the Superior Court rejected a claim that Glover applied to 42 Pa.C.S. § 9718 and

that the sentencing provision referred to the maximum imposable sentence, not the minimum

imposable sentence. O'Brien, 514 A.2d at 620. Accordingly, based on O,Brien, it is respectfully

suggested that Appellant' s third issue be deemed lacking in merit.

CONCLUSION

Based on the foregoing, it is respectfully suggested that the judgment of sentence entered

in this matter against appellant be affirmed.

BY THE COURT,

DateJiJ. lub8 I
Ho

13
 CERTIFICATION OF SERVICE

I, Stacy Bauer, secretary to the Honorable Jeffrey P. Minehart hereby certifies.thaton the
1\
JJ 1t\ t, ·
day of vtl{Y'flvff, 2018, by first class mail, postage prepaid, a true and correct

copy of the attached opinion-was served uponthe following:

Aaron Marcus, Esquire
Assistant Defender
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, Pa. 19102

Lawrence J. Goode, Esquire
Chief-Appeals Unit
Office of the Philadelphia
District Attorney
Three South Penn Square
Philadelphia, PA 19107

2r��
Stacy.:Bauer

14