J-A06037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PHILLIP MULLIN

                            Appellant                       No. 535 EDA 2014


           Appeal from the Judgment of Sentence January 17, 2014
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000115-2012


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED MARCH 31, 2015

       Appellant Phillip Mullin appeals from the judgment of sentence entered

in the Montgomery County Court of Common Pleas, following Appellant’s

jury trial convictions of aggravated assault by causing serious bodily injury,

aggravated assault with a firearm, possessing instruments of crime, firearms

not to be carried without a license, recklessly endangering another person

(“REAP”), and resisting arrest.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On December 23, 2011, Appellant, Sean McGonagle (“Victim”) and Dennis

McGonagle      (“Victim’s    Father”)    were   at   the   Black   Horse   Tavern   in

____________________________________________


1
   18 Pa.C.S. §§ 2702(a)(1), (4), 907(b), 6106(a)(1), 2705, 5104,
respectively.
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Montgomery County. N.T., 2/12/13, at 37, 111. All three were regulars at

the bar and acquaintances.        Id. at 111.    A verbal altercation ensued

between Appellant and Victim’s Father in which Appellant stated Victim’s

Father, Victim, and Victim’s girlfriend were all crazy, that Victim was a “punk

and a pussy,” and that he would “kick [Victim’s] ass” and “would have stuck

a knife in [Victim’s] heart.”   Id. at 112. Victim’s Father shoved Appellant

and bartenders stopped serving both of them and broke up the fight. Id. at

113, 114. They left separately, Appellant without paying his tab. Id. at 83,

87-88. Victim stayed at the bar. Id. 114. After getting a call from the cook

to come pay his tab, Appellant returned. Id. at 104, 134. Appellant tried to

get a seat close to Victim, but customers intervened, and the bartender

would not serve Appellant.      Id. at 86.   Eventually, Appellant sat next to

Victim and offered to buy him a drink, which Victim accepted. Id.

      When Victim left to walk his friend to her car, Appellant followed him in

an “abrupt and hurried” manner. N.T., 2/12/13, at 149, 163. In the parking

lot, Appellant tested the taser that was in his pocket and pointed it at Victim

and his friend. Id. at 151. After the friend departed, Appellant pointed the

taser at Victim’s chest. Id. at 166. Victim indicated that if Appellant tased

him, he would “kick [Appellant’s] ass.” Id. Appellant shot the taser and the

prongs hit Victim’s leg, but the electrical current did not deploy. Id. at 152.

Victim began punching Appellant repeatedly and both men fell on the ground

with Victim on top. Id. at 153. During the fight, Appellant held the taser in


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one hand and kept the other in his pocket which held the .36 caliber gun.

Id. at 250. Appellant shot Victim in the chest. Id. at 153.

      An off-duty emergency medical technician who was in the parking lot

tended to Victim, who was soon rushed to the hospital and is now

paraplegic. Police apprehended Appellant from his home after a SWAT team

intervened and administered 18 canisters of tear gas. All of this information

was submitted to a jury in the form of eyewitness testimony and video

surveillance.

      On   February   14,   2013,   the   jury   convicted    Appellant   of   the

aforementioned charges.       On January 15, 2014, the court imposed

consecutive sentences of: 7-14 years’ incarceration for aggravated assault

serious bodily injury; 1-2 years’ incarceration for possessing instruments of

crime; 2-4 years’ incarceration for firearms not to be carried without a

license; 1-2 years’ incarceration for REAP; and 6 months to a year of

incarceration for resisting arrest. Appellant filed a timely notice of appeal on

February 12, 2014 and a Pa.R.A.P. 1925(b) statement on March 20, 2014.

      Appellant raises the following issues for our review:

      I. WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO PROVE
      BEYOND A REASONABLE DOUBT THAT [APPELLANT] WAS GUILTY OF
      AGGRAVATED ASSAULT, 18 PA.C.S. § 2702(A)(1), WHERE THE
      APPELLANT DID NOT ACT WITH A MALICIOUS STATE OF MIND
      BECAUSE HE SHOT THE VICTIM TO DEFEND HIMSELF?

      II. SHOULD [APPELLANT] BE SENTENCED ANEW BECAUSE
      [APPELLANT] WAS NOT PROVIDED WITH THE OPPORTUNITY OF
      ALLOCUTION PRIOR TO SENTENCING IN THE LOWER COURT?


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Appellant’s Brief at 3.

      In his first issue, Appellant argues the Commonwealth failed to present

sufficient evidence to prove Appellant was guilty of aggravated assault.

Specifically, Appellant contends the Commonwealth did not prove he acted

with malice. He also claims the Commonwealth failed to prove he did not

act in self-defense.      In his reply brief, Appellant argues that the

Commonwealth’s Brief inaccurately claims the Victim’s punches slowed down

before Appellant shot him. Further, he complains that the court improperly

determined malice could be inferred by Appellant’s pointing a gun at a vital

part of Victim’s body because he only pointed a taser at a vital part of

Victim’s body. Appellant is incorrect. His arguments ignore the fact that he

shot Victim in the chest with an actual gun.

      In reviewing the sufficiency of the evidence, the standard we apply is:

         whether 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. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.      Any 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. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact

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        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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

     Aggravated assault is defined by statute as follows:

        (a) Offense defined.--A person 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. Serious bodily injury is also defined by statute:

        § 2301. Definitions

                                 *    *    *

        “Serious bodily injury.” Bodily 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.

     This Court observes:

        As stated in the statutory definition, recklessness
        manifesting “extreme indifference to the value of human
        life” must be proven to establish aggravated assault. The
        corresponding mens rea for this standard is “malice”,
        defined in Commonwealth v. Pigg, 571 A.2d 438, 441
        ([Pa.Super.]1990), appeal denied, 581 A.2d 571
        ([Pa.]1990) (quoting Commonwealth v. Drum, 58 Pa. 9,
        15 (1868)), as “wickedness of disposition, hardness of
        heart, cruelty, recklessness of consequences, and a mind

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         regardless of social duty, although a particular person may
         not be intended to be injured.”

Commonwealth v. McHale, 858 A.2d 1209, 1212-13 ([Pa.Super.]2004).

      “[I]t is well established in Pennsylvania that a fact finder may infer

malice and a specific intent to kill from the use of a deadly weapon upon a

vital part of the victim’s body.”   Commonwealth v. Cruz, 919 A.2d 279,

281 (Pa.Super.2007), appeal denied, 928 A.2d 1289 (Pa.2007).

      To establish a claim of self-defense, a defendant must prove three

elements:   “(a) [that the defendant] reasonably believed that he was in

imminent danger of death or serious bodily injury and that it was necessary

to use deadly force against the victim to prevent such harm; (b) that the

defendant was free from fault in provoking the difficulty which culminated in

the slaying; and (c) that the [defendant] did not violate any duty to retreat.”

Commonwealth        v. Mouzon, 53 A.3d 738, 740-41 (Pa.2012) (internal

footnotes omitted). Although the burden is on the Commonwealth to prove

beyond a reasonable doubt that the defendant was not acting in self-

defense, “before the defense is properly in issue, there must be some

evidence, from whatever source, to justify such a finding.” Id. at 741.

      “To claim self-defense, the defendant must be free from fault in

provoking or escalating the altercation that led to the offense, before the

defendant can be excused from using deadly force.               Likewise, the

Commonwealth can negate a self-defense claim by proving the defendant

used more force than reasonably necessary to protect against death or

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serious bodily injury.”    Commonwealth v. Smith, 97 A.3d 782, 788

(Pa.Super.2014) (internal citations and emphasis omitted).

     Here, Appellant pointed a deadly weapon at a vital part of Victim and

shot him in the chest.    This would allow a fact-finder to find the requisite

malice for aggravated assault.    See Cruz, supra.    Further, Appellant was

not free from fault in provoking the altercation that led to the offense.

Appellant followed Victim into the parking lot and shot him with a taser

before Victim punched him. Then, by shooting Victim, Appellant used more

force than reasonably necessary to protect himself. His actions negate his

claim of self-defense. See Smith, supra.

     The trial court reasoned:

        [T]here was clearly sufficient evidence for the jury to
        conclude that [Appellant] acted recklessly under
        circumstances manifesting an extreme indifference to
        human life.      The evidence showed that [Appellant]
        instigated a fight with [Victim and Victim’s Father] in the
        beginning of the evening, and then returned to the tavern
        with a taser and a .36 caliber weapon. Upon his return,
        [Appellant] was intent on having further contact with
        [Victim], but [Victim] ignored [Appellant]. When [Victim]
        exited the tavern, [Appellant] raced outside to the parking
        lot, concealed weapons in tow, in order to finish the
        altercation that he started earlier that evening.
        [Appellant] shot the taser at [Victim’s] chest and hit
        [Victim’s]   leg,    however,    the    electrical   current
        malfunctioned. [Victim] fought back and began punching
        [Appellant]. [Appellant] did not cover up or shield himself.
        Rather, as demonstrated by the surveillance video, the
        entire time [Appellant] kept one hand on his taser and the
        other in the pocket with the gun. As the men struggled,
        [Appellant] pulled his gun from his pocket and shot
        [Victim] in the chest.      The evidence was more than


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          sufficient to establish malice making [Appellant’s] initial
          appellate claim meritless.

Trial Court Opinion, filed August 26, 2014, at 9-10. We agree with the trial

court that, when viewing all evidence in the light most favorable to the

Commonwealth, there is sufficient evidence to enable the fact-finder to find

every element of aggravated assault beyond a reasonable doubt.

        In his second issue, Appellant claims his right to allocution was not

honored during sentencing, and he should be granted a new sentencing

hearing. His reply brief stresses that he did not have the right to allocution

prior to sentencing.

        The Pennsylvania Rules of Criminal Procedure provide, in relevant

part:

          Rule 704. Procedure at Time of Sentencing

                                  *    *    *

          (C) Sentencing Proceeding.

          (1) At the time of sentencing, the judge shall afford the
          defendant the opportunity to make a statement in his or
          her behalf and shall afford counsel for both parties the
          opportunity to present information and argument relative
          to sentencing.

Pa.R.Crim.P. 704.

        This Court recognizes that a defendant’s right of allocution is an

important right:

          Our Supreme Court has noted that a defendant’s right to
          personally address the court prior to sentencing, and
          thereby plead for mercy, is of paramount importance and

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         has rejected the proposition that a defendant must show
         prejudice because of the denial of               the right.
         Commonwealth v. Thomas, 553 A.2d 918, 919
         ([Pa.]1989). As the Thomas Court stated: “What effect
         the exercise of the right of allocution might have on the
         subjective process of sentencing can never be known with
         such certainty that a reviewing court can conclude there
         was no prejudice in its absence.”          Id.    The Court
         interpreted then-Rule 1405, now renumbered at Rule 704,
         as requiring the sentencing court to inform the defendant
         of his right to speak prior to sentencing, and where the
         trial court erroneously fails to so inform the defendant of
         the right, a resentencing hearing is required. Id.; see also
         Commonwealth v. Hague, 840 A.2d 1018, 1019
         (Pa.Super.2003) (“The failure to afford a criminal
         defendant the right to address the court prior to
         sentencing requires remand to allow allocution prior to
         resentencing.”)

Commonwealth v. Hardy, 99 A.3d 577, 580 (Pa.Super.2014).

      The trial court asked if Appellant would like to exercise his right to

allocution.   Counsel stated they had discussed it briefly, and “[g]iven the

possibility of further litigation, I don’t know if it would really be in his

interest.” N.T., 1/16/14, at 65.   The court then listened to argument and

proceeded to sentencing, which finished at 3:50. At 4:15, the court realized

Appellant had not specifically addressed allocution on the record and

discussed it with Appellant and counsel. Appellant then stated that he “did

not agree” to counsel’s advice, but that he did not wish to speak “at this

point.” Id. at 86. The court explained his right to allocution, then stated,

“you can say whatever you want to say that you think I need to know and

then I will take a look at my sentence and re-examine it in light of what you

have told me, okay.” Id. at 87. At this point, Appellant told the court, “you

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said I don’t feel emotion.     I definitely feel emotion.    I am completely

stressed out right now, all right. When it comes to the matter with the gun,

I bought that from a legal vendor who legally sells guns. So I didn’t buy it

illegally. When it comes to the matters of [Victim] – I’m sorry – I’m not too

good with words… You know, I never meant to cause that kind of damage to

him which I would hope everybody would know, but obviously they didn’t.

You know, I would never put my hands on anybody that didn’t put their

hands on me first. You know, I will react or retaliate, but I will not – I never

start confrontations. That’s just not me. That’s all I want to say.” Id. at

89. The court said, “Thank you for presenting your case on the record in

light of your sentencing.    The matters that you did raise, I did consider

actually most of those arguments when I did sentence you… The video in

this case was pretty clear to me.    It showed you pursuing [Victim] pretty

vividly, pretty clearly directly from the bar and going after him and then you

returned with the gun and the taser.     So what I’m going to do in light of

that, I’m going to keep the sentence the same as I gave earlier. Okay?” Id.

at 89-90.

      The trial court reasoned:

         Despite [Appellant’s] indecision on the allocution issue, the
         record clearly demonstrates that the court ensured that
         [Appellant] exercised his right to allocution. The court
         then considered this information prior to entry of final
         sentence and [Appellant] suffered no prejudice.

Trial Court Opinion at 16.


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       We agree with the trial court that Appellant exercised his right to

allocution.2

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




____________________________________________


2
  Moreover, to the extent Appellant’s allocution claim raises a question of the
effectiveness of counsel, such claims shall not be raised on direct appeal, but
shall be reserved for collateral review. See Commonwealth v. Holmes, 79
A.3d 562, 566 (Pa.2013) (holding, “as a general rule, claims of ineffective
assistance of counsel will not be entertained on direct appeal.”).




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