J-S63019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TROY ANTHONY ROBINSON,

                            Appellant                 No. 807 EDA 2015


           Appeal from the Judgment of Sentence February 19, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005169-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 18, 2016

       Appellant, Troy Anthony Robinson, appeals from the judgment of

sentence entered on February 19, 2015, following his conviction on October

27, 2014, by a jury of aggravated assault, possession of a firearm without a

license, carrying a firearm in public in Philadelphia, and possession of an

instrument of crime (“PIC”), and by the court of possession of a firearm by a

prohibited person via a bifurcated waiver trial. Trial Court Opinion, 2/12/16,

at 2. We affirm.

       The trial court summarized the facts of the crime as follows:

             On November 24, 2011, at approximately 12:30 PM,
       Officer Timothy Fitzgibbon (hereinafter “Officer Fitzgibbon[”]) of
       the Philadelphia Police Department responded to a radio call
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*
    Former Justice specially assigned to the Superior Court.
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       regarding a robbery in progress on Greeby Street in the Oxford
       Circle section of Philadelphia, PA.          10/23/2014 Notes of
       Testimony (N.T.) at 29.            The radio call contained an
       accompanying description of four (4) African American males
       who were believed to be involved in the robbery. Id. While en
       route to the scene in his marked police patrol vehicle, Officer
       Fitzgibbon first observed appellant walking southbound on
       Cranford Street. Id. at 30. Officer Fitzgibbon’s attention was
       initially drawn to appellant due to appellant’s close proximity to
       the location of the recent robbery. Id. As Officer Fitzgibbon
       drew closer to appellant, he observed appellant conversing on
       his cellular phone. Id. at 33. It is at this time that Officer
       Fitzgibbon overheard appellant repeatedly state “it’s going
       down.” Id.[1] Due to the nature of appellant’s statement, and in
       response to report of a very recent robbery nearby, Officer
       Fitzgibbon, while still inside his patrol vehicle, asked appellant if
       appellant could speak with him for a moment. Id. at 34. In
       response to this request, appellant began to walk towards Officer
       Fitzgibbon and proceeded to retrieve a firearm from a pocket
       located on the left side of his body. Id. 34-35. Appellant then
       raised the firearm and pointed it in the direction of Officer
       Fitzgibbon and his vehicle. Id. at 35. With appellant now closing
       in on Officer Fitzgibbon, Officer Fitzgibbon immediately “threw”
       his patrol vehicle into “Drive” and very quickly advanced his
       patrol vehicle approximately three (3) to four (4) car lengths up
       Passmore Street, away from appellant. Id. at 37-38. At this
       time, Officer Fitzgibbon glanced in his rearview mirror and
       observed appellant standing in the street behind him with the
       firearm still pointed towards his patrol vehicle.        Id. at 38.
       Believing that he had just heard appellant discharge the firearm,
       Officer Fitzgibbon proceeded up Passmore Street at a high rate
       of speed. Id. at 38-39.8


____________________________________________


1
   Officer Fitzgibbon testified that he parked his car at an angle with his
“driver’s door . . . facing [Appellant] as [Appellant] walked toward” him.
N.T., 10/23/14, at 31. He was “ten feet maybe, give or take a foot or two”
away from Appellant. Id. at 32. The weather was clear, it was daylight,
and the officer’s window was down. Id. at 28, 32–33. Officer Fitzgibbon
subsequently testified that initially, the distance was a bit further. Id. at
47–48.



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           8
             This court notes that the record reveals that the
           Commonwealth did not produce any evidence which
           conclusively established that appellant did, in fact,
           discharge the firearm in question.

            Upon reaching the top of the block, Officer Fitzgibbon
     came in contact with other Philadelphia Police Officers and
     provided a description of appellant, which description was then
     broadcast over police radio. Id. at 41, 83. Shortly thereafter,
     Officer Fitzgibbon proceeded around the block back to Passmore
     Street whereupon he encountered appellant again; by this time
     appellant had been stopped by Philadelphia Police Sergeant
     James Hawe (hereinafter “Sergeant Hawe”).             Id. at p.42.
     Sergeant Hawe stopped appellant because of appellant’s
     resemblance to the flash information received over the radio via
     Officer Fitzgibbon. Id. at 83. Upon exiting his patrol vehicle,
     Officer Fitzgibbon pointed at appellant and stated “that’s him.”
     Id. at 88.      As a result of Officer Fitzgibbon’s unequivocal
     identification, appellant was placed in police custody. Id. at 88.

            A search of the area was then conducted by Officer
     Fitzgibbon and his brother officers for a firearm and any fired
     cartridge casings.     Id. at 49.     During the search, Officer
     Fitzgibbon observed a firearm underneath a motor vehicle. Id.
     This firearm was located approximately five (5) feet from where
     Sergeant Hawe had stopped appellant.         Id. at 89.    Officer
     Fitzgibbon subsequently identified the firearm as the black
     semiautomatic handgun that had been wielded by appellant. Id.
     at 51-52.        The Philadelphia Police Crime Scene Unit
     photographed the firearm. Id. at 93. Upon further examination
     of the firearm, it was determined that the firearm was loaded
     with ten (10) live cartridges in the magazine. Id. at 150.

Trial Court Opinion, 2/12/16, at 3–4.

     Following Appellant’s conviction of the above-described charges,

sentence was deferred pending a presentence investigation. On January 13,

2015, the trial court sentenced Appellant to an aggregate term of

imprisonment of ten years, three months to twenty years, six months.

Appellant filed a timely motion to modify sentence, which the trial court

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granted.     On February 19, 2015, the trial court imposed an aggregate

sentence of nine years, nine months to nineteen years, six months of

imprisonment, as follows: fifteen to thirty months for aggravated assault; a

consecutive term of sixty to 120 months for possession of a firearm by a

prohibited person; a consecutive term of forty-two to eighty-four months for

possession of a firearm without a license; a concurrent term of twelve to

twenty-four months for carrying a firearm in public in Philadelphia; and a

concurrent term of nine to eighteen months for PIC.        Reconsideration of

Sentence Order, 2/19/15; Trial Court Opinion, 2/12/16, at 2 n.7. Appellant

filed a timely notice of appeal, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following two issues for our review:

           1. Was not the evidence insufficient to support [A]ppellant’s
              conviction for aggravated assault, where the testimony did
              not establish beyond a reasonable doubt that he
              specifically intended to place a police officer in fear of
              imminent serious bodily injury, when he pointed an
              unchambered firearm at a car occupied by a police officer?

           2. Did not the trial court err by imposing an unreasonable
              and excessive aggregate sentence by imposing consecutive
              sentences for aggravated assault (15 to 30 month);
              [Violation of the Uniform Firearm Act] VUFA 6105 (60 to
              120 months); and VUFA 6106 (42 to 84 months),which
              yielded a maximum of almost twenty years for an offense
              in which no one was physically harmed?

Appellant’s Brief at 3.




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      Appellant’s first issue assails the sufficiency of the evidence supporting

his conviction for aggravated assault.        Our standard of review for a

sufficiency-of-the-evidence claim is well settled:

             The standard we apply in reviewing the sufficiency of
      evidence 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 own
      judgment for that of 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.

Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super.

2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207,

1211 (Pa. Super. 2003)). Furthermore:

      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 finder of fact
      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. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).

      Appellant was convicted of aggravated assault as defined in 18 Pa.C.S.

2702(a)(6), which provides as follows:

      (a) Offense defined.--A person is guilty of aggravated assault
      if he:


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                                     * * *

            (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;

                                    * * *

      (c) Officers, employees, etc., enumerated.--The officers,
      agents, employees and other persons referred to in subsection
      (a) shall be as follows:

            (1) Police officer.

18 Pa.C.S. § 2702(a)(6), (c)(1).

      Appellant asserts that the evidence fails to establish that he “intended

to place the officer in fear of serious bodily injury. The evidence established

that [Appellant] merely pointed an unchambered handgun at the officer’s

vehicle, but not necessarily at the officer who was inside.” Appellant’s Brief

at 17.    Appellant maintains that case law cited by the trial court is

distinguishable because additional facts bearing on state of mind are not

present in this case.

      See e.g. Commonwealth v. Little, 614 A.2d 1146, 1152-53 (Pa.
      Super. 1992) (armed with a shotgun, the appellant shouted
      obscenities in a hostile manner, approached within three feet of
      deputies, and ordered officers off her property); Commonwealth
      v. Hudgens, 582 A.2d 1352, 1357 (Pa. Super. 1990) (armed
      with a sword, the appellant touched the victim in the hand with
      the sword, held it within five inches of the victim’s body, and
      threatened to “get him”); Commonwealth v. Dicenzo, 393 A.2d
      988, 988-89 (Pa. Super. 1978) (armed with a stone, the
      appellant threatened to bash the officer’s brains in); see also
      Commonwealth v. Wood, 710 A.2d 626 (Pa. Super. 1998)
      (specific intent to cause serious bodily injury where appellant

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      actually discharged firearm into police vehicle); Commonwealth
      v. McCalam, 795 A.2d 412,415 -16 (specific intent to cause
      serious bodily injury where appellant, an expert marksman shot
      into car and missed victim by three inches).

            Unlike Little, Hudgens, and Dicenzo, [Appellant] made no
      statements, and unlike Wood and McCalam, [Appellant]
      exhibited no conduct beyond mere pointing that bore on a
      specific intent to scare Officer Fitzgibbon. As the firearm was
      unchambered, his conduct could not have physically harmed
      Officer Fitzgibbon.

Appellant’s Brief at 18.

      The relevant statute required the Commonwealth to prove that

Appellant attempted by physical menace to put a police officer, while in the

performance of his duty, in fear of imminent serious bodily injury.        18

Pa.C.S. §§ 2702(a)(6), (c)(1).    In Commonwealth v. Fortune, 68 A.3d

980, 984 (Pa. Super. 2013), this Court explained:

      In the matter sub judice, there is no question that Appellant’s
      actions did not cause the victim to sustain actual, serious bodily
      injury; therefore, Appellant’s conviction for Aggravated Assault
      turns exclusively on whether he attempted to inflict serious
      bodily injury upon the victim. In this regard, this Court has
      stated the following:

            Where the victim does not suffer serious bodily
            injury, the charge of aggravated assault can be
            supported only if the evidence supports a finding of
            an attempt to cause such injury. “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). An attempt under
            Subsection 2702(a)(1) requires some act, albeit not
            one causing serious bodily injury, accompanied by an
            intent    to    inflict  serious     bodily   injury.
            Commonwealth v. Matthew, 589 Pa. 487, 909
            A.2d 1254 (2006). “A person acts intentionally with

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            respect to a material element of an offense when ...
            it is his conscious object to engage in conduct of that
            nature or to cause such a result.” Id. at 1257–58
            (quotation omitted). “As intent is a subjective frame
            of mind, it is of necessity difficult of direct proof.”
            Id. (citation omitted). The intent to cause serious
            bodily injury may be proven by direct or
            circumstantial evidence. Id.

      Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super.
      2012) (emphasis added).

Fortune, 68 A.3d at 984–985.

      The trial court correctly evaluated Appellant’s sufficiency challenge, as

follows:

            In the instant matter, Officer Fitzgibbon testified that after
      hearing appellant repeatedly state “it’s going down” while
      conversing on his cellular phone, the officer asked if appellant
      could speak with him for a moment. N.T. at 33-34. Appellant
      responded by producing a firearm from his pocket and pointing it
      at Officer Fitzgibbon and his patrol vehicle. Id. at 34 -35. With
      his gun drawn and pointed at Officer Fitzgibbon, appellant then
      continued to proceed towards the officer. Id. at 37. In response
      to [A]ppellant’s actions, Officer Fitzgibbon “floored the gas” and
      quickly and immediately fled from the area in his patrol vehicle.
      Id. at 38. While doing so, Officer Fitzgibbon glanced in his
      rearview mirror and observed appellant standing in the street
      with the firearm pointed towards his patrol vehicle.             Id.
      Examination of the recovered firearm revealed that it was loaded
      with ten (10) cartridges in the magazine. Id. at 150.

Trial Court Opinion, 2/12/16, at 12.

      Here, in response to the officer’s request to speak with Appellant,

Appellant drew a loaded, semi-automatic weapon from his pocket and

pointed it directly at Officer Fitzgibbon. N.T., 10/23/14, 34–35. Appellant

then quickly moved toward the officer, despite being ten to twenty feet


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away. Id. at 48, 54–55. The officer testified that he “was scared,” and he

“leaned all the way to the right . . . covering myself from being exposed . . .

because I wasn’t sure if he was going to shoot at me.” Id. at 37. Thus, we

have no hesitation in concluding that the evidence supports the jury’s

verdict.

      Appellant’s second issue avers that the trial court imposed an

excessive sentence where some of the individual periods of incarceration

were imposed consecutively to each other. Appellant’s Brief at 19. This is a

challenge to the discretionary aspects of his sentence. It is well settled that

a challenge to the discretionary aspects of a sentence is a petition for

permission to appeal, as the right to pursue such a claim is not absolute.

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). “An

appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence,” by (1) preserving

the issue in the court below, (2) filing a timely notice of appeal, (3) including

a Rule 2119(f) statement, and (4) raising a substantial question for our

review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015)

(citation omitted).

      Appellant has met the first three parts of the four-prong test:

Appellant filed a timely appeal; Appellant preserved the issue in a post-

sentence motion; and Appellant included a statement pursuant to Pa.R.A.P.




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2119(f) in his brief.2       Thus, we assess whether Appellant has raised a

substantial question with respect to the issues he presents.

       A determination as to whether a substantial question exists is made on

a case-by-case basis.       Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).        “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.”    Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015), appeal denied, 126 A.3d 1282 (Pa. 2015).

       Appellant submits that a substantial question exists in this case

because the consecutive sentences imposed on his convictions resulted in a

manifestly excessive and unreasonable sentence. Appellant’s Brief at 11–12.

We conclude that Appellant has presented a substantial question.            See

Dodge, 77 A.3d at 1269 (stating that claims of a manifestly excessive

sentence due to the imposition of consecutive sentences raises substantial

question); Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.

____________________________________________


2
   While Appellant included a Pa.R.A.P. 2119(f) statement, Appellant’s Brief
at 11, it is deficient because it fails to articulate how his sentence violates a
particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013). However, because the Commonwealth
has not objected to this deficiency, and because appellate review is not
hampered, we decline to find waiver. Id.



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2015) (challenge to the imposition of consecutive sentences as unduly

excessive, together with claim that court failed to consider rehabilitative

needs and mitigating factors presented substantial question).

      The imposition of sentence is vested within the sound discretion of the

trial court, which, absent an abuse of that discretion, will not be disturbed on

appeal.   “An abuse of discretion is more than an error in judgment—a

sentencing court has not abused its discretion unless the record discloses

that the judgment exercised was manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.” Commonwealth v. Colon, 102 A.3d

1033, 1043 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).

Moreover, the decision to impose consecutive rather than concurrent

sentences is left to the discretion of the sentencing court. Commonwealth

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

      The record reflects that the trial court carefully considered the gravity

of Appellant’s offenses, his rehabilitative needs, the protective needs of the

community, and the impact of Appellant’s crimes on his victim.           At the

sentencing hearing, the trial court stated:

            In fashioning a sentence, this court has considered the
      gravity of the offenses, the rehabilitative needs of [Appellant],
      the need[] to protect the community, the prior record score
      report, the mental health report, and the appropriate arguments
      from the Commonwealth, arguments of the defense, the letter
      on behalf of [Appellant] by his mother, as well as [Appellant’s]
      allocution.

N.T., 1/13/15, at 35.


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     In addressing this issue in its Pa.R.A.P. 1925(a) opinion, the trial court

explained:

     [T]his Court measured mitigating factors such as [A]ppellant’s
     physical neglect and substance abuse from a young age, against
     the actions of [A]ppellant in the instant matter, which this court
     referred to as “one of the worst things that can happen in
     society.” Id. at 33-34. This court also considered the fact that
     [A]ppellant has continuously been under county supervision
     since 2000. Id. at 34. Therefore, by engaging in the due
     diligence that is required when sentencing a defendant, this
     court did not abuse its discretion by imposing [consecutive]
     sentences.

Trial Court Opinion, 2/12/16, at 10. Thus, we conclude that the trial court

considered all necessary factors and did not abuse its discretion in imposing

some terms of incarceration to run consecutively and some concurrently.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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