J-S28016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARLON GARTH

                            Appellant                 No. 417 EDA 2015


          Appeal from the Judgment of Sentence September 29, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011632-2012


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 04, 2016

        Marlon Garth appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after a jury found him guilty

of aggravated assault.1 Upon careful review, we affirm.

        Garth was arrested on July 24, 2012 and charged with aggravated

assault, attempted rape, possessing an instrument of crime and attempted

sexual assault. The charges stemmed from an incident in which Garth took

the victim into an empty lot in the Kensington section of Philadelphia and

attacked her. Garth struck the victim’s head with a brick, knocking her to

the ground, and then hit her head into the ground multiple times.         He

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a).
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unbuttoned the victim’s shorts and pulled them down around her hips and

told her to “shut up, take this.”    N.T. Trial, 7/30/14, at 80; 116.        Two

women flagged down nearby police officers, who responded to the vacant lot

and found the victim screaming for help with Garth crouched over her,

clenching his fists, with his pants undone and pulled around his hips. Garth

was apprehended as he attempted to walk away from the scene.

     After a two-day jury trial, Garth was convicted of aggravated assault

and acquitted of the remaining charges. Following the preparation of a pre-

sentence report (“PSI”), on September 29, 2014, the trial court sentenced

Garth to a term of 78 to 156 months’ incarceration, followed by two years of

probation.    Garth filed a timely post-sentence motion, which the court

denied without a hearing by order dated January 23, 2015.         Garth filed a

timely notice of appeal on February 9, 2015, and his counsel filed a motion

to withdraw, which the court granted. The court appointed new counsel and

issued a Pa.R.A.P. 1925(b) order, directing Garth to file a statement of

errors complained of on appeal.       After receiving an extension of time,

counsel filed Garth’s Rule 1925(b) statement on March 23, 2015. The trial

court issued its Rule 1925(a) opinion on August 21, 2015.

     On appeal, Garth raises the following issues for our review:

     1. Did the jury improperly convict Garth where there was
     insufficient evidence of his intent to cause serious bodily injury in
     support of the aggravated assault conviction?

     2. Did the trial court improperly admit the following evidence at
     trial: [(a)] an unrelated weapon – a knife recovered from the
     crime scene, which was a vacant lot; [(b)] the victim’s

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      statements to a responding EMT under the medical diagnosis or
      treatment exception to the hearsay rule?

Brief of Appellant, at 2.

      Garth first claims that insufficient evidence was presented at trial to

convict him of aggravated assault.      Garth alleges that the Commonwealth

failed to establish either that the victim suffered serious bodily injury or that

he possessed the specific intent to inflict serious bodily injury. Accordingly,

he argues, the Commonwealth failed to establish that he committed the

crime of aggravated assault and his conviction should be reversed.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. The facts and circumstances established
      by the Commonwealth need not be absolutely incompatible with
      the defendant’s innocence. 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. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015),

quoting Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super.

2013).

      Here, Garth was convicted of aggravated assault, which is defined as

follows:

      § 2702. Aggravated assault.

      (a) Offense defined. --

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       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.A. § 2702(a)(1). “Serious bodily injury” is bodily injury that, inter

alia, “creates a substantial risk of death.” 18 Pa.C.S.A. § 2301. Aggravated

assault can be found with proof of intent to commit serious bodily injury,

regardless    of   whether       any   serious   bodily   injury   actually    resulted.

Commonwealth v. Gruff, 822 A.2d 773, 777 (Pa. Super. 2003).                          The

specific intent to inflict serious bodily harm may be inferred from the

circumstances. Commonwealth v. Bruce, 916 A.2d 657, 663 (Pa. Super.

2007).

       Here, testimony adduced at trial established that Garth hit the victim

over the head with a brick, causing her to fall to the ground. See N.T. Trial,

7/31/14, at 64-66.          The victim testified that Garth also choked her,

“smacked” her in the face with an open hand, and was about to hit her again

with the brick when a bystander stopped him. See id. at 67. In addition,

Philadelphia Police Officer Raymond Singleton, who, along with his partner,

was the first officer to arrive on the scene while Garth was still on top of the

victim, testified that the victim told him immediately following the incident

that Garth had “hit her head multiple times into the ground.” 2               N.T. Trial,

____________________________________________


2
  In his brief, Garth makes much of the fact that the victim herself did not
testify that Garth ever hit her head against the ground, suggesting that the
(Footnote Continued Next Page)


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7/30/14, at 115-16. As a result of the blows inflicted by Garth, the victim

had blood and welts on her forehead and knots on top of her head. See id.

at 74.      This testimony, viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to establish that Garth

intended to cause serious bodily injury to the victim. Accordingly, this claim

is meritless.

      Garth’s final two claims challenge the trial court’s admission of

evidence. Our standard of review concerning such claims is well-settled:

      With regard to the admission of evidence, we give the trial court
      broad discretion, and we will only reverse a trial court’s decision
      to admit or deny evidence on a showing that the trial court
      clearly abused its discretion. An abuse of discretion is not
      merely an error in judgment, but an overriding misapplication of
      the law, or the exercise of judgment that is manifestly
      unreasonable, or the result of bias, prejudice, ill-will or partiality,
      as shown by the evidence of the record.

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (citation

omitted).

      “Relevance        is   the    threshold     for   admissibility   of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015); see also

Pa.R.E. 402.    “Evidence is relevant if it has any tendency to make a fact

more or less probable than it would be without the evidence[,] and the fact
                       _______________________
(Footnote Continued)

finder of fact was required to disbelieve Officer Singleton’s testimony to this
effect if it were to believe the victim’s own account. However, the victim
herself testified on cross-examination that there were parts of the attack
that she did not remember. See N.T. Trial, 7/31/14, at 86. Accordingly,
this argument is simply unavailing.



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is of consequence in determining the action.” Pa.R.E. 401; see also Tyson,

119 A.3d at 358 (stating that “[e]vidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.”). “The court may exclude relevant evidence if its probative

value is outweighed by a danger of . . . unfair prejudice[.]”     Pa.R.E. 403;

see also Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012)

(stating that even when evidence meets the relevance requirements, “such

evidence may still be excluded where its probative value is outweighed by

the danger of unfair prejudice.”).

      However, [e]vidence will not be prohibited merely because it is
      harmful to the defendant. [E]xclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision
      based on something other than the legal propositions relevant to
      the case[.] This Court has stated that it is not required to
      sanitize the trial to eliminate all unpleasant facts from the jury’s
      consideration where those facts are relevant to the issues at
      hand[.]

Id. (citation omitted); see also Pa.R.E. 403 cmt. (defining “unfair prejudice”

as “a tendency to suggest a decision on an improper basis or to divert the

jury’s attention away from its duty of weighing the evidence impartially.”).

      Garth first challenges the court’s admission of a knife recovered from

the vacant lot where the assault took place.      Garth asserts that, because

there was no evidence that he possessed or used a knife during the attack, it

was not relevant and therefore inadmissible. Moreover, Garth asserts that




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even if the knife evidence is relevant, its probative value was outweighed by

its unfairly prejudicial impact.

      There is no requirement that the Commonwealth establish that the

proffered weapon was the weapon actually used in the attack before it can

be introduced into evidence. Commonwealth v. Thomas, 561 A.2d 699,

707 (Pa. 1989).     The only burden is to show sufficient circumstances to

justify such an inference. Id., citing Commonwealth v. Martinez, 380

A.2d 747 (Pa. 1977).        If a proper foundation is laid, the weapon is

admissible where the circumstances raise an inference that it was used. Id.,

citing Commonwealth v. Ford, 301 A.2d 856 (Pa. 1973). Moreover, the

admission of such demonstrative evidence is a matter within the discretion

of the trial judge and, absent an abuse of his discretion, his decision must

stand. Id.

      Here, at the hearing on Garth’s motion in limine to exclude the knife,

the Commonwealth represented to the court that the victim would testify

that Garth threatened her with a knife, and that the officer who recovered

the knife found it directly next to where the assault occurred. See Hearing

on Motion in Limine, 7/30/14, at 15. However, at trial, the victim could not

remember whether Garth threatened her with a gun or a knife because she

was “kind of nervous with [Garth] being in the courtroom right now.” N.T.

Trial, 7/31/14, at 67.      Officer Raymond Singleton testified that, upon

arriving at the scene, he noticed a knife on the ground in the area where the

victim was laying. We conclude that, taken together, this testimony formed

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a sufficient basis to justify an inference by the fact finder that the knife

found adjacent to the scene of the attack was used to threaten the victim.

The weight, or lack thereof, to be accorded any such inferences was for the

jury to determine. Thomas, 561 A.2d at 707. As such, the trial court did

not abuse its discretion in admitting the knife as evidence.

      Even if the trial court erred by admitting the knife into evidence, such

error was harmless.        Harmless error exists if there is no reasonable

possibility   that   the   error   could   have   contributed   to   the   verdict.

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013).

      The Commonwealth bears the burden of establishing the
      harmlessness of the error. This burden is satisfied when the
      Commonwealth is able to show that: (1) the error did not
      prejudice the defendant or the prejudice was de minimis; or (2)
      the erroneously admitted evidence was merely cumulative of
      other untainted evidence which was substantially similar to the
      erroneously admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial [e]ffect of the error so insignificant by comparison
      that the error could not have contributed to the verdict.

Id., quoting Commonwealth v. Laich, 777 A.2d 1057, 1062-63 (Pa.

2001).

      Here, the victim testified as to the assault, Officers McIntyre and

Singleton witnessed the tail end of the assault and testified as to the victim’s

statements at the time of the incident, and Lydia Sanchez testified that she

observed Garth “beating [the victim] with a big thing in his hand.”           N.T.

Trial, 7/30/14, at 163.     Accordingly, there was overwhelming evidence to

establish that Grant committed aggravated assault, such that any error in


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admitting the knife could not reasonably have contributed to the verdict.

Green, supra.

     Finally, Garth challenges the trial court’s admission of the victim’s

statements to firefighter and EMT John Perez regarding the fact that she was

the victim of an “assault and attempted rape” and that Garth had hit her in

the head several times with a brick. Garth asserts that the trial court erred

in its determination that these statements were admissible under the

“medical treatment and diagnosis exception” to the rule against hearsay.

We disagree.

     Pennsylvania Rule of Evidence 803 enumerates various exceptions to

the general inadmissibility of hearsay testimony, including the one at issue

here. Rule 803(4) excludes from the hearsay rule statements made for the

purposes of medical diagnosis and treatment, and provides as follows.

     Rule 803. Exceptions to the Rule Against Hearsay--Regardless of
     Whether the Declarant Is Available as a Witness

       The following are not excluded by the rule against hearsay,
     regardless of whether the declarant is available as a witness:

                                     ...

     (4) Statement Made for Medical Diagnosis or Treatment. A
     statement that:

     (A) is made for – and is reasonably pertinent to – medical
     treatment or diagnosis in contemplation of treatment; and

     (B) describes medical history, past or present symptoms, pain,
     or sensations, or the inception or general character of the cause
     or external source thereof, insofar as reasonably pertinent to
     treatment, or diagnosis in contemplation of treatment.



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      Comment: . . . This rule is not limited to statements made to
      physicians. Statements to a nurse have been held to be
      admissible. See [Commonwealth v. ]Smith, [681 A.2d 1288
      (Pa. 1996)]. Statements as to causation may be admissible, but
      statements as to fault or identification of the person inflicting
      harm have been held to be inadmissible. See [id.].

Pa.R.E. 803(4) (citation formatting corrected).

      The following two requirements must be satisfied in order for a

statement to qualify for the medical treatment exception: (1) the statement

must be made for the purpose of receiving medical treatment; and (2) the

statement must be necessary and proper for diagnosis and treatment.

Commonwealth v. Belknap, 105 A.3d 7, 11 (Pa. Super. 2014) (citation

omitted).

      At trial, Firefighter Perez testified, in relevant part, as follows:

      Q: When you got there that night, what would have been the
      first step you would take as part of your protocol as a Fire
      Fighter EMT?

      A: Well, we pulled up on scene and the first thing we do is go to
      the patient. Once we know who the patient is, then we start
      assessing her and we care for her with basic life support.

      Q: As part of that care are you trying to get any information as
      to what may have happened?

      A: Absolutely.

      Q:   The purpose of getting that information, what is that
      purpose?

      A:   The purpose of getting information is to know what
      happened, what area is injured? What occurred? Did she lose
      consciousness? Did she know what happened, basically to give
      you some sort of history on what occurred.

N.T. Trial, 7/30/14, at 142-43.



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      Here, we can discern no error in the trial court’s admission of

Firefighter Perez’s testimony regarding statements made to him by the

victim in this case. The fact that the victim had been subjected to an assault

and attempted rape was clearly pertinent to the EMT’s attempt to determine

the location and character of any possible injuries and to proceed with

appropriate treatment.    The fact that the victim stated that Garth had

attempted to rape her would alert a medical provider to the fact that vaginal

or other similar injuries may be present. Similarly, the victim’s statement

that she had been hit in the head multiple times with a brick was directly

relevant to the manner in which Firefighter Perez would proceed with

stabilizing and treating her.    Indeed, as a result of this information,

Firefighter Perez testified that he and his partner placed the victim in a

board collar and transported her as a trauma victim as a precautionary

measure until doctors could determine the extent of her injuries. See N.T.

Trial, 7/30/14, at 147.

      Even if the court erred in admitting this testimony, the error was

harmless and would have had only a negligible impact on the verdict based

on the direct testimony of the victim and witness Lydia Sanchez, which was

corroborated by the testimony of the responding officers.      Moreover, the

reference to “attempted rape” was harmless, as Garth was acquitted of that

crime.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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