J-S63035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEMONI LARON GHEE,

                            Appellant                 No. 347 MDA 2014


          Appeal from the Judgment of Sentence September 18, 2013
               in the Court of Common Pleas of Franklin County
              Criminal Division at No.: CP-28-CR-0000065-2013


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

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 17, 2014

        Appellant, Jemoni Laron Ghee, appeals from the judgment of sentence

entered on September 18, 2013, following his conviction of aggravated

assault.1   On appeal, Appellant challenges the weight of the evidence and

the legality of his sentence. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s January 24, 2014 opinion.

             The co-defendants in this matter are Jemoni L. Ghee (No.
        65-2013) and Jelani L. Ghee (66-2013). They were charged by
        way of criminal complaint by Pennsylvania State Police —
        Chambersburg on November 8, 2011. They were both charged

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a)(1).
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        with Criminal Attempt to Commit Homicide,[2] Aggravated
        Assault, Robbery,[3] and Simple Assault.[4] The cases were
        consolidated for purposes of trial. The matter was tried to a jury
        on August 12 through August 15, 2013. The jury found the
        defendants guilty of aggravated assault, and not guilty as to the
        remaining charges.      The defendants were sentenced on
        September 18, 2013.

               Both defendants filed timely post sentence motions and
        requested that the briefs not be due until transcripts of the trial
        have been produced. The transcripts have been filed and all
        parties have submitted their briefs. The matter is now ready for
        decision. The facts relevant to these post sentence motions are
        the same, but the issues raised as to each defendant are
        different. Therefore, the issues in the discussion section below
        will be identified as to each defendant.

                                           *     *   *

               Many of the facts of this case are undisputed unless
        otherwise noted. On November 7, 2012, the Defendants and the
        victim, Clarence Green, traveled from Franklin County to the
        Hollywood Casino in Dauphin County. Jelani drove, [Appellant]
        sat in the front passenger seat, and Clarence Green sat in the
        rear passenger side seat. While driving, the three drank beer
        and smoked marijuana. At the casino, Green had gambled and
        lost all of the money he had on hand, and asked to borrow
        Jelani’s vehicle so that he could locate a Western Union in order
        to retrieve money that a friend had wired to him. Green,
        unfamiliar with the area, got lost and took a long amount of
        time. Upon returning to the casino, Green noticed the Ghee
        brothers walking along the side of the road. Green stopped to
        pick them up, and Jelani again drove the vehicle back towards
        Franklin County. There appeared to be no bitterness about the
        length of time Green had taken. Green gave Jelani money for

____________________________________________


2
    18 Pa.C.S.A. § 901(a).
3
    18 Pa.C.S.A. § 3701(a)(1)(i).
4
    18 Pa.C.S.A. § 2701(a)(1).



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     gas, and the three continued to drink and smoke marijuana, and
     stopped for food.

            According to the Ghee brothers, at some point, Green
     accused [Appellant] of slipping a pill in his drink. He then
     punched Jelani in the back of the head. Green denies this
     argument ever happened. Soon after, Jelani parked the vehicle
     along Wibymarch Drive[,] which is a dark, not often traveled
     road. Green believed they had stopped in order to take a
     bathroom break along the side of the road. After exiting the
     vehicle, Green testified that [Appellant] had come from behind
     him and wrapped his arm around Green’s neck. Green then
     testified that Jelani began kicking and punching him, and told
     Green, “you’re gonna die, nigger.” He said that Jelani then hit
     him in the head with an object. Green said that he began
     bleeding immediately after the first hit and that it was difficult
     for him to breath. The brothers wrestled Green to the ground.
     As the beating continued, Green testified that he heard Jelani
     ask if [Appellant] had broken Green’s neck yet. [Appellant]
     replied that he thought he had, but it didn’t break yet. After
     another attempt, Green felt a pop in his neck and his body went
     limp. He stopped struggling and recalls the brothers removing
     his watch and removing items from his pockets, including
     money. The Ghee brothers drove away and Green staggered
     across the road to a cornfield where he laid down waiting for a
     vehicle to drive by. He estimated it was about 10-15 minutes
     before a car came and that it was very cold. After flagging down
     a vehicle, he was taken to Chambersburg Hospital, however, due
     to the extent of his injuries, he was taken by helicopter to York
     Hospital.     He testified that he was in the hospital for
     approximately 10 days. He suffered a broken hyoid bone in his
     neck, a split liver, [six] broken ribs, and had a filter installed in
     his chest to prevent blood clots. On cross examination, Green
     admitted that he had not originally told police that the snap in
     his neck is what made him go limp. Rather, he had done it as a
     way to “play dead.” Further, he testified that he told police that
     he said [Appellant] put a pill in a bottle, possibly for himself; but
     did not say that [Appellant] put a pill in a bottle that was
     intended for Green to drink.

           Jelani testified that following Green’s accusation of
     [Appellant] putting a pill in Green’s drink, and Green punching
     Jelani in the head, the argument escalated and Jelani parked the
     car on the side of Wibymarch Drive. Green exited the car with

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     his hands up, prepared to fight. Green and Jelani began fighting
     and Green took Jelani down. [Appellant] attempted to break up
     the fight, but Green then wrestled [Appellant] down. Jelani then
     began punching Green, but Green continued to punch
     [Appellant]. Jelani then wrapped his arm around Green’s neck,
     choking him, to pull him off. Once Green stopped fighting back,
     the brothers ran to the car and drove away. Jelani testified that
     Green chased after the car. The Ghee brothers then called a
     mutual friend and told them that Green may need a ride home.

            Dr. Michael Hughes, trauma surgeon at York Hospital
     testified for the Commonwealth. He stated that Green was
     found to have a broken hyoid bone in his neck, fractured ribs,
     and a severe liver injury. He also had other minor injuries such
     as abrasions and a laceration on his forehead. The liver injury
     was graded a level [five] injury on a scale of [one] through [six],
     [six] being the highest with a high risk of fatality. This type of
     injury normal comes from blunt force trauma. The [hyoid] injury
     normally occurs from some sort of force being applied to the
     neck, such as strangulation. On cross examination, he testified
     that he did not personally check to see if the [hyoid] was,
     indeed, broken or if it had never naturally fused together in the
     first place. Dr. Hughes did testify that it is the radiologist who
     would check such a detail, and that the radiologist would look to
     determine [if] the bone had a more jagged or smooth edge in
     determining if the bone was recently fractured, or if it had never
     fused.

           Dr. Jonathan Arden, forensic pathologist testified as an
     expert for the defendants. He stated that the hyoid fracture was
     not a fracture but, rather, was a natural gap between the two
     bones that normally fuse together. He testified that he has seen
     thousands of hyoid bones and testified that it is not uncommon
     for a hyoid bone not to fuse until later in life. Upon reviewing all
     the medical records and radiologist’s report, he noted that the
     bone had smooth edges which indicates that there was no break.
     A break would show rough or jagged edges on the bone. Dr.
     Arden also discussed the injuries to Green’s ribs and liver. He
     stated that the skin abrasions in that area did not indicate that
     Green was kicked or punched there. Nor were they consistent
     with the type of injuries one would receive if [he] were dragged
     by the neck along a road. Rather, they were consistent with the
     type of abrasions one would receive after being struck by a car.
     Dr. Arden testified, at length, the reasons for his [belief] that

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     these injuries were likely caused by being struck by a vehicle
     and not caused by the fight that occurred between Green and
     the Ghee brothers.

          A nurse from York Hospital also testified that the abrasions
     on Green’s skin appeared to be what is referred to as “road rash”
     which can be caused when an individual is struck by a vehicle on
     a paved road.

(Trial Court Opinion, 1/24/14, 1-4).

     On September 18, 2013, the trial court sentenced Appellant as a

second-strike offender to a period of incarceration of not less than ten years

nor more than twenty years. The trial court found that Appellant’s previous

conviction for “malicious wounding” in Virginia, constituted a crime of

violence. (See N.T. Sentencing, 9/18/13, at 7).

     Appellant filed timely post-sentences motions, which the trial court

denied on January 24, 2014.       The instant, timely appeal followed.     On

February 27, 2014, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). After

receiving several continuances, Appellant filed a timely Rule 1925(b)

statement on March 17, 2014. On March 31, 2014, the trial court filed an

opinion referencing its January 24, 2014 opinion.    See Pa.R.A.P. 1925(a);

(see also Trial Court Opinion, 3/31/14, at unnumbered page 1).

     On appeal, Appellant raises the following questions for our review:

     1. Did the trial court err in denying Appellant’s post[-]sentence
        motion when the jury’s guilty verdict was against the weight
        of the evidence?




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      2. Did the trial court err in concluding that the two strike rule
         was applicable when the two (2) offenses used to apply the
         two strike rule are not equivalent to one another?

(Appellant’s Brief, at 5) (footnote omitted).

      In his first issue, Appellant challenges the weight of evidence, alleging

that Green’s testimony was not credible and that the physical evidence did

not support Green’s version of the events. (See Appellant’s Brief, at 19-20).

We disagree.

      Our scope and standard of review of a weight of the evidence claim is

as follows:

            The finder of fact is the exclusive judge of the weight of
      the evidence as the fact finder is free to believe all, part, or none
      of the evidence presented and determines the credibility of the
      witnesses.

             As an appellate court, we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breath, temporarily, and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted).          “Thus, the trial

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court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted).

      In its opinion denying Appellant’s post-sentence motions, the trial

court explained its reasoning for rejecting Appellant’s weight of the evidence

claim. (See Trial Ct. Op., 1/24/14, at 5-6). Further, the record reflects that

the jury chose to credit Green’s testimony and the testimony of the

Commonwealth’s expert witness, and reject the testimony of Jelani Ghee

and the defense expert witness. This Court cannot substitute our judgment

for that of the trier of fact. See Commonwealth v. Holley, 945 A.2d 241,

246 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). Further,

the jury, sitting as finder of fact, was free to believe the Commonwealth’s

witnesses and to disbelieve the defense witnesses. See Commonwealth v.

Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to

make credibility determinations, and the finder of fact may believe all, part,

or none of a witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024,

1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation

omitted).

      Thus, after a thorough review of both the trial court’s opinion and the

record in this matter and we conclude that the trial court did not commit a




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palpable abuse of discretion in rejecting Appellant’s claim.             Therefore,

Appellant’s weight of the evidence claim fails.

       Appellant’s second argument challenges the trial court’s imposition of

the mandatory minimum sentence prescribed by the second strike provision

of the Pennsylvania Sentencing Code, 42 Pa.C.S.A. § 9714(a)(1).               (See

Appellant’s Brief, at 21-26).   The statute states, in pertinent part,

       (a) Mandatory sentence. —

          (1) Any person who is convicted in any court of this
          Commonwealth of a crime of violence shall, if at the time of
          the commission of the current offense the person had
          previously been convicted of a crime of violence, be
          sentenced to a minimum sentence of at least ten years of
          total confinement, notwithstanding any other provision of this
          title or other statute to the contrary.        Upon a second
          conviction for a crime of violence, the court shall give the
          person oral and written notice of the penalties under this
          section for a third conviction for a crime of violence. Failure
          to provide such notice shall not render the offender ineligible
          to be sentenced under paragraph (2).

42 Pa.C.S.A. § 9714(a)(1).

       Appellant argues that the trial court erred in treating his out-of-state

conviction for “malicious wounding” as a second strike under these sections

because his prior offense, which the court accepted as a “first strike” was

not “an equivalent crime to Pennsylvania’s [a]ggravated [a]ssault statue,

which is an enumerated offense, and therefore the ten year mandatory

confinement sentence imposed upon him was in error.” (Appellant’s Brief, at

24).




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       In Commonwealth v. Greene, 25 A.3d 359, (Pa. Super. 2011) (en

banc), affirmed, 81 A.3d 829 (Pa. 2013), this Court discussed Pennsylvania’s

strikes scheme as follows:

             Where the prior convictions arise from a crime committed
       outside of Pennsylvania, the convictions are considered a crime
       of violence if they are equivalent to one of the Pennsylvania
       statutorily-delineated crimes of violence. See 42 Pa.C.S. §
       9714(g). Those crimes include:

                    murder of the third degree, voluntary
              manslaughter, aggravated assault as defined in 18
              Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
              assault),   rape,   involuntary    deviate      sexual
              intercourse, aggravated indecent assault, incest,
              sexual assault, arson as defined in 18 Pa.C.S. §
              3301(a) (relating to arson and related offenses),
              kidnapping, burglary of a structure adapted for
              overnight accommodation in which at the time of the
              offense any person is present, robbery as defined in
              18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
              robbery), or robbery of a motor vehicle, or criminal
              attempt, criminal conspiracy or criminal solicitation
              to commit murder or any of the offenses listed
              above[.]

       42 Pa.C.S. § 9714(g). Thus, the Pennsylvania recidivist statute
       is specifically targeted to encompass a narrow set of inherently
       dangerous criminal behaviors, and both directs and limits a
       sentencing court’s inquiry. This Court, therefore, must focus on
       the elements of the crimes of which Appellant was convicted in
       [Virginia] and determine whether those crimes are substantially
       equivalent to a crime of violence in our recidivist statute.

             The issue before us is one of statutory construction that
       implicates the legality of the sentence imposed.[5] As a result,
____________________________________________


5
  Counsel for Appellant acknowledged that prior counsel failed to include this
claim in his Rule 1925(b) statement, but requested review in the interest of
judicial economy. (See Appellant’s Brief, at 5 n. 1). However, an appellant
(Footnote Continued Next Page)


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      our standard of review is de novo and our scope of review is
      plenary. Further, we are required to strictly construe criminal
      statutes. Any doubt as to a criminal statute's meaning is to be
      resolved in favor of the defendant. In [Commonwealth v.]
      Northrip [985 A.2d 734 (Pa. 2009)], our Supreme Court was
      faced with determining whether a New York arson statute was
      substantially equivalent to our arson statute. Therein, the Court
      stated:

                   In determining whether a foreign state’s
             statute is equivalent to a Pennsylvania crime under
             Section 9174, we hold that the sentencing court is to
             apply    the    test   this   Court    articulated     in
             [Commonwealth v.] Shaw [744 A.2d 739 (Pa.
             2000)]. Thus, the court must consider “the elements
             of the foreign offense in terms of classification of the
             conduct proscribed, its definition of the offense, and
             the requirements for culpability.” [Shaw supra,] at
             743 (citation omitted).        With respect to the
             underlying policy of the statutes, we hold that
             analysis of policy considerations is appropriate,
             though not controlling.

      Id. [at 740]. As noted in Shaw, supra, and quoted with
      approval by the Northrip Court,

                    the court may want to discern whether the
             crime is malum in se or malum prohibitum, or
             whether the crime is inchoate or specific. If it is a
             specific crime, the court may look to the subject
             matter sought to be protected by the statute, e.g.,
             protection of the person or protection of the property.
             It will also be necessary to examine the definition of
             the conduct or activity proscribed. In doing so, the
             court should identify the requisite elements of the

                       _______________________
(Footnote Continued)

cannot waive a legality of sentence claim.     See Commonwealth v.
Dickson, 918 A.2d 95, 99 (Pa. 2007). This Court has held that challenges
to mandatory minimum sentences implicate the legality of sentencing. See
Commonwealth v. Henderson, 938 A.2d 1063, 1065 n.1 (Pa. Super.
2007), appeal denied, 954 A.2d 575 (Pa. 2008).



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           crime—the actus reus and mens rea—which form the
           basis of liability.

                 Having identified these elements of the foreign
           offense, the court should next turn its attention to
           the Pennsylvania Crimes Code for the purpose of
           determining the equivalent Pennsylvania offense. An
           equivalent offense is that which is substantially
           identical in nature and definition [to] the out-of-state
           or federal offense when compared [to the]
           Pennsylvania offense.

     Shaw, supra at 743 (brackets in original); Northrip, supra at
     378.

Greene, supra at 360-62.

     Appellant does not dispute that he was convicted in November 2010 of

shooting, stabbing, etc., with intent to maim, kill, etc. in violation of Va.

Code Ann. § 18.2-51. (See Appellant’s Brief, at 24). This statute provides:

     If any person maliciously shoot, stab, cut, or wound any person
     or by any means cause him bodily injury, with the intent to
     maim, disfigure, disable, or kill, he shall, except where it is
     otherwise provided, be guilty of a Class 3 felony. If such act be
     done unlawfully but not maliciously, with the intent aforesaid,
     the offender shall be guilty of a Class 6 felony.

Va. Code Ann. § 18.2-51.      Here, Appellant was convicted of aggravated

assault pursuant to 18 Pa.C.S.A. § 2702(a)(1), which provides:

     An individual 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). Similarly to 42 Pa.C.S.A. § 9714(a)(1), Virginia

law provides for repeat felony offender enhancement for individuals who

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commit second or subsequent crimes of violence. One of the crimes listed is

malicious wounding.     See Va. Code Ann. § 19.2-297.1(A)(d).        Thus, like

aggravated assault, malicious wounding is considered a crime of violence.

See Va. Code Ann. § 18.2-46.1 (defining “act of violence” to mean felony

offenses described in subsection A of § 19.2-297.1).

        For purposes of a conviction for aggravated assault, “[s]erious bodily

injury” is defined as “[b]odily 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.A. §

2301.     For purposes of a conviction for malicious wounding, Virginia law

requires that the injury be committed “with the intent to maim, disfigure,

disable, or kill.” Va. Code Ann. § 18.2-51. Thus, we conclude tht Virginia’s

malicious wounding is a substantially equivalent crime to Pennsylvania’s

aggravated assault. Therefore, Appellant’s claim that the trial court wrongly

sentenced him as a second-strike offender must fail. See Greene, supra at

360-62.     Appellant’s second claim lacks merit.

        Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




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