J-S39021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

 CHRISTOPHER L. DAVIS

                             Appellant              No. 3622 EDA 2017


      Appeal from the Judgment of Sentence imposed October 23, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0006283-2015


 COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

 CHRISTOPHER L. DAVIS

                             Appellant               No. 210 EDA 2018


    Appeal from the Judgment of Sentence imposed October 23, 2017
          In the Court of Common Pleas of Philadelphia County
            Criminal Division at No: CP-51-CR-0006282-2015
BEFORE: GANTMAN, P.J.E., STABILE, J. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 22, 2019

       Appellant, Christopher Davis, appeals from the judgment of sentence

imposed on October 23, 2017 in the Court of Common Pleas of Philadelphia

County following his conviction of aggravated assault, 18 Pa.C.S.A. § 2702(a),

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* Former Justice specially assigned to the Superior Court.
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and other offenses.        Appellant contends that the trial court abused its

discretion in fashioning Appellant’s sentence and that the evidence was

insufficient to sustain his aggravated assault conviction with respect to one of

his victims (Tomeckia Boone). Following review, we affirm.

        The trial court provided the following factual history, which Appellant

incorporated in his brief1 and we recite here in relevant part as follows:

        On May 3, 2015, complainant Tomeckia Boone was reportedly
        having a family barbeque. She testified to hearing a commotion
        while grilling outside and turning around to see her 14-year-old
        daughter in a fight with another teen. She then ran to her
        daughter and became involved in a fight with another older
        woman. At this point, others joined the fight and Appellant
        approached Ms. Boone and proceeded to hit her in the left side of
        her face using a shotgun, causing her to fall unconscious. Ms.
        Boone’s sister, Lateefa Boone, testified to seeing Appellant strike
        Ms. Boone, as well as her brother-in-law, Rasheed Collins, who
        she testified was frantic and bloody. Lateefa Boone observed him
        sitting on the front steps of the home with blood coming from the
        back of his head. Rasheed Collins testified to having been on the
        ground when he was struck in the face with a shotgun, and
        repeatedly punched in his head and face.

        At approximately 9:00 [p.m.,] Officers Beck and Marrero were on
        duty in the area. Upon arrival at the scene, the officers observed
        what appeared to be 100 people in attendance, and a “giant fist
        fight” right outside 2410 Turner St.       Although [there was]
        conflicting evidence about the number of people in attendance and
        the type of event occurring[,] Officers Beck and Marrero saw an
        African-American female unconscious and face down on the
        ground, bleeding from her head, as well as an injured African-
        American male. Officer Marrero administered aid to the female,
        while Officer Beck followed a man into the home, after bystanders
        informed him he had hit people with a rifle. . . .



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1   See Appellant’s Brief, Factual History, at 7.

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      Upon regaining consciousness, Tomeckia Boone sustained injuries
      of a laceration on the left-side of her face and had to have her ear
      surgically glued back on, as well as a minor fracture; she also had
      several bruises and scrapes. [Ms. Boone was shown a photo array
      the following day and identified Appellant. Lateefa Boone likewise
      identified Appellant from a photo array.]

      Ms. Boone continued to experience symptoms from being knocked
      unconscious. She suffered dizzy spells and [in] April 2016 was
      rushed to Hahnemann Hospital where she received CAT scans and
      MRIs. She continues to take medication for the dizzy spells and
      is under physician’s care. Mr. Collins missed a week and a half of
      work.

Trial Court Opinion, 11/14/18, at 2-4 (references to trial transcripts and some

capitalization omitted).

      On March 7, 2017, at the conclusion of trial, a jury convicted Appellant

of aggravated assault as a Felony 1 with respect to Tomeckia Boone and as a

Felony 2 with respect to Rasheed Collins.      The trial court ordered a pre-

sentence investigation and subsequently sentenced Appellant to an aggregate

sentence that was later corrected to twenty-two and a half to forty-five years’

incarceration. Appellant filed a timely notice of appeal from the judgment of

sentence in the Collins case and, following reinstatement of his appellate

rights, likewise filed a notice of appeal in the Boone case. Both Appellant and

the trial court complied with Pa.R.A.P. 1925. We consolidated the cases for

purposes of this appeal.

      Appellant asks us to consider two issues:

      A. Did the trial court abuse its discretionary aspects of sentencing
         by fashioning an incarceration sentence much longer than that
         requested by the Commonwealth, longer than necessary to
         ensure the safety of the public, and where the court failed to

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         consider mitigating factors such as Appellant’s youth, familial
         support, work history, mental health issues (PTSD and anxiety)
         as a result of growing up in an environment rife with domestic
         violence, and for failing to consider the rehabilitative needs of
         the Appellant?

      B. Was the evidence insufficient to sustain the guilty verdict for
         Aggravated Assault (F1) (complainant Tomeckia Boone) as
         there was no evidence complainant sustained serious bodily
         injury as complainant was hospitalized for a few hours, suffered
         dizzy spells and other non-serious bodily injuries, and where
         there was insufficient evidence that Appellant attempted to
         inflict serious bodily injury on the complainant, and where the
         evidence merely established that at most an (F2) Aggravated
         Assault occurred?

Appellant’s Brief at 5.

      Appellant’s first issue challenges the discretionary aspects of his

sentence. As this Court recently reiterated:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law, exercised
      its judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Nevel, 203 A.3d 229, 247 (Pa. Super. 2019), appeal

granted on other grounds, 2019 WL 3438983 (Pa. July 31, 2019) (quoting

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal




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quotations and citations omitted)).     With respect to a challenge to the

discretionary aspects of sentence, we have recognized:

      “The right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d
      1247, 1265 (Pa. Super. 2014), appeal denied, 628 Pa. 627, 104
      A.3d 1 (2014). “An appellant must satisfy a four-part test to
      invoke this Court’s jurisdiction when challenging the discretionary
      aspects of a sentence.” Id. We conduct this four-part test to
      determine whether:

         (1) the appellant preserved the issue either by raising it at
         the time of sentencing or in a post[-]sentence motion; (2)
         the appellant filed a timely notice of appeal; (3) the
         appellant set forth a concise statement of reasons relied
         upon for the allowance of appeal pursuant to Pa.R.A.P.
         2119(f); and (4) the appellant raises a substantial question
         for our review.

      Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013)
      (citation omitted), appeal denied, 624 Pa. 679, 86 A.3d 231
      (2014). “A defendant presents a substantial question when he
      sets forth a plausible argument that the sentence violates a
      provision of the sentencing code or is contrary to the fundamental
      norms of the sentencing process.” Commonwealth v. Dodge,
      77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations
      omitted), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014).

Id. at 246.

      The record confirms that Davis has complied with the first three prongs

of the test. He preserved the issue by raising it in a post-sentence motion

that was denied by operation of law. Following correction of his sentence,

Appellant sought and was granted leave to file an appeal nunc pro tunc. He

then filed a timely notice of appeal and has included a Rule 2119(f) statement

in his brief. Therefore, we must consider whether he has raised a substantial


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question by asserting the “sentence imposed is longer than necessary to

protect   the   public   and   failed   to   take   into   consideration   appellant’s

rehabilitative needs and potential.” Appellant’s Brief at 11.

      This Court is not required to accept bald allegations of excessiveness.

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

      Rather, only where the appellant’s Rule 2119(f) statement
      sufficiently articulates the manner in which the sentence violates
      either a specific provision of the sentencing scheme set forth in
      the Sentencing Code or a particular fundamental norm underlying
      the sentencing process, will such a statement be deemed
      adequate to raise a substantial question so as to permit a grant of
      allowance of appeal of the discretionary aspects of the sentence.

Id. (citing Commonwealth v. Koehler, 737 A.2d 225, 244 (Pa. 1999) (party

must articulate why sentence raises doubts that sentence was improper under

the Sentencing Code) (additional citations omitted)).

      In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014), we explained that “[i]n determining whether

a substantial question exists, this Court does not examine the merits of

whether the sentence is actually excessive. Rather, we look to whether the

appellant has forwarded a plausible argument that the sentence, when it is

within the guideline ranges, is clearly unreasonable.” Id. at 1270 (citation

omitted). Subsequently, in Commonwealth v. Caldwell, 117 A.3d 763 (Pa.

Super. 2015), we looked to Dodge and other cases before concluding that

Caldwell’s challenge to his sentence as unduly excessive, coupled with his

claim that the court failed to consider his rehabilitative needs, presented a


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substantial question.     Id. at 770.   We likewise conclude Appellant has

presented a substantial question for our review. Therefore, we grant his

petition for allowance of appeal and address the merits of his sentencing claim,

cognizant that we may reverse only if the sentencing court abused its

discretion or committed an error of law. Nevel, 203 A.3d at 247. We are

also confined by the statutory mandate of 42 Pa.C.S.A. § 9781(c), which

provides:

      (c) Determination on appeal.—The appellate court shall vacate
      the sentence and remand the case to the sentencing court with
      instructions if it finds:

         (1) the sentencing court purported to sentence within the
         sentencing   guidelines   but   applied  the   guidelines
         erroneously;

         (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application of the guidelines would be clearly unreasonable;
         or

         (3) the sentencing court sentenced outside the sentencing
         guidelines and the sentence is unreasonable.

      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

      Here, Appellant complains that the trial court imposed a sentence “far

in excess of that which was necessary to protect the public, did not take into

proper consideration various mitigating factors and did not take into

consideration   Appellant’s   rehabilitative   needs   or   potential   for   full

rehabilitation.” Appellant’s Brief at 13. For those reasons, and because the

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court imposed a sentence “substantially in excess of that requested by the

Commonwealth and that requested by defense trial counsel[,] . . . the trial

court abused its discretion in fashioning Appellant’s sentence.” Id. at 13-14.

       From the record, it is clear the trial court considered numerous factors

in   fashioning   Appellant’s   sentence   and   considered   the   pre-sentence

investigation report as well. As this Court recently restated:

       Where pre-sentence reports exist, we shall continue to presume
       that the sentencing judge was aware of relevant information
       regarding the defendant’s character and weighed those
       considerations along with mitigating statutory factors.            A
       presentence report constitutes the record and speaks for itself. In
       order to dispel any lingering doubt as to our intention of engaging
       in an effort of legal purification, we state clearly that sentencers
       are under no compulsion to employ checklists or any extended or
       systematic definitions of their punishment procedure. Having
       been fully informed by the pre-sentence report, the sentencing
       court’s discretion should not be disturbed.

Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (quoting

Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).

“Accordingly, ‘[w]here the sentencing judge had the benefit of a pre-sentence

report, it will be presumed that he was aware of relevant information

regarding appellant’s character and weighed those considerations along with

the mitigating statutory factors.’” Id. (quoting Commonwealth v. Fullin,

892 A.2d 843, 849–50 (Pa. Super. 2006)).

       Here, the trial judge “reviewed the sentencing guidelines, the

presentence report, and placed on the record both this acknowledgement and




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her reason for imposing an aggravated sentence.”            Trial Court Opinion,

11/14/18, at 5. The court explained:

        Each individual charge was sentenced within the guideline range
        and ordered to be served concurrently rather than consecutively
        amounting to a final sentence of twenty-two and a half years to
        forty-five years. The sentencing court placed on the record the
        following reasons for the aggravated sentence: the Prior Record
        Score of REVOC;[2] Appellant’s lack of remorse; the fact that both
        victims were much smaller than Appellant, and that one was a
        woman; the prison tape played by the Commonwealth; the
        information contained within the presentence report including the
        belief that his candidacy for community supervision was
        questionable; the fact that Appellant was out of custody for only
        nine months before committing another offense; the serious
        nature of the offense itself; and his pattern of violent offenses,
        beginning at age fifteen, to the age of twenty years old at the time
        of the present offense.

Id. at 6 (citing N.T., Sentencing, 6/27/17, at 17-18).

        As the trial court noted, each charge was sentenced within the guideline

range and ordered to be served concurrently. The fact the aggregate sentence

was greater than that requested by the Commonwealth is immaterial.

Further, the court considered the pre-sentence report and, as reflected in the

quoted excerpt, also considered Appellant’s potential for rehabilitation. We


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2   As provided in 204 Pa.Code § 303.4 (Prior Record Score—Categories):

        (1)   Repeat Violent Offender Category (REVOC). Offenders who
              have two or more previous convictions or adjudications for
              four point offenses (§ 303.7(a)(1) and § 303.15) and whose
              current conviction carries an Offense Gravity Score of 9 or
              higher shall be classified in the Repeat Violent Offender
              Category.

Id. at § 303.4(a)(1).

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discern no abuse of discretion or error of law in the sentence imposed by the

trial court. Therefore, Appellant’s first issue fails for lack of merit.

      In his second issue, Appellant contends the evidence was insufficient to

support a conviction of aggravated assault as an F1 with respect to Tomeckia

Boone. Addressing the standard employed in a challenge to the sufficiency of

evidence, this Court has recognized:

      Our standard of review is de novo, and our scope of review is
      plenary, because:

         a claim challenging the sufficiency of the evidence is a
         question of law[.] . . . When reviewing a sufficiency claim
         the court is required to view the evidence in the light most
         favorable to the verdict winner giving the prosecution the
         benefit of all reasonable inferences to be drawn from the
         evidence.

      Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
      (2000) (internal citations omitted).

Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa. Super. 2018).

      In Commonwealth v. Fortune, 68 A.3d 980 (Pa. Super. 2013), this

Court explained:

      A person may be convicted of Aggravated Assault graded as a first
      degree felony if he “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” has been 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
      aggravated assault purposes, an “attempt” is found where an
      “accused who possesses the required, specific intent acts in a
      manner which constitutes a substantial step toward perpetrating
      a serious bodily injury upon another.” Commonwealth v. Gray,

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       867 A.2d 560, 567 (Pa. Super. 2005), appeal denied, 583 Pa. 694,
       879 A.2d 781 (2005). An intent ordinarily must be proven through
       circumstantial evidence and inferred from acts, conduct or
       attendant circumstances. [Commonwealth v. Thomas, 65 A.3d
       939, 944 (Pa. Super. 2013).]

Id. at 984.

       Because our standard of review is de novo and the scope of our review

is plenary, it is inconsequential that the trial court dismissed the sufficiency

claim as “wholly without merit” based on its mistaken belief that Appellant

was convicted of aggravated assault as a Felony 2 with respect to Tomeckia

Boone. See Trial Court Opinion, 11/14/18, at 4-5. Regardless, in its opinion,

the trial court recounted that Appellant struck Ms. Boone in the face with a

shotgun and summarized the injuries Ms. Boone sustained.              Trial Court

Opinion, 11/14/18, at 3.3         Again, Appellant has accepted the trial court’s

factual history by incorporating it in his brief. Appellant’s Brief at 7; see n. 1,

supra. Because “serious bodily injury” includes a bodily injury that creates a

substantial risk of death or causes serious, permanent disfigurement,

18 Pa.C.S.A. § 2301, a jury could find Ms. Boone’s injury to fall within the

statutory definition.




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3 The Commonwealth states that “Ms. Boone testified that she had lacerations
on her face, and that her ear ‘was split wide open’ such that doctors ‘had to
surgically glue [her] ear back’ (N.T. 3/2/2107). The jury could fairly find this
injury to fall within the statutory definition of serious bodily injury, which
includes ‘permanent disfigurement.’” Commonwealth Brief at 10.

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      Moreover, a conviction for aggravated assault is not contingent on a

finding the victim sustained actual serious injuries. In fact, in this case, the

Felony 1 charge was based on the “attempt[] to cause serious bodily injury to

Tomeckia Boone.” Notes of Testimony, Jury Charge, 3/6/17, at 62. As this

Court noted in Fortune, we have recognized that:

      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 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 [] (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.

Fortune, 68 A.3d at 985 (quoting Commonwealth v. Martuscelli, 54 A.3d

940, 948 (Pa. Super. 2012). In Fortune, we also noted:

      The Pennsylvania Supreme Court in Commonwealth v.
      Alexander, 477 Pa. 190, 383 A.2d 887 (1978) created a totality
      of the circumstances test to be used to evaluate whether a
      defendant acted with the necessary intent to sustain an
      aggravated assault conviction. In Commonwealth v. Matthew,
      589 Pa. 487, 909 A.2d 1254 (2006), that Court reaffirmed the test
      and articulated the legal principles which apply when the
      Commonwealth seeks to prove aggravated assault by showing
      that the defendant attempted to cause serious bodily injury.
      Specifically, the Court stated, in relevant part, that:

         Alexander created a totality of the circumstances test, to
         be used on a case-by-case basis, to determine whether a

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        defendant possessed the intent to inflict serious bodily
        injury. Alexander provided a list, albeit incomplete, of
        factors that may be considered in determining whether the
        intent to inflict serious bodily injury was present, including
        evidence of a significant difference in size or strength
        between the defendant and the victim, any restraint on the
        defendant preventing him from escalating the attack, the
        defendant's use of a weapon or other implement to aid his
        attack, and his statements before, during, or after the
        attack which might indicate his intent to inflict injury.
        Alexander, at 889. Alexander made clear that simple
        assault combined with other surrounding circumstances
        may, in a proper case, be sufficient to support a finding that
        an assailant attempted to inflict serious bodily injury,
        thereby constituting aggravated assault.

     Matthew, 909 A.2d at 1257 (citation and quotation marks
     omitted). The Court indicated that our case law does not hold that
     the Commonwealth never can establish a defendant intended to
     inflict bodily injury if he had ample opportunity to inflict bodily
     injury but did not inflict it.      Rather, the totality of the
     circumstances must be examined as set forth by Alexander. Id.

Id. at 984.

     In Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997), this

Court instructed:

     A baseball bat, when swung at the head, can be a very deadly
     weapon, and it is well settled the use of a deadly weapon on a vital
     part of the body is sufficient to establish a specific intent to kill.
     Commonwealth v. Carbone, 524 Pa. 551, 562, 574 A.2d 584,
     590 (1990). Clearly, a specific intent to cause serious bodily
     injury can be inferred from the same circumstances.             See
     Commonwealth v. Pandolfo, 300 Pa. Super. 447, 451, 446 A.2d
     939, 941 (1982) (blows to a portion of the body as vital as the
     head exhibited intent to inflict serious bodily injury).

Id. at 184-85 (footnote omitted).

     Considering the totality of the circumstances here, and viewing the

evidence—including all reasonable inferences—in the light most favorable to

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the Commonwealth as verdict winner, we conclude that the evidence was

sufficient for the jury to find Appellant attempted to cause serious bodily injury

to Tomeckia Boone when he struck her in the face with a shotgun. Therefore,

Appellant is not entitled to relief on his sufficiency of evidence challenge.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




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