J-S53020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

EDDIE RAY GRAY,

                        Appellant                  No. 138 WDA 2014


        Appeal from the Judgment of Sentence of August 16, 2013
            In the Court of Common Pleas of Warren County
          Criminal Division at No(s): CP-62-CR-0000080-2013


BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 18, 2014

     Appellant, Eddie Ray Gray, appeals from the judgment of sentence

entered on August 16, 2013, as made final by the denial of Appellant’s post-

sentence motion on December 6, 2013. We affirm.

     On September 17, 2012, the Commonwealth filed a criminal complaint

against Appellant and charged Appellant with a multitude of crimes,

including multiple counts of aggravated assault, as well as assault by a

prisoner, disarming a law enforcement officer, use or possession of electric

or electronic incapacitation device, and criminal attempt of escape by a

prisoner. Appellant proceeded to a jury trial, where the following evidence

was presented.

     The Commonwealth first presented the testimony of Audrey Cline, who

is a corrections officer at the Warren County Prison, in Warren County,



*Retired Senior Judge assigned to the Superior Court.
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Pennsylvania. Officer Cline testified that, on September 2, 2012, she was

working the 7:00 p.m. to 7:00 a.m. shift at the Warren County Prison. N.T.

Trial, 8/16/13, at 59. At approximately 9:05 p.m. on September 2, 2012,

Officer Cline was working in the prison’s general population unit and

preparing for the nightly lock down. Id. at 59-60. At the time, Appellant

was an inmate of the prison and Appellant was housed in the general

population unit. Id. at 59.

        As Officer Cline testified, while she was in the hallway distributing

medication to some of the inmates, Appellant “jumped [her] from behind,

wrapped [her] around in a bear hug from behind, [tackled her to] the

ground” and removed her TASER gun from its holster.        Id. at 60 and 66.

Officer Cline testified that she fought back and tried to get up from the

ground, but “[e]very time [she] tried to get up, [Appellant] shot [her] with

the” TASER. Id. at 60. As Officer Cline testified, Appellant must have hit

her with the TASER gun “five or six times.”      Id.   Moreover, Officer Cline

testified that, when Appellant was striking her with the TASER, the probes

on the TASER gun did not deploy; “[s]o, [what she] received [from the

TASER] was considered a drive stun, which is [] 50,000 volts of pain” with

each of the TASER strikes.1 Id. at 69-70. Officer Cline testified that each of

the strikes caused her to suffer “excruciating pain.” Id. at 76-77.2

____________________________________________


1
    Officer Cline testified:

(Footnote Continued Next Page)


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      Warren County Prison corrections officer Rebecca Hanlin ran down a

stairwell to come to Officer Cline’s aid.         As Officer Cline testified, when

Officer Hanlin exited the stairwell doorway and entered the general

population unit hallway, Appellant “pointed the [TASER] at [Officer Hanlin].




                       _______________________
(Footnote Continued)

         [The TASER gun] is an immobilizing device. There are two
         ways you can use the [TASER]. The first is with a cartridge.
         This has wires with two probe[s] in it. It’s set off by a little
         nitrogen capsule that’s in there. That’s like when you see
         on [C]ops, where people fall to [the] ground screaming,
         what it does is, it jumbles your neuromuscular system.

         And we, basically, incapacitated for however long our
         [TASER] is going. Our models do five second rounds. So,
         five seconds [of electricity], basically.

                                            ...

         [T]he second way to use the [TASER is a drive stun]. . . . A
         drive stun is completely pain compliance, is how it works.
         50,000 volts. . . . You dig into the person’s arm or leg [with
         the metal contacts of the TASER].           And, it’s a pain
         compliance tool.

N.T. Trial, 8/16/13, at 73-74.
2
  During Officer Cline’s testimony, the Commonwealth asked Officer Cline to
produce her TASER gun – which was the same TASER gun that Appellant
used against the officer on the night in question. N.T. Trial, 8/16/13, at 72.
The Commonwealth then used the gun as a visual aid, to help the jury
understand Officer Cline’s descriptive testimony regarding the TASER’s
operation. See id. at 72-76. The Commonwealth did not move for the gun
to be admitted into evidence and Appellant did not object to the manner in
which the Commonwealth used the TASER at trial. Id.




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She yelled, don’t shoot, and went back into the stairwell.”        Id. at 70 and

119. Officer Cline testified:

         After that, the stairwell door was left open. So, [Appellant]
         ran down the stairwell. All the way down to the basement
         two floors down. My Sergeant, who was working that
         evening, Sergeant [Matthew] Wallin, and another
         corrections officer, Officer [Steve] Belcher[,] came to the
         second floor off the elevator . . . [and] pursued [Appellant]
         down the stairs.

         I followed.    And, we were eventually able to restrain
         [Appellant] in the basement.

Id. at 70-71 and 137.

       Moreover, Officer Cline testified that Officer Hanlin also pursued

Appellant into the basement and that, before the officers could restrain

Appellant, Appellant had placed Officer Hanlin in a “choke hold.” Id. at 137-

138.

       Officer Hanlin next testified at Appellant’s trial. Officer Hanlin testified

that, on the night in question, she was working in the prison in her capacity

as a corrections officer. Officer Hanlin testified that, when she ran to Officer

Cline’s aid on the night of September 2, 2012, she ran out of a stairwell and

into the general population unit hallway. When she exited the doorway, she

immediately saw that Appellant was standing approximately ten feet away

from her, and pointing a TASER gun at her face.            Id. at 179 and 181.

Officer Hanlin testified that she took evasive action by jumping back through

the doorway, but that Appellant followed into the stairwell, grabbed her

throat, shoved her against the wall, pressed the TASER to her cheek, and


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told her that she “was going with him.” Id. at 181-182. As Officer Hanlin

testified, Appellant began to walk her down the stairwell; however, Officer

Hanlin tripped on the stairs, and thus forced Appellant to let go of her. Id.

at 183. Appellant then ran down the stairwell, with Officer Hanlin in pursuit.

Officer Hanlin testified that she was able to find Appellant in the basement,

get Appellant onto the ground, and hold Appellant until the other officers

arrived, at which point Appellant was shot with a TASER gun and restrained.

Id. at 183-184. Officer Hanlin testified that she was unable to remember

whether Appellant had placed her in a “choke hold” in the basement, as

Officer Cline had testified. Id. at 200.

      The Commonwealth also presented the testimony of Officer Belcher

and Sergeant Wallin. Both testified that they were working as correctional

officers on the night in question and that, when they arrived in the general

population hallway in response to Officer Cline’s distress call:    they saw

Appellant standing ten to 20 feet away from them, holding a TASER gun;

Appellant pointed the gun directly at both of their faces and painted both of

their faces with the TASER’s red marking laser; Appellant ran away from

them and they followed Appellant down the stairwell and into the basement;

when they reached the basement, they saw Appellant holding Officer Hanlin,

with the crook of his arm around her throat, in a choke hold; they ordered

Appellant to let go of Officer Hanlin; Appellant complied with the order and,

after Appellant let go of Officer Hanlin, Officer Belcher shot Appellant with

his TASER gun and the officers took control over Appellant. Id. at 215-222,

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227, 237, and 250-256. Moreover, both Officer Belcher and Sergeant Wallin

testified that Appellant’s action of pointing the TASER gun at their faces was

extraordinarily dangerous, as the TASER gun shoots harpoon-like probes

that can easily pierce an eyeball. Id. at 226 and 256. They both testified

that, when the TASER’s laser sight passed over their eyes, they feared that

they would be shot in the eye. Id.

      Finally, the Commonwealth presented the testimony of Sergeant Ryan

Tipton, who is a certified TASER instructor and TASER technician, as well as

an employee of the Warren County Prison.          Id. at 290.    Sergeant Tipton

testified:

         Every time that [a TASER] is fired, every time the trigger is
         pulled on it, it will generate a report inside that will tell us
         the sequence, which time it was fired, the Greenwich
         [M]ean [T]ime, the local time, the duration that the
         [TASER] went. The battery life. And, then the temperature
         [in C]elsius.

Id. at 294.

      Sergeant Tipton testified that he analyzed the report that Officer

Cline’s TASER generated on the night of September 2, 2012, and the report

showed that the TASER was fired nine times. As the sergeant testified:

         On that evening when I generated that report, the sequence
         started at number 200, and went to number 208. And,
         looking at what was reported with it, was, the [TASER] was
         fired nine times.

         And, out of those nine, eight out of the nine times, it cycled
         a full five seconds. When I pull the trigger on the [TASER],
         it will cycle for five seconds, and then it will shut itself off.



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        One of the times[,] it cycled for eight seconds, which would
        have meant that a person would have pulled the trigger and
        held the trigger down. If you hold the trigger down, the
        [TASER] will continue to fire. It will continue until you
        release your finger.

                                       ...

        [From the report, y]ou can tell that [the nine TASER
        discharges occurred] within seconds of each other. There
        was one there that there was a five second difference.
        Seven second difference. Another seven second difference.
        Five second difference.

        So, it was consistently. As soon as the thing was stopping,
        looking at this report, it was being pulled again.

Id. at 295-296 and 322.

      At the conclusion of trial, the jury found Appellant guilty of: Count 1,

aggravated    assault   against   Officer    Cline,    pursuant    to   18   Pa.C.S.A.

§ 2702(a)(3); Count 2, aggravated assault against Officer Cline, pursuant to

18 Pa.C.S.A. § 2702(a)(6); Count 3, aggravated assault against Officer

Cline, pursuant to 18 Pa.C.S.A. § 2702(a)(7); Count 4, assault by prisoner

against Officer Cline, pursuant to 18 Pa.C.S.A. § 2703(a); Count 5,

disarming    a   law    enforcement    officer,       pursuant    to    18   Pa.C.S.A.

§ 5104.1(a)(1); Count 14, use or possession of electric or electronic

incapacitation device, pursuant to 18 Pa.C.S.A. § 908.1; and, Count 15,

criminal attempt at escape, pursuant to 18 Pa.C.S.A. §§ 901(a) and 5121.

N.T. Trial, 8/16/13, at 437-439.       The jury found Appellant not guilty of

aggravated assault, criminal attempt, and assault by prisoner, as those

charges related to Officer Hanlin, Officer Belcher, and Sergeant Wallin. Id.



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       On August 16, 2013, the trial court sentenced Appellant to serve an

aggregate term of 15-years-and-two-months to 30-years-and-four-months

in prison.    The trial court structured Appellant’s sentence in the following

manner:3

         Count 1, aggravated assault, 18 Pa.C.S.A. § 2702(a)(3):
         33 to 66 months in prison, with the sentence to be served
         consecutively to the sentence that Appellant was currently
         serving;

         Count 2, aggravated assault, 18 Pa.C.S.A. § 2702(a)(6):
         33 to 66 months in prison, concurrent with Count 1;

         Count 3, aggravated assault, 18 Pa.C.S.A. § 2702(a)(7):
         33 to 66 months in prison, concurrent with Count 1 and
         Count 2;

         Count 4, assault by prisoner, 18 Pa.C.S.A. § 2703(a): 40 to
         80 months in prison, consecutive to the sentence imposed
         at Count 1;

         Count 5, disarming a law enforcement officer, 18 Pa.C.S.A.
         § 5104.1(a)(1), 30 to 60 months in prison, consecutive to
         the sentence imposed at Count 4;

         Count 14, use or possession of electric or electronic
         incapacitation device, pursuant to 18 Pa.C.S.A. § 908.1, 46
         to 92 months in prison, consecutive to the sentence
         imposed at Count 5;

         Count 15, criminal attempt at escape, pursuant to 18
         Pa.C.S.A. §§ 901(a) and 5121, 33 to 66 months in prison,
         consecutive to the sentence imposed at Count 14.


____________________________________________


3
 For ease of reading and recognition, we have indented this portion of the
memorandum.



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      On August 26, 2013, Appellant filed a post-sentence motion, wherein

Appellant raised no claims, but declared – in boilerplate fashion – that he

was requesting the following relief:

        A. a motion for judgment of acquittal;
        B. a motion in arrest of judgment;
        C. a motion for a new trial; and/or
        D. a motion to modify sentence.

Appellant’s Post-Sentence Motion, 8/26/13, at 1-2.

      The trial court denied Appellant’ post-sentence motion on December 6,

2013 and Appellant filed a timely notice of appeal. Now on appeal, Appellant

raises the following two claims:

        [1.] Whether [Appellant’s] sentence within the sentencing
        guidelines involves circumstances where the application of
        the guidelines would be clearly unreasonable[?]

        [2.] Whether [Appellant] was denied a fair trial when the
        Commonwealth failed to disclose the TASER, allegedly used
        in this incident, was not taken into police custody, tagged
        into evidence, and preserved pending trial, until the
        Commonwealth’s final witness, which was long after the
        TASER had been admitted into evidence and was used
        throughout the trial[?]

Appellant’s Brief at 6 (some internal capitalization omitted).

      Appellant first claims that the trial court abused its discretion by

imposing a manifestly excessive sentence. This claim is waived.

      Appellant’s challenge is to the discretionary aspects of his sentence.

We note that “sentencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent an abuse of

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.


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2001). Moreover, pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court has explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
        has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
        is a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code, [42 Pa.C.S.A.]
        § 9781(b).

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

      In the case at bar, Appellant did not challenge the discretionary

aspects of his sentence during the sentencing hearing and Appellant did not

raise any claim, whatsoever, in his post-sentence motion other than to make

the general statement that he was filing “a motion to modify sentence.”

Appellant’s Post-Sentence Motion, 8/26/13, at 2.        As such, Appellant’s

discretionary aspect of sentencing claim is waived on appeal. Pa.R.Crim.P.

720; Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal”).

      With respect to Appellant’s second and final claim on appeal, Appellant

contends that he “was denied a fair trial when the Commonwealth

introduced the [TASER] that was allegedly used in this incident without

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disclosing until its final witness that the [TASER] was never taken into police

custody as evidence and preserved for trial.”     Appellant’s Brief at 13-14.

This claim is waived, as Appellant never objected to the use of the TASER at

trial.   See N.T. Trial, 8/16/13, at 72-76; Pa.R.A.P. 302(a) (“[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal”).

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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