J-S21012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

DEAN HANTON,

                          Appellant                  No. 334 EDA 2014


          Appeal from the Judgment of Sentence December 19, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009933-2011


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 10, 2015

       Deon Hanton appeals from the judgment of sentence of six to twelve

years imprisonment that the trial court imposed after he was convicted of

aggravated assault, three violations of the Uniform Firearms Act (“VUFA”),

and possession of an instrument of crime (“PIC”). We affirm.

       The trial court provided a comprehensive review of the proof adduced

in support of the described convictions:

           On June 15th, 2011, at about 11:45 p.m., in the area of 59th
       Street and Lansdowne Avenue in Philadelphia, Hakeem McGill
       saw and spoke briefly with the defendant.        Both men had
       attended seventh grade at Richard Allen Charter School. As the
       men were about to go their separate ways, McGill asked if the
       defendant needed any marijuana. The defendant declined the
       offer and McGill began to walk home.

           Soon thereafter, the defendant yelled at McGill and asked if
       he was selling four bags of marijuana for fifteen dollars. When
       McGill indicated he was, the defendant pulled a gun out of the
       track bag he was carrying and pointed it at McGill.         The

*
    Retired Senior Judge assigned to the Superior Court.
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     defendant ordered McGill to give him the marijuana. As McGill
     attempted to grab the gun from defendant, the defendant
     stepped back and shot McGill in the leg. McGill immediately ran
     away; while he was running he heard the defendant fire a
     second shot. McGill ran to 1703 Edgewater Street where [he]
     encountered a woman in her car whom he requested call his
     mother and 911.

         At approximately 11:50 p.m., in response to a radio call,
     Police Officer Sokha Soy arrived at 1703 North Edgewood Street.
     Officer Soy found McGill sitting on the steps to the residence.
     Officer Soy observed that McGill had a gunshot wound to his left
     ankle. McGill explained that he had been shot on the 5900 block
     of Lansdowne Avenue, about three blocks away. McGill was
     transported to the University of Pennsylvania hospital. McGill
     was treated for a perforating gunshot wound to his left ankle.

         On June 16, 2011, at approximately 3:30 a.m., Detective
     Robert Conway picked McGill up from the hospital and took him
     to the crime scene at 59th Street and Lansdowne Avenue.
     McGill directed Detective Conway to the area where he was shot.
     In the schoolyard near a dumpster Detective Conway found one
     45-caliber fired shell casing, a black knit hat, three Ziploc
     packets of marijuana and some beer cans. Across the street
     from the casing, in front of 1534 North 59th Street, Detective
     Conway found a jacket belonging to McGill.

        That same day, at about 2:00 p.m., Detective Orlando Ortiz
     showed McGill a series of photographs. McGill identified the
     defendant. Later that evening, at 10:25 p.m., McGill gave a
     formal statement to police.     During this statement, McGill
     identified the defendant from a photo array, which contained a
     more recent photo of the defendant than the one he was
     previously shown.

Trial Court Opinion, 3/12/14, at 2-3 (citations to record omitted).     Police

obtained an arrest warrant for Appellant.    On July 6, 2011, Philadelphia

Police Officer Michael Alice saw and recognized Appellant, who was on the

600 block of North Union Street. Appellant fled when Officer Alice attempted


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to effectuate an arrest. The officer pursued Appellant, who entered a house

located at 659 Union Street.     After Appellant was forcibly evicted by its

occupants, the officer took him into custody.

      Based on this evidence, a jury convicted Appellant of first-degree

felony aggravated assault, carrying an unlicensed firearm, carrying a firearm

on a public street or property in Philadelphia, and PIC. The trial court then

found Appellant guilty of persons not to possess a firearm.         Appellant

proceeded to sentencing on December 19, 2013, when he received an

aggregate term of six to twelve years incarceration in this matter.       This

appeal followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, but Appellant failed to comply with that directive.      Upon his

petition, we subsequently remanded for the filing of a statement nunc pro

tunc. This document in question was filed, and the matter is now ready for

resolution. Appellant raises the following allegations on appeal:

         1. Was not the evidence insufficient to convict appellant of
      aggravated assault, graded as a felony of the first degree, where
      the evidence did not support a finding that appellant attempted
      to cause serious bodily injury because he kept his gun pointed
      down towards the ground during the incident, shot the
      complainant once in the ankle and never verbally threatened the
      complainant in any way?

          2. Was not the appellant's sentence invalid where it was
      based on an unconstitutional mandatory minimum statute,
      specifically, 42 Pa. C.S. § 9712 [,which pertains to] Sentences
      for offenses committed with firearms, that has been rendered
      void and unenforceable pursuant to Commonwealth v.
      Newman, 2014 WL 408805 (August 20, 2014) (en banc) and


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      Commonwealth v. Valentine, 2014 WL 4942256 (Pa. Super.
      October 3, 2014)?

Appellant’s brief at 4.

      Appellant’s first position is that the evidence was insufficient to

support a conviction under 18 Pa.C.S. § 2702(a)(1), a first-degree felony,

and that, instead, his “actions constitute an aggravated assault, graded as

felony of the second degree under 270[2](a)(4).”     Appellant’s brief at 16.

We first set forth the pertinent standard and scope of review as to this

claim:

      “Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary.” Commonwealth v. Murray,         Pa.   , 83
      A.3d 137, 151 (2013). We review the evidence in the light most
      favorable to the verdict winner to determine whether there is
      sufficient evidence to allow the jury to find every element of a
      crime beyond a reasonable doubt. Commonwealth v. Cahill,
      95 A.3d 298, 300 (Pa.Super. 2014).

                In applying the above test, we may not weigh the
            evidence and substitute our judgment for 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. 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

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           evidence produced, is free to believe all, part or none
           of the evidence.

     Id.

Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa.Super. 2015).

     The pertinent portions of § 2702 are as follows:

     (a) Offense defined.--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;
            ....

           (4) attempts to cause or intentionally or knowingly
           causes bodily injury to another with a deadly
           weapon[.]

18 Pa.C.S. § 2702.   “Aggravated assault under subsection (a)(1), (2) and

(9) is a felony of the first degree. Aggravated assault under subsection

(a)(3), (4), (5), (6), (7) and (8) is a felony of the second degree.” 18

Pa.C.S. § 2702(b). Serious bodily injury is defined by the Crimes Code as

“bodily 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. § 2301.

     In this case, Appellant maintains that he did not cause the victim

serious bodily injury and that the Commonwealth failed to prove that he

attempted to cause such injury.    It is established that, “Where the injury

actually inflicted did not constitute serious bodily injury, the charge of

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aggravated assault can be” sustained only when the evidence supports a

finding the defendant’s actions toward the victim were “accompanied by the

intent to inflict serious bodily injury.” Commonwealth v. Alexander, 383

A.2d 887, 889 (Pa. 1978); see also Commonwealth v. Matthew, 909

A.2d 1254 (Pa. 2006).

        When we examine “whether [the] evidence established intent to cause

serious bodily injury,” that inquiry “must be determined on a case-by-case

basis. Because direct evidence of intent is often unavailable, intent to cause

serious bodily injury may be shown by the circumstances surrounding the

attack.”   Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007)

(citations omitted); see also Matthew, supra; Commonwealth v.

Fortune, 68 A.3d 980 (Pa.Super. 2013) (en banc).

        Appellant maintains that he did not commit first-degree felony

aggravated assault because he “neither aimed his gun at the complainant's

vital   organs   nor   verbally   threatened   the   complainant   in   any   way.

Throughout the course of their interaction, [Appellant] kept the gun pointed

at the complainant's feet.” Appellant’s brief at 15-16. Acknowledging that

the victim reported that a second shot was fired at him as he fled, Appellant

insists that no inference can be made either that he fired the shot or that it

was aimed at the victim.




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       We reject Appellant’s sufficiency claim.      Mr. McGill stated that

Appellant removed a gun from a bag that he was carrying and pointed it at

him.   When the victim tried to grab the gun, Appellant stepped backward

and shot at the victim’s leg.    The bullet struck his ankle, but Mr. McGill

managed to run.     As he was running, the victim heard Appellant firing a

second shot. When a defendant shoots in a person’s direction, regardless of

whether the gun is aimed at the head or torso, such conduct evidences

intent to cause serious bodily injury. Commonwealth v. McCalman, 795

A.2d 412 (Pa.Super. 2002) (defendant’s convictions of aggravated assault

under § 2702(a)(1) upheld when he shot in direction of the victims, even

though no bullets struck them); Commonwealth v. Galindes, 786 A.2d

1004, 1012 (Pa.Super. 2001) (“Even though [the victim] was not struck by

any bullets, the act of firing a gun toward him constitutes an attempt to

cause serious bodily injury.”); see also Commonwealth v. Matthews, 870

A.2d 924, 929 (Pa.Super. 2005), aff’d on other grounds sub nom.

Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006) (“[I]n instances

where the defendant has both drawn and fired (or drawn and misfired) a

gun, we have consistently held” that the Commonwealth has demonstrated

that the defendant attempted to inflict serious bodily injury for purposes of §

2702(a)(1).). In this case, Appellant shot at Mr. McGill’s leg, striking him in

the ankle. The inferences from the evidence establish that Appellant fired a



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second shot in the direction of the victim as the victim was fleeing.    Hence,

we reject his challenge to the sufficiency of the evidence as to aggravated

assault.

      Appellant next maintains that he was sentenced under a statute

declared unconstitutional in Alleyne v. United States,      U.S.     , 133 S.Ct.

2151 (2013), Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)

(en banc) and Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super.

2014); see also Commonwealth v. Ferguson, 107 A.3d 206 (Pa.Super.

2015). Specifically, he suggests that his aggravated-assault sentence was

premised upon application of 42 Pa.C.S. § 9712, which imposes a mandatory

minimum sentence of five years incarceration on offenses committed when

the defendant visibly possessed a firearm during the offense and when the

defendant placed the victim in reasonable fear of death or serious bodily

injury. This statute is unconstitutional under the noted case law.

      Appellant’s position fails because the sentencing court herein did not

apply that statute.   The sentencing in question occurred on December 19,

2013, and review of that transcript establishes that no one even mentioned

§ 9712.    Instead, the court expressly stated that it was not applying any

mandatory minimum sentence due to the firestorm created by the Alleyne

decision, which held that a defendant’s right to a jury determination beyond




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a reasonable doubt applies to any fact required to apply a mandatory

minimum.

      When he committed these crimes, Appellant was on probation for

committing the crime of possession with intent to deliver (“PWID”), and the

probation court had relinquished jurisdiction of the violation-of-probation

(“VOP”) case to this court. N.T. Sentencing, 12/19/13, at 21. Appellant had

a prior record score of two that did not reflect two juvenile arrests for PWID.

The Commonwealth noted that Appellant was a habitual participant in the

drug-dealing culture in Philadelphia and was declared delinquent for starting

a fire at his school.

      The Commonwealth agreed to apply an offense gravity score of ten

rather than eleven to the aggravated assault conviction since there was a

dispute as to whether the ankle wound amounted to serious bodily injury.

Using the deadly-weapon-used sentencing matrix, the guidelines called for a

sentence of fifty-four to sixty-six months imprisonment for aggravated

assault. The guidelines for the remaining offenses were: thirty-six to forty-

eight months for the persons-not-to-possess; four to thirty-six months for

possession of a firearm without a license; three to four months for carrying a

firearm on a public street or property in Philadelphia; and restorative

sanctions to nine months for PIC.




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       The court had a presentence report and outlined its consideration of

the appropriate factors.     It found that Appellant violated probation by

commission of the offenses herein.        Id. at 26.    The court noted that

Appellant made a poor impression on the presentence investigator, who

found that Appellant minimized his role in this case, denied the seriousness

of shooting at someone, and “felt that there was nothing wrong with [his]

lifestyle.”   Id. at 28.   Defense counsel spoke in mitigation of sentence,

Appellant’s mother asked the court to be lenient, and Appellant exercised his

right to allocution.

       The court sentenced Appellant to five to ten years imprisonment for

the aggravated assault and a consecutive aggregate sentence of one to two

years on the VUFA and PIC offenses, which was a downward departure from

the guidelines. The court explained its decision:

             [THE COURT]: Now, [Appellant], I’m not done. You may
       think that’s a hard sentence, but actually I have to justify on the
       record the reason why I gave you so little time for the gun case,
       because the guidelines I should be giving you are 3 to 6 years.

            And the reason why I am deviating downwards is because
       I did give you a sentence squarely within the standard
       range for the aggravated [assault] sentence.

Id. at 33 (emphasis added). The court imposed a VOP sentence of one to

two years imprisonment, consecutive to the term of incarceration imposed in

the present case. The court then specifically delineated:




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      Counsel, for your benefit, that is a standard range sentence and
      that's the sentence I was giving irrespective of any mandatory-
      minimum. And whatever's going to happen to the mandatory-
      minimum is going to happen. But that is the sentence I'm giving
      based upon not a mandatory-minimum but the guidelines
      based upon your client's offense gravity score and prior record
      score.

Id. at 36 (emphasis added).

      As Appellant’s position that he was sentenced pursuant to a mandatory

minimum sentencing statute is refuted by the record, we reject his challenge

to his sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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