J-S17037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                        v.

    ZYKEEM THOMAS,

                             Appellant                 No. 249 EDA 2017


            Appeal from the Judgment of Sentence, March 13, 2015,
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0015773-2013


BEFORE: BENDER, P.J.E., LAZARUS, J. and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED MAY 11, 2018

        Zykeem Thomas appeals nunc pro tunc to challenge the sufficiency of

the evidence and the discretionary aspects of his sentence, after convictions

for aggravated assault and various firearms violations.1         The trial court

imposed an aggregate sentence of 7-½ to 15 years, which we affirm.

        The trial court aptly summarized the facts as follows:

           Tyshon Hasty left work on April 14, 2013, around 2:00 pm.,
           and drove toward North Philadelphia. When he reached
           Thirteenth and Wallace, he encountered a gray Buick
           Century occupied by [Thomas] and two other men. The
           Buick beeped at him after Mr. Hasty passed it, so he slowed
           down to allow the Buick to pass him. As he slowed down,
           [Thomas], seated in the front passenger seat, leaned out of
           the passenger-side window and fired a handgun at least
           three times at Mr. Hasty. Mr. Hasty felt two shots hit his
           vehicle, and he attempted to accelerate to get away from
____________________________________________


1   See 18 Pa.C.S.A. §§ 2702, 6105, 6106, 6108, and 907, respectively.
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         the Buick. His car came to a stop due [to] a flat tire, and
         the Buick stopped in front of his car.

         Mr. Hasty saw [Thomas] aim a gun at him from the
         passenger side of the Buick and fire several times, creating
         a muzzle flash. Mr. Hasty pulled out his own firearm, which
         he was licensed to carry, and fired back. The Buick then
         fled the scene, and Mr. Hasty followed. [Thomas] fired more
         shots at Mr. Hasty as the victim followed the Buick to 806
         Reno Street, where [Thomas] ran into the house and the
         door was closed behind him.

         Detective Paul Guerico arrived at the scene shortly after the
         first responding officers. He spoke with Mr. Hasty and
         confirmed his version of events. He inspected Mr. Hasty’s
         vehicle, and observed several bullet holes in the driver side
         door, which confirmed the victim’s statement. In fact, five
         fired cartridge casings and two bullet fragments were also
         recovered inside Mr. Hasty’s vehicle.

         Thereafter, Mr. Hasty identified [Thomas] from a
         photographic array presented to him by detectives during
         his interview. He also identified [Thomas] in court as the
         gunman.

         During the investigation, a confidential informant called and
         identified [Thomas] as the shooter and the man who ran
         into 806 Reno Street . . . The parties stipulated that
         [Thomas] was not licensed to carry a firearm.

Trail Court Opinion, 7/17/17 at 2-3 (citations omitted).

      Thomas raises two issues on appeal. First, he asks whether the trial

court erred by finding “that there was sufficient evidence to prove, beyond a

reasonable doubt, that [he] was guilty” of the offenses for which the jury

convicted him. Thomas’ Brief at 2. Second, Thomas petitions for allowance

of appeal from the discretionary aspects of the trial court’s sentence, because

he views his imprisonment as “manifestly excessive as it departed from the

Pennsylvania Sentencing Guidelines.” Id.


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      First, we address Thomas’ challenge to the sufficiency of the evidence.

He argues that the Commonwealth failed to produce evidence beyond a

reasonable doubt that (1) he had the requisite level of criminal intent to

sustain a conviction of aggravated assaulted and (2) that the gun he fired at

Mr. Hasty was “operable” to sustain his other offenses. Thomas’ Brief at 22.

      In reviewing sufficiency claims we ask “whether the evidence admitted

at trial, and all the reasonable inferences derived therefrom viewed in favor

of the Commonwealth as verdict winner,” supports finding “all the elements

of the offense beyond a reasonable doubt.” Commonwealth v. Jacoby, 170

A.3d 1065, 1076 (Pa. 2017) (citations and internal quotation marks omitted).

Circumstantial evidence alone may suffice “and 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. Brown, 52

A.3d 320, 323 (Pa. Super. 2012) (citations omitted). Sufficiency, therefore,

is a pure question of law that we review de novo. Jacoby, 170 A.3d at 1076.

      We find sufficient evidence of record from which a jury could conclude,

beyond a reasonable doubt, that Thomas possessed the requisite mens rea of

aggravated assault. Under Pennsylvania law, one commits aggravated assault

when she or 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 P.C.S.A. §

2702(a)(1). "Serious Bodily Injury" is defined at 18 P.C.S.A. § 2301 as "injury

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creating 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." While the parties agree on the definition of “serious bodily

injury,” they are at odds over how that phrase should be read in conjunction

with the rest of the statute.

      Thomas claims that, because none of the bullets that he fired actually

hit Mr. Hasty, the issue before us is “whether the gunshots [he fired] at Mr.

Hasty were [discharged] ‘intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life.’”

Thomas Brief at 25 (quoting 18 P.C.S.A. § 2702(a)(1)). He takes these levels

of intent from the statute’s second clause (regarding actual injury) and

imports them into its first (regarding only attempted injury).        But the

Commonwealth says that it had to prove the highest degree of culpability for

aggravated assault by attempt – i.e., intentionality. Commonwealth’s Brief at

6. “Knowingly” and “recklessly” are lesser degrees of criminal culpability than

“intentionally.” Thus, Thomas’ theory would actually make it easier for the

Commonwealth to convict someone of aggravated assault based on attempt

than the standard to which the Commonwealth is holding itself.

      We will assume, without deciding, that the Commonwealth’s heightened

mens rea requirement is correct and that it must prove beyond a reasonable

doubt that Thomas acted intentionally when he “attempt[ed] to cause serious

bodily injury to another.” 18 P.C.S.A. § 2702(a)(1). There are sufficient facts

in the record to satisfy this higher burden.

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      The Commonwealth argues that Thomas’:

         intent to cause serious bodily injury manifested [itself] when
         he fired multiple shots at Mr. Hasty after his car blocked his
         escape. See Commonwealth v. McCahnan, 795 A.2d
         412, 415-16 (Pa. Super. 2002) (holding firing a shot into a
         car and continuing to shoot as victims ran away sufficient to
         prove intent to cause serious bodily injury). After his car
         was struck by gunfire multiple times [and had its tire shot
         out], Mr. Hasty pulled his car over to the side of the road.
         [Thomas’] car then blocked his escape, and [Thomas]
         suspended himself from the passenger window and began
         to fire his gun directly at Mr. Hasty. Mr. Hasty – fearful for
         his life – drew his licensed firearm, and began firing back.
         Had [Thomas’] aim been better, or had Mr. Hasty not
         returned fire, he would likely be dead. The evidence was
         therefore sufficient to prove defendant had the requisite
         mens rea to inflict serious bodily injury on the victim.

Commonwealth’s Brief at 7. The Commonwealth’s reading of the record is

entirely correct, and we adopt its analysis as our own. It was clearly Thomas’

intent to do serious bodily injury to Mr. Hasty when he leaned out the window

of the car and shot his gun at Mr. Hasty and his vehicle. Thus, the jury could

reasonably have inferred Thomas’ intent from this act of violence and hostility.

      Thomas contends that the evidence of record was “more consistent with

the kind of culpability wherein ‘a person acts negligently.’” Thomas’ Brief at

28. Criminal negligence is defined as a risk “of such a nature and degree that

the actor’s failure to perceive it, considering the nature and intent of his

conduct and the circumstances known to him, involves a gross deviation from

the standard of care that a reasonable person would observe in the actor’s

situation.” 18 Pa.C.S.A. § 302(b)(4). Based upon our above statement that

intentionality is the highest level of mens rea, it is axiomatic that negligence

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is a lower standard than intentionality. Thus, “[w]hen the law provides that

negligence suffices to establish an element of an offense, such element also

is established if a person acts intentionally.” 18 Pa.C.S.A. § 302(e). Because

we found sufficient evidence to sustain the jury’s finding of the highest degree

of mens rea, Thomas’ claim that the Commonwealth only offered proof of

criminal negligence is untenable.

       Finally, we address Thomas’ claim that the Commonwealth presented

no evidence that his firearm, which he repeatedly fired, was “operable.” This

utterly absurd proposition seeks to undermine Thomas’ convictions of carrying

a firearm without a license, carrying it in the public in Philadelphia, and

possessing an instrument of crime. Throughout his brief, Thomas repeatedly

recites facts of record where the Commonwealth proved beyond any doubt

that his gun was operable, because Mr. Hasty testified that Thomas operated

it.   Thomas Brief at 7-8, 26, 28.   An inoperable firearm does not produce

muzzle flashes or bullet holes in cars. Thus, Thomas’ claim that there was

insufficient evidence to convict him of firearm-related charges is frivolous.

       We turn now to Thomas’ petition for allowance of appeal from the trial

court’s discretionary aspects of sentencing.

       Before we will grant allowance of appeal under 42 Pa.C.S.A. § 9781(b),

the petitioner “must invoke this Court’s jurisdiction by satisfying a four-part

test.” Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). First,

the petition for allowance of appeal must have been filed within 30 days of the

judgment of sentence under Pennsylvania Rules of Appellate Procedure 902

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and 903. Second, the petitioner must have properly preserved the issues for

appeal by having raised them at the time of sentencing, or in a Pennsylvania

Rule of Criminal Procedure 720 motion to reconsider or to modify the

sentence. Third, Pennsylvania Rule of Appellate Procedure 2119(f) requires a

concise statement in appellant’s brief to justify the allowance of appeal. And,

fourth, the Rule 2119(f) statement must present “a substantial question that

the sentence imposed is not appropriate under” Chapter 97, Sentencing. 42

Pa.C.S.A. § 9781(b). “Only if the appeal satisfies these requirements may we

proceed   to   decide    the   substantive   merits    of   Appellant’s   claim.”

Commonwealth v. Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017).

      The Commonwealth correctly points out that Thomas failed to fulfill the

test’s second prong – i.e., failure to preserve issue for appellate review.

Commonwealth’s Brief at 9. It contends that he did not raise the issues he

seeks to argue on appeal in either the sentencing proceeding or in his motion

for reconsideration/resentencing. Id. Indeed, Thomas admitted as much in

his own brief. Thomas’ Brief at 42, n.1. We agree with the Commonwealth

(and Thomas) that Thomas did not properly preserve this issue for our review,

because he failed to raise it to the trial judge in the first instance. Because

Thomas did not give the trial court an opportunity to rule upon the issues he

would ask us to review, there is no underlying decision for this Court to assess.

      We therefore conclude that Thomas did not afford the trial court proper

opportunity to address his alleged errors regarding the discretionary aspects

of sentencing prior to filing this petition for allowance of appeal. He would,

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instead, be raising them “for the first time on appeal.” Commonwealth v.

Foster, 960 A.2d 160, 163 (quoting Pennsylvania Rule of Appellate

Procedure 302(a)). This we cannot allow.   Id.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




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