J-S24011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYONA JOHNSON                              :
                                               :
                       Appellant               :   No. 2417 EDA 2019

         Appeal from the Judgment of Sentence Entered August 6, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007888-2018


BEFORE:      BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JUNE 26, 2020

        Appellant, Tyona Johnson, appeals from the judgment of sentence of 6

to 12 months’ house arrest, followed by 5 years’ probation, after she was

convicted, following a non-jury trial, of aggravated assault, possessing an

instrument of crime, simple assault, and recklessly endangering another

person. We affirm.

        The trial court summarized the facts and procedural history of

Appellant’s case, as follows:

              On August 6, 2018, at approximately 1:46 p.m.,
        Complainant Denise Berry was informed that there was someone
        outside her house, located at 5814 Rodman Street, in the city and
        county of Philadelphia. ([N.T.] Waiver Trial, [8/4/19, at] 9-10).
        When she stepped outside, she saw Appellant…. ([Id. at] 10). At
        that point in time, Appellant was standing on her porch and Ms.
        Berry was standing on her own porch. Id. Their porches were
        separated by a black iron railing that stood about four feet tall.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     Id. at 10, 12. After an exchange of heated words, Appellant
     swung at Ms. Berry. Id. at 13. Ms. Berry then went down her
     steps and to the pavement. Id. at 13. Appellant attempted to get
     off her porch as well, but an unidentified woman held her back.
     Id. at 11. While Ms. Berry was on the pavement, Appellant spat
     on Ms. Berry’s face and arm. Id. at 14. Appellant then went into
     her house and came back out shortly after. Id. at 14, 29. Ms.
     Berry, who was standing on the sidewalk, in front of her door, saw
     Appellant step out, ran up to Appellant and hit her. Id. at 29.
     They began to fight, and it carried on for a short while about one
     or two houses away from their porches. Id. at 14-15, 30-32.
     They began walking back to their houses. Id. at 14. Appellant
     was walking in front of Ms. Berry and quickly hid in a bush located
     near her porch. Id. By the time Ms. Berry approached, Appellant
     jumped out [of] the bush and sprayed Ms. Berry in the face with
     mace. Id. at 32-33. At this point their neighbor, Ms. Newkirk,
     who was in her house, heard Ms. Berry scream, “I’ve been pepper
     sprayed!” Id. at 46. Ms. Newkirk ran outside and down the street
     to where Ms. Berry was standing. Id. Ms. Berry’s eyes were
     extremely red. Id. Ms. Newkirk helped Ms. Berry up and brought
     her back to Ms. Berry[’s] steps. Id. Ms. Newkirk went back to
     her house to get some water and towels for Ms. Berry’s face. Id.
     When she came back, Appellant was throwing plants in Ms. Berry’s
     direction. Id. at 46-47. Ms. Newkirk finally got to the point where
     she was able to get Ms. Berry in her house. Id. at 47. As Ms.
     Berry stood up from her steps, Appellant ran up behind her and
     grabbed Ms. Berry by the hair and [pulled her] down the flight of
     concrete steps. Id. at 37, 47. Ms. Berry fell on her knee, and the
     two began to struggle to get off each other. Id. at 38, 47. Ms.
     Newkirk threw herself onto them so no more harm would result.
     Id. At this point, other neighbors intervened and eventually sat
     Ms. Berry on the bottom of her steps. Id.

           Ms. Berry was treated at Penn Presbyterian for a broken
     femur and stayed there for three days. She currently has a plate
     and six screws installed in her right leg. Id. at 18-19. Ms. Berry
     further testified that she could not walk on her right leg for two
     months. Id. at 21.

           After the close of the waiver trial, this [c]ourt found
     Appellant guilty of all charges. On August 2, 2019, Appellant filed
     a motion for extraordinary relief[,] stating that the evidence
     present[ed] at trial was insufficient to sustain a conviction for a
     felony 1 aggravated assault charge.        Appellant’s Motion for
     Extraordinary Relief[, 8/2/19, at] 1…. Appellant argued that the

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      mens rea requirement, that Appellant acted recklessly under
      circumstances manifesting an extreme indifference to the value of
      human life[,] was not proven beyond a reasonable doubt. The
      motion was denied on August 6, 2019. That same day Appellant
      was sentenced to aggravated assault (F1), possessing
      instruments of crime (M1), simple assault (M2), and recklessly
      endangering another person (M2).

Trial Court Opinion (TCO), 1/31/20, at 1-3 (unnumbered).

      On August 16, 2019, Appellant filed an “Addendum to Petitioner’s Motion

for Extraordinary Relief” (hereinafter “post-sentence motion”).          However,

before the court ruled on that post-sentence motion, Appellant filed a notice

of appeal on August 21, 2019. Consequently, on September 10, 2019, this

Court issued a rule to show cause why the appeal should not be quashed as

interlocutory,   as   Appellant’s   post-sentence   motion   was still   pending.

Appellant filed a timely response, and on December 4, 2019, we entered an

order discharging the rule to show cause and referring the issue to the merits

panel. Appellant timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the court

thereafter filed its Rule 1925(a) opinion.

      Herein, Appellant raises two issues, which we reorder for ease of

disposition:

      1. Should this appeal be quashed as interlocutory because
      [A]ppellant’s [post-sentence motion] was still pending at the time
      her [n]otice of [a]ppeal was filed?

      2. Was not the evidence insufficient to sustain a verdict of guilt
      beyond a reasonable doubt for aggravated assault[,] graded as a
      felony of the first degree[,] inasmuch as the Commonwealth failed
      to establish that [A]ppellant caused serious bodily injury
      intentionally, knowingly or recklessly under circumstances
      manifesting extreme indifference to the value of human life, in

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        violation of [A]ppellant’s constitutional rights under the state and
        federal constitutions?

Appellant’s Brief at 3.

        Appellant first argues that we should not quash her appeal, even though

it was filed before the court issued the order denying her post-sentence

motion. Appellant insists that her appeal was “perfected upon the trial court’s

proper consideration and denial of” that motion. Id. at 19. In support, she

cites Pennsylvania Rule of Appellate Procedure 905(a)(5), which states: “A

notice of appeal filed after the announcement of a determination but before

the entry of an appealable order shall be treated as filed after such entry and

on the day thereof.” Pa.R.A.P. 905(a)(5). Appellant also observes that “[i]n

similar scenarios, this Court has ‘deem[ed] done what should have been done

and [did] not quash the appeal for this reason.’” Appellant’s Brief at 20 (citing,

inter alia, Commonwealth v. Samuel, 102 A.3d 1001, 1004 n.2 (Pa. Super.

2014) (finding quashal unnecessary, even though a post-sentence motion was

filed after the filing of a notice of appeal, because the trial court eventually

entered the proper order)).

        We agree with Appellant.     This Court has previously relied on Rule

905(a)(5) to consider a premature appeal as being perfected after the trial

court    entered    the   order   denying    a   post-sentence   motion.       See

Commonwealth v. Ratushny, 17 A.3d 1269, 1271 n.4 (Pa. Super. 2011)

(relying on Rule 905(a)(5) to conclude that the appellant’s premature notice

of appeal should be considered “as having been filed after the order denying



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post-sentence motions”). We will do the same herein. Therefore, we will not

quash Appellant’s appeal.

      Appellant next challenges the sufficiency of the evidence to support her

conviction of aggravated assault. Initially, we note:

      When a challenge to the sufficiency of evidence is made, our task
      is to determine whether the evidence and all reasonable
      inferences therefrom, when viewed in the light most favorable to
      the Commonwealth as the verdict winner, was sufficient to enable
      the fact finder to find every element of the crime charged beyond
      a reasonable doubt. Commonwealth v. Tapper, … 675 A.2d
      740 ([Pa. Super.] 1996).

      A person is guilty of aggravated assault if he attempts to cause
      serious bodily injury to another, or causes such injury
      intentionally, knowingly or recklessly under the circumstances
      manifesting extreme indifference to the value of human life. 18
      Pa.C.S. § 2702(a)(1).

                                     ***

      [W]here the victim suffers serious bodily injury, the
      Commonwealth need not prove specific intent. Commonwealth
      v.     Hlatky, …     626      A.2d      575      ([Pa.     Super.]
      1993)…; Commonwealth v. Magnelli, … 502 A.2d 241 ([Pa.
      Super.] 1985).    The Commonwealth need only prove [the]
      appellant acted recklessly under circumstances manifesting an
      extreme indifference to the value of human life. Hlatky, … 626
      A.2d at 581. “[F]or the degree of recklessness contained in
      the aggravated assault statute to occur, the offensive act must be
      performed under circumstances which almost assure that injury
      or death will ensue.” Commonwealth v. O'Hanlon, 653 A.2d
      616, 618 ([Pa.] 1995)….

Commonwealth v. Nichols, 692 A.2d 181, 184-85 (Pa. Super. 1997).




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      In this case, Appellant claims that the Commonwealth failed to establish

that she acted with malice and, instead, demonstrated only that she acted

“negligently or with ordinary recklessness in causing Ms. Berry to suffer

serious bodily injury….”    Appellant’s Brief at 10.    Appellant stresses that

recklessness for purposes of demonstrating aggravated assault “must be ‘such

that life threatening injury is essentially certain to occur.’” Id. at 12 (quoting

O’Hanlon, 653 A.2d at 618). Appellant compares her case to the facts of

Magnelli, where the defendant “grabbed [a] police officer by his shirt and

pants, picked him up, and threw him forward and into nearby concrete steps.”

Magnelli, 502 A.2d at 243. We concluded “that the evidence was insufficient

to establish that [Magnelli] acted recklessly under circumstances manifesting

an extreme indifference to the value of human life.” Id. Appellant insists

that, “[a]s in Magnelli, the connection between [her] actions and the

resulting injury were so attenuated that the result was ‘in no way within the

intent or contemplation of [Appellant].’” Id. at 15-16 (quoting Magnelli, 502

A.2d at 242). She also argues that “[t]his case involves a common street fight

between two willing participants[,]” pointing out that Ms. Berry was hitting

her during the altercation, as well. Id. at 16. In sum, Appellant contends

that the Commonwealth’s evidence did not establish that she intended to

cause serious bodily injury or death to Ms. Berry, “or that she had any reason

to believe that a life-threatening injury was essentially certain to occur as a

result of her conduct.’” Id. at 17 (internal quotation marks omitted).




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      Appellant’s argument is unconvincing.      Initially, as the trial court

observes, there was no mutual combat at the point when Appellant pulled Ms.

Berry down the steps. See TCO at 6 (unnumbered). Instead, at that time,

Ms. Berry was attempting to clean the mace off her face that Appellant had

sprayed, and was not “intentionally interacting with Appellant” at all.   Id.

(unnumbered).    Moreover, Appellant’s actions were more certain to cause

injury than those in Magnelli.    While the officer in Magnelli was thrown

forward into steps, here, Appellant grabbed Ms. Berry’s head from behind, and

pulled her backwards and down concrete steps. We conclude that Appellant

“could have reasonably anticipate[d] that serious bodily injury or death would

be the likely and logical consequence of [her] actions….” O’Hanlon, 653 A.2d

at 618.   Accordingly, the Commonwealth presented sufficient evidence to

support Appellant’s aggravated assault conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/20




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