J-A01043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LAMONT BOST

                            Appellant                No. 2777 EDA 2014


              Appeal from the Judgment of Sentence July 29, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001911-2012


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 18, 2016

        Lamont Bost appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after being convicted by a

jury of simple assault1 and terroristic threats.2    After careful review, we

affirm.

          Bost was charged with aggravated assault, simple assault, possessing

instruments of crime (generally), terroristic threats and carrying a firearm

without a license.      The facts underlying the charges are as follows.   On

November 17, 2011, at approximately 7:30 p.m., nineteen-year-old Bret

Jarrett (victim) was outside his home in Northeast Philadelphia when he
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1
    18 Pa.C.S. § 2710(a)(1).
2
    18 Pa.C.S. § 2706(a)(1).


*Former Justice specially assigned to the Superior Court.
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encountered Bost. Bost was the boyfriend of co-defendant Michael Delgado;

Delgado was also the mother of the victim’s friend.        The victim had

encountered Bost on the block several times and, having become concerned

at the manner in which Bost stared at him, had mentioned the staring to a

neighbor.

      Upon observing the victim, Bost approached him and stated that he

wanted to speak with him. They walked down the street and stopped thirty

or forty feet away, where Bost berated the victim for his remarks to the

neighbor and told him not to speak with anyone about the subject again.

Bost was gesticulating as he spoke and, moving closer to the victim, used a

hard object inside his hoodie jacket pocket to jab the teenager twice in the

stomach.    Threatening, “I should end your bitch ass,” Bost then pulled a

semi-automatic firearm from his pocket and used it to strike the victim in

the face. The victim fell to the ground, feeling dizzy. Frightened that Bost

would hurt him again with the gun, the victim punched Bost in the stomach

in an effort to make him drop the weapon. The roughly six-inch gun fell to

the ground, and Bost picked it up and ran away.        The victim suffered

swelling to his face, a cut, and bleeding.

      The victim returned to his home, and the police arrived approximately

ten minutes later, after being summoned by the victim’s mother.         The

officers removed three guns from a safe in Delgado’s home, all three of

which were operable and loaded with live ammunition. One was a black .40




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caliber Taurus with gray “slide” and scratched-out serial number. The gun

was between six and nine inches long when the slide was fully inserted.

       Bost was tried by a jury, jointly with Delgado, before the Honorable

Earl W. Trent, Jr. After hearing all of the evidence, including the eyewitness

testimony of the victim and the responding officers, a jury convicted Bost of

simple assault and terroristic threats; he was acquitted of all firearms

charges. The trial court imposed an outside-the-guideline sentence3 of 2 to

5 years’ incarceration for terroristic threats, and a consecutive term of 2

years’ reporting probation for simple assault.        Bost filed post-sentence

motions that were denied. This timely appeal follows.

       On appeal, Bost presents the following issues for our consideration:

       (1)    Was [the] evidence insufficient to sustain Appellant’s
              simple assault conviction because the Commonwealth
              failed to establish that the complainant suffered bodily
              injury?

       (2)    Is Appellant entitled to the grant of a new trial because the
              trial court committed reversible error by permitting the
              Commonwealth        to   introduce    inadmissible    hearsay
              evidence?

       (3)    Did [t]he sentencing court commit an abuse of discretion
              by imposing sentences outside the recommended
              guidelines [sic] ranges because the sentence was
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3
  A standard-range sentence for a defendant with an offense gravity score
(OGS) of 3 and prior record score (PRS) of 4 is 3-14 months, plus or minus 3
months for aggravated and mitigated ranges, respectively. See 204 Pa.
Code §303.16 Basic Sentencing Matrix, (6th Ed., Rev. 12/5/2008).
Therefore, Bost’s sentence of 2-5 years’ imprisonment was outside the
guidelines.



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            excessive under the circumstances of the case and the trial
            court relied on factors already considered by the
            guidelines?

      In his first issue, Bost claims that the Commonwealth failed to prove

that he committed simple assault because there was no proof, beyond a

reasonable doubt, that he caused bodily injury to the victim. We disagree.

      In reviewing a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

      The crime of simple assault is defined, in part, as:

      (a) Offense defined. -- Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if
      he:

         (1) attempts to cause or intentionally, knowingly or
         recklessly causes bodily injury to another[.]

18 Pa.C.S. § 2701(a). Bodily injury, for purposes of proving simple assault

under section 2701(a), is defined as “[i]mpairment of physical condition or

substantial pain.” Id. at § 2301.

      Instantly, the Commonwealth proved that Bost used a semi-automatic

firearm to pistol-whip the victim in the face. The blow resulted in the victim

falling to the floor, feeling dizzy, and suffering a bleeding, swelling cut to his

face. N.T. Jury Trial, 5/21/13, at 77-79. Under such factual circumstances,

we find that the Commonwealth proved simple assault beyond a reasonable

doubt. See Commonwealth v. Jackson, 907 A.2d 540 (Pa. Super. 2006)


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(where defendant’s kick to officer’s knee resulted in bruising, swelling, and

soreness, bodily injury was proven to sustain section 2701(a)(1) simple

assault conviction on appeal).

       In his next issue on appeal, Bost asserts that he is entitled to a new

trial because the trial court improperly permitted the Commonwealth to

introduce inadmissible hearsay evidence.4 Specifically, Bost claims that the

Commonwealth elicited testimony from a police officer that the victim

identified a black .40 caliber Taurus pistol, recovered from a safe in

Delgado’s home, as the weapon used in the assault. Bost also alleges that

this testimony does not fall within the hearsay exception, set forth in Pa.R.E.

803.1(2) (Prior Statement of Identification by Declarant-Witness exception),

because the victim was never asked to identify the gun and never did

identify the gun at trial.

       Hearsay, an out-of-court statement offered to prove the truth of the

matter asserted, Pa.R.E. 801(c), is generally inadmissible unless:       1) an

exception applies; or (2) the statement qualifies as “non-hearsay.” Pa.R.E.

802; Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999).               While

hearsay evidence is generally excluded because the declarant’s credibility

cannot be assessed, Commonwealth v. Sanders, 394 A.2d 591 (Pa.


____________________________________________


4
  Evidentiary rulings are committed to the sound discretion of the trial court
and will not be reversed absent a clear abuse of discretion.
Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992).



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Super. 1978), certain out-of-court statements offered to explain the course

of police conduct are admissible on the basis that they are offered not for

the truth of the matter asserted, but rather to show the information upon

which the police acted. Commonwealth v. Douglas, 737 A.2d 1188 (Pa.

1999). However, some out-of-court statements bearing upon police conduct

are inadmissible because they may be considered by the jury as substantive

evidence of guilt, especially where the accused’s right to cross-examine and

confront witnesses against him would be nullified.        Commonwealth v

Palsa, 555 A.2d 808 (Pa. 1989).

        Instantly, defense counsel objected5 to the Commonwealth questioning

Officer Christopher McCue about whether the victim was able to identify any

of the guns recovered from Delgado’s residence as the weapon used during

the assault. N.T. Jury Trial, 5/21/13, at 157. The trial court overruled the

objection, id. at 158-59, and permitted the assistant district attorney to

question Officer McCue on the issue as follows:

        ADA: Was the complaining [] witness without telling us his
        response, was he ever shown any of those three guns
        [recovered from the safe in Delgado’s residence]?

        Officer McCue: Yes.

        ADA: Okay. And was he able to identify any of the three?

                                           *     *   *

____________________________________________


5
    Therefore, this issue is preserved on appeal. See Pa.R.A.P. 302.



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     Officer McCue: Yes, he did.

     ADA: Which one did he identify?

     Officer McCue: He i.d.’ed the .40 caliber Taurus with the black
     slide and the gray handle.

     ADA: That slide, is that the actual length of that Taurus?

     Officer McCue: Yes, it is, Ma’am.

Id. at 157, 159.

     Instantly, we disagree with the trial court’s conclusion that the officer’s

statements about the gun, elicited by the Commonwealth, fall within the

course of conduct hearsay exception.     The testimony does not explain the

course of the police investigation in the matter and the facts leading to

Bost’s arrest. The statements go beyond merely explaining why the police

were at Delgado’s residence. Rather, they are highly incriminating in nature

as they consist of the victim’s alleged identification of the weapon used by

Bost to assault the victim. Palsa, supra.

     However, even though this hearsay testimony was admitted in error,

we note that the trial court gave a cautionary instruction to the jury about

the testimony, stating:

     Mr. Jarrett, the complaining witness, never testified that he
     identified the black handgun for Officer McCue. Therefore, I
     hereby instruct you that the testimony of Officer McCue, wherein
     he stated that Brett Jarrett did identify the handgun as the gun
     that Mr. allegedly used to assault him, is not to be taken by you
     as evidence that Brett Jarrett actually made an identification of
     the black gun.

     You may only accept his testimony as Officer McHugh’s reason
     for seizing the black Taurus .40 caliber gun, along with the other
     guns, which he seized.

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N.T. Jury Trial, 5/22/13, at 71-72.    See Commonwealth v. Means, 773

A.2d 143 (Pa. 2001) (it is well established that jurors are presumed to follow

instructions by court).

      Combining the curative instruction with the fact that the victim

described the defendant’s weapon as a “dark gun” approximately six-inches

in length, which is consistent with the recovered .40 caliber Taurus pistol,

N.T. 5/21/13, at 77, 85, any error in admitting the officer’s testimony was

harmless. See Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (2003).

      Finally,   Bost challenges the discretionary aspect of his sentence,

claiming that it is manifestly excessive and unreasonable because the

sentencing court “considered that appellant committed violent acts more

than thirty years prior to the incident herein, a fact already considered by

the sentencing guidelines.” Appellant’s Brief, at 26. We disagree.

      Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion. Commonwealth v. Johnson, 666 A.2d 691,

693 (Pa. Super. 1995) (quoting Commonwealth v. Dotter, 589 A.2d 726

(Pa. Super. 1991)).

      A four-pronged analysis is required before the Pennsylvania
      Superior Court will review the merits of a challenge to the
      discretionary aspects of a sentence. Those prongs are: (1)
      whether the appellant has filed a timely notice of appeal,
      Pa.R.A.P. 902 and 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


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      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005). An

appellant raises a substantial question when he shows that the sentencing

court’s actions were inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process. Pa.R.A.P. 2119(f);

Commonwealth v. Ferguson, 893 A.2d 735 (Pa. Super. 2006).

      Initially, we note that Bost has filed a timely notice of appeal, has

preserved his discretionary aspect of sentence issue by raising it in timely

filed post-sentence motions, and has filed a Rule 2119(f) statement in

compliance with Hyland. Moreover, Bost has raised a substantial question,

thus invoking our appellate jurisdiction to review his sentencing claim. See

Commonwealth v. McNabb, 819 A.2d 54 (Pa. Super. 2003) (claim that

sentencing court impermissibly considered prior record in sentencing

defendant    above   standard-range     of   guidelines   presents   substantial

question).

      Sentencing is within the discretion of the sentencing court and will not

be disturbed on review absent a “manifest abuse of discretion” which

involves more than a mere “error in judgment.”            Commonwealth v.

Simpson, 829 A.2d 834, 836 (Pa. Super. 2003). If a sentence is within the

statutory limit, an appellate court will find an abuse of discretion only if the

sentence is “patently excessive.”     Commonwealth v. Clever, 576 A.2d

1108 (Pa. Super. 1990); see 42 Pa.C.S. § 9781(c)(3) (“The appellate court

shall vacate the sentence and remand the case to the sentencing court with

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instructions if it finds [that] the sentencing court sentenced outside the

guidelines and the sentence is unreasonable.”).

     We first note that the trial court had the benefit of a presentence

investigation (PSI) report prior to sentencing Bost. See Commonwealth v.

Devers, 546 A.2d 12 (Pa. 1988) (when court has PSI, it is presumed to

have considered defendant’s character and weighed those considerations

along with mitigating statutory factors).    Moreover, the court carefully

listened to Bost’s own statements and took into account Bost’s educational

background, technical training for carpentry, prior employment, participation

in anger management training, and his familial relationships.     The court

carefully weighed that information against Bost’s extensive criminal history

which consisted of juvenile adjudications, a 1977 conviction for rape,

burglary, and robbery, a prison assault, parole violations and drug

possession.   Finally, the court acknowledged the standard guideline range

for the offenses prior to imposing its outside the guideline sentence.   See

Commonwealth v. Chesson, 509 A.2d 875, 876 (Pa. Super. 1986) (at

minimum, when court deviates from sentencing guidelines, it must indicate

that it understands the suggested sentencing range; see also 42 Pa.C.S. §

9721(b)).

     To support its 2 to 5 year prison sentence for terroristic threats, the

court emphasized the following factors: protection of the community; Bost’s

own demonstrated lack of amenability to rehabilitation; and the gravity of

the offense. Although the court considered Bost’s statement of remorse and

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“partial acceptance of responsibility,” it found that those factors were

outweighed by Bost’s criminal history.       Finally, while the court’s sentence

was outside the guidelines, it was below the Commonwealth’s requested

sentence of 2½ to 5 years’ imprisonment. Considering all of this evidence,

including Bost’s extensive criminal history, his potential to re-offend and the

danger he created to the public, the court’s determination that a sentence

outside the guidelines was neither excessive nor unreasonable, and,

therefore, was not an abuse of discretion.          Simpson, supra; Clever,

supra; 42 Pa.C.S. § 9781(c)(3).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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