J-A14010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JOHN ANTHONY PINO,

                            Appellee                 No. 1431 MDA 2014


         Appeal from the Judgment of Sentence entered August 5, 2014
              In the Court of Common Pleas of Schuylkill County
                           Criminal Division at No(s):
                           CP-54-CR-0001715-2013
                           CP-54-CR-0001716-2013


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

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 17, 2015

        John Pino (Appellant) appeals from the August 5, 2014 judgment of

sentence of an aggregate term of nine to twenty-four years’ imprisonment,

as amended by the trial court’s order dated August 7, 2014. Appellant now

challenges the sufficiency of the evidence supporting his conviction for

multiple counts of aggravated assault of a police officer.    Appellant also

claims that, because there was a more specific offense that applied to his

conduct, he should not have been charged with aggravated assault.        After

careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Appellant was convicted, after a trial by jury, of numerous offenses

including three counts of aggravated assault of a police officer, 18 Pa.C.S. §

2702(a)(3).1 The trial court set forth a factual summary of this matter as

follows:

              The evidence at trial showed that, after committing retail
       theft, [Appellant] led the police who were pursuing him on a high
       speed chase. He was pursued by a number of police vehicles
       occupied by both state and local officers. After [Appellant] drove
       over a spike strip laid down by one of the state police, his
       driver’s side tires deflated, and he was running on the rims with
       flat tires.   Although this caused his vehicle to sag on the
       driver’[s] side and to slow down significantly, [Appellant]
       persisted in driving on.

              The officers pursuing him attempted to box him in and
       force him to stop. As he traveled in the westbound passing lane
       of PA 54, there was a police vehicle driven by Trooper Michael
       Allar traveling in front of [Appellant]’s vehicle and attempting to
       force it to slow down. Other police vehicles were following close
       behind [Appellant]’s vehicle. All police cars had lights and sirens
       activated, but [Appellant] kept attempting to drive around Tpr.
       Allar’s vehicle.

             Shortly after [Appellant] crested a hill on Route 54, his
       vehicle became hung up on the concrete strip dividing the
       eastbound and westbound lanes of Route 54.

             Officer Christopher Hand of the Frackville Borough Police
       pulled his vehicle into the opposite lane to block [Appellant] from
       driving away in that lane. Officer Hand exited his vehicle, drew
       his gun and yelled at [Appellant] several times to turn off the
       engine. The officer was only two feet from [Appellant]’s open
       driver’s side window, and [Appellant] looked right at the officer
       when he yelled to turn off the engine, but there was no
____________________________________________


1
  Appellant was convicted of multiple offenses arising from the activities
herein described. Of the 22 offenses Appellant was convicted of, it is only
the three counts of aggravated assault which are here at issue.



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      compliance with the command. Officer Hand then held his gun
      to his chest with one hand, reached in and grabbed [Appellant]
      by the shirt with his other hand. He again ordered [Appellant] to
      put his vehicle in park.

            Instead of complying with that order, [Appellant] was
      moving the gear shift on the steering column. [Appellant] drove
      his vehicle forward into the rear of Hand’s police car while Hand
      was still holding on to [Appellant]. Then he put the vehicle in
      reverse and backed into the vehicle of St. Clair Borough Chief
      Michael Carey. This gave [Appellant] enough room to get out of
      the blockade. Once Hand realized [Appellant] was about to go,
      he let go of his hold and went to his own vehicle.

             Chief Carey had stopped his vehicle behind [Appellant]’s
      and left his car. Almost immediately after exiting the police
      cruiser, Carey noticed that [Appellant] was rocking his vehicle
      back and forth and was about to break free of the median strip.
      Carey jumped back into his vehicle just as the rear of
      [Appellant]’s slammed into the front of Carey’s car. As a result,
      Carey experienced injuries to his back and left ankle. Carey was
      still experiencing significant pain and had not been medically
      cleared to return to work at the time of trial, more than nine
      months after the accident.

            Trooper Allar had stopped his vehicle west of [Appellant]’s
      vehicle. He got out and began to approach [Appellant]’s vehicle
      on foot. Suddenly [Appellant] gunned his engine and drove
      toward Allar. He had to jump out of the way to avoid being hit.

Trial Court Opinion (T.C.O.), 10/29/14, at 2-4.

      Following a jury trial, Appellant was convicted and sentenced as stated

above. Appellant filed a timely notice of appeal and complied with the trial

court’s order to file a Pa.R.Crim.P. 1925(b) statement.

      Appellant now presents the following issue for our review:




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       Were the charges of aggravated assault based on mere
       recklessness and the facts insufficient to support a conviction?2

Appellant’s Brief, at 4.

                            Sufficiency of the Evidence

       Appellant claims the evidence presented at trial was not sufficient to

establish the intent for the charge of aggravated assault. He argues that his

intent was to escape, to flee, to avoid capture rather than to cause specific

harm to the police officers pursuing him. The gravamen of his claim is that

the Commonwealth presented evidence which showed recklessness but did

not properly establish the requisite mens rea of specific intent necessary to

prove aggravated assault of a police officer. Appellant’s Brief, at 9.

       The trial court found the evidence sufficient to enable a reasonable

jury to find beyond a reasonable doubt that the Appellant acted with the

requisite intent. We agree.

       We review Appellant’s challenge to the sufficiency of the evidence

under the following, well-settled standard of review:

       A claim challenging the sufficiency of the evidence is a question
       of law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a
       reasonable doubt. Where the evidence offered to support the
       verdict is in contradiction to the physical facts, in contravention
____________________________________________


2
      Appellant presents a second issue for our consideration in the
argument section of his brief. Therein, he contests he should not have been
charged with the general offense of aggravated assault because there is the
specific offense of aggravated assault by vehicle with which he could have
been charged. Appellant’s Brief, at 10.



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      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

citations omitted).

      Under the Pennsylvania Criminal Code, a person is guilty of aggravated

assault if he “attempts to cause or intentionally or knowingly causes bodily

injury to any of the officers, agents, employees or other persons enumerated

in subsection (c), in the performance of duty[.]” 18 Pa.C.S. § 2702(a)(3).

The Code defines “bodily injury” as “impairment of physical condition or

substantial pain.” 18 Pa.C.S. § 2301. A police officer is among the officers,

agents, employees or other persons enumerated. 18 Pa.C.S. § 2702(c)(1).

      “A person commits an attempt when, with intent to commit a specific

crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S. § 901(a).

      “As intent is a subjective frame of mind, it is of necessity difficult
      of direct proof[.] [W]e must look to all the evidence to establish
      intent, including, but not limited to, appellant's conduct as it
      appeared to his eyes[.] Intent can be proven by direct or
      circumstantial evidence; it may be inferred from acts or conduct
      or from the attendant circumstances.”

Commonwealth v. Roche, 783 A.2d 766, 768 (Pa.Super.2001), appeal

denied, 568 Pa. 736, 798 A.2d 1289 (2002).

      To summarize, in order to prove aggravated assault against a police

officer, the Commonwealth was required to prove that Appellant (1) took a



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substantial step, (2) with the specific intent to cause bodily injury, (3) to a

police officer, (4) in the performance of his duties.      See generally 18

Pa.C.S. § 2702(a)(3). As Appellant’s Brief focuses on the intent element of

the offense, and we find no error regarding the other elements, we address

only the mens rea element here.

      In Commonwealth v. Brown, 23 A.3d 544 (Pa.Super. 2011), this

Court considered a similar argument to that made in the case at bar.        In

Brown it was claimed that the actions taken did not have the requisite

specific intent because the actor was merely trying to avoid capture.

      At trial, Officer Schiazza testified that when he attempted to
      handcuff Brown, Brown pulled away, threw Officer DeBella to the
      ground, and ran away. Officer Schiazza further testified that
      after he tackled Brown, Brown struggled violently with him, and
      that as Brown flailed his arms he struck the officer repeatedly on
      the arm, shoulder and mouth, causing him to have a swollen lip.
      Whether the officer's swollen lip constitutes a “bodily injury” for
      purposes of section 2702(a)(3) is irrelevant, since in a
      prosecution for aggravated assault on a police officer the
      Commonwealth has no obligation to establish that the officer
      actually suffered a bodily injury; rather, the Commonwealth
      must establish only an attempt to inflict bodily injury, and this
      intent may be shown by circumstances which reasonably suggest
      that a defendant intended to cause injury. Commonwealth v.
      Marti, 779 A.2d 1177, 1183 (Pa.Super.2001). It was within the
      jury's province to find that Brown, by throwing Officer DeBella to
      the ground and then striking Officer Schiazza repeatedly by
      wildly flailing his arms as he resisted arrest, intended to cause
      injury to the officers.

      Viewing this evidence in the light most favorable to the
      Commonwealth as the verdict winner, as our standard of review
      requires, we conclude that there was sufficient evidence to
      enable the jury to find beyond a reasonable doubt that Brown
      violated section 2702(a)(3).    As a result, his sufficiency



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      argument with regard to his conviction for aggravated assault on
      a police officer lacks any merit.

Brown, 23 A.2d at 560-61 (citations to notes of testimony omitted).

      Here, the Commonwealth presented evidence similar to that in

Brown. The police testified that Appellant led them on a high speed chase.

During the chase, Appellant drove over a spike strip eventually causing his

vehicle to become hung up on a concrete median strip.             Officer Hand

approached Appellant’s vehicle, ordered Appellant to turn off the engine, and

grabbed him by the shirt. Appellant was able to remove his vehicle from the

median by first backing into Chief Carey’s police car, injuring Chief Carey.

Appellant then drove forward, in the direction of Trooper Allar, forcing Officer

Hand to release his hold. As in Marti, it is irrelevant the degree to which

Chief Carey suffered bodily injury as, for the purposes of 18 Pa.C.S.

2702(a)(3), the Commonwealth had no obligation to show actual bodily

injury.

      Although it is possible that Appellant intended nothing further than to

flee, it is also possible that, in the moment, he intended to cause bodily

injury to Chief Carey, Officer Hand, and Trooper Allar.     It is not for us to

decide what the mind of Appellant was at the time, that is a question for the

fact-finder. Rather, we consider whether the evidence was sufficient for a

reasonable jury to conclude that Appellant intended such harm.

      When viewing this evidence in the light most favorable to the verdict

winner, we find that the Commonwealth presented sufficient information for

the fact-finder to infer that Appellant did specifically intend to cause bodily

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J-A14010-15



injury to the police officers involved. The jury could reasonably infer from

acts, conduct, or attendant circumstances that Appellant acted with the

specific intent to cause bodily injury to the police.       We therefore find that

Appellant’s sufficiency claim lacks merit.

                                   Specific Charge

         Appellant raises a second issue for our consideration in the body of his

brief.     He alleges that, pursuant to 1 Pa.C.S. § 1933,3 the charge of

aggravated assault, 18 Pa.C.S. § 2702, was improper and was required to

have been aggravated assault by vehicle, 75 Pa.C.S. § 3732.1. Appellant’s

Brief, at 10.

         First, we note that, because Appellant did not set forth the issue in the

statement of questions, the matter is waived.           The Pennsylvania Rules of

Appellate Procedure provide, in part, that “[n]o question will be considered

unless it is stated in the statement of questions involved or is fairly

suggested thereby.”        Pa.R.A.P. 2116.       As the claim was not specifically

included in the statement of questions, nor was it fairly suggested thereby, it
____________________________________________


3
    Section 1933 provides:

         “Whenever a general provision in a statute shall be in conflict
         with a special provision in the same or another statute, the two
         shall be construed, if possible, so that effect may be given to
         both. If the conflict between the two provisions is irreconcilable,
         the special provisions shall prevail and shall be construed as an
         exception to the general provision, unless the general provision
         shall be enacted later and it shall be the manifest intention of
         the General Assembly that such general provision shall prevail.”



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was not preserved for appellate review.     See Com. v. Kittelberger, 616

A.2d 1, 3 (Pa. Super. 1992).

      Although the issue has been waived for the reason stated above, we

also note that 42 Pa.C.S. 9303 resolves the issue entirely:

      “Notwithstanding the provisions of 1 Pa.C.S. § 1933 (relating to
      particular controls general) or any other statute to the contrary,
      where the same conduct of a defendant violates more than one
      criminal statute, the defendant may be prosecuted under all
      available statutory criminal provisions without regard to the
      generality or specificity of the statutes.”

      “[T]he enactment of 42 Pa.C.S. § 9303 has halted operation of section

1933's “general-specific” rule of statutory construction in the context of

criminal prosecutions, and those cases, which applied that concept as a basis

for their holdings, are no longer precedential.” Com. v. Nypaver, 69 A.3d

708, 714 (Pa. Super. 2013).

      For the foregoing reasons, we affirm the trial court’s judgment of

sentence.

      Judgment of sentence AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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