J-S87039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID T. DONES

                            Appellant                 No. 708 MDA 2016


           Appeal from the Judgment of Sentence November 3, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0001228-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 19, 2016

        David T. Dones appeals from the judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, after he was convicted by a jury

of aggravated assault of a police officer1 and disorderly conduct.2      After

careful review, we affirm.

        The trial court aptly summarized the relevant facts of this case as

follows:

        Harrisburg City Police Officers Mike Rudy and Edwin Powell
        responded to a call [at] 310 Hummel Street, Harrisburg, PA
        around 4:00 a.m. on December 21, 2014. When the Police
        Officers arrived, [Dones] was standing at the top of the third
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(3).
2
    18 Pa.C.S. § 5503(a)(4).
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       floor covered in blood and was being verbally aggressive toward
       [the] police. Once [Dones] finally decided to come downstairs
       and outside to be checked by medical personnel, [Dones’] action
       began to escalate (i.e.[,] screaming louder, flexing, threatening
       people, “you don’t know who you’re messing with, etc.).
       [Dones] was cursing and threatening to kill the police officers
       that were present on the scen[e]. [Dones] yelled “I’m going to
       f*&king kill you” [Dones] was eventually transported to the
       hospital.

       Once at the hospital, [Dones] again erupted and was screaming,
       yelling, [and] thrashing around on the gurney. [Dones] had to
       be restrained. Hospital personnel along with several officers and
       hospital security attempted to get him to calm down and onto a
       hospital bed. While being held down, [Dones] began to lay back
       and thrust his legs forward in a kicking motion. [Dones] looked
       Officer Powell in the eyes and kicked him pretty hard, knocking
       him back a foot. Additionally, [Dones] spit on Officer Powell and
       it stuck to his shirt.      [Dones] also spit on Christopher
       Steinbacher. [Dones] continued to spit until a spit hood was put
       on him.

Trial Court Opinion, 9/23/16, at 3 (footnotes and citations to record

omitted).

       After a one-day jury trial, Dones was convicted of aggravated assault

of a police officer and disorderly conduct. On November 3, 2015, the court

held a consolidated sentencing hearing on the instant case, as well as on two

other unrelated cases involving Dones.3          Dones was sentenced to 18-84

months’ imprisonment on the aggravated assault charge, with credit for time


____________________________________________


3
  Those two unrelated cases are also currently on appeal to this Court. See
Commonwealth v. Dones, 597 MDA 2016 (appeal from judgment of
sentence for simple assault) and Commonwealth v. Dones, 2106 MDA
2015 (appeal from judgment of sentenced for resisting arrest, disorderly
conduct, and public drunkenness).



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served, and a concurrent sentence of 12 months’ probation for the disorderly

conduct charge.

       Dones filed a timely post-sentence motion, which the trial court

denied. On April 11, 2016, Dones filed a notice of appeal and, later, a timely

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Dones presents the following issues for our review:

       (1)    Did not the lower court abuse its discretion by failing to
              grant [Dones] a new trial on the basis that the guilty
              verdicts were against the weight of the evidence?

       (2)    Was the imposition of an aggregate sentence of one year,
              ten months, to nine years, clearly unreasonable, so
              manifestly excessive as to constitute an abuse of
              discretion, and inconsistent with the protection of the
              public, the gravity of the offenses, and [Dones’]
              rehabilitative needs where the court imposed consecutive
              jail sentences both of which were in the aggravated range
              of the sentencing guidelines?

Appellant’s Brief, at 8.

       Dones first contends that the jury’s aggravated assault verdict was

against the weight of the evidence where the evidence was insufficient to

prove that he caused or attempted to cause bodily injury to a protected class

member who was performing within the scope of his official duties.4



____________________________________________


4
  We recognize that Dones’ first issue on appeal is actually a challenge to the
sufficiency, not the weight, of the evidence. Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993) (evidence deemed sufficient to support verdict
when it establishes each material element of crime charged and commission
thereof by accused beyond reasonable doubt).



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       When reviewing a sufficiency claim, our 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 (Pa. 2000).                In

applying the above test, the entire record must be evaluated and all

evidence actually received must be considered. Id. Finally, “the trier of fact

while passing upon the credibility of the witnesses . . . is free to believe all,

part or none of the evidence.” Commonwealth v. Hutchinson, 947 A.2d

800, 805-806 (Pa. Super. 2008) (quotation omitted).

       Aggravated assault of a police officer or an emergency medical

technician (EMT) is defined as “attempt[ing] to cause or intentionally or

knowingly caus[ing] bodily injury to any of the officers, agents, employees

or other persons enumerated in subsection (c),5 in the performance of duty.”

18 Pa.C.S. § 2702(a)(3).

       Here, Dones asserts that, due to a mental health episode, 6 he caused

only relatively minor self-inflicted wounds and kicked his legs for a short

period of time which did not cause any injuries to third persons.          While
____________________________________________


5
 Under subsection (c) of section 2702, police officers and emergency
medical service personnel are enumerated. 18 Pa.C.S. § 2702(c)(1), (21).
6
  Dones states that he “was obviously in the throes of some mental health
episode,” Appellant’s Brief, at 36, during his encounter with the police and
EMTs. However, at trial he did not present any evidence to indicate that his
mental health was of such a nature that a jury could not infer he acted with
the requisite intent under section 2702.



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Dones admits he delivered one kick that “landed on [an officer’s] biceps and

the torso area,” he notes that the area was “protected by his bullet-proof

vest.” Appellant’s Brief, at 36. Accordingly, he claims that these actions do

not amount to aggravated assault and that “it was contrary to the weight of

the evidence for the jury to have made a finding that it was [his] conscious

object to inflict bodily injury on one or more of the alleged victims.” Id. at

36-37. We disagree.

      In a prosecution for aggravated assault under section 2702(a)(3), 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. Commonwealth v. Marti, 779 A.2d 1177

(Pa. Super. 2001) (emphasis added and in original).       This intent may be

shown by circumstances which reasonably suggest that a defendant

intended to cause injury. Id.; see also Commonwealth v. Galindes, 786

A.2d 1004, 1012 (Pa. Super. 2001) (“An attempt exists when the accused

intentionally acts in a manner which constitutes a substantial or significant

step toward perpetrating . . . bodily injury upon another.”).

      It was within the jury’s province to find that Dones, by kicking,

thrashing, and flailing while he was restrained on a hospital bed, intended to

cause injury to Officer Powell and EMT Steinbacher. Officer Powell testified

that Dones gave him a “mule kick” to the chest that was “pretty hard [and]

knocked [him] back a little bit . . . maybe a foot” even though he was

wearing a bullet proof vest. N.T. Jury Trial, 11/3/15, at 57. The officer also

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testified that Dones “cocked his right leg back and ended up [kicking him] . .

. [s]omewhere on the bicep area.” Id. at 55. EMT Steinbacher testified that

as Dones was yelling obscenities and spitting at him and Officer Powell,

Dones “starting winding up” and tried to kick him. Id. at 75-77.

      Viewing    the    evidence    in    the   light   most   favorable    to   the

Commonwealth, as the verdict winner, we conclude that there was sufficient

evidence to enable the jury to find beyond a reasonable doubt that Dones

violated section 2702(a)(3).

      Dones also claims that there was insufficient evidence to prove that his

actions     caused   serious   public    inconvenience,   annoyance    or    alarm.

Specifically, he contends that as the subject of an involuntary mental health

commitment, he cannot be deemed to have committed disorderly conduct.

      “A person is guilty of disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he

creates a hazardous or physically offensive condition by any act which

serves no legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4).

      Instantly, Dones continuously yelled obscenities at and threatened to

kill others and spat in their faces and tried to kick them, while he stood

outside his home and while he was restrained on a gurney in a public

hospital.     Dones placed several officers, EMTs, and hospital personnel at

risk for injury and created a physically offensive condition in public.

Commonwealth v. Pringle, 450 A.2d 103, 106 (Pa. Super. 1982)

(shouting profane names and insults at police officers on public street while

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officers attempt to carry out their lawful duties constitutes disorderly

conduct). Moreover, Dones’ loud and offensive behavior caused neighbors

to “com[e] out from about three or four doors down wondering what was

going on.” N.T. Jury Trial, 11/3/15, at 67. See 18 Pa.C.S. § 5503(c) (under

section 5503, “‘public” means “affecting or likely to affect persons in a place

to which the public or a substantial group has access; among the places

included are . . . any neighborhood, or any premises which are open to the

public.”).

      Viewing   the    evidence   in   the     light    most   favorable   to   the

Commonwealth, as the verdict winner, we conclude that there was sufficient

evidence to enable the jury to find beyond a reasonable doubt that Dones

violated section 5503(a)(4).

      In his final issue on appeal, Dones contends that the trial court’s

sentence is inappropriate where “the imposition of consecutive sentences . .

. was so manifestly excessive as to constitute an abuse of discretion.”

Appellant’s Brief, at 24. He also contends that the court focused solely on

the nature of the criminal conduct and discounted a mitigating factor, his

mental health condition.

      Our standard of review when a defendant challenges the discretionary

aspects of a sentence is very narrow.          We will reverse only where the

defendant     has     demonstrated     a     manifest     abuse    of   discretion.

Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996).

However,

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     [t]he right to appellate review of the discretionary aspects of a
     sentence is not absolute and must be considered a petition for
     permission to appeal. An appellant must satisfy a four-part test
     to invoke the appellate court's jurisdiction when challenging the
     discretionary aspects of a sentence. The court conducts a four-
     part analysis to determine: (1) whether appellant has filed a
     timely notice of appeal; (2) whether the issue was properly
     preserved at sentencing or in a motion to reconsider and modify
     sentence; (3) whether appellant’s brief has a fatal defect; and
     (4) whether there is a substantial question that the sentence
     appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), citing

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.

2014).

     Here, Dones filed a timely notice of appeal from his judgment of

sentence, preserved his discretionary aspect of sentence claim in a timely

post-sentence motion, and included a Pa.R.A.P 2119(f) statement in his

appellate brief. Therefore, we must determine whether he has presented a

substantial question to invoke our appellate review.

     While a challenge to the imposition of consecutive rather than

concurrent sentences typically does not present a substantial question

regarding the discretionary aspects of sentence, Zirkle, supra, we have

recognized that a sentence can be so manifestly excessive in extreme

circumstances that it may create a substantial question.   Commonwealth

v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010). Moreover, a claim that

a court imposed a sentence in the aggravated range without considering

mitigating circumstances constitutes a substantial question as to the

discretionary aspect of sentencing. See Commonwealth v. Felmlee, 828


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A.2d 1105 (Pa. Super. 2003) (en banc).                A claim that a sentencing court

relied    on   impermissible     factors       also   raises   a   substantial   question.

Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006). Thus, we

conclude that Dones has presented a substantial question.

         The trial court chose to run Dones’ aggravated-range aggravated

assault sentence (1½-7 years) consecutively to his aggravated-range

sentence for simple assault (4-24 months) in an unrelated case.7 The trial

court stated its reasons for sentencing on the record as follows:

         Even though it does not appear that there are any convictions,
         again, there are repeated arrests and many of them are for
         batteries. One is for first-degree murder. Apparently, you were
         acquitted or it was dismissed – one or the other – but there just
         seems to be one episode after the other and it is of some
         concern. You arrived in the Harrisburg area and immediately got
         yourself involved in three different criminal episodes that
         resulted in you standing here today. And, again, it just goes to
         speak to this level of violence. This continuation of violence
         doesn’t stop. And you say it’s because, well, you were off our
         medication and so forth. But I think that particular excuse only
         takes you so far. And it seems to me that an appropriate
         sentence would be to a state correctional institution.

N.T. Sentencing Hearing, 11/3/15, at 11. In his Rule 1925(a) opinion, the

Honorable President Judge Richard A. Lewis further expounded upon why he

sentenced Dones to two aggravated-range sentences and ran them

consecutively:


____________________________________________


7
  That case, which involved a completely distinct set of charges and a
separate jury trial, is also on appeal at 97 MDA 2016.



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      [Dones] has a disturbing past that is riddled with past violent
      behavior. . . . This continuation of violence does not appear to
      end. Additionally, [Dones] shows no remorse whatsoever. This
      is troubling as [Dones] continues to act in an aggressive manner
      towards others. . . . [Dones] displayed actions of total disregard
      to others. He kicked those who were helping him and continued
      to spit on others until he was restrained and a spit mask was put
      on him.      Additionally, in taking into consideration [Dones’]
      rehabilitative needs, this Court noted that [Dones] has been on
      and off his medication and continues to use that as an excuse to
      engage in violent behavior. This [C]ourt believes that that
      particular excuse only carries so much weight and has run its
      course. As such, the Court fashioned a sentence that takes into
      consideration the protection of the public, the gravity of the
      offenses, and [Dones’] rehabilitative needs.

Trial Court Opinion, 9/23/16, at 9.

      In determining Dones’ sentence, the court carefully considered the

factors set out in 42 Pa.C.S. § 9721(b), that is: the protection of the public,

gravity of offense in relation to impact on victim and community, and

rehabilitative needs of Dones. Furthermore, as trial judge, President Judge

Lewis had wide discretion in sentencing and “can, on the appropriate record

and for the appropriate reasons, consider any legal factor in imposing a

sentence in the aggravated range.” Commonwealth v. Stewart, 867 A.2d

589, 593 (Pa. Super. 2005) (citation omitted). A defendant’s prior arrests

are   a   proper   factor   to   consider   in   fashioning   a   sentence.   See

Commonwealth v. Allen, 489 A.2d 906 (Pa. Super. 1985). Here, the court

looked at an FBI report detailing Dones’ out-of-state arrests and criminal

dispositions. N.T. Sentencing Hearing, 11/3/15, at 4-5. Moreover, the court

acknowledged the fact that Dones had significant mental health issues, but

found that his failure to consistently take his medications did not outweigh


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the need to protect society from his violent behaviors. Accordingly, we fail

to find that the trial court abused its discretion in sentencing Dones.

Hermanson, supra.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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