J-S36011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM PERCHA                             :
                                               :
                       Appellant               :   No. 215 WDA 2020

        Appeal from the Judgment of Sentence Entered January 14, 2020
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001478-2016


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 26, 2020

        Appellant, William Percha, appeals from the judgment of sentence

entered on January 14, 2020. We affirm.

        The trial court ably summarized the underlying facts of this case:

          [The Commonwealth charged Appellant with aggravated
          assault, simple assault, and recklessly endangering another
          person (“REAP”).1 Trial was scheduled for July 10, 2018.]

          [O]n July 10, 2018, [Appellant] failed to appear for trial and
          a bench warrant was issued for his apprehension.
          Subsequently, [Appellant] was apprehended and, on
          December 20, 2018, he was ordered to appear for the
          January 2019 criminal court session[,] which began on
          January 7, 2019. When [Appellant] failed to appear as
          ordered during the January 2019 criminal court session, on
          January 8, 2019, another bench warrant was issued for his
          arrest. After he was again apprehended, on May 17, 2019,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), and 2705, respectively.
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       the bench warrant was lifted and [Appellant] was ordered to
       appear for his criminal jury trial which was to be held on June
       3, 2019.

       On June 3, 2019, once again, [Appellant] failed to appear as
       ordered for trial and the Commonwealth called the case for
       trial in the absence of [Appellant]. At that time, and on the
       record, the Commonwealth stated the history of [Appellant]
       failing to appear for trial, as well as him being present on May
       17, 2019, and being told by the Court that he was to appear
       for trial on June 3, 2019. Further, the Commonwealth stated
       that its witnesses were either present or about to appear.
       Counsel for [Appellant] then asked for a continuance without
       offering any explanation for [Appellant’s] absence. That
       motion was denied by th[e trial] court . . . and, thereafter,
       trial was held. . . .

       [The jury found Appellant guilty of all charges and Appellant]
       was ordered to appear for sentencing on June 11, 2019.
       Once again [Appellant] failed to appear and another bench
       warrant was issued for his arrest. After [Appellant] was
       apprehended in January[] 2020, he was sentenced[, on
       January 14, 2020, to serve an aggregate term of two to four
       years in prison for his convictions].

                                     ...

       [During the trial,] the Commonwealth presented the
       testimony of William Myers, the victim in this matter, who, at
       the time of trial, was a retired corrections officer, having
       [recently] retired from [State Correctional Institution (“SCI”)
       Fayette].

       Officer Myers testified that[,] on January 28, 2016, he was
       [working as a corrections officer at SCI Fayette] and came
       into contact with [Appellant] who, at that time, was an
       inmate at the facility. Since [Appellant] did not have a valid
       pass to be in the area where he was at th[e] time, Officer
       Myers told [Appellant] he would have to return to his block.
       When [Appellant] refused, Officer Myers informed him he was
       taking him into custody. As the officer reached for his
       handcuffs, [Appellant] swung and hit [Officer Myers] in his
       left temple. [Appellant] then grabbed the officer's radio and
       struck the officer with it and they fell to the ground.

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        On the ground, [Appellant] continued to strike the officer with
        the radio. Among [the] injuries sustained by Officer Myers
        was an injury to his MCL, causing him to be off work for over
        a month.

        In addition to the testimony of Officer Myers, the
        Commonwealth provided the testimony of Sergeant Norio
        Angelo and Officer William Solomon, both of whom serve at
        SCI Fayette. [Sergeant] Angelo testified that[,] on the day
        [of the assault], he received a Signal 13 on his radio
        indicating a staff assault. He responded to the scene of the
        incident within 20 to 30 seconds and observed [Appellant] on
        top of Officer Myers and striking him with the radio. . . .

        Officer Solomon testified that[,] on the day [of the assault],
        he also received a Signal 13 indicating that an officer was in
        distress or under attack and responded. At the scene of the
        incident, he observed several officers and a combative
        inmate, [who was Appellant]. He also observed Officer Myers
        get out from underneath [Appellant].

Trial Court Opinion, 3/25/20, at 2-7 (citations and some capitalization

omitted).

      As noted above, the jury found Appellant guilty of aggravated assault,

simple assault, and REAP and the trial court sentenced Appellant to serve an

aggregate term of two to four years in prison. Appellant filed a timely notice

of appeal and now raises the following claims to this Court:

        [1.] Did the trial court abuse its discretion by holding the trial
        in this matter without the defendant present?

        [2.] Did the Commonwealth fail to present sufficient evidence
        to prove beyond a reasonable doubt that Appellant
        intentionally caused bodily injury to an officer, agent, or
        employee, or other enumerated person?

Appellant’s Brief at 7 (some capitalization omitted).



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      First, Appellant claims that the trial court erred when it tried him in

absentia.

      “A person accused of a crime has a constitutional right pursuant to the

Sixth Amendment of the United States Constitution and Article 1, § 9 of the

Pennsylvania Constitution to be present at every stage of a criminal trial.”

Commonwealth v. Wilson, 712 A.2d 735, 737 (Pa. 1998). “In non-capital

cases, a defendant may, by his actions, waive this right expressly or implicitly.

The waiver must be knowing and voluntary.” Id.

      The above precepts are codified in Pennsylvania Rule of Criminal

Procedure 602. In relevant part, Rule 602 states:

        The defendant shall be present at every stage of the trial
        including the impaneling of the jury and the return of the
        verdict, and at the imposition of sentence, except as
        otherwise provided by this rule. The defendant's absence
        without cause at the time scheduled for the start of trial or
        during trial shall not preclude proceeding with the trial,
        including the return of the verdict and the imposition of
        sentence.

Pa.R.Crim.P. 602(a).

      The Comment to Rule 602 provides:

        upon a finding that the [defendant’s] absence was without
        cause, the trial judge may conduct the trial in the defendant's
        absence when the defendant fails to appear without cause at
        the time set for trial or during trial. The burden of proving
        that the defendant's absence is without cause is upon the
        Commonwealth by a preponderance of the evidence. See
        Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980)
        (when a constitutional right is waived, the Commonwealth
        must show by a preponderance of the evidence that the
        waiver    was      voluntary,   knowing    and      intelligent);
        Commonwealth v. Tizer, 684 A.2d 597 (Pa. Super. 1996)[;

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        see also] Commonwealth v. Bond, 693 A.2d 220, 223 (Pa.
        Super. 1997) (“[A] defendant who is unaware of the charges
        against him, unaware of the establishment of his trial date or
        is absent involuntarily is not absent ‘without cause.’”).

                                      ...

        A defendant's presence may be deemed waived by the
        defendant intentionally failing to appear at any stage of the
        trial after proper notice. See Commonwealth v. Wilson,
        712 A.2d 735 (Pa. 1998) (a defendant, who fled courthouse
        after jury was impaneled and after subsequent plea
        negotiations failed, was deemed to have knowingly and
        voluntarily waived the right to be present); Commonwealth
        v. Sullens, 619 A.2d 1349 (Pa. 1992) (when a defendant is
        absent without cause at the time his or her trial is scheduled
        to begin, the defendant may be tried in absentia).

Pa.R.Crim.P. 602 cmt.

      On appeal, Appellant claims that the Commonwealth did not prove, by

a preponderance of the evidence, that he was absent from trial without cause.

Appellant’s Brief at 13. In support of this claim, Appellant baldly contends

that he “never received notice of his trial date” and he “was unaware of the

charges against him.” Appellant’s Brief at 12-14. Appellant’s claim fails.

      The record reflects that, prior to Appellant’s June 3, 2019 trial,

Appellant twice failed to appear for his scheduled trial and, as a result,

Appellant was twice apprehended on bench warrants. See Trial Court Order,

7/18/18, at 1 (directing the clerk of courts to issue a bench warrant for

Appellant’s arrest, as Appellant failed to appear for his scheduled trial); Trial

Court Order, 12/20/18, at 1 (lifting the bench warrant, reinstating Appellant’s

bond, and ordering Appellant to appear for trial on January 7, 2019); Trial

Court Order, dated 1/8/19, at 1 (directing the clerk of courts to issue a bench


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warrant for Appellant’s arrest, as Appellant failed to appear for his scheduled

trial); Trial Court Order, 5/17/19, at 1 (lifting the bench warrant, reinstating

Appellant’s bond, and ordering Appellant to appear for trial on June 3, 2019).

Further, in its May 17, 2019 order, the trial court specifically directed Appellant

to “report for criminal jury trial on June 3, 2019.” Trial Court Order, 5/17/19,

at 1.

        We additionally note that when Appellant failed to appear for his June

3, 2019 jury trial, the trial court questioned both the Commonwealth and

Appellant’s counsel regarding Appellant’s failure to appear. See N.T. Trial,

6/3/19, at 1-4. The Commonwealth informed the trial court that Appellant

was present during the May 17, 2019 proceeding, where the trial court lifted

the bench warrant and ordered Appellant to appear for trial on June 3, 2019.

Id. at 4.      Moreover, Appellant’s counsel provided no explanation for

Appellant’s failure to appear for trial. See id. Indeed, Appellant has never

provided any explanation for his absence, other than to make the baseless

claims that he “never received notice of his trial date” and he “was unaware

of the charges against him.” Appellant’s Brief at 12-14.

        Based upon these facts, it is clear that the Commonwealth proved, by a

preponderance of the evidence, that Appellant had actual notice of charges

against him, that Appellant had actual notice of his June 3, 2019 trial, and

that Appellant “willfully decided to absent himself without cause or

justification.” See Sullens, 619 A.2d at 1353. To be sure, Appellant was

twice apprehended for failure to appear for trial, twice released from the bench

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warrant, and, at the May 17, 2019 proceeding – during which Appellant was

present – the trial court specifically ordered Appellant to appear for trial on

June 3, 2019. Trial Court Order, 5/17/19, at 1; N.T. Trial, 6/3/19, at 1-4.

Thus, Appellant’s bald claim that he “never received notice of his trial date”

and he “was unaware of the charges against him” is frivolous.

       Next, Appellant claims that the evidence is insufficient to support his

aggravated assault conviction.2          We review Appellant's sufficiency of the

evidence challenge under the following standard:

____________________________________________


2  Appellant was convicted of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(3). In relevant part, this type of aggravated assault is defined as
follows:

         (a) Offense defined.--A person is guilty of aggravated
         assault if he:

                                           ...

              (3) 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;

                                           ...

         (c) Officers, employees, etc., enumerated.--The officers,
         agents, employees and other persons referred to in
         subsection (a) shall be as follows:

                                           ...

              (9) Officer or employee of a correctional institution,
              county jail or prison . . .

18 Pa.C.S.A. § 2702.

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        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial
        in the light most favorable to the verdict winner, there is
        sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In applying
        the above test, we may not weigh the evidence and substitute
        our judgment for [that of] the fact-finder. In addition, we
        note that the facts and circumstances established by the
        Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant's guilt may be
        resolved by the fact-finder unless the evidence is so weak
        and inconclusive that as a matter of law no probability of fact
        may be drawn from the combined circumstances.              The
        Commonwealth may sustain its burden of proving every
        element of the crime beyond a reasonable doubt by means
        of wholly circumstantial evidence. Moreover, in applying the
        above test, the entire record must be evaluated and all
        evidence actually received must be considered. Finally, the
        trier of fact while passing upon the credibility of witnesses
        and the weight of the evidence produced, is free to believe
        all, part or none of the evidence.

Commonwealth v. Vargas, 108 A.3d 858, 867-868 (Pa. Super. 2014) (en

banc), quoting Commonwealth v. Brown, 23 A.3d 544, 559–560 (Pa.

Super. 2011) (en banc).

      According to Appellant, the evidence is insufficient to support his

aggravated assault conviction because “it is entirely possible that this was a

case of mutual combat where[] both Appellant and the prison guard each

decided to fight on their own accord, and not merely an attack upon the prison

guard.” Appellant’s Brief at 16. This claim fails.

      Officer Myers – the victim in this case – testified that, immediately

before the attack, he saw Appellant in an unauthorized area of the prison.

N.T. Trial, 6/3/19, at 35-36.     Officer Myers testified that he confirmed

Appellant did not have a valid pass to be in the area and he thus ordered

                                     -8-
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Appellant to return to his cell block. Id. at 38. Appellant, however, refused

the order. Id. Officer Myers testified:

           Well I told him several times that he would have to go back
           to his block. Each time he refused so then I told him that
           since he refused, I was taking him into custody. I told him
           to turn around, put his hands behind his back. He started to
           turn. I reached back for my cuffs and at that time, that’s
           when he swung around [and] hit me . . . [in my] left temple.

                                        ...

           After he hit me the first time, . . . I struck him back. . . .
           [Appellant then] grabbed my radio and struck me with it. . .
           . I grabbed his jacket. And when I went down, I pulled him
           down on top of me. And he continued to strike me and I just
           hung on because I knew other [corrections officers] were
           coming.

Id. at 38-39.

         The above evidence demonstrates that Appellant was in an unauthorized

area of the prison, refused to comply with a valid order from Officer Myers,

and then, when Officer Myers was attempting to place Appellant into custody

for violating prison regulations, Appellant punched Officer Myers in his left

temple. There is simply no evidence that “this was a case of mutual combat

where[] both Appellant and the prison guard each decided to fight on their

own accord.” Appellant’s Brief at 16. Rather, viewing the evidence in the light

most favorable to the Commonwealth, the evidence demonstrates that

Appellant was the aggressor in this case. Appellant’s claim on appeal thus

fails.

         Judgment of sentence affirmed. Jurisdiction relinquished.



                                       -9-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2020




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