J-S11032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    RONALD DALE FITZGERALD, JR.,                :
                                                :
                      Appellant                 :         No. 1180 WDA 2019

         Appeal from the Judgment of Sentence Entered July 18, 2019
               in the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0001696-2018

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                     FILED JUNE 09, 2020

        Ronald Dale Fitzgerald, Jr. (“Fitzgerald”), appeals from the judgment

of sentence entered following his convictions of aggravated assault, simple

assault, resisting arrest, disorderly conduct, and harassment.1 We affirm.

        On June 17, 2018, Uniontown Police Officer Jennifer Field (“Officer

Field”) and three other officers were dispatched to assist emergency medical

services with an unresponsive adult male in the area of 66 Dunlap Street in

Uniontown,     Pennsylvania.         Upon      arrival,   Officer   Field   observed   an

approximately 35-year-old man, later identified as Fitzgerald, lying on the

ground unresponsive, and surrounded by a crowd of onlookers. Officer Field

approached Fitzgerald, knelt down next to him, and attempted to rouse him

with verbal and physical stimulation.            Officer Field performed a “sternum

____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), 5104, 5503(a)(1), 2709(a)(1).
J-S11032-20



rub”2 on Fitzgerald, which prompted Fitzgerald to roll onto his stomach,

produce a mixture of laughter and growling noises, and kick his feet. Officer

Field stood up and stepped away from Fitzgerald.                 Fitzgerald suddenly

sprang to his feet, lunged at Officer Field, and punched her in the face with a

closed fist. The punch knocked Officer Field off-balance, and caused her to

fall into and strike a nearby tree trunk, then fall to the ground. As a result

of the attack, Officer Field suffered bruising to her face and arm, and

abrasions on her arm.

       The other officers instructed Fitzgerald to give them his hands, and

attempted to restrain Fitzgerald.              Fitzgerald did not comply, and began

flailing his arms and kicking his legs. The officers eventually gained control

of Fitzgerald, with the use of two sets of handcuffs, and placed him under

arrest.3

       Fitzgerald was subsequently charged with, and following a jury trial

found guilty of, the above-mentioned offenses.             The trial court sentenced

Fitzgerald to an aggregate term of 36 to 72 months in prison, with credit for

time served. Fitzgerald filed a post-sentence Motion to modify his sentence,
____________________________________________


2 Officer Field testified at trial that a “sternum rub” consists of rubbing a
closed fist on the unresponsive individual’s chest. See N.T., 7/10-11/19, at
12. She testified that a sternum rub is standard procedure for assessing an
unresponsive person’s level of responsiveness. See id. at 16.

3 The record indicates that Fitzgerald was transported by ambulance to the
hospital, but is unclear whether Fitzgerald was treated by medical personnel,
or had his blood tested for any substances.



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which the trial court denied. Fitzgerald filed a timely Notice of Appeal and a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

      On appeal, Fitzgerald raises the following questions for our review:

      1. Whether the evidence was legally and factually sufficient to
      prove that [Fitzgerald] had the requisite intent to commit the
      crime of aggravated assault[?]

      2. Whether the evidence was legally and factually sufficient to
      prove that [Fitzgerald] had the requisite intent to commit the
      crime of simple assault[?]

      3. Whether the evidence was legally and factually sufficient to
      prove that [Fitzgerald] had the requisite intent to commit the
      crime of resisting arrest[?]

      4. Whether the evidence was legally and factually sufficient to
      prove that [Fitzgerald] had the requisite intent to commit the
      crime of disorderly conduct[?]

      5. Whether the trial court committed an abuse of discretion by
      sentencing [Fitzgerald] above the aggravated range[?]

Brief for Appellant at 4.

      In Fitzgerald’s first four claims, he alleges that the evidence was

insufficient to prove that he committed the crimes of aggravated assault,

simple assault, resisting arrest, and disorderly conduct.      See Brief for

Appellant at 11. In all four claims, Fitzgerald argues that he could not form

the requisite intent of each crime because he was involuntarily intoxicated at

the time of the incident.   Id. at 8-11.   Fitzgerald claims that prior to the

incident, he had smoked a cigarette which, unbeknownst to him, contained a

mind-altering substance.    Id. at 8.   According to Fitzgerald, the cigarette


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was given to him by a third party; Fitzgerald thought the cigarette was a

normal tobacco cigarette; and the third party did not tell him that the

cigarette contained a mind-altering substance. Id.

      When considering a challenge to the sufficiency of the evidence, we

determine

      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 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 finder of fact[,] while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, or part or none of the
      evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      Here, Fitzgerald has failed to cite any legal precedent stating that

involuntary intoxication is a cognizable defense in Pennsylvania. Indeed, the

only legal support that Fitzgerald cites regarding involuntary intoxication is

Pennsylvania Suggested Standard Criminal Jury Instruction 8.308C, which,

by its text, only applies to driving under the influence offenses under 75



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Pa.C.S.A. § 3802.         See Pa.SSJI (Crim) 8.308C.    As our research has

disclosed no cases from this Court or our Supreme Court recognizing the

defense of involuntary intoxication for the crimes of which Fitzgerald was

convicted, we are constrained to find that Fitzgerald’s first four claims lack

merit.4

       In his fifth claim, Fitzgerald alleges that the trial court abused its

discretion in sentencing him above the aggravated range and in considering

impermissible sentencing factors. See Brief for Appellant at 12.

       Fitzgerald’s claim challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an
____________________________________________


4 Even if involuntary intoxication was a viable defense to the crimes of which
Fitzgerald was convicted, we would conclude that Fitzgerald’s claims lack
merit. Involuntary intoxication is an affirmative defense, which Fitzgerald
was required to prove by a preponderance of the evidence.                 See
Commonwealth v. Collins, 810 A.2d 698, 701 (Pa. Super. 2002) (stating
that “when a defense is asserted that relates to the defendant’s mental state
or information that is peculiarly within the defendant’s own knowledge and
control, the general rule is that the defendant has the burden of proving the
defense by a preponderance of the evidence.”). Here, the only evidence
produced by Fitzgerald was his own self-serving testimony that he had
smoked what he thought was a tobacco cigarette, which he received from a
third party, and the next thing he remembered was waking up in the
hospital. Fitzgerald presented no medical records showing that he had
ingested a mind-altering substance, or testimony from the third party that
the cigarette contained a mind-altering substance. The jury was instructed
regarding involuntary intoxication, and found Fitzgerald guilty of each of the
aforementioned charges.        See N.T., 7/10-11/19, at 61-65; see also
Melvin, supra. The jury was free to assess Fitzgerald’s credibility, and we
will not substitute our judgment for that of the jury. See Commonwealth
v. Sanchez, 36 A.3d 24, 39 (Pa. Super. 2011) (stating that “this Court
cannot substitute its judgment for that of the jury on issues of
credibility….”).



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appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010). “Instead, such challenges are considered petitions

for allowance of appeal.” Commonwealth v. Clemat, 218 A.3d 944, 959

(Pa. Super. 2019). Prior to reaching the merits of a discretionary sentencing

issue,

         [this Court conducts] a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal, see
         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, see 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
         substantial question that the sentence appealed from is not
         appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

                                   ***

               The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis.          A
         substantial question exists only when the appellant advances a
         colorable argument that the sentencing judge’s actions were
         either: (1) inconsistent with a specific provision of the
         Sentencing Code; or (2) contrary to the fundamental norms
         which underlie the sentencing process.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

         Here, Fitzgerald filed a timely Notice of Appeal and raised his

sentencing claim in a post-sentence Motion. However, Fitzgerald failed to

include a Rule 2119(f) Statement in his brief, and fails to make any legal

argument, or cite any relevant case law in support, that his claim violates a

specific provision of the Sentencing Code or a particular fundamental norm

underlying the sentencing process. See Pa.R.A.P. 2119(f) (stating, in part,

that “[a]n appellant who challenges the discretionary aspects of a sentence

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in a criminal matter shall set forth in a separate section of the brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence.”); Commonwealth v. Sauers, 159

A.3d 1, 16 (Pa. Super. 2017) (denying an appellant’s petition for allowance

to appeal the discretionary aspects of his sentence where the appellant’s

concise statement failed to “articulate the manner in which the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.”).

      Nevertheless, this Court has overlooked an appellant’s failure to

comply with Rule 2119(f) where the appellee does not object to the omission

and a substantial question is evidenced from the appellant’s brief.         See

Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010). Here,

the Commonwealth did not object to Fitzgerald’s omission, and Fitzgerald’s

claim that the trial court considered impermissible sentencing factors raises

a substantial question. Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa.

Super. 2006). Therefore, will address the merits of his claim.

      Fitzgerald alleges that the trial court abused its discretion by

sentencing him above the aggravated guideline range, and by improperly

considering “previous adjudications and previous convictions that don’t make

up part of [Fitzgerald’s] 5 point prior record point score.” Brief for Appellant

at 12. Fitzgerald directs us to the trial court’s statements at sentencing


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relating to Fitzgerald’s prior juvenile delinquency adjudications and prior

convictions. See N.T., 7/18/19, at 3-9.

       Initially, the trial court was free to consider Fitzgerald’s prior juvenile

adjudications in making its sentence.            See 204 Pa. Code § 303.6(c)(2)

(providing the guidelines for the inclusion of a prior juvenile adjudication in

the calculation of a prior record score, and stating that “[n]othing in this

section shall prevent the court from considering lapsed prior adjudications at

the time of sentencing.”).5

       Additionally,

       although the sentencing guidelines are an important factor in
       sentencing, they are but only one factor when determining an
       individualized sentence:

          The guidelines have no binding effect, create no
          presumption in sentencing, and do not predominate over
          other sentencing factors—they are advisory guideposts
          that are valuable, may provide an essential starting point,
          and that must be respected and considered; they
          recommend, however, rather than require a particular
          sentence.


____________________________________________


5 To the extent that Fitzgerald challenges the trial court’s consideration of
“prior convictions” that were not included in Fitzgerald’s prior record score,
the record is unclear as to what, if any, prior convictions the trial court
considered that were not included in the prior record score. See N.T.,
7/18/19, at 3-9. Because we can only consider facts that are contained in
the record, we find this claim waived. See Commonwealth v. Brown, 161
A.3d 960, 968 (Pa. Super. 2017) (stating that “our review is limited to those
facts which are contained in the certified record and what is not contained in
the certified record does not exist for purposes of our review.” (quotation
marks omitted)).



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Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (brackets

omitted).      Therefore, our inquiry is whether the trial court appropriately

applied the factors set forth in the Sentencing Code, 42 Pa.C.S.A. § 9721(b).

See id.

      Here, our review of the record discloses that the trial court properly

considered all of the statutory factors before sentencing Fitzgerald.       See

N.T., 7/18/19, at 3-9 (wherein the trial court addressed the facts of the

case, the sentencing guidelines, Fitzgerald’s prior record score, and

Fitzgerald’s     statements   made    at   sentencing);   Commonwealth         v.

McClendon, 589 A.2d 706, 712 (Pa. Super. 1991) (setting forth the factors

that a trial court should consider when sentencing a defendant). Moreover,

the trial court was informed by a pre-sentence investigation report.        See

N.T., 7/18/19, at 3-9; Commonwealth v. Downing, 990 A.2d 788, 794

(stating that “where the trial court is informed by a pre-sentence report, it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should    not    be   disturbed.”).   Accordingly,   Fitzgerald’s   discretionary

sentencing claim fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2020




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