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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

DAWN MARIE BALL

                           Appellant                  No. 1909 MDA 2014


             Appeal from the Judgment of Sentence June 11, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000979-2010

BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 12, 2016

        Appellant, Dawn Ball, appeals from the judgment of sentence1 entered

in the Lycoming County Court of Common Pleas following her convictions for

aggravated harassment by a prisoner,2 simple assault,3 and harassment.4

Appellant contends the sentence violates her state and federal constitutional


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purported to appeal from the October 15, 2014 order denying
her post-sentence motion. “However, when timely post-sentence motions
are filed, an appeal properly lies from the judgment of sentence made final
by the denial of post-sentence motions.” Commonwealth v. Kuykendall,
2 A.3d 559, 560 n.1 (Pa. Super. 2010). Accordingly, we have amended the
caption.
2
    18 Pa.C.S. § 2703.1.
3
    18 Pa.C.S. § 2701(a)(1).
4
    18 Pa.C.S. § 2709(a)(1).
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rights and that the evidence was insufficient to sustain her conviction for

simple assault.      We affirm.   We deny counsel’s application to withdraw

without prejudice.

      We adopt the recitation of facts and procedural history as set forth by

the trial court. Trial Ct. Op., 7/7/15, at 1-3.5 On June 11, 2014, the court

sentenced Appellant to nine to eighteen months’ imprisonment in a state

correctional institution, consecutive to the one to eight year prison sentence

she was already serving. On June 26, 2014, Appellant filed a post sentence

motion requesting the court to “grant leave for Defense to file a Post

Sentence Motion Nunc Pro Tunc.” Appellant’s Post Sentence Mot. Nunc Pro

Tunc, 6/26/14 at 1 ¶6. On July 10, 2014, the court granted the motion to

file post trial motion nunc pro tunc. The court denied the motion on October

15, 2014. On October 16, 2014, the court denied additional issues Appellant

raised pro se. This timely appeal followed. Appellant filed a court-ordered

5
  In its opinion and order denying Appellant’s post sentence motion the trial
court noted

         [b]y way of background, the charges were filed against
         [Appellant] on April 1, 2010. Reaching trial was a long and
         tortured process.     The case has and continues to be
         complicated by [Appellant’s] institutional behaviors, [her]
         demands on counsel, [her] relationship with counsel,
         [Appellant’s] mistrust of counsel, [her] barrage of written
         correspondence to the [c]ourt, a plethora of motions
         relating in large part to representation of [A]ppellant, and
         the [c]ourt seeking information from appropriate
         professionals with respect to [Appellant’s] mental health.

Trial Ct. Op., 10/15/14, at 1.


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Pa.R.A.P. 1925(b) statement of errors complained of on appeal.         The trial

court filed a responsive opinion.

        Appellant raises the following issues for our review:

           1. Were the Appellant’s State and Federal Constitutional
           rights violated when she was sentenced to an aggregate
           term of state incarceration for less than a two (2) year
           sentence?

           2. Was there significant evidence to support a conviction
           concerning “substantial pain” required for Simple Assault
           and was there a nexus between liquid at the prison and
           irritation in the eye?

Appellant’s Brief at 4.

        First, “Appellant argues that the sentencing Court has violated her

constitutional rights in that the aggregation of her sentences is not

applicable as the sentencing courts were separate sovereigns.”    Id. at 11.

In support of this contention, she avers that the first sentence of one to

eight years was entered in Northampton County,6 while the instant

contested sentence was imposed in Lycoming County. Id. at 13. Appellant

concludes that she “should have been sentenced under 42 Pa.C.S.A. §

9761[7] and not 42 Pa.C.S.A. § 9757.”8 Id.


6
    CP-48-0000621-2007.
7
    Section 9761 provides:

           (b) Sentences imposed by other sovereigns.─If the
           defendant is at the time of sentencing subject to
           imprisonment under the authority of any other
           sovereign, the court may indicate that imprisonment
           under such other authority shall satisfy or be credited
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         against both the minimum and maximum time imposed
         under the court’s sentence. If the defendant is released by
         such other authority before the expiration of the minimum
         time imposed by the court, he shall be returned to a
         correctional institution of the Commonwealth to
         serve the time which remains of the sentence. If the
         defendant is released after the minimum time has elapsed,
         he shall be considered for parole on the same basis as a
         prisoner who has served his minimum time in a
         correctional institution of the Commonwealth.        If the
         defendant is released after the maximum time imposed
         under the sentence of imprisonment he shall be deemed to
         have served his sentence.

42 Pa.C.S. § 9761(b) (emphasis added).
8
  We note that Appellant raised the following issue in her Rule 1925(b)
statement:

         [Appellant’s] constitutional rights under equal protection
         incorporated through the 14th Amendment of the U[.]S[.]
         Constitution were violated when the [c]ourt relied on
         Commonwealth vs. Tilghman, 543 Pa. 578 (1996) and
         Commonwealth v. Harris, 620 A.2d 1175 (Pa. Super
         1993) and 42 Pa.C.S.A. § 9761 in its order dated August
         1, 2014 . . . .

Concise Statement of Matters Complained of on Appeal Pursuant to
Pa.R.Crim.P. 1925(b) (emphasis added).

       Instantly, the trial court noted that Appellant did not raise this issue in
her written or oral post sentence motions and “question(ed) whether this
issue has been properly preserved for appellate review.” Trial Ct. Op.,
7/7/15, at 4. We note that Appellant is challenging the legality of her
sentence. See Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011)
(citing In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding when sentencing
issue “centers upon a court’s statutory authority” to impose a sentence,
rather than the “court’s exercise of discretion in fashioning” the sentence,
the issue raised implicates the legality of the sentence imposed));
Commonwealth. v. Hall, 652 A.2d 858, 860 n.2 (Pa. 1995) (citation
omitted) (“aggregating consecutive sentences is mandatory; since this is not
discretionary with the trial court, this interpretation of 42 Pa.C.S.A. Section
9757 does not violate the separation of powers doctrine”)). Therefore, it is
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      Our review is governed by the following principles: “Issues relating to

the legality of a sentence are questions of law[.] . . . Our standard of review

over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (citation

omitted), appeal denied, 121 A.3d 494 (Pa. 2015).

            Pennsylvania statutory law provides:

            Whenever the court determines that a sentence
            should be served consecutively to one being then
            imposed by the court, or to one previously imposed,
            the court shall indicate the minimum sentence to be
            served for the total of all offenses with respect to
            which sentence is imposed. Such minimum shall not
            exceed one-half of the maximum sentence imposed.

         42 Pa.C.S.A. § 9757.        Our Commonwealth Court has
         interpreted this statute to mandate automatic aggregation
         of sentences once the trial court imposes a consecutive

non-waivable. See Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa.
2007) (holding “if the sentence clearly implicates the legality of sentence,
whether it was properly preserved below is of no moment, as a challenge to
the legality of sentence cannot be waived.”).

      Furthermore, we note that the trial court’s August 1st amended order
provided, in pertinent part, as follows:

         This sentence shall run consecutively to any and all
         sentences that [Appellant] is presently serving, including
         but not limited to the 1-8 year sentence imposed by
         Northampton County . . . .          These sentences shall
         aggregate, making [Appellant’s] sentence in this case a
         state sentence. See 42 Pa.C.S. § 9757 . . . . Therefore,
         [Appellant] shall remain incarcerated in a state correctional
         facility.

Amended Order, 8/1/14, at 2 (emphasis added).


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         sentence. Gillespie v. Commonwealth Department of
         Corrections, [ ] 527 A.2d 1061, 1065 ([Pa. Cmwlth.]
         1987) . . . .

Commonwealth v. Harris, 620 A.2d 1175, 1179 (Pa. Super. 1993); see

also Commonwealth v. Tilghman, 673 A.2d 898, 901-02 (Pa. 1996)

(holding consecutive sentence should be aggregated pursuant to Section

9757). “Section 9757, however, clearly by its terms, referring specifically to

previously imposed sentences, applies to sentences imposed at different

times by different courts.” Gillespie, 527 A.2d at 1066.9

      Instantly, the trial court opined: “The court also notes that it did not

rely on 42 Pa.C.S.A. § 9761 in its order dated August 1, 2014; it relied on 42

Pa.C.S.A. § 9757. . . . Where, as here, consecutive sentences were imposed

by two courts of common pleas, the sentences aggregate as a matter of

law.” Trial Ct. Op., 7/7/15, at 4.

      Section 9757 is applicable in the instant case because Appellant was

sentenced by two courts of common pleas, viz., Northampton County and

Lycoming County.      See Gillespie, 527 A.2d at 1066.        Therefore, the

sentences are aggregated. See 42 Pa.C.S. § 9757; Tilghman, 673 A.2d at

901-02, Harris, 620 A.2d at 1179; Gillespie, 527 A.2d at 1066.

      Lastly, Appellant contends “the evidence at trial was insufficient to

support [her] conviction for simple assault because no evidence was

9
  We note that “[a]lthough decisions of the Commonwealth Court are not
binding on this Court, we may rely on them if we are persuaded by their
reasoning.” NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296,
320 (Pa. Super. 2012).
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J.S07041/16


presented the C.O. George’s eye pain constituted substantial pain.”

Appellant’s Brief at 14.     Appellant states: “Correctional Officer George

testified that on December 7, 2009 she was working in the Restrictive

Housing Unit. While passing [Appellant’s] cell, she was hit in the face with a

liquid, which got in her eyes, nose and mouth.” Id. at 15 (citation to the

record omitted and emphasis added).

      In support of her argument that the trial court erred in indicating that

C.O. George testified she immediately felt irritation, Appellant notes that

“the testimony at trial indicates that C.O. George sought medical treatment

on December 7, 2009, 5 days later.”10 Id. at 15-16 (emphasis added).

Appellant avers “[t]here was no indication or expert testimony at trial that

the liquid caused the irritation.” Id. at 16.

      The standard of review for a challenge to the sufficiency of the

evidence is de novo, as it is a question of law.         Commonwealth v.

Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).

            [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict.

                                  *    *    *



10
  We note that Appellant ostensibly refers to the incident which occurred on
December 2, 2009, for which no medical treatment was required.
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             When reviewing the sufficiency of the evidence, an
         appellate court must determine whether the evidence, and
         all reasonable inferences deducible from that, viewed in
         the light most favorable to the Commonwealth as verdict
         winner, are sufficient to establish all of the elements of the
         offense beyond a reasonable doubt.

Id. at 1235-36, 1237 (citations and quotation marks omitted).

      The Pennsylvania Crimes code defines simple assault as follows:

         (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)(1). Bodily injury is defined as “impairment of physical

condition or substantial pain.” 18 Pa.C.S. § 2301 (emphasis added). “The

Commonwealth need not establish that the victim actually suffered bodily

injury; rather, it is sufficient to support a conviction if the Commonwealth

establishes an attempt to inflict bodily injury. This intent may be shown by

circumstances which reasonably suggest that a defendant intended to cause

injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.

1994) (citation omitted).    In Richardson, this Court found the evidence

sufficient to support a conviction for simple assault where the defendant

punched the police officer in the face which caused the officer “to suffer a

sore jaw for a couple of days but did not require him to go to a hospital or to

miss work.” Id.



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      At    trial,   Corrections     Officer       Maurica   George   testified   that   on

December 2, 2009 she was assigned to the RHU.                     N.T., 9/20/12, at 33.

She handed out and collected meal trays from the inmates. Id. at 32. She

testified, inter alia, as follows:

           [The Commonwealth]: How are the meal trays given to the
           inmates in the RHU?

           A: They’re wheeled in and you take a tray and you open
           the wicket and you hand a tray to the inmate.

           Q: And then how do you collect the trays?

           A: Do the reverse. You open the wicket and the inmate
           hands you the tray.

           THE COURT: Can you tell the jury what a wicket is?

           [The Commonwealth]: Your Honor, I will show a picture
           shortly.

           THE COURT: All right.

                                       *       *      *

           [The Commonwealth]: I’m going to show you a second
           photograph . . . . Does this appear to be an accurate
           portrayal of the wicket that would have been in
           [Appellant’s] cell door?

           A: That is the food. It’s actually known as a food aperture
           but we just shorten it to wicket.

           Q: And you would have handed her a tray through that
           opening?

           A: Yes.

           Q: And when you went to retrieve the tray what
           happened?


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         A: [Appellant], appeared to me, handing me the tray. As I
         took the tray then she spit on me.

         Q: Where did the spit hit you?

         A: In the right portion of my shirt.

                               *    *      *

         Q: . . . [W]ere you also working on December 7th?

         A: Yes, I was.

         Q: And during the afternoon did you hand out meal trays
         in the RHU?

         A: Yes, I did.

         Q: Did you attempt to hand [Appellant] a meal tray?

         A: Attempted to.

         Q: Would she accept it from your hand?

         A: No. She stated, I’m not taking a tray from a nigger.

         Q: Later that day did you collect meal trays from the
         neighboring [c]ells?

         A: Yes, I did. I was at cell four[11] collecting that tray.

         Q: What happened while you were near cell four?

         A: Well, as I lift cell four, since December 2nd she spit on
         me I wasn’t taking a chance so I was walking around like
         this to go to cell six.

         Q: You’re tracing an arc in front of the cell?



11
   Appellant was in cell five. See N.T., 9/20/12, at 50, 165. The trial court
noted that at times cell five is referred to as cell 1005. They are references
to the same cell. Id. at 195-96.
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       A: Yeah. It wasn’t a straight shot. I arced around to go to
       cell six to collect that tray, and about right here is where
       you I [sic] something hit me and it was liquid. And then it
       got into my eyes right here and got into my nose, my
       mouth. It drenched─it drenched the whole of my right
       side.

       Q: Did you see where the liquid came from?

       A: Yes.

       Q: Where did [sic] come from?

       A: It came from right there.

       Q: Is there a crack in the door there?

       A: Yes, there is.

       Q: . . . What does this picture depict, if you can tell?

       A: That’s the wicket, part of the wicket.

       Q: And on the right side of the wicket does there appear to
       be a gap?

       A: Yeah, there’s a gap like right [sic].

                                *     *      *

       Q: After the liquid struck you did you hear anything from
       [Appellant]?

       A: Yes. She called me a nigger. She said . . . that she
       was going to kill me. She was banging on her door. She
       just continued to tirade. Most of it was that I was a
       nigger.

                                *     *      *

       Q: Did you experience any pain after the substance
       went in your eye?



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       A: Yes. I was─it was burning. My eyes were irritated
       for quite a while and then I had some pain in the
       right eye.

       Q: Did you seek any medical treatment?

       A: Yes. I went to the infirmary first and then I went
       out to Muncy Valley where they took blood. They
       washed it out again and they evaluated my [sic] and
       gave me a shot.

       Q: Did you miss any work?

       A: Yes.

       Q: How long did the pain last?

       A: After I went back to work I still had pain.

       Q: Did it last more than a day?

       A: It lasted for more than a day. It lasted more than
       a week.

                                *     *      *

       [Appellant’s Counsel]:   So what did you do immediately
       after you were struck?

       A: Shock.

       Q: . . . What did you physically do?

                                *     *      *

       A: I think my partner─I went over to my partner or my
       partner came over to me and he─I don’t remember what
       he said. And then I went up to the bubble because we
       couldn’t find the eye station.

                                *     *      *

       Q: What’s the bubble?


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                                  *     *      *

        A: Our control center in the RHU has like a control center
        where the doors are all controlled there. You can’t get into
        a door without them letting you in or out, so I went up
        there because they had an eye station up there.

        Q: By eye─what are you talking about when you say eye
        station?

        A: When you get something in your eyes, when your eyes
        are burning you have to flush it out because you don’t
        want that irritant to damage your eye. So I had to go to
        where I knew there was a station.

        Q: And did you flush your eye with the eye─

        A: I flushed my eye upstairs, as well as the infirmary
        because it was still burning. And then at the hospital.

                                  *     *      *

        Q: . . . Was your vision affected at all?

        A: Yes.

N.T., 9/20/12, at 33, 35-36, 39-41, 43-45, 55-56, 60 (emphases added).

     Corrections Officer Greg Pickering testified, inter alia, as follows:

        [The Commonwealth]: Do you recall if you were working
        on December 7th 2009?

        A: Yes. I was.

                                  *     *      *

        Q: Do you recall being near Corrections Officer George that
        day?

        A: Yes, I do.

        Q: And where were you standing when you were close to
        her?

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        A: I was in back of her.

        Q: Where was she standing?

        A: She was─we were─if I remember right, I think we were
        either collecting or giving out trays at that point. I was
        right behind her as we were helping out.

        Q: Did you observe an incident involving Ms. George?

        A: Yes.

        Q: What did you see?

        A: I witnessed an unknown substance, a liquid, come out
        of a cell door which was housing a certain person that’s
        here in the courtroom, and also witnessed some verbal
        exchange between [Appellant] toward Ms. George.

                                   *     *      *

        Q: And did you see who was inside the cell the liquid came
        out of?

        A: Yes. [Appellant] was inside.

Id. at 110-112.

     Instantly, the record viewed in the light most favorable to the

Commonwealth reveals that Appellant attempted to cause, or intentionally,

knowingly or recklessly caused, bodily injury to C.O. George.             See 18

Pa.C.S. § 2701(a)(1).   After being stuck with the liquid in her eye, C.O.

George experienced burning in her eyes, went to the hospital, missed work

and had pain in her right eye for more than one week. See 18 Pa.C.S. §

2301; Richardson, 636 A.2d at 1196.             After careful consideration of the

entire record, we hold the evidence believed by the jury was sufficient to

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sustain a simple assault conviction.   See Ratsamy, 934 A.2d at 1235-36.

Accordingly, having discerned no error of law, we affirm. See id. at 1235.

     Judgment of sentence affirmed.     Application to Withdraw as Counsel

denied without prejudice.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/2016




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