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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
FAHMEE GRANVILLE,                           :           No. 233 EDA 2018
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, November 28, 2017,
              in the Court of Common Pleas of Delaware County
               Criminal Division at No. CP-23-CR-0003796-2017


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 23, 2018

        Fahmee Granville appeals from the November 28, 2017 judgment of

sentence entered in the Court of Common Pleas of Delaware County

following his conviction in a jury trial of aggravated assault, simple assault,

and resisting arrest.1 The trial court imposed an aggregate sentence of 24

to 48 months of incarceration followed by one year of probation. We affirm.

        The trial court set forth the following factual history:

              On May 27, 2017 at 2:16AM there was a
              911 telephone call for a possible drug overdose at
              7044 Veronica Road, Upper Darby Township,
              Delaware County, Pennsylvania. On May 27, 2017
              while working the 11:00PM to 7:00AM shift, Upper
              Darby Police Officer, Officer Michael DeHoratius,
              received [a] dispatch from DELCOM following that
              911 call.  As Officer DeHoratius was around the
              corner from the address provided, and he headed to

1   18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), and 5104, respectively.
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          the location to back up other officers and EMS
          personnel. As he was so close to 7044 Veronica
          Road, Officer DeHoratius arrived on location first,
          within a minute of the DELCOM transmissions, and
          was the first responder to enter the residence.
          Officer DeHoratius testified that upon arrival to
          7044 Veronica he was aware that the caller was the
          Mother of the person who was non[-]responsive in
          the house.

          Officer DeHoratius testified that upon arrival it was
          his goal to gather information and assess the needs
          to the persons in the residence; he was met at the
          front door by the person who called 911 and was
          directed to the kitchen area of the house. Upon
          entry to the kitchen Officer DeHoratius saw a black
          male lying face up on the floor clothed in only his
          underwear, who appeared to be breathing but
          unresponsive.      At the Trial, Officer DeHoratius
          identified the black male lying unresponsive in the
          kitchen area as Appellant. Upon locating Appellant
          lying on the kitchen floor, Officer DeHoratius was
          able to immediately detect a strong odor of alcohol
          from his person. Officer DeHoratius attempted to
          rouse Appellant by applying a sternum rub, which
          had     no    effect   on    Appellant’s   state   of
          unconsciousness.       As Officer DeHoratius was
          attempting to rouse Appellant he was also assessing
          the scene, he was looking around for contraband and
          any indications of drug use but was unable to find
          either.

          After the sternum rub did not arouse Appellant,
          Officer DeHoratius began to check Appellant’s pupil
          dilation. While checking to see Appellant’s pupils
          Appellant began [sic] startled and woke up.
          Appellant      then      immediately     yelled   at
          Officer DeHoratius “I am going to fuck you up.” To
          Appellant’s statement, Officer DeHoratius announced
          that he was a police officer who was there to help
          him. Appellant’s Mother also began telling Appellant
          that the police were called to help him.




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          Appellant attempted to get to his feet but initially
          was     off    balance     and    fell   back   down.
          Officer DeHoratius and Appellant’s Mother were both
          attempting to calm down Appellant as Appellant
          continued     to   try    to   stand    and   confront
          Officer DeHoratius. When Appellant was successful
          in getting to a standing position, and in an
          aggressive stance which the Officer demonstrated for
          the men and women of the jury, Appellant stood
          before Officer DeHoratius with his fist clenched at his
          sides telling him again, “I am going to get you now.”
          At this point Office [sic] DeHoratius radioed DELCOM
          for an officer assist.         Appellant grabbed at
          Officer DeHoratius around the bicep area and his
          neck and the two men entered into an intense
          struggle that moved them from the kitchen area to
          the living room area. During the struggle another
          first responder, a paramedic known as Doc
          attempted       to    assist    Officer    DeHoratius,
          unsuccessfully.     During the struggle, Appellant’s
          Mother was hit.

          Paramedic Dwight “Doc” Warren was the second
          person on scene on May 27, 2017. Upon arriving,
          Doc was able to observe an Officer and Appellant
          struggling in the kitchen area of the house. Doc
          testified   that    he     attempted    to   assist
          Officer DeHoratius as it appeared to him that
          Appellant was not being controlled and Doc was able
          to put his hands on Appellant; however, he lost his
          grip on Appellant and Officer DeHoratius and
          Appellant continued to struggle.

          Officer DeHoratius was struck in the neck and was
          grabbed on the bicep by Appellant.           Appellant
          attempted to grab the Officer’s vest in the neck area
          in an attempt to drag him down to the ground. At
          one point during the extended and intense struggle,
          Appellant was pinned by Officer DeHoratius[;]
          however[,] Appellant was able to maneuver them
          both so that the struggle still continued.       While
          Appellant was pinned, Officer DeHoratius told
          Appellant to stop fighting but Appellant continued to
          fight the Officer. Officer DeHoratius described it as a


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            grappling struggle, a violent struggle that ended
            when they both “went to the ground hard.”
            Officer DeHoratius noted that when they both fell to
            the ground, Appellant did continue to flail his arms
            and legs. Other officers began to arrive and assist
            Officer DeHoratius at this time. Officer DeHoratius
            let the other officers handle Appellant at this time
            and he returned to the police station to complete a
            report.

            After   arriving    back   at    the   police  station,
            Officer DeHoratius realized that he was in pain, he
            was sore and he discovered bruises on his bicep and
            scratches on his neck.        Pictures were taken of
            Officer DeHoratius’ injuries. Officer DeHoratius’ neck
            was all red; he had scratches all on his right
            shoulder area, neck and bicep. The next day the
            Officer still had scratches on his body as well as a
            large bruise on his bicep. The bruise suffered by
            Officer DeHoratius on his bicep was on the entire
            portion of his bicep.

            Officer DeHoratius credibly testified that both he and
            Appellant’s Mother explained that he was a police
            officer called to the location to help him and he also
            remembered Appellant’s Mother screaming to stop,
            although he was unsure who that command was
            directed towards. Officer DeHoratius also credibly
            testified that he did not call out [sic] of work nor did
            he miss a shift as a result of his injuries sustained on
            May 27, 2017.

Trial court opinion, 2/7/18 at 4-7 (record citations omitted).

      The trial court set forth the following procedural history:

            Despite the fact that Appellant was represented by
            counsel, Appellant filed a timely pro se Motion for
            Reconsideration on December 1, 2017.              On
            December 12, 2017, as Appellant was represented
            by Counsel and as hybrid representation is a legal
            nullity, this Court issued an Order Denying and
            Dismissing the pro se Motion for Reconsideration.



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            Appellant, also pro se[,] filed a timely appeal on
            December 12, 2017. On December 14, 2017, this
            Court issued an Order requiring Appellant’s Counsel
            of record to submit a Concise Statement of [Errors]
            Complained     of   on     Appeal    [pursuant    to
            Pa.R.A.P. 1925(b)]    within   twenty[-]one    days.
            Appellant’s Counsel of record filed a second timely,
            now counseled appeal, on December 27, 2017, this
            Court then issued a second request to submit a
            [Rule 1925(b) statement] on January 3, 2018. On
            January 5, 201[8], Counsel of Record submitted a
            Concise Statement . . . .

Id. at 3.

      Appellant raises the following issue for our review:

            [Whether] the [trial] court erred when it instructed
            the jury, in response to a question the jury posed to
            the court, that the police officer in question was
            acting in the performance of his duty at the time in
            question[?]

Appellant’s brief at 5.

      “[A] trial court has broad discretion in phrasing its instructions, and

may choose its own wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.” Commonwealth v.

Charleston, 94 A.3d 1012, 1021 (Pa.Super. 2014), appeal denied, 104

A.3d 523 (Pa. 2014) (citation omitted).      “A jury charge will be deemed

erroneous only if the charge as a whole is inadequate, not clear or has a

tendency to mislead or confuse, rather than clarify, a material issue.”

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013).

Moreover, Pennsylvania Rule of Criminal Procedure 647(D) authorizes the

trial court to provide additional instructions to the jury after the jury has


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retired to consider its verdict.     Pa.R.Crim.P. 647(D).     This court has

explained that:

            [t]he scope of supplemental instructions given in
            response to a jury’s request rests within the sound
            discretion of the trial judge. There may be situations
            in which a trial judge may decline to answer
            questions put by the jury, but where a jury returns
            on its own motion indicating confusion, the court has
            the duty to give such additional instructions on the
            law as the court may think necessary to clarify the
            jury’s doubt or confusion.

Commonwealth v. Davalos, 779 A.2d 1190, 1195 (Pa.Super. 2001),

appeal denied, 790 A.2d 1013 (Pa. 2001) (citations omitted).

      Here, during deliberations, the jury submitted the following question to

the trial court in a written note: “Is the medical assessment and potential

administration of Narcan[] legally a duty of Michael DeHoratius as the first

responder/police officer?” (Notes of testimony, 9/13/17 at 261.) The trial

court heard argument on the issue of whether Officer DeHoratius was under

a legal duty to administer Narcan. (Id. at 260-264.) Following argument,

the trial court answered the jury’s question by writing “yes” on the note and

returning the note to the jury. (Id. at 264.)

      Appellant complains that “the [trial] court’s simple answer of ‘yes’

regarding Officer DeHoratius and his handling of Narcan invades on the jury

of its role as the finder of fact” with respect to the duty elements of




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aggravated assault and one element of resisting arrest.2 (Appellant’s brief

at 16.) With respect to aggravated assault, a person commits that crime if

he attempts to cause or intentionally or knowingly causes bodily injury to a

police officer “in the performance of a duty.”     18 Pa.C.S.A. § 2702(c)(3).

With respect to resisting arrest, a person commits that crime “if with the

intent of preventing a public servant from effecting a lawful arrest or

discharging any other duty,” creates a substantial risk of bodily injury.

18 Pa.C.S.A. § 5401.

      In its Rule 1925(a) opinion, the trial court stated that it did not answer

the jury’s question because it detected the jury was confused, but that it

exercised its discretion by “simply answer[ing] a question posed about the




2 We note that the trial court and the Commonwealth contend that appellant
failed to preserve this issue for appeal by failing to place a specific objection
on the record that the trial court’s response to the jury’s question
constituted an abuse of discretion because the trial court usurped the jury’s
fact-finding function on the issue of whether Officer DeHoratius was in the
performance of a duty and/or was discharging a duty when the assault
occurred. The record reflects that at the conclusion of argument on the
issue of whether Officer DeHoratius was under a duty to administer Narcan,
the following took place:

            THE COURT: . . . I’m going to write down rather
            than elaborate and explain it, I’m going to just write
            yes. I will note your exception on the record.

            [DEFENSE COUNSEL]: Thank you.

Notes of testimony, 9/13/17 at 264.

Because the trial court stated that it would note appellant’s exception on the
record at the conclusion of argument, we decline to find waiver.


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duties of a police officer as a first responder.” (Trial court opinion, 2/7/18

at 15.)

      Our review of the record reveals that when Officer DeHoratius arrived

at the scene in response to a DELCOM dispatch following the 911 call placed

by appellant’s mother, he arrived in a marked patrol vehicle and in full

uniform. (Notes of testimony, 9/13/17 at 15-17.) The officer testified that

as the first responder, he was to gather “some quick information and assess

[appellant].”   (Id. at 17.)   Although the officer testified that he has been

trained to handle opioid overdoses and administer Narcan, nothing in the

record indicates that appellant suffered an opioid overdose or that the officer

administered Narcan.     In fact, Officer DeHoratius testified that during his

assessment of appellant, the officer smelled alcohol emanating from

appellant’s person. (Id. at 23.) The officer further testified that he did not

observe any indication that appellant may have been on heroin or opioid

pills. (Id. at 23-24.) Therefore, appellant’s complaint that the trial court’s

affirmative answer to the jury’s question “regarding Officer DeHoratius and

his handling of Narcan” usurped the jury’s fact-finding role lacks merit.

Clearly, the trial court properly exercised its discretion in providing a simple

answer to the jury’s question regarding a police officer’s role as a first

responder.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/23/18




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