J-A11003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERICK ROBERT TROMETTER,

                            Appellant                 No. 695 MDA 2016


          Appeal from the Judgment of Sentence December 21, 2015
           In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0001348-2014


BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 24, 2017

       Appellant, Erick Robert Trometter, appeals from his judgment of

sentence entered in the Court of Common Pleas of Northumberland County

on December 21, 2015. We affirm.

       The trial court summarized the facts of this case based on testimony

provided at trial as follows:

              At trial, there was extensive testimony by Brad Hare,
       Acting Chief of the Sunbury Police Department at the time of the
       incident, as to his encounter with [Appellant].      Chief Hare
       testified he was responding to a report that Erick Trometter,
       [Appellant], was involved in an assault on his grandmother.
       Chief Hare was traveling on Shikellamy Avenue in Sunbury,
       when he observed [Appellant] walking down the road and pulled
       up alongside him. Chief Hare testified that [Appellant] initially
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*
    Former Justice specially assigned to the Superior Court.
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     gave Chief Hare a false name. Hare explained to [Appellant] he
     was looking for a male individual who had just assaulted an
     elderly female and wanted to know [Appellant’s] name. Hare
     stated [Appellant] appeared nervous and frustrated and was
     clenching his fists and shaking them.

            Based on the lack of cooperation from [Appellant], Chief
     Hare pulled his patrol car to the side of the road and exited the
     vehicle.     Again, Hare asked [Appellant] for his name and
     identification.     [Appellant] indicated he did not have
     identification. Chief Hare testified that based on his experience
     as a law enforcement officer and [Appellant’s] mannerisms, he
     knew something was not right. Chief Hare asked [Appellant],
     “You’re Erick Trometter, aren’t you?” [Appellant] still would not
     respond to Chief Hare’s requests to identify himself. Due to the
     hot weather, Hare asked [Appellant] if he would come and sit in
     the patrol car while he tried to positively identify him. He asked
     [Appellant], “Erick, come over to the [car], and we’ll deal with
     this.” [Appellant] refused to move.

           After warning [Appellant] of the possibility of being
     “tased”, [Appellant] reluctantly put his hands on the hood of the
     police cruiser in order for Chief Hare to pat him down for
     weapons. Chief Hare noticed a wooden handle sticking out of
     [Appellant’s] pockets and inquired “What’s in your pocket here?”
     Chief Hare described how [Appellant] turned around and shoved
     him. At this point [Appellant] pulled out the wooden object
     which was a large knife, so the Chief backed away. [Appellant],
     in an agitated state, said, “I’m not going back to jail. You’re not
     taking me back to jail”. Chief Hare issued verbal commands to
     [Appellant] to drop the knife, but [Appellant] moved forward, he
     would not comply. [Appellant] continued to advance towards
     Chief Hare at which point Chief Hare deployed his taser weapon
     and pulled the trigger. [Appellant] dropped to one knee but still
     refused to drop the knife. [Appellant] was growling and got off
     the ground at which time Chief Hare deployed the taser again.
     [Appellant] ripped the wires off the probe and advanced again
     towards Chief Hare with the knife. Chief Hare deployed another
     set of probes and again [Appellant] ripped them off. Chief Hare
     pulled his service weapon out of his holster and pointed [it]
     towards [Appellant]. [Appellant] continued to say he was not
     going back to jail. After numerous warnings, the encounter
     ended with Chief Hare shooting one round into [Appellant’s]
     abdomen. After radioing EMS, the Chief approached [Appellant]

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       and kicked the knife out of his hand. Other officers then arrived,
       and [Appellant] received medical attention.

             This encounter was also observed by a third party, Barbara
       Diehl, who saw [Appellant] “with a knife in a raised position
       coming at the police officer.” She related to the jury that she
       saw the police officer taser him, but [Appellant] did not go down.
       The next thing she remembers is the police officer shooting
       [Appellant], after repeatedly telling him to drop the knife. These
       events were also corroborated by two city employees who were
       in the vicinity at the time.

              Finally, there was testimony by a state trooper in the role
       of a criminal investigator who interviewed [Appellant] on July 14,
       2014. [Appellant] was described as awake and coherent at the
       hospital that day. There was an admission by [Appellant] to him
       that he had the knife in his left hand and he was not following
       Chief Hare’s commands because he wasn’t going back to jail. He
       told the trooper that on that occasion he would rather die than
       go back to jail. [Appellant’s] recollection was that he was ten
       feet from Chief Hare when he was shot. The trooper testified
       that there is a “rule of thumb” used in officer training that
       someone within twenty-one feet with a knife is a deadly force
       situation based upon normal reaction time.

              [Appellant] in his own defense at trial testified he did not
       act in an aggressive manner towards Chief Hare.

Statement in Lieu of Formal Opinion, 9/9/16, at unnumbered 2-4.

       Following a jury trial, Appellant was convicted on August 28, 2015, of

two counts of aggravated assault, and one count each of possession of a

weapon, simple assault, and recklessly endangering another person.1          On

December 21, 2015, Appellant was sentenced to an aggregate term of four

to eight years in a state correctional institution.   Appellant filed a pro se
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1
 18 Pa.C.S. § 2702(a)(2), 18 Pa.C.S. § 2702(a)(6), 18 Pa.C.S. § 907(b), 18
Pa.C.S. § 2701(a)(3), and 18 Pa.C.S. § 2705, respectively.



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notice of appeal on January 4, 2016.2             Appellant filed a motion for

appointment of counsel on May 9, 2016. This Court issued an order on June

6, 2016, remanding the matter to the trial court for a hearing to determine

whether Appellant required new counsel or would proceed pro se. Following

a hearing, Appellant was appointed counsel on June 29, 2016.          The trial

court and Appellant complied with Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

       I. Whether the evidence was sufficient to sustain the conviction
       for aggravated assault attempt to cause serious bodily injury to
       an enumerated person.

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

       We first note that while Appellant filed a Pa.R.A.P. 1925(b) statement

as directed, the statement lists the following single claim: “The Trial Court

erred in its verdict against the Appellant as the Commonwealth’s evidence

was insufficient to support his conviction.”      Concise Statement of Matters

Complained of Pursuant to Pa.R.A.P. 1925(b), 8/23/16, at 1.

       We have explained that

             In order to preserve a challenge to the sufficiency of the
       evidence on appeal, an appellant’s Rule 1925(b) statement must
       state with specificity the element or elements upon which the
       appellant alleges that the evidence was insufficient.      Such
       specificity is of particular importance in cases where, as here,
       the appellant was convicted of multiple crimes each of which
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2
  The record reflects that counsel was permitted to withdraw on March 2,
2016. It is not apparent from the record why Appellant filed a pro se notice
of appeal.



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       contains numerous elements that the Commonwealth must
       prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

citations and quotation marks omitted).

       Here, Appellant not only failed to specify which elements he was

challenging in his Rule 1925(b) statement, he also failed to specify which

conviction he was challenging.         Thus, we could find Appellant’s sufficiency

claim waived on this basis. Garland, 63 A.3d at 344. We decline to find

waiver on this basis, however, and proceed to address the merits of

Appellant’s claim.

       Appellant argues that the evidence is insufficient to establish that he

had the requisite intent or took a “substantial step” necessary for a

conviction of aggravated assault.3 Appellant’s Brief at 13-14. Specifically,

Appellant asserts that he did not lunge at or strike Chief Hare, or make any

threats directed at the chief. Id. at 14-15. Appellant further maintains that

he   and    Chief   Hare    were     consistently   separated   by   a   distance   of

approximately ten feet during the “‘slow motion police chase’ around Chief

Hare’s vehicle,” at which time Appellant did not increase his speed in

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3
  As noted, Appellant was convicted of two counts of aggravated assault,
both related to an assault on a police officer. Although Appellant does not
specify which aggravated assault conviction he is challenging, based on the
wording of his issue presented and his argument, we conclude that he is
challenging his aggravated assault conviction under 18 Pa.C.S. §
2702(a)(2).



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pursuing the chief.   Id. at 14-15. Appellant relies on Commonwealth v.

Savage, 418 A.2d 629 (Pa. Super. 1980), and Commonwealth v.

Matthews, 870 A.2d 924, 929 (Pa. Super. 2005), in support of his

argument that brandishing a knife is equivalent to the act of pointing a

firearm at an individual, which this Court has held to constitute only a simple

assault. Id. at 15-16.

      Our standard of review is as follows:

             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 [this] 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 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. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012).

      Aggravated assault is defined, in relevant part, as follows:

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

                                    ***


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            (2) attempts to cause or intentionally, knowingly or
            recklessly causes serious bodily injury to any of the
            officers, agents, employees or other persons
            enumerated in subsection (c) or to an employee of
            an agency, company or other entity engaged in
            public transportation, while 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:

            (1) Police officer.

18 Pa.C.S. § 2702(a)(2), (c)(1).

      “Serious bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.”    18 Pa.C.S. § 2301.          The Commonwealth, in sustaining an

aggravated assault conviction, “need only show the defendant attempted to

cause serious bodily injury to another, not that serious bodily injury actually

occurred.” 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

perpetuating serious bodily injury upon another.” Id. “The Commonwealth

can establish specific intent from the circumstances surrounding the

incident.” Id.




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      Here, the evidence is sufficient to establish Appellant’s continued

movement with the raised knife toward Chief Hare, despite Chief Hare’s

verbal commands to Appellant to drop the knife. N.T., 8/28/15, at 34-36.

While advancing toward Chief Hare, Appellant continued to state in an

agitated manner that he was not going back to jail and that Chief Hare was

not taking him back to jail.    Id. at 35-39.   When Appellant continued to

move toward Chief Hare with the knife, Chief Hare deployed his taser. Id.

at 37.     After Appellant was tased multiple times and removed two sets of

probes, Appellant continued to advance with the knife towards Chief Hare.

Id. at 37-38.      Despite continued warnings to drop the knife, Appellant

refused and Chief Hare fired his service weapon. Id. at 35-39. Accordingly,

the evidence is sufficient to establish that Appellant acted in a manner that

constituted a significant step toward perpetuating serious bodily injury upon

Chief Hare.      Galindes, 786 A.2d at 1012.     Thus, there was sufficient

evidence of record establishing that Appellant committed aggravated

assault.

      Moreover, we are unpersuaded by Appellant’s argument that his

actions constituted merely simple assault as his actions were akin to pointing

a weapon at someone. While it is well-settled that pointing a gun at another

person in a threat to cause serious bodily injury, without more, does not

constitute an aggravated assault as this Court held in Savage, 418 A.2d at

632, we cannot agree that Appellant’s actions were equivalent to simply


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pointing a firearm at another person.       As outlined above, Appellant

brandished a large knife which he had pointed at Chief Hare, a law

enforcement officer; he continued to advance toward Chief Hare despite

verbal commands to drop the knife and despite being tased multiple times;

and he consistently muttered in an agitated state that he would not go back

to jail and that Chief Hare would not take him there.   In fact, Appellant’s

progression toward Chief Hare was halted only by Chief Hare’s discharge of

his service weapon into Appellant’s abdomen.     Thus, Appellant’s actions

constituted a substantial step toward perpetrating a serious bodily injury

upon another. Accordingly, we agree with the trial court’s conclusion that

there was sufficient evidence to establish that Appellant was guilty of

aggravated assault.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2017




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