J-S71029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    JOSHUA ROBINSON

                             Appellant                  No. 3684 EDA 2016


       Appeal from the Judgment of Sentence entered November 8, 2016
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0001134-2011


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED JANUARY 11, 2018

        Appellant, Joshua Robinson, appeals from the November 8, 2016

judgment of sentence imposing 29½ to 59 years of incarceration for assault

of a law enforcement officer, unlawful possession of a firearm, recklessly

endangering another person, and possessing an instrument of crime. 1 We

affirm.

        The trial court summarized the pertinent facts:

               The facts, when viewed in the light most favorable to the
        Commonwealth as the verdict winner show that at approximately
        five forty-five p.m. on January 8, 2011, Philadelphia Police Officers
        [Brian] Pavgouzas and [Brendan] Ryan were travelling
        southbound on 60th Street when they observed [Appellant]
        walking with a gun on his right side, partially concealed by a
        jacket. The patrol car pulled over to the curb and Officer Ryan
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1    18 Pa.C.S.A. §§ 2702.1, 6106, 6108, 2705, and 907, respectively.
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       asked [Appellant] to come over to the car. [Appellant] kept on
       walking, and Officer Pavgouzas opened his car door. As the door
       clicks open [Appellant] took off running and Pavgouzas chased
       him. [Appellant] then took the pistol out of his waistband, pointed
       it back toward the pursuing police officer and shot twice.
       [Appellant] then tossed the gun and kept running until
       apprehended a very short time thereafter. Two young children
       showed the police where Robinson’s gun landed after being
       discarded.

Trial Court Opinion, 5/2/17, at 3 (record citations omitted).

       Appellant proceeded to a jury trial, commencing on August 29, 2016

and concluding on September 1, 2016. The jury found Appellant guilty of the

aforementioned offenses but not guilty of aggravated assault.2 On November

8, 2016, the trial court imposed sentence as set forth above.       This timely

appeal followed.      Appellant argues that his conviction for assault of a law

enforcement officer is unsupported by sufficient evidence and contrary to the

weight of the evidence. Appellant’s Brief at 4. We will consider these issues

in turn.

       We begin with Appellant’s challenge to the sufficiency of the evidence,

which we review according to this well-settled standard:

              When evaluating a sufficiency claim, our standard is
       whether, viewing all the evidence and reasonable inferences in the
       light most favorable to the Commonwealth, the factfinder
       reasonably could have determined that each element of the crime
       was established beyond a reasonable doubt. This Court considers
       all the evidence admitted, without regard to any claim that some
       of the evidence was wrongly allowed. We do not weigh the
       evidence or make credibility determinations. Moreover, any
       doubts concerning a defendant's guilt were to be resolved by the

____________________________________________


2   18 Pa.C.S.A. § 2702.

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      factfinder unless the evidence was so weak and inconclusive that
      no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011).

      The Pennsylvania Crimes Code defines assault of a law enforcement

officer as follows: “A person commits a felony of the first degree who attempts

to cause or intentionally or knowingly causes bodily injury to a law

enforcement officer, while in the performance of duty and with knowledge that

the victim is a law enforcement officer, by discharging a firearm.”

18 Pa.C.S.A. § 2702.1(a). Thus, § 2702.1 requires proof of four elements:

             (1) the defendant attempted to cause, or intentionally or
      knowingly caused, bodily injury, (2) the victim was a law
      enforcement officer acting in the performance of his duty, (3) the
      defendant had knowledge the victim was a law enforcement
      officer, and (4) in attempting to cause, or intentionally or
      knowingly causing such bodily injury, the defendant discharged a
      firearm.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012). Only

the first element, regarding attempt, is presently in dispute.       We have

addressed that element as follows:

             An intent is a subjective frame of mind, it is of necessity
      difficult of direct proof[.] [W]e must look to all the evidence to
      establish intent, including, but not limited to, [the defendant’s]
      conduct as it appeared to his eyes[.] Intent can be proven by
      direct or circumstantial evidence; it may be inferred from acts or
      conduct or from the attendant circumstances.

            The intent for attempt may be shown by circumstances
      which reasonably suggest that a defendant intended to cause
      [bodily] injury. Thus, in order to prove an attempt under Section
      2702.1, the Commonwealth must demonstrate both a substantial


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      step plus an intent to cause bodily injury to a law enforcement
      officer by discharging a firearm.

Commonwealth v. Landis, 48 A.3d 432, 446 (Pa. Super. 2012) (internal

citations and question marks omitted).

      In Martuscelli, the defendant engaged police in a shootout while the

defendant was inside his home and several police officers were positioned at

a tree line on the defendant’s property. Id. at 944. The defendant opened

fire on police, who “felt and heard bullets whizzing by them,” and police

returned fire. Id. at 949. After several volleys, during which nobody was

hurt, the defendant surrendered himself.       Id. at 944-45.     At trial, the

defendant produced evidence that he intended to commit suicide by shooting

over the officers’ heads and provoking return fire. Id. Indeed, he told one of

the police officers as much prior to the shooting.    Id. at 944. The officer

concluded the defendant did not intend suicide because he concealed himself

when police returned fire. Id. at 945. We found the evidence sufficient to

support his conviction under § 2702.1. Id. at 950.

      Instantly, Appellant, while in flight from Officer Pavgouzas, removed a

pistol from his waist, pointed it behind him, and fired twice. Appellant claims

he was running away, pointed the gun at the ground, never looked in the

direction of Officer Pavgouzas, and did not attempt to shoot him.       Officer

Pavgouzas testified that, as he was chasing Appellant from behind, Appellant

retrieved his gun with his right hand, extended his right hand backwards and

fired twice. N.T. Trial, 8/30/16, at 138-39. Appellant did not break stride or

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look in Officer Pavgouzas’ direction. Id. at 139-41. Appellant held the gun a

little lower than shoulder height when he fired. Id. at 140. In a radio dispatch

recorded shortly after Appellant’s offense, Officer Pavgouzas stated he was

shot at twice. Id. at 148-49.

      In claiming that he did not intend to shoot Officer Pavgouzas, Appellant

asks this Court to draw inferences in his favor, in contradiction of the

applicable standard of review.      Viewing the evidence in the light most

favorable to the Commonwealth, we conclude that the record contains

sufficient evidence to support Appellant’s conviction under § 2702.1. Here,

as in Martuscelli, the testifying police officer believed the perpetrator was

shooting to kill, despite the perpetrator’s claim to the contrary.           In

Martuscelli, the defendant opened fire on a tree line where the police were

positioned.   Thus, in Martuscelli, the defendant’s intent was a matter of

inference based on the cirumstances.       The same is true here.     Appellant

pointed his gun behind him while Officer Pavgouzas was in pursuit from

behind, and we can infer from those facts that Appellant intended to cause

injury and took a substantial step toward doing so.

      We need not reach a different result because Appellant did not break

stride or look in Officer Pavgouzas’ direction. We can infer from the facts of

record that Appellant did not believe he had time, during his flight, to stop

and take aim. Based on all of the foregoing, we conclude the record contains

sufficient evidence in support of Appellant’s conviction under § 2702.1.


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      Appellant also challenges the weight of the evidence in support of his

conviction under § 2702.1.

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations

omitted).

      Appellant argues, once again, that the record contains no evidence of

his intent to injure Officer Pavgouzas.      The argument fails for the same

reasons we have already discussed. We note that the record does not support

a conclusion that Appellant shot at the ground. Officer Pavgouzas testified

that the angle of Appellant’s arm was “a little down from straight back” when

Appellant fired. N.T. Trial, 8/30/16, at 154. Officer Pavgouzas did not see

any projectiles hit the ground. Id. at 155. We discern no abuse of discretion

in the trial court’s decision not to award a new trial.

      In summary, we have concluded that Appellant’s weight and sufficiency

of the evidence arguments lack merit. We therefore affirm the judgment of

sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/18




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