J-S04020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JOSEF AVERGUN

                            Appellant                    No. 1484 EDA 2016


           Appeal from the Judgment of Sentence November 16, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010957-2011


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                   FILED APRIL 19, 2017

        Josef Avergun appeals from the judgment of sentence imposed on

November 16, 2012, the Court of Common Pleas of Philadelphia County,

following his conviction by the trial judge on charges of aggravated assault,

simple assault and recklessly endangering another person.1           Avergun was

sentenced to three to six years’ incarceration.2        Avergun’s appellate rights

were reinstated pursuant to a PCRA petition he filed after trial counsel had

failed to file a timely appeal.       In this appeal, Avergun raises three issues.

They are: (1) the evidence was insufficient to support the aggravated
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a)(3), 2701(a) and 2705, respectively.
2
  Specifically, three to six years’ incarceration was imposed for aggravated
assault. The other crimes merged with the aggravated assault charge.
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assault charge as the Commonwealth failed to prove mens rea or that the

victim was an employee or officer of the county jail; (2) the sentence is

manifestly unreasonable; and (3) the trial court erred in not reinstating his

right to file an amended post-sentence motion, thereby allowing him to

challenge the discretionary aspects of his sentence. After a thorough review

of the submissions by the parties, the certified record, and relevant law, we

affirm.

       The facts underlying Avergun’s conviction are simply related. 3       The

victim of this attack, Phyllis Taylor, received a stipend as a chaplain serving

the Jewish community of the Philadelphia prison system. Between October,

2010 and July, 2011, Chaplain Taylor spent approximately 30 hours doing

one-on-one ministry with Avergun.              On July 12, 2011, Chaplain Taylor

visited Avergun at the Philadelphia Industrial Correction Center. Avergun’s

cellblock was on lock down at the time.           Chaplain Taylor was escorted to

Avergun’s cell by Correction Officer Amir Khan. CO Kahn opened Avergun’s

cell door and stood approximately two feet behind Chaplain Taylor.          Kahn

witnessed Avergun hit Chaplain Taylor with a straight jab to her face. The

punch knocked her back against the wall, broke her nose, and damaged her

teeth and mouth.        She testified she had no recollection of being hit; only


____________________________________________


3
  Unless otherwise noted by specific citation, these facts are taken from the
trial court’s Pa.R.A.P. 1925(a) opinion, dated 6/13/2016. Our independent
review has confirmed these facts are supported by the certified record.



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finding herself against the wall, saying, “I can’t breathe.       Give me a

minute.”4 Chaplain Taylor was taken to Jeanes Hospital for treatment. She

could not eat regular food for several weeks and suffered pain for more than

one month. At the time of the assault, Chaplain Taylor was almost 70 years

old, was five feet, four inches tall and weighed one hundred fifteen pounds.

        Avergun testified on his own behalf.      He claimed he did not hit

Chaplain Taylor. He supposed she had a pre-existing medical condition and

limited funds for medical care. He further speculated that Chaplain Taylor

was claiming she was injured on the job to obtain medical benefits, perhaps

through a civil lawsuit. See, N.T. Trial, 8/9/2012, at 72-77.5

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

evidence is well settled and oft repeated.

        Whether sufficient evidence exists to support the verdict is a
        question of law; our standard of review is de novo and our scope
        of review is plenary. In assessing Appellant's sufficiency
        challenge, we must determine whether, viewing the evidence in
        the light most favorable to the Commonwealth as verdict winner,
        together with all reasonable inferences therefrom, the trier of
        fact could have found that the Commonwealth proved [each]
        element of the crime beyond a reasonable doubt. The evidence
        need not preclude every possibility of innocence and the fact-
        finder is free to believe all, part, or none of the evidence
        presented.

____________________________________________


4
 Although Chaplain Taylor did not specifically remember Avergun punching
her, she testified that, given the circumstances, she deduced that is what
happened. See N.T. Trial, 8/9/2012, at 46-47.
5
    All notes of trial are from 8/9/2012.



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Commonwealth v. Kennedy, 151 A.3d 1117, 1121 (Pa. Super. 2016)

(citations omitted).

      Avergun was convicted of violating 18 Pa.C.S. § 2701(a)(3), which

states in relevant part:

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

         (3) attempts to cause or intentionally or knowingly causes
         bodily injury to any of the officers, agents, employees or
         other persons enumerated in subsection (c), 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:

         9) Officer or employee of a correctional institution, county
         jail or prison, juvenile detention center or any other facility
         to which the person has been ordered by the court
         pursuant to a petition alleging delinquency under 42
         Pa.C.S. Ch. 63 (relating to juvenile matters).

18 Pa.C.S. § 2702(a)(3), (c)(9).

      In the first aspect of his appeal, Avergun claims the Commonwealth

failed to prove that Chaplain Taylor was an employee of the county

jail/correctional institution. This argument is unavailing.

      Chaplain Taylor testified she received a stipend to minister to the

Jewish community housed in the Philadelphia Prison system and had been so

employed for eleven years. Specifically:

      Chaplain Taylor: I am a stipended chaplain in the Philadelphia
      prison system. I am what’s called a system-wide chaplain,
      which means I cover all of the jails and I am the chaplain for the
      Jewish community for those who are ill, those [who] are acutely

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      grieving because I’m also a registered nurse and hospice in
      palliative care.

N.T. Trial, 8/9/2012, at 16.

      Chaplain Taylor: I am a lay person, but appointed. I have letters
      of appointment authorizing me to be present as the Jewish
      representative in the prisons.

Id. at 17.

      Chaplain Taylor: Let me explain a little bit about chaplaincy
      because I think it’s helpful. When I said it was a stipended job,
      it’s really I call it a love job. It is a position that I’m called to.
      The pay for that is minimum wage, no benefits whatsoever, no
      vacation, no health care, no anything at all.

Id. at 19.

      Additionally, as noted above, as part of his defense, Avergun himself

conceded Chaplain Taylor was employed to work in the prison system,

claiming she was attempting to use her employment as a method of

obtaining medical coverage.

      While the Commonwealth did not present any paystubs from the

prison system or income tax forms, Chaplain Taylor’s testimony, accepted by

the trial court as fact finder, regarding her paid duties within the prison

system was sufficient to prove her status as an employee of a correctional

institution/county jail pursuant to 18 Pa.C.S. § 2702 (c)(9).                Accordingly,

Avergun is not entitled to relief on this aspect of his claim.

      Next,     Avergun   argues    the     Commonwealth       failed   to    prove   he

intentionally   or   knowingly     caused    bodily   injury   to   Chaplain      Taylor.

Specifically, Avergun argues:



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      In this case the Commonwealth also failed to prove beyond a
      reasonable doubt that the defendant intended to cause bodily
      injury because there was no reason for the defendant to want to
      strike the complainant and the defendant testified that he did
      not strike the complainant. It is just as reasonable to assume
      based on the evidence that the contact between the defendant
      and the complainant was accidental.

Appellant’s Brief at 9.

      This argument is unconvincing.      The Commonwealth need not prove

why a defendant wants to harm a person to prove the harm was intentional.

“The Commonwealth is not required to prove mens rea by direct evidence.

Frequently such evidence is not available. In such cases, the Commonwealth

may rely on circumstantial evidence.” Commonwealth v. Collington, 615

A.2d 769, 770 (Pa. Super. 1992).

      Avergun is correct that no direct evidence of animosity toward

Chaplain Taylor was presented at trial.        However, none was required.

Rather, the evidence presented at trial proved that Avergun punched the

chaplain in the face, with a straight jab, that carried sufficient force to break

her nose and damage her mouth. The punch knocked the chaplain back into

a wall and hit her with such force that she had no direct memory of having

been punched. The trial court accepted this evidence as circumstantial proof

that Avergun had intentionally or knowingly harmed the chaplain. We find

no error of law in this determination.

      We will address Avergun’s last two issues together.       Avergun claims

the trial court erred in not reinstating his right to file a motion to reconsider

sentence thereby allowing him the opportunity to challenge the discretionary


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aspects of his sentence. Avergun also challenges the discretionary aspects

of his sentence.

      After sentence was imposed, Avergun filed a post-sentence motion

challenging the weight and sufficiency of the evidence as well as raising

several complaints of ineffective assistance of counsel.   This motion was

denied. However, Avergun’s then-counsel failed to perfect his appeal. This

led Avergun to file a petition pursuant to the Post Conviction Relief Act, 42

Pa.C.S. § 9541 et seq.     The result of that petition was an agreement

between the Commonwealth and Avergun reinstating his appellate rights.

See Docket Entry, 5/5/2016. The specifics of this agreement are not found

in the certified record. The docket entry merely notes that BY AGREEMENT

(our emphasis) Avergun’s appellate rights were reinstated.      There is no

mention that the agreement encompassed the right to file an additional

post-sentence motion.   Because the agreement between Avergun and the

Commonwealth did not specifically permit Avergun to file another post-

sentence motion, we cannot fault the trial court for failing to grant Avergun

that privilege.

      Because Avergun did not preserve any objection to his sentence in the

court below, he has waived that claim. We note:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:



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        [W]e conduct 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, Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
     (internal citations omitted). Objections to the discretionary
     aspects of a sentence are generally waived if they are not raised
     at the sentencing hearing or in a motion to modify the sentence
     imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
     Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016).

     Accordingly, Avergun is not entitled to relief on his challenges to his

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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