J-S46013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

STEVEN LEE TOMINO,

                            Appellant                      No. 2955 EDA 2015


        Appeal from the Judgment of Sentence Entered March 23, 2015
            In the Court of Common Pleas of Northampton County
                          Criminal Division at No(s):
                           CP-48-CR-0002115-2014
                           CP-48-CR-0002931-2014


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED AUGUST 02, 2016

        Appellant, Steven Lee Tomino, appeals from the judgment of sentence

of an aggregate term of 27 to 54 years’ incarceration, imposed after he was

convicted    of   various    offenses    including   robbery,   false   imprisonment,

aggravated assault of a police officer, and criminal conspiracy.            Appellant

challenges the sufficiency of the evidence to sustain his convictions, the trial

court’s denial of his pretrial motion to suppress a statement he gave to

police following his arrest, and discretionary aspects of his sentence. After

careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S46013-16



       Briefly, Appellant’s convictions stem from his participation, along with

one cohort, in the armed robbery of Geraldine and James Petry in their

home     in   Northampton   County,   Pennsylvania.     During   the   robbery,

Appellant’s cohort held a gun to Mr. Petry’s head while Appellant bound both

victims, locked them in the pantry of their home, and threatened to kill them

if they called police.   When, after the robbery, an officer attempted to

apprehend Appellant, he fought with the officer, causing cuts to the officer’s

hands and knees.

       Appellant was charged with various offenses in two separate cases that

were consolidated for trial.    At the close of the trial, the jury convicted

Appellant of two counts of robbery (threat of serious bodily injury); two

counts of conspiracy to commit robbery; one count of theft by unlawful

taking; one count of receiving stolen property; two counts of unlawful

restraint; two counts of false imprisonment; and single counts of resisting

arrest, aggravated assault, and fleeing or attempting to elude a police

officer. On March 23, 2015, he was sentenced to the aggregate term stated

supra.

       Appellant filed timely post-sentence motions, which the court denied

on August 24, 2015. He then filed a timely notice of appeal, and also timely

complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. The court filed a responsive Rule 1925(a)

opinion, stating that it was relying on the analysis set forth in its August 24,




                                      -2-
J-S46013-16



2015 order denying Appellant’s post-sentence motions.          Herein, Appellant

raises three claims for our review:

        1. Was the evidence presented at the time of trial sufficient as a
        matter of law to sustain a conviction for the offense[s] of
        robbery, criminal [conspiracy] to commit robbery, and
        aggravated assault[?]

        2. Did the trial court err in denying [Appellant’s] pre-trial motion
        to suppress his statement to the police in violation of
        [Appellant’s] constitutional rights under Miranda?[1]

        3. Was the trial court’s sentence excessive given [Appellant’s]
        rehabilitative needs?

Appellant’s Brief at 6.

        We have reviewed the briefs of the parties, the certified record, and

the applicable law.      We have also examined the August 24, 2015 opinion

(titled, “Statement of Reasons”) of the Honorable Craig A. Dally of the Court

of Common Pleas of Northampton County, which was drafted to accompany

Judge Dally’s order denying Appellant’s post-sentence motions, and to which

Judge Dally refers in his Rule 1925(a) opinion.          See Trial Court Order,

8/24/15. In his opinion, Judge Dally accurately and thoughtfully disposes of

Appellant’s challenge to the sufficiency of the evidence to sustain his

convictions, see id. at 5-12; his challenge to the court’s denial of his pre-

trial motion to suppress, see id. at 3-5; and his challenge to the

discretionary aspects of his sentence, see id. at 12-14. Appellant’s rather

____________________________________________


1
    Miranda v. Arizona, 86 S.Ct. 1602 (1966).



                                           -3-
J-S46013-16



cursory argument in his appellate brief requires no further elaboration by

this Court. See Appellant’s Brief at 10-14. Instead, we adopt the rationale

set forth by Judge Dally in his August 24, 2015 order and affirm Appellant’s

judgment of sentence on that basis.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2016




                                      -4-
                                                                               Circulated 07/15/2016 02:49 PM




         IN THE COURT OF COMMON PLEAS OF NORTHAMPTON                           COUNTY,
                             PENNSYLVANIA

                                      CRIMINAL DIVISION

 COMMONWEALTH            OF PENNSYLVANIA

        v,                                                    C-0048-CR-2115-2014
                                                              C-0048-CR-2931-2014
 STEVEN LEE TO MINO
 a/k/a STEVEN BRIGHT,
                  Defendant.

                                           ORDER OF COURT
                                   f-C.,
        AND NOW, this       d C( ~y          of August 2015, Defendant Steven Lee Tornino's Post

 Sentence Motions are hereby DENIED IN THEIR ENTIRETY,               as set forth more fully in the

attached Statement of Reasons.

                                 STATEMENT OF REASONS

        On January 7, 2015, following a trial presided over by the undersigned, a twelve-member

jury found the Defendant, Steven Lee Tomino, guilty of two counts of Robbery - Threat of

Immediate Serious Injury; two counts of Criminal Conspiracy to Commit Robbery - Threat of

Immediate Serious Injury; one count of Theft by Unlawful Taking - Moveable Property; once

count of Receiving Stolen Property; two counts of Unlawful Restraint - Involuntary Servitude;

and two counts of False Imprisonment at 2931-2014, and single counts of Resisting Arrest,

Aggravated Assault, and Fleeing or Attempting to Elude a Police Officer at 2115-2014.

       Following the conviction,      the Court ordered that the Defendant       be subject to a

presentence investigative report, a psychiatric evaluation, a psychological evaluation, and a drug

and alcohol evaluation, which the Court received, reviewed and took into consideration in

fashioning an appropriate sentence. The Defendant appeared for sentencing on March 23, 2015.

The crimes of Receiving Stolen Property, Theft by Unlawful Taking and False Imprisonment
    were found to merge for purposes of sentencing                   at docket# 2931-2014,       and the Defendant   was

    sentenced      on the remaining     charges. At docket # 2115-2014,            Defendant      was sentenced   on the

    charges of Resisting         Arrest, Aggravated       Assault,    and Fleeing or Attempting       to Elude a Police

    Officer.     Collectively,   the sentences   on both cases amounted           to an aggregate      term of twenty-

    seven (27) years to fifty-four (54) years in a State Correctional             Institution.

               Defense counsel'     filed post-sentence     motions on April 2, 2015, and the Court scheduled             a

    conference     on the same for May 15, 2015. As a result of the conference,                  the trial transcript was

    ordered to be produced,         and a briefing schedule          was set. The transcript     was filed on June 23,

    2015, Defendant's       brief was filed on July 27, 2015 and the Commonwealth's                  brief was received

    on August 22, 2015. The matter is now ready for disposition.

                                                          Discussion

               Defendant   raises three issues in his post-trial        motion. The first is a motion for judgment

 of acquittal with respect to the Robbery charge at 2931-2014,                  and the Aggravated       Assault charge

 at 2115-2014.2         The second is a motion for a new trial on the basis that the jury's verdict was

 against the weight of the evidence. Finally, the Defendant seeks reconsideration and modification




         At the time of trial, Defendant was represented by Michael McGinley, Esquire of the Northampton County
Public Defender's Office. By the time of sentencing, Attorney McGinley no longer worked for the Public
Defender's Office, and Susan Hutnik, Esquire had assumed Defendant's representation.
2
          Defendant's brief is addressed to only the Robbery and Aggravated Assault charges, and the Court's
opinion is written accordingly. However, to the extent that the motion was intended to address all charges against
 the Defendant (see Defendant's Post Sentence Motion Pursuant to Pa. Rule of Criminal Procedure 720, %), it
remains DENIED. Specifically, Defendant's testimony as to how the robbery came about, and Mrs. Perry's
testimony as to Defendant working in concert with Mr. Clark is sufficient to sustain Defendant's conspiracy
convictions; the testimony set forth herein about the items taken by and recovered from the Defendant is sufficient
to sustain his convictions for Theft and Receiving Stolen Property charges, and Mrs. Perry's testimony regarding
Defendant binding her and her husband with tape, restricting them to their pantry, and threatening to come back and
kill them if they called the police is sufficient to sustain Defendant's convictions for Unlawful Restraint and False
Imprisonment. Further, Trooper Hayes' testimony, and Defendant's own testimony that he ran from and struggled
with the Trooper an in attempt to elude apprehension is sufficient lo sustain the charges of Resisting Arrest and
Fleeing or Attempting to Elude a Police Officer.

                                                               2
     of his sentence, which he alleges was excessive and failed to take into account his rehabilitative

    needs.

             As an apparent adjunct, or threshold to his motions for judgment of acquittal for a new

    trial, the Defendant challenges that validity of bis Miranda3 waiver, and he contends that his

    statement to police should have been suppressed.4

             In order to be valid, a defendant's waiver of his rights under Miranda must be knowing,

    intelligent and voluntary.

             [I]n the suppression realm, the focus is upon police conduct and whether a
             knowing, intelligent, and voluntary waiver was effected based on a totality of the
             circumstances, which may include consideration of a defendant's mental age and
             condition, low IQ, limited education, and general condition. When a defendant
             alleges that his waiver or confession was involuntary, the question is not whether
             the defendant would have confessed without interrogation, but whether the
             interrogation was so manipulative or coercive that it deprived the defendant of his
             ability to make a free and unconstrained decision to confess.

    Commw. v. Sepulveda, 55 A.3d 1108, 1136-37 (Pa. 2012) (internal citation omitted).

             In the instant case, Defendant was taken to the hospital following his arrest. Officer

Miller of the Washington Township Police Department testified that thereafter, he received a call

from the State Police that the Defendant wanted to speak with him. N.T. Vol. I, 131:15-25. The

Officer testified that when he went to see the Defendant in the emergency ward at Easton


          Prior to subjecting a defendant to custodial interrogation, a law enforcement officer must administer certain
warnings to a defendant, as dictated by Miranda v. Arizona, 384 U.S. 436 (1966). Specifically, the officer must
apprise the detainee of their right to remain silent; that any statement the detainee makes may be used as evidence
against them; that the detainee has a right to legal consultation and to have an attorney present during interrogation;
and that if the detainee is indigent, an attorney will be appointed to represent him or her. Id. A detainee may waive
these rights and make an uncounseled statement to police as the Defendant did in the instant case. However, such
statement may only be used against a detainee if it is the product of a knowing, intelligent and voluntary waiver of
the aforementioned rights. See generally Commw. v. O'Bryant, 388 A.2d 1059 (Pa. 1978).

4
          Defendant filed pretrial motions on December 12, 2014, inclusive of a motion to suppress his statement to
police. In support of that motion, the Defendant had alleged, as he does herein, that he was suffering from a head
injury at the time of his statement, and that he was on medication that adversely affected his cognition. On January
6, 2015, the Court issued an Order and Statement of Reasons, which in pertinent part, denied the motion to suppress,
based on the Court's finding that the record was "completely devoid of any evidence to show that [Defendant] was
in fact on medication, that any medication he may have been on had any effect on his cognition, or that he suffered
from any head injury which affected his cognition."

                                                          3
 Hospital, the Defendant         was cooperative        and "wanted to talk." N.T. Vol. I, 132:8-10. The Officer

 further testified that the Defendant            executed a written waiver of his Miranda rights, which was

 introduced as an exhibit at trial. N.T. Vol. I, 132:14-133:6.

            Beginning     at approximately      10:00pm, the Defendant             gave an oral statement to the officer,

 setting forth his involvement           in the robbery. N.T. Vol. I, 136:23-137:3.                The Officer testified that

 he then asked the Defendant              to provide a written statement,           and the Defendant       "was more than

 willing to do so." N.T. Vol. I, 133:7-23.

            The Officer      described       the Defendant          as "fluent"     and "speaking         well"     during   the

interview,     and further noted that the Defendant             provided his own written statement "very clear"

handwriting.     N.T. Vol. I, 138:25-139:15.              Finally,     the Officer     testified    that the Defendant       did

doze off at times during               the interview.    N.T. Vol. I, 138:18-19.            The Officer       would    say the

Defendant's      name when this occurred,               and he "would       immediately       be re-alerted       and continue

writing the statement."        N.T. Vol. I, 138:20-21.

         By his own trial testimony,           the Defendant        stated that although he had taken heroin earlier

that day, he sustained        certain physical injuries during his apprehension,                   and he believed he was

suffering    from a concussion          at the time of his statement        to police, he was not on any medication

at the time of his statement,             and he was able to give the Officer                a full and truthful        written

statement.    N.T. Vol. II, 218:25-219:10;               221:1-5;     237:6-9;     253:18-23.      Nevertheless,      based on

Officer Miller's testimony         that the Defendant        periodically        dozed off during .the interview,        which

Defendant     suggests was indicative          of a head injury and his drug use on the day of the crimes, he

asserts that his written statement should have been suppressed.

        Although        intoxication     and physical condition         are factors to be considered          in determining

the voluntariness       of a statement,      "the test is whether there was sufficient mental capacity for the



                                                               4
  defendant to know what he was saying and to have voluntarily intended to say it." Commw. v.

  DeWitt, 412 A.2d 623, 624 (Pa. Super. 1979). While Defendant testified at trial to his subjective

  belief that he was suffering from a concussion at the time of his statement to police, he never

  presented any objective evidence in support of his suppression motion, or at trial to support this

  contention. In fact, no evidence was presented in support of the suppression motion or at the time

 of trial to lead one to the reasonable conclusion that the Defendant did not know what he was

 saying when he gave his statement, and/or that he did not intend to say it. Accordingly, the Court

 finds that the ruling on Defendant's suppression motion was proper, and that it was properly

 admitted into evidence at trial for the jury's consideration.

            Moreover, even if there were sufficient evidence for the Court to come to opposite

 conclusion, "[w]here [as here.]" an accused's trial testimony is substantially the same as a

 challenged pre-trial statement, the admission into evidence of an otherwise suppressible

 statement would, even if error, be harmless." Id. citing Comm\V. v. Hart, 370 A.2d 298 (Pa.

 1977); Commw. v. Saunders, 331 A.2d 193 (Pa. 1975). Accordingly, the Court moves to the

substance of Defendant's motions, beginning with his motion for judgment of acquittal with

respect to the charge of Robbery.

           A motion for judgment of acquittal challenges the sufficiency of the evidence to
           sustain a conviction on a particular charge, and is granted only in cases in which
           the Commonwealth has failed to carry its burden regarding that charge.

           The standard ... [to be applied) 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 the above test,
           we may not weigh the evidence and substitute our judgment for the fact-finder ...


           N.T. Vol. II, 219:5-7.

         Al trial, the Defendant testified that be gave a full written statement to the police on the day of the robbery,
and that he was telling the truth when he gave the statement, and he was telling the truth on the stand. N.T. Vol. 11,
221:1-7.

                                                           5
          [Further,] 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.

 Commw. v. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008).

         In the instant case, Defendant was convicted under subsection (a)(l)(ii) of the Robbery

 statute, providing that "(1) A person is guilty of robbery if, in the course of committing a theft,

he ...    threatens another with or intentionally puts him in fear of immediate serious bodily

injury." 18 Pa.CS.A. § 3701 (a)(l)(ii). A theft is defined as the unlawful taking or exercise of

control over the property of another with the intent to deprive him of it. 18 Pa.CS.A. § 3921.

         While the Defendant contends that the evidence presented at trial was insufficient as a

matter of law to sustain a conviction on the charge, the Commonwealth contends otherwise.

Upon review of the trial testimony, the Court concurs with the Commonwealth.

         At trial, one of the victims, Geraldine Petry, testified at length about the robbery.

Specifically, she testified that Defendant appeared at her residence located at 8644 Delaware

Drive on April 29, 2014, professing an interest in purchasing the property, which was for sale at

the time. N.T. Vol. I, 45:20; 47:25-48:25. At that point, Defendant told her that she would like to

have an electrical and plumbing worker who had accompanied him see the home as well, to

which she agreed. N.T. Vol. I, 49:49:14-22. Mrs. Petry and her husband showed both men

around the house, after which time, the men left. N.T. Vol. I, 50:5-53:8. Sometime later that

evening, Mrs. Petry noticed that her husband's wallet was missing. N.T. Vol. I, 55:10-15. She




                                                 6
  called the police, and Officer Scott        Miller came to the house and made a report. N.T. Vol. I,

  55:16-56:15.

             The following      day, April 20, 2014, Defendant   and his co-defendant,   who had posed as

  the electrical    and plumbing worker the day prior, returned to the Petry's      residence.   N.T. Vol. I,

  58:8-10;     58:24.   Upon seeing     the Defendant   approaching   her home,   Mrs. Petry     immediately

  telephoned       the police in an effort to get in touch with Officer Miller.    N.T. Vol. I, 59: 19-25.

 Officer Miller being unavailable, Mrs. Petry asked that he return her call. Id. at 59:23-25.

             ln the meantime,     Mr. Petry had let Defendant into the house, and Defendant had stated

 that he was there to return Mr. Petry's wallet, which he had said he had found outside. N.T. Vol.

 I, 60:15-19. Defendant then stated that he had also returned to take clearer pictures of the master

 bathroom for bis wife to review. N.T. Vol. I, 63:11-13. Mrs. Petry excused herself once more,

 placed another call in an effort to reach Officer Miller, and being unable to reach him, she

 returned to escort Defendant to see the master bathroom again. N.T. Vol. I, 63:15-25; 64:22.

            Afterward, Mr. Petry escorted Defendant back to the foyer of her home, where she

observed Mr. Clark, the co-defendant, in the house, wearing a pair of black gloves. N.T. Vol. I,

64:22-65:8.      Mrs. Petry further testified that Mr. Clark then pulled out a gun, put it to Mr. Perry's

head, and ordered him to "open the safe." N.T. Vol. I, 67:3-5.           Defendant then put on a pair of

gloves and ordered Mrs. Petry down the hall to the room containing the Petry's safe. N.T. Vol. I,

67:13-22.     Mrs. Petry attempted to open the safe for her assailants, but finding herself unable to

do so, she eventually gave the code to Defendant. N.T. Vol. 1, 69:5-18.           The Defendant opened

the safe and removed a jewelry box, and then took Mrs. Petry's cellphone, which was lying

nearby. N.T. Vol. I, 69:18-70:5.




                                                        7
          Mrs. Petry further testified   that Mr. Clark and Defendant then bound the Petrys with tape.

  N.T. Vol. I, 70:9-25. With respect to Defendant, Mrs. Petry specifically testified that he taped her

  hands, and retaped Mr. Petry's hands, which had already been bound by Mr. Clark. Id.

          She then testified that the Defendant ordered the Petrys up and into the kitchen, where he

  took money and cards from Mrs. Perry's wallet, a telephone and a pair of earrings, N.T. Vol. I,

  71:12-18. Defendant then directed the Petrys into their kitchen pantry. N.T. Vol. I, 74:18-75:75.

 Mrs. Petry then testified that Defendant stated to the Petrys that they had gotten a really good

 look at his face and that of Mr. Clark, but Mr. Clark, who was standing behind him at this time,

 said "you're a nice old couple. We're not going to hurt you." N.T. Vol. I, 75:6-8. Nevertheless,

 when asked whether she believed Mr. Clark, she testified that she believed that Defendant and

 Mr. Clark were going to "blow our brains out."N.T. Vol. I, 75:9-10. Notably, she also testified

 that Defendant had told the Petrys repeatedly at other points during the invasion that if they

 called the police, Defendant and I\1.r. Clark were "going to come back and ... kill you." N.T.

 Vol. I, 76:13-22.

         After recounting the events of the robbery itself, Mrs. Petry identified several items of

property taken during the robbery. Similarly, Officer Scott Miller of the Washington Township

Police Department testified that certain stolen items were recovered from Defendant by the State

Police when he was arrested, in particular a bank card belonging to Mrs. Petry, a cell phone, and

a pair of her gold earrings. N.T. Vol. I, 72:18-73:19; 80:12-83:20; 84:20-85:3; 121:5-7; 135:11-

15.

        By contrast; the Defendant testified that he was "stunned" when his co-defendant

appeared in the Petry's house with a gun, and that Mr. Clark ordered him into the room with the

safe along with the Petrys. N.T. Vol. II, 209:2-3, 17-18.      He gave no details about taking any



                                                    8
  items from the home, and he denied putting the Petrys in their pantry. N.T. Vol. II, 209:20-

  211:19; 214:25.

           As the judges of the facts, the jury was free to reject or accept any of the evidence

  presented at trial. Taking as true the testimony of Mrs. Petry and Officer Miller, the evidence

  was clearly sufficient to sustain the robbery charge against Defendant. See Commw. v. Holley,

  945 A.2d 241, 247 (Pa. Super. 2008); 18 Pa.C.S.A. § 3701 (a)(l)(ii). As such, Defendant's

 motion for judgment of acquittal on the charge of Robbery is hereby DENIED.

           Defendant's second and final motion with respect to the Robbery charge is in the form of

 a motion for a new trial on the grounds that the verdict was against the weight of the evidence.

           A claim alleging the verdict was against the weight of the evidence is addressed to
           the discretion of the trial court ... It is well settled that the jury is free to believe
           all, part, or none of the evidence and to determine the credibility of the witnesses,
          and a new trial based on a weight of the evidence claim is only warranted where
          the jury's verdict is so contrary to the evidence that it shocks one's sense of
          justice.

 Commw. v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. Jan. 6, 2015) (citation and quotations
 omitted).

It is not enough to sustain a challenge to a verdict as against the weight of the evidence that one

could arrive at a different conclusion on the same facts. Commw. v. Sullivan, 820 A.2d 795 (Pa.

Super. 2003). Rather, the evidence must be so "tenuous, vague and uncertain" as to shock the

conscience of the Court. Id. at 806. Stated another way, "the role of the trial court is to determine

that notwithstanding all the evidence, certain facts are so clearly of greater weight that to ignore

them, or to give them equal weight with all the facts, is to deny justice." Commw. v. Landis, 89

A.3d 694, 699 (Pa. Super. 2014) (citation omitted).

          As discussed in the context of Defendant's        motion for judgment of acquittal on the

charge,    there was sufficient evidence presented at trial         to support the conviction.         Upon



                                                     9
 consideration of the evidence presented at trial, the jury's guilty verdict on the robbery charge

 fails to shock the Court's conscience, and the motion for a new trial is DENIED.

        Turning to Defendant's motion for judgment of acquittal with respect to the Aggravated

 Assault charge at docket #2115-2014, the Court begins by noting that as charged against

 Defendant "[a] person is guilty of aggravated assault if he ... 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." 18 Pa.C.S.A. § 2702(a)(3). The

 instant charge arises from Defendant's arrest and apprehension shortly after the robbery at the

Perry's residence on April 30, 2014.

        Pennsylvania State Trooper Jeremy Hayes testified to these events at trial. Specifically,

he testified that after encountering Defendant's vehicle and effectuating a traffic stop, Defendant,

who was driving, and his co-defendant, attempted to flee from the scene on foot. N.T. Vol. II,

162:20-166:16. After chasing Defendant for nearly a block, the Trooper deployed his taser,

which had the effect of slowing Defendant down slightly. N.T. Vol. II, 167:3-19. The Defendant

then turned back toward the Trooper, reaching out toward him. N.T. Vol. II, 167:21-23. In

response, the Trooper deployed his baton and attempted to strike Defendants hands and arms and

commanding the Defendant, who was still moving toward him, to get to the ground. N.T. Vol. II,

168:168:10-23. The Defendant then made an attempt to get back into his vehicle, at which time

the Trooper got close enough to the Defendant that the Defendant was able to grab a hold of the

Trooper's baton, and a struggle ensued between them for control of the baton. N.T. Vol. II,

169:16-24. The Defendant continued to struggle with the Trooper over the baton even after

backup arrived, until the Trooper, with the assistance of the additional personnel, was able to




                                                10
 handcuff the Defendant and place him in custody. N.T. Vol. II, 170:6-171:25. As a result of the

 struggle, the Trooper sustained lacerations to his hands and knees. N.T. Vol. II, 171:5-10.

         By contrast, the Defendant testified that once he left the Petry's residence and Trooper

 Hayes conducted a traffic stop, he never did anything besides try to get away from the Trooper.

 N.T. Vol. II, 217:19. He testified that although the Trooper hit him, he never swung at, kicked,

 bit or kneed the Trooper. N.T. Vol. II, 217: 12-22. Consequently, he argues that the Court should

 enter judgment in acquittal in his favor with respect to the Aggravated Assault charge.

        While Defendant asserts that this testimony presented at trial was insufficient to sustain

 an aggravated assault charge, it is clear that that it is sufficient. The required mens rea for

 aggravated assault is that the defendant "attempts to cause or intentionally or knowingly causes"

bodily injury to an officer in the course of performing a duty. The evidence clearly establishes

that the Trooper is an officer of the law, and that he was in the midst of performing a duty when

he was injured by the Defendant. When the victim of an aggravated assault is an officer, the

defendant need only knowingly or intentionally attempt to cause him bodily injury. Commw. v.

Flemings, 652 A.2d 1282, 1284 (Pa. 1995). There need be no actual injury, and if there is an

injury, it need not be serious. Id.

        Given the Trooper's testimony, which was buttressed by a video played for the jury

where they were able to witness portions of the struggle, where Defendant was actively engaged,

the Court believes that the evidence of presented at trial was sufficient to sustain an aggravated

assault charge against the Defendant. As such, his motion for acquittal on the charge is

DENIED. To the extent that Defendant also seeks a new trial based on his contention that the




                                                11
  jury's verdict on the Aggravated Assault charge was against the weight of the evidence.'                       the

  same is DENIED upon the Court's finding that the verdict was supported by sufficient credible

  evidence and the jury's verdict does not shock the Court's conscience.

           By his final post-trial motion, Defendant asserts that the sentence imposed by the Court

  was excessive and that it failed to take into account his rehabilitative needs. "When imposing a

 sentence, the sentencing court must consider the factors set out in 42 Pa. C.S.A. § 972l(b ), that

 is, the protection of the public, gravity of offense in relation to impact on victim and community,

 and rehabilitative needs of the defendant. And, of course, the court must consider the sentencing

 guidelines." Commw. v. Caldwell, -- A.3d -- (Pa. Super. May 29, 2015).

          At the time of his sentencing, Defendant had the highest possible prior record score, a

 RFEL, and because he had a prior conviction for a violent crime, he was subject to ten-year

 mandatory minimum sentences on the two counts of Robbery and two counts of Conspiracy to

 Commit Robbery. Sentencing             Transcript, 3:11-15;      3:19-7:22.    Accordingly,      the Court had

 considerable sentencing authority.

         Prior to imposing sentence, the Court ordered and considered a presentence investigative

report dated February 27, 2015, a psychiatric report dated January 31, 2015, a psychological

report dated January 15, 2015, and a drug & alcohol evaluation dated February 18, 2015.

         At the sentencing hearing, the Court heard and considered                       the testimony of the

Defendant's son, Dillon Bright, who testified that the Defendant was "the best man ...                     and the

best father ever." Sentencing Transcript, 9:9-11. The Court also heard and took into account the

record made by defense counsel with respect to an eight year period from 2004 to 2012 when the

Defendant was crime-free, as well as the Defendant's lengthy struggle with a heroin addiction;

         Although counsel briefed the issue, the Defendant's Post Trial Motion does not appear to include a motion
for a new trial with respect to the Aggravated Assault charge. Defendant's Post Sentence Motion Pursuant to Pa.
Rule of Criminal Procedure 720, mTJ.2-15.

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 he heard and took into account the comments                     of counsel for the Commonwealth.        Sentencing

 Transcripl,   10:6-8,    9-16;   16:5-15.    Finally,     the Court    heard and took into consideration          the

 Defendant's   remarks on his own behalf, and the remarks of Mrs. Petry as one of the victims of

 the robbery. Sentencing      Transcript,    11:4-12:2; 12: 11-13: 1; 13:15-16:2.

         In imposing      sentence, the Court began by noting the Defendant's                 repeated placement    of

 blame on his co-defendant.        Sentencing Transcript,           16:19-25.   The Court then took note of the

Defendant's     lengthy    criminal    record,     comprised        of a juvenile   offense    and ten prior     adult

convictions,   not less than five periods of incarceration              in the Northampton      County Prison,     and

two prior terms in SCI. Sentencing           Transcript,    17: 1-5. Next, the Court detailed the circumstances

of the crimes for which the Defendant            faced sentencing.     The Court stated:

         You bound [the victims'] hands and mouths with duct tape, locked them in the
         closet, as you and your co-defendant ransacked the house and stole things, ripping
         the cross off of Mr. Petry's neck, a person already frail from the ravages of
         pancreatic cancer. And then after resisting arrest, you remain convinced of your
         story that you were assaulted by the police and also complain that you now suffer
         from migraines because you were struck with a police baton, which I would
         submit wouldn't have happened if you had not resisted arrest, So it's just a
         continuing story of your life of criminal conduct. It certainly gives me no pleasure
         to impose the sentences I'm about to impose, but I think that they are necessary
         given your inability to comply with what we expect from people that live in an
         orderly society.

Sentencing Transcript, 17:10-23 (emphasis added).

The Court then imposed sentence and made a record with respect to Defendant's awareness of

his post-trial rights, which Defendant acknowledged on the record. Sentencing Transcript, 17 :24-

20:19.

         Although Defendant contends that the Court did not take his rehabilitative needs into

account in fashioning the sentence imposed, the record belies that contention. As set forth supra,

the Court chronicled the Defendant's criminal history, and concluded on the record that the term



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of imprisonment he imposed was "necessary" given the Defendant's "inability to comply with

what we expect from people that live in an orderly society." Sentencing Transcript, 17:22-23.

The Court's comments in this regard are addressed specifically to the Defendant's rehabilitative

needs. That the Court and the Defendant have a difference of opinion as to what those needs are

does not render the Court's sentence excessive and does not entitle Defendant to reconsideration

or modification of his sentence. Upon reflection, the Court holds the same view of the

Defendant's rehabilitative needs, the community's need for protection, and the gravity of the

offense that it did at the time it imposed sentence. Consequently, Defendant's motion seeking

reconsideration and modification of his sentence is DENIED.




                                    BY THE COURT:




                                                                                             J.




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