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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

ANTHONY J. CRAWFORD

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Appellant No. 3070 EDA 2015

Appeal from the Judgment of Sentence August 25, 2015
In the Court of Common P|eas of Delaware County
Crimina| Division at No(s): CP-23-CR-0007359-2014

BEFORE: OLSON, O`l'l' and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED January 12, 2017

Appellant, Anthony J. Crawford, appeals from the judgment of
sentence entered on August 25, 2015, following his jury trial convictions for
aggravated assault, possessing of an instrument of crime (PIC), carrying a
firearm Without a license, and recklessly endangering another person
(RElLiP).1 Upon review, we affirm.

The trial court set forth the facts and procedural history of this case,

as follows:

On June 7, 2013, Appellant had been drinking at Mil<e and
Johnny's Bar in Darby, Pennsylvania With many others to
celebrate Rosa Puller's birthday. The get-together included
many of Rosa Puller's family members, including her
siblings, cousins and her boyfriend, Brian Stokes. Also
present Was Brian Stol<es' friend, [] Appellant[.]

 

1 18 Pa.C.S.A. §§ 2702(a), 907, 6106(a), and 2705, respectively.

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Near closing time, about 2[:00] a.rn., Brian Stoi<es and []
Appel|ant got into an argument with some of the women
inside the [b]ar. The [v]ictim, Desman Johnson, came to
the defense of some of the women at the party after Brian
Stokes called the women a couple of bitches[.] This led to
an altercation in the parking lot of the [b]ar between Brian
Stoi<es and [] Appellant versus some individuals who came
to the defense of the women, including Desman Johnson.
During the altercation in the parking lot, Brian Stokes was
holding a gun in his hand.

The argument quickly escalated, and Appellant yelled out[,]
“Fuck all this arguing.” At this point, Appellant pulled out a
gun and shot Desman Johnson muitiple times. Brian Stokes
also fired his gun at this point, but he shot directly up into
the air.

Shortly after the shots were fired, several police officers
arrived at Mii<e and Johnny's Bar. Desman Johnson was
found unconscious on the ground, bleeding. Desman
Johnson Was shot multiple times, taken to the University of
Pennsylvania Hospital Trauma Unit, and survived the
shooting.

Brian Stokes was also on the ground at the scene as he had
been attacked by other individuals following the shooting.
The [o]fficers did what they could to control the crowd, offer
aid to those injured, and collect evidence. After speaking
with witnesses, the police ascertained that Brian Stokes
fired a gun into the air, and that Appeliant, who fled the
scene, had been the individuai who shot Desman Johnson.

* * >l<

[The Commonwealth charged Appe||ant with the
aforementioned charges, as well as attempted murder.] On
December 10, 2014, Appellant was arraigned. On January
12, 2015, Todd Fiore, Esquire, entered his appearance on
behalf of Appellant. On March 17, 2015, a [j]ury [t]rial
commenced On March 20, 2015, the [j]ury [t]rial resulted
in a [h]ung [j]ury. [The jury acquitted Appe|iant of
attempted murder, but could not agree on the remaining
charges.]

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On June, 1, 2015, a second [j]ury [t]rial commenced. On
June 3, 2015, the [j]ury found Appeilant [g]uilty of all [the
above mentioned] charges[.]

On June 9, 2015, Appellant filed a “[m]otion to [s]et [a]side
the [v]erdict as it was [a]gainst the [w]eight of the
[e]vidence.” On June 15, 2015, [the trial court] denied
[relief].

On Ju|y 29, 2015, [new counsel] entered his appearance on
behalf of Appellant.

On August 25, 2015, Appellant was sentenced as follows:
Count 2, [a]ggravated [a]ssault, 10 to 20 years [of
imprisonment]; Count 9, [PIC], 16 months to 32 months['
imprisonment], concurrent to Count 2; Count 10, [carrying
a firearm without a license], 42 months to 84 months [of
imprisonment], concurrent to Count 9 and Count 2, Count
12, [REAP], 12 months to 24 months[’ incarceration],
consecutive to Count 2. The aggregate sentence imposed
[was] 11 to 22 years [of imprisonment.]

On September 2, 2015, Appellant filed a [p]ost [s]entence
[m]otion requesting a new trial. On Septernber 11, 2015,

[the trial court] issued an [o]rder denying Appellant’s [p]ost
[s]entence [m]otion.

Trial Court Opinion, 1/21/2016, at 1-4 (record citations, original brackets
and most quotations omitted). This timely appeal resulted.2

On appeal, Appeilant presents the following issues for our review:

 

2 Appellant fiied a notice of appeal on September 21, 2015. On Septernber

28, 2015, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appeilant
complied timely after the trial court granted a requested extension. The trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 21, 2016.

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1. Was [Appe|lant’s] retrial for [a]ggravated [a]ssault a
violation of the principles of double jeopardy?

2. Did the [t]rial [c]ourt abuse its discretion and unfairly
prejudice [Appellant] when the [c]ourt denied an
objection and allowed Po|ice Officer Barr to offer
speculative testimony about [Appeliant's] retrieval of a
gun[?]

3. Was the verdict against the weight of the evidence?

4. Was the evidence sufficient to convict [Appeilant] of
[a]ggravated [a]ssault, [PIC], [f]irearms [n]ot [t]o [b]e
[c]arried [without aj [l]icense, and [REAP]?

Appellant’s Brief at 7 (internai citations and suggested answers omitted).

In his first issue presented, Appellant argues that because a jury
acquitted Appellant of attempted homicide during his first trial, his “retria| on
the charge of [a]ggravated assault violated constitutional guarantees against
double jeopardy.” Id. at 11 (citation omitted). More specifically, relying on
our Court's 1990 decision in Commonwealth v. Hickson, 586 A.2d 393

(Pa. Super. 1990), Appellant maintains:

[W]hen the jury found [Appellant] not guilty of an attempt
to commit criminal homicide, the jury determined that [he]
was not guiity of committing a malicious killing. [Appeliant]
was charged with violating 18 Pa.C.S. § 2702(a)(1), which
defines aggravated assault as an ‘attempt to cause serious
bodily injury to another or causing such injury intentionally,
knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.’ 18 Pa.C.S.
§ 2702(a)(1). It was necessary for the Commonwealth to
show that the shooting of Mr. Desman Johnson had been
done with maiice. See Hickson, 586 A.2d at 396. Malice
‘exists not only where there is a particular iii will, but aiso
whenever there is a wickedness of disposition, hardness of
heart, wanton conduct, cruelty, recklessness of
consequences and a mind regardless of social duty.' Id.

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[(internal citation omitted)]. A conviction for aggravated
assault requires a shooting, which was done intentionally,
knowingly Or recklessly. See Hickson, 586 A.Zd at 396.
Therefore, the shooting required evidence of malice. Id. In
the first trial, the jury acquitted [Appellant] of attempt to
commit criminal homicide, a charge that requires a finding
Of malice.

Id. at 12-13 (original brackets omitted).

The Commonwealth initially responds that Appellant waived his double
jeopardy challenge for failing to include the issue in his concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Commonwealth's Brief at 8-10. We reject this contention. “[M]ere silence
by a defendant or iack of a specific objection will not amount to a waiver of
defendant's ‘very important constitutional right' of protection from double
jeopardy.” Commonwealth v. McCord, 700 A.2d 938, 942 (Pa. Super.
1997). Double jeopardy claims implicate the legality of sentence anci,
therefore, are not subject to waiver. See Commonwealth v. Andrews,
768 A.2d 309, 313 (Pa. 2001), citing Missouri v. Hunter, 459 U.S. 359,
366 (1983). l-ience, we will address Appellant’s double jeopardy claim as it
directly implicates the legality of Appellant’s sentence.

Our standard of review is as foliows:

An appeal grounded in double jeopardy raises a question of
constitutional iaw. This court's scope of review in making a
determination on a question of law is, as always, plenary.

As with all questions of law, the appellate standard of
review is de novo.

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008)

(quotations, ellipsis, and internal citations omitted).

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“The prohibition against double jeopardy set forth in Article I, § 10 of
the Pennsy|vania Constitution and the Fifth Amendment to the Constitution
of the United States of America protects against a second prosecution for the
same offense after an acquittal, a second prosecution for the same offense
after a conviction and multiple punishments for the same offense.” McCord,

700 A.2d at 941. The McCord Court has explained:

As a general rule, a mistrial because of a jury's inability to
reach a verdict does not implicate the principles of double
jeopardy, and retriai is not prohibited. However, an
exception to that rule exists when a defendant was
acquitted or convicted on some charges in the same trial,
and the same jury was unable to reach a verdict on other
charges. [This Court has previously determined that] retrial
of charges on which a jury has been unable to agree is not
barred unless the jury made findings on one or more other
charges which must be interpreted as an acquittal of the
offense for which the defendant is to be retried.

McCord, 700 A.2d at 946 (internal citations and quotations omitted).

The test for determining whether double jeopardy applies is the same
test utilized to decide sentencing merger. Commonwealth v. Davidson,
938 A.2d 198, 218, (Pa. 2007); see also Commonwealth v. Jones, 912
A.2d 815, 823 (Pa. 2006) (plurality) (Pennsylvania courts “employ[] the
same analysis in double jeopardy and sentencing merger cases [under the]
function of the Double Jeopardy Clause's prohibition which protects
against both successive punishments and successive prosecutions for the

same offense.”).

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On February 7, 2003, the Pennsylvania Legislature enacted the merger

doctrine at 42 Pa.C.S.A. § 9765, which provides:

No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and ai| of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.
Thereafter, in Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009),

our Supreme Court stated:

Generaliy, the doctrine of merger is a rule of statutory
construction designed to determine whether the legislature
intended for the punishment of one offense to encompass
that for another offense arising from the same criminal act
or transaction. If the legislature were to tell us that crime A
merges into crime B, the problem would not arise, for the
legislative intent would be manifest. It is in cases where the
legislature has not given direction that we must devise a
rule.

[T]he legislature has provided [] ciear direction by its
enactment of Section 9765. 'i'he statute makes the
legislature's intent with respect to merger manifest. That
intent focuses solely on the elements of the offenses for
which a criminal defendant has been convicted.

Baldwin, 985 A.2d at 835-836 (original emphasis and internal citation
omitted). Accordingly, looking at the plain language of Section 9765, the
Baldwin Court ultimately determined the “statute's mandate is clear. lt

prohibits merger unless two distinct facts are present: 1) the crimes arise

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from a single criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.” Id. at 833.

In this case, there is no dispute that the crimes arose from a single
criminal act, Appellant’s shooting of Johnson. Thus, we look at the statutory
elements of aggravated assault to determine whether they are subsumed by
the elements of attempted murder. The relevant provision of the
aggravated assault statute, under which Appeilant’s conviction resulted,
states: “A person is guilty of aggravated assault if he [...] attempts to cause
serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). “Where
the victim suffers serious bodily injury,[3] the Commonwealth is not required
to prove specific intent.” Commonwealth v. Patrick, 933 A.2d 1043, 1046
(Pa. Super. 2007) (internal citations omitted). Instead, the Commonwealth
need only prove the defendant acted recklessly under circumstances
manifesting an extreme indifference to the value of human life. Id. “For the

degree of recklessness contained in the aggravated assault statute to occur,

 

3 “Serious bodily injury” is defined as “[t)]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.A. § 2301. Here, the victim was struck with multiple
bullets that passed entirely through his body; “he had two holes in his back,
two holes in his abdomen, two holes in his thighs, and one in his left groin.”
N.T., 6/2/2015, at 188. The victim had damage to his bladder and iliac vein,
which required surgical intervention. Id. at 186-187.

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the offensive act must be performed under circumstances which almost
assure that injury or death will ensue.” Id.

Whereas, a person commits criminal attempt “when, with intent to
commit a specific crime, he does any act which constitutes a substantial step
toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). Murder or “a
criminal homicide [...] is committed by an intentional killing.” 18 Pa.C.S.A. §
2502(a).4

We conclude that all of the elements of aggravated assault are not
included in the statutory elements of attempted murder. As previously
stated, in order to be convicted of attempted murder, the Commonwealth is
required to show an intent to kill. When the first jury acquitted Appellant of
attempted murder, it necessarily determined that an intent to kill was not
proven. However, in order to prove aggravated assault, the Commonwealth
needed only to prove that Appellant acted recklessly and that the shooting
took place under circumstances that almost assured that serious bodily
injury would ensue. The statutory elements for the crimes of attempted

murder and aggravated assault are not the same. Thus, we discern that

 

4 There can be no attempt to commit second- or third-degree murder. See

Commonwealth v. Griffin, 456 A.2d 171, 177, (Pa. Super. 1983) (“While a
person who only intends to commit a felony may be guilty of second degree
murder if a killing results, and a person who only intends to inflict bodily
harm may be guilty of third degree murder if a killing results; it does not
follow that those persons would be guilty of attempted murder if a killing did
not occur.”). “[I]n order to convict a person of attempted murder, an intent
to kill must be shown.” Id. at 178.

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double jeopardy did not preclude the Commonwealth from prosecuting
Appellant for aggravated assault, in a second trial, despite an earlier
acquittal for attempted murder. Accordingly, there is no merit to Appellant’s
first claim.

In his next issue presented, Appellant avers the trial court erred by
allowing Officer Matthew Barr to speculate about actions taken by Appellant
at the scene of the crime. Appellant's Brief at 14-16. Appeilant complains it
was error to permit Officer Barr to narrate the course of events transpiring
as the jury watched a surveillance video entered into evidence by the
Commonwealth. Id. at 14. More specifically, Appellant claims that Officer
Barr, who was not qualified as an expert and did not have personal
knowledge of the incident, speculated that the surveillance video showed
Appellant retrieve what the officer believed was a firearm, from underneath
the front seat of a car prior to the shooting. Id. at 15-16.

“The admission of evidence is committed to the sound discretion of the
trial court, and a trial court's ruling regarding the admission of evidence will
not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-wil|, or such lack of
support to be clearly erroneous”. Commonwealth v. Ivy, 146 A.3d 241,
250 (Pa. Super. 2016). We have previously determined that it was not an
abuse of discretion to allow a detective to offer his observations about
images depicted in a surveillance video under Pa.R.E.701, Which governs the

admission of lay-person testimony. See Commonwealth v. Brown, 134

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A.3d 1097, 1106 (Pa. Super. 2016). Additionally, we note that after Officer
Barr offered his testimony, the trial court cautioned the jurors to draw their
own conclusions of what the video depicted. l\i.T., 6/1/20115, at 112. “The
law presumes that the jury will follow the instructions of the court.”
Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Moreover, at
trial, three eyewitnesses, Jameel Fields, Denise Gardner, and Regina Fields,
identified Appellant as the shooter. N.T., 6/2/2015, at 61, 106, and 149.
Accordingly, any error in admitting Officer Barr's testimony that he believed
Appellant had a gun was harmless, considering there was other evidence
that Appellant held and then shot a firearm. See Commonwealth v.
Wilson, 147 A.3d 7, 24 (Pa. Super. 2016) (citation omitted) (improperly
admitted evidence merely cumulative of other evidence and had no effect on
verdict; therefore, any error in admitting testimony harmless).

In his third and fourth allegations of error, Appellant claims that the
evidence was against the weight and sufficiency of the evidence,
respectively. Appellant’s Brief at 17-19. We will examine the sufficiency of
the evidence claim first. In his appellate brief, Appeilant does not set forth
the elements of his crimes for which he was convicted or establish what
element(s) the Commonwealth failed to establish, which results in waiver in
a sufficiency challenge. See Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009) (finding the appellant's sufficiency claim waived where his
argument was underdeve|oped and he did not set forth the elements of the

crimes for which he was convicted or which specific elements were not met).

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Regardless, Appellant's claim lacks merit. “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.” Commonwealth v. Hansley, 24 A.3d
410, 416 (Pa. Super. 2011). Upon review of the parties' briefs, the relevant
law, and the trial court's opinion, we conclude there was sufficient evidence
to support Appellant’s convictions Three eyewitnesses identified Appellant
as the shooter. N.T., 6/2/2015, at 61, 106, and 149. The trial court
determined that the jury was free to infer that Appellant intended to cause
serious bodily injury and disregarded the safety of others by brandishing a
firearm and firing it at the victim’s vital body parts while a large crowd was
gathered. Trial Court Opinion, 1/21/2016, at 7-11. These determinations
support Appellant’s convictions for aggravated assault and REAP. Because
Appellant used a firearm to shoot the victim, the trial court found there was
sufficient evidence to support his PIC conviction. Finally, the Commonwealth
presented evidence that Appellant did not have a license to carry a firearm.
N.T., 6/2/2015, at 245-246. We discern no error of law in rejecting
Appellant’s sufficiency chailenge.

Finally, we address Appellant’s contention that his convictions were
against the weight of the evidence. More specifically, he claims the verdict
shocks the conscience of the court because the victim did not see Appellant

fire the gun, the surveillance video did not show him holding a firearm, the

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Commonwealth did not submit ballistics evidence to show there was
gunpowder residue on Appellant’s person or clothing, and there were
inconsistencies in Denise Johnson's testimony. Appellant's Brief at 17.

An appellate court's standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the

trial court:

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 [factfinder] 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 ofjustice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

l-lere, the trial court determined Appellant’s convictions were not
against the weight of the evidence. Again, three eyewitnesses identified
Appellant as the shooter and the trial court concluded the jury credited the
witnesses’ testimony. Trial Court Opinion, 1/21/2016, at 15. In further
support, ballistic evidence showed that Brian Stokes shot his firearm into the
air and eliminated him as the one who shot the victim. Id. As seen on the
surveillance video, Appellant fled the scene of the crime. Id. F|ight

indicates a consciousness of guilt, which a factfinder may consider. See

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Commonwealth v. Dent, 837 A.2d 571, 57 (Pa. Super. 2003). There is no
dispute that the victim was seriously injured following the shooting. Based
upon our deferential standard of review, we discern no abuse of discretion in
denying relief on Appellant’s weight of the evidence claim.

Judgment of sentence affirmed.

Judgment Entered.

 

J seph D. Se|etyn, Es .
Prothonotary

Date: 1112[2017

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