J-S01030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYRONE JOHNSON

                            Appellant                   No. 2405 EDA 2014


               Appeal from the Judgment of Sentence July 8, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006372-2012

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                            FILED JANUARY 25, 2016

        Appellant, Tyrone Johnson, appeals from the July 8, 2014 aggregate

judgment of sentence of 10 to 20 years’ imprisonment, imposed after a jury

found him guilty of one count each of aggravated assault and possession of

an instrument of crime (PIC).1 After careful review, we affirm.

        The trial court summarized the facts of this case as follows.

                    On the evening of May 4th, 2012, Robert Parks,
              Maurice Washington and Washington’s nephew were
              in the apartment that they shared at 1918 North
              Broad Street [in Philadelphia].           They were
              accompanied by three friends; Parks’s girlfriend,
              Randy Phillips, and Phillips’s brother Cam. Appellant
              lived in the first floor apartment in the same
              building. As the six individuals were exiting the
              apartment building to go to a karaoke bar, Appellant
              came out to the porch and began yelling at the
____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a) and 907(a), respectively.
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          group.     Appellant explained he was angry with
          Phillips in particular because he didn’t live in the
          building and was making noise and leaving the door
          unlocked. Appellant and Phillips began to argue until
          Washington stepped between them.

                Phillips warned Washington to be careful
          because Appellant had a knife, but Washington
          continued to argue with Appellant. As the two men
          stood on the porch arguing, Appellant pushed
          Washington, who fell backwards into Cam. When
          Washington returned to his feet, he raised his fists
          into the air.    At that moment, Appellant began
          stabbing Washington with a knife, striking him in the
          stomach, chest, and neck. The handle of the knife
          broke off from the blade, which remained inside
          Washington’s stomach. After stabbing Washington,
          Appellant ran from the porch, returned to his room,
          and locked the door.

                 Parks’s girlfriend called the police to tell them
          about the stabbing. Police officers arrived on the
          scene and found Washington on the ground bleeding
          from the neck, Park[s]’s girlfriend rendering aid, and
          a knife blade separated from its handle on the
          ground.     The police officers were told that the
          individual responsible for the stabbing was inside the
          building on the first floor. They entered the building
          and approached the first floor apartment, hearing
          both a male and a female voice. One officer knocked
          on the door for approximately one to two minutes,
          announcing his presence.           After four officers
          attempted to force Appellant’s door open, the door
          was opened from the inside. The police entered the
          apartment and noticed a female in the apartment.
          They also noticed Appellant, who was sweating and
          had blood on his hands. Appellant would not comply
          with the officer’s repeated requests to get on the
          ground, so they used a taser and a control hold to
          get Appellant onto the ground, placing him in
          handcuffs. Police observed the female place an item
          on top of the refrigerator that was later determined
          to be a knife handle matching the blade that was
          found on the porch.

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Trial Court Opinion, 5/12/15, at 1-2 (citations omitted).

       In the June 5, 2012 criminal information, the Commonwealth charged

Appellant with the aforementioned offenses as well as one count each of

criminal attempt (murder), terroristic threats, simple assault, recklessly

endangering another person, resisting arrest, and possession of marijuana.2

At an October 25, 2012 scheduling conference, the trial court scheduled

Appellant’s trial for September 17, 2013, based on the trial court’s calendar.

On May 15, 2013, Appellant filed a motion to dismiss pursuant to

Pennsylvania Rule of Criminal Procedure 600(G). On August 16, 2013, the

trial court held a hearing on the Rule 600(G) motion, and it denied the

motion at the conclusion of the hearing. On September 18, 2013, a five-day

jury trial commenced.        On September 24, 2013, the jury found Appellant

guilty of aggravated assault and PIC. The jury was hung on the charge of

attempted murder, and that charge was nolle prossed.          The remaining

charges were dismissed before trial or nolle prossed. On July 8, 2014, the

trial court sentenced Appellant to 10 to 20 years’ imprisonment. 3 Appellant


____________________________________________


2
  18 Pa.C.S.A. §§ 901(a), 2706(a)(1), 2701(a), 2705, and 5104; 35 P.S.
§ 780-113(a)(31), respectively.
3
  Specifically, the trial court sentenced Appellant to 10 to 20 years’
imprisonment on the aggravated assault conviction and a concurrent two to
four years’ on the PIC conviction.




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did not file a post-sentence motion.           On July 23, 2014, he filed a pro se

notice of appeal.4

       On appeal, Appellant presents the following issues for our review.

              I.    Was the evidence [] insufficient to convict
              [A]ppellant of aggravated assault as a first[-]degree
              felony because there was no showing that
              [A]ppellant acted with malice?

              II.  Did the trial court err in denying [A]ppellant’s
              motion to dismiss the charges with prejudice
____________________________________________


4
   At the time Appellant filed his pro se notice of appeal, trial counsel had not
yet withdrawn his representation. In accordance with Pennsylvania Rule of
Criminal Procedure 576(A)(4), the trial court forwarded a copy of the pro se
notice of appeal to Appellant’s counsel. On August 8, 2014, trial counsel
filed an untimely notice of appeal. Thereafter, on August 12, 2014, trial
counsel filed a motion to withdraw his representation, which the trial court
granted. Appellate counsel entered his appearance on October 6, 2014. On
November 6, 2014, the trial court ordered Appellant to file a 1925(b) concise
statement, and appellate counsel complied on November 12, 2014.

       Thus, at the time Appellant filed his pro se notice of appeal, he was
represented by counsel. Generally, a criminal defendant’s pro se actions
have no legal effect while he or she remains represented by counsel.
Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting
that a defendant’s pro se filings while represented by counsel are legal
nullities), appeal denied, 936 A.2d 40 (Pa. 2007). However, our Supreme
Court has held that a pro se notice of appeal from a final judgment filed by a
represented appellant is not automatically void. Commonwealth v.
Cooper, 27 A.3d 994, 1007-1008 (Pa. 2011). Accordingly, in the interest of
judicial economy, we do not quash this appeal, because the trial court and
appellate counsel subsequently perfected the appeal. See Commonwealth
v. Grosella, 902 A.2d 1290, 1293 (Pa. Super. 2006) (explaining “[i]t is
well-settled that an accused who is deprived entirely of his right of direct
appeal by counsel’s failure to perfect an appeal is per se without the
effective assistance of counsel, and is entitled to reinstatement of his direct
appellate rights[]”) (citations and internal quotation marks omitted).




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              because [] [A]ppellant was denied a prompt trial
              when it took over 365 days to get [A]ppellant’s case
              to trial from the date that the complaint was filed
              against him?

Appellant’s Brief at 2.5

       Our standard of review for challenges to the sufficiency of the evidence

is well settled.    “In reviewing the sufficiency of the evidence, we consider

whether the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the jury’s verdict beyond a reasonable doubt.”

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400

(2015). “The Commonwealth can meet its burden by wholly circumstantial

evidence and any doubt about the defendant’s guilt is to be resolved by the

fact finder unless the evidence is so weak and inconclusive that, as a matter

of   law,   no   probability    of   fact      can   be   drawn   from   the   combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).          “[T]he trier of fact while passing upon the

____________________________________________


5
 Appellant also raised the issue of whether we should quash this appeal,
which we have discussed above in footnote 4.



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credibility of witnesses and the weight of the evidence produced, is free to

believe all, part or none of the evidence.”       Commonwealth v. Orie, 88

A.3d 983, 1014 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d

925 (Pa. 2014). “Because evidentiary sufficiency is a question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

       In this case, Appellant challenges his conviction for aggravated

assault.     A person commits 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).     To

sustain a conviction for aggravated assault, the Commonwealth must prove

that the defendant acted with a mens rea of malice.          Commonwealth v.

Miller, 955 A.2d 419, 422 (Pa. Super. 2008).              Malice is defined as a

“wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured.” Id. (citation omitted). Further,

“where malice is based on the recklessness of consequences, it is not

sufficient to show mere recklessness … rather, it must be shown that the

defendant consciously disregarded an unjustified and extremely high risk

that   his    actions   might    cause    death   or   serious   bodily    harm.”


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Commonwealth v. Nichols, 692 A.2d 181, 186 (Pa. Super. 1997) (citation

omitted; emphasis in original).    Specifically, Appellant contends that the

Commonwealth did not prove he acted with malice. Appellant’s Brief at 7.

Instead, he characterizes the evidence as showing only that he “was acting

out of fear that he would be attacked.” Id. We disagree.

      The record, viewed in the light most favorable to the Commonwealth,

contains sufficient evidence to enable a jury to conclude that Appellant acted

with malice in stabbing Washington numerous times.             The evidence

demonstrated that Appellant began a verbal altercation with six people as

they were exiting the apartment building. N.T., 9/19/13, at 21. Appellant

first directed his hostility at Phillips because Phillips did not live in the

building.   Id. at 22.   Washington stepped in and Appellant then began

arguing with Washington.      Id. at 24.     When Washington backed up,

Appellant initiated physical contact by pushing Washington and knocking him

off balance. Id. at 27. Washington regained his balance and raised his fist,

at which time Appellant responded by swinging a knife at Washington. Id.

Appellant then stabbed Washington five times, twice in the neck, once in the

shoulder, once in the stomach, and once in the lower leg. N.T., 9/20/13, at

15.   This evidence was sufficient to prove that Appellant consciously

disregarded an unjustified and extremely high risk that his actions of

swinging a knife at, and stabbing Washington would cause death or serious

bodily harm.   See Nichols, supra.      Therefore, the record demonstrates


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Appellant acted with malice based on his recklessness of consequences. See

id.; Miller, supra.      Further, from the evidence, the jury was free to

conclude that any fear Appellant had of Washington did not negate

Appellant’s malice. See Commonwealth v. Cartagena, 416 A.2d 560, 563

(Pa. Super. 1979) (holding the fact that the victim punched the defendant

was insufficient to dispel the factfinder’s conclusion that the defendant acted

with malice).      Accordingly, we conclude the evidence was sufficient to

support the jury’s verdict beyond a reasonable doubt. See Hanible, supra.

Consequently, Appellant is not entitled to relief on his first issue.       See

Diamond, supra.

         In his second issue, Appellant contends that the trial court erred in

denying his motion to dismiss the charges pursuant to Pennsylvania Rule of

Criminal Procedure 600. Appellant’s Brief at 8. Appellant asserts that the

Rule 600 run date was August 10, 2013, but trial did not commence until

September 17, 2013. Id. Appellant argues that the Commonwealth did not

exercise due diligence in protecting his right to a prompt trial. Id. at 8-9.

         We review a trial court ruling pursuant to Rule 600 for an abuse of

discretion, viewing the record in the light most favorable to the prevailing

party.     Commonwealth v. Claffey, 80 A.3d 780, 787 (Pa. Super. 2013)

(citations omitted), appeal denied, 86 A.3d 231 (Pa. 2014).        Further, our

scope of review is the evidence of record at the time of the Rule 600 hearing

and the findings of the trial court.   Commonwealth v. Rhodes, 54 A.3d


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908, 911 (Pa. Super. 2012). Rule 600 directs that a trial must commence

within 365 days from the date the Commonwealth filed the criminal

complaint. Pa.R.Crim.P. 600(A)(2)(a). Further, Rule 600 states that when

computing the 365-day period, the only days the trial court should include

are those delays caused by the Commonwealth as a result of its failure to

exercise due diligence; all other time is excluded.6 Id. at 600(C)(1). The

remedy for a Rule 600(A) violation is dismissal of the charges with prejudice.

Id. at 600(D)(1).

       The trial court explained that Rule 600 was not violated as follows.

                     The Commonwealth clearly exercised due
              diligence in this case. There were no Commonwealth
              continuance requests made prior to trial. The trial
              date was set based on the court calendar alone. The
              fact that the trial commenced five weeks after the
              mechanical run date could not be attributed to a lack
              of Commonwealth due diligence; therefore, there
              was no Rule 600 violation.
____________________________________________


6
   The new version of Rule 600 became effective on July 1, 2013. In
Commonwealth v. Roles, 116 A.3d 122, 125 n.4 (Pa. Super. 2015), we
applied the former version of the Rule based on the date of the filing of the
criminal complaint. The new version of the Rule did not alter the substance
of a defendant’s speedy trial rights, however, and merely “clarif[ied] the
provisions of the rule in view of the long line of cases that have construed
the rule.” Pa.R.Crim.P. 600 cmt. The chief practical distinction between the
versions of the Rule is the manner of calculation. Under the former Rule,
the periods excludable or excusable were calculated to extend the adjusted
run date.     Under the new version of the Rule the periods of delay
attributable to the Commonwealth are added to calculate whether the
allowable delay period under the Rule has been exceeded. The results are
the same under either method.          Consequently, although the criminal
complaint in this matter was filed prior to the effective date of the new Rule,
we apply the new Rule.



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Trial Court Opinion, 5/12/15, at 8.

      Upon review of the record, we discern no abuse of discretion.        The

criminal complaint was filed on June 5, 2012.       Appellant obtained three

continuances from July 19, 2012 to October 25, 2012, resulting in a 98-day

delay attributable to Appellant, and was therefore excludable.          At the

scheduling conference on October 25, 2012, the trial court listed the case for

September 17, 2013, which was the first available trial date on the trial

court’s calendar. Because the Commonwealth did not cause this delay, that

327-day period is also excludable for the purpose of Rule 600.              On

September 17, 2013, the trial court continued the case to September 18,

2013, which is when jury selection began.          Thus, from the date the

complaint was filed, on June 5, 2012, until the date trial began, on

September 18, 2013, only the 44 days from June 5, 2012 to July 19, 2012

are potentially includable in calculating the Rule 600 delay period.

Therefore, the trial promptly commenced under Rule 600.           Pa.R.Crim.P.

600(A)(2)(a), (C)(1). Accordingly, the trial court did not abuse its discretion

in denying Appellant’s motion to dismiss pursuant to Rule 600.            See

Claffey, supra.

      Based on the foregoing, we conclude that both of Appellant’s issues

lack merit. Accordingly, we affirm the July 8, 2014 judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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