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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
ISIAH J. MANLEY,                        :          No. 3775 EDA 2016
                                        :
                        Appellant       :


        Appeal from the Judgment of Sentence, November 16, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0011254-2015


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 03, 2018

      Isiah J. Manley appeals from the November 16, 2016 aggregate

judgment of sentence of 4 to 8 years’ imprisonment, followed by 2 years’

probation, imposed after he was found guilty of aggravated assault,

disarming a law enforcement officer, simple assault, recklessly endangering

another person (“REAP”), resisting arrest, fleeing or attempting to allude a

police officer, driving under the influence of a controlled substance (“DUI”),

possession of a controlled substance, possession of a controlled substance

with the intent to deliver (“PWID”), and possession of drug paraphernalia.1

After careful review, we affirm the judgment of sentence.

      The trial court summarized the relevant facts of this case as follows:


118 Pa.C.S.A. §§ 2702(a), 5104.1(a)(1), 2701(a), 2705, 5104; 75 Pa.C.S.A.
§§ 3733(a)   and   3802(d)(1);   and    35   P.S.   §§   780-113(a)(16),
780-113(a)(30), and 780-113(a)(32), respectively.
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                On October 5, 2015, Pennsylvania State
          Trooper, Phillip Cyphers, was conducting patrol
          duties on I-76 in the city and county of
          Philadelphia.[] While traveling eastbound past the
          City Line Avenue on-ramp toward Montgomery Drive,
          he observed a dark Nissan Ultima exit Route 1
          southbound on I-76 eastbound, travelling in the left
          lane at an excessive rate of speed. He began to
          pace the vehicle at 70 miles per hour for 3/10ths of
          a mile. He also observed that the vehicle had heavy
          window tint all around the vehicle; including a cover
          over the plate which prevented Trooper Cyphers
          from seeing the license plate (he could only make
          out the first two letters, X and P through the tint)
          when he pulled behind the vehicle.

                 After   activating   his   lights   and    siren,
          Trooper Cyphers attempted to pull the vehicle over
          for the traffic violations. The vehicle appeared to
          pull over to the shoulder of the road near the
          Montgomery Drive ramp but then continued to drive
          on the shoulder, cross over the ramp, and accelerate
          from the officer at a high rate of speed.
          Trooper Cyphers followed and the vehicle exited
          eastbound 1-76 onto Girard Avenue and a red light.
          Traffic was backed up on the ramp, so the vehicle
          passed the cars on the right. The light turned green
          and the vehicle turned left onto Girard Avenue,
          almost striking the front of another vehicle that was
          also turning left at the light. As Trooper Cyphers
          continued to follow the vehicle, he observed the
          vehicle cutting in and out of traffic.          At the
          intersection of 34th Street and Girard Avenue, the
          driver lost control of the vehicle, spinning clockwise,
          then counter-clockwise.       Regaining control, the
          vehicle turned right onto 34th Street toward
          University City using both lanes of travel.
          Trooper Cyphers stated that the vehicle was
          traveling at 80 miles per hour in a 30 mile per hour
          zone. Once over the crest of the hill, the driver once
          again lost control of the vehicle. Trooper Cyphers
          observed the driver hit the brakes, cross over both
          lanes of travel in the opposite direction, and strike a
          concrete barrier. The vehicle rolled backward across


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          the intersection of 34th Street and Mantua Avenue (a
          residential area) where it took down the pedestrian
          walk sign, then come to a complete stop on the
          opposite side of the street facing Trooper Cyphers
          who now had a full frontal view of the windshield and
          the driver. Trooper Cyphers identified [appellant] as
          the driver of the vehicle.

                Trooper Cyphers observed [appellant] and the
          passenger “frantically” moving about the vehicle,
          reaching under the seat, into the glove box, the
          center console, and all around the vehicle. The
          occupants of the vehicle continued to move even
          after Trooper Cyphers yelled for them to stop. He
          was not sure what they were trying to find. He then
          observed [appellant] get into the backseat and the
          passenger exit the vehicle and begin to run. He saw
          the passenger holding his hands close to [his] chest
          with what appeared to be a white brick that looked
          like a “stick of butter.” The white brick fell to the
          ground and the passenger was picking up items; he
          was falling and dropping everything. He also saw
          what appeared to be United States Currency
          dropping to the ground. Trooper Cyphers yelled at
          the passenger and chased him to the back of the
          crashed vehicle. Trooper Cyphers stopped chasing
          the passenger because [appellant] was still in the
          vehicle.

                As he turned his attention back to the vehicle,
          Trooper Cyphers observed [appellant] exit the
          vehicle and walk toward him. Trooper Cyphers told
          him to stop, but [appellant] kept walking toward
          him.    Still holding his weapon, Trooper Cyphers
          decided to take out his Taser because he observed
          that the driver’s hands were at his sides and he felt
          deadly force was not necessary. [Appellant] would
          not obey commands to stop and get on the ground;
          he just kept walking toward the Trooper.
          Trooper Cyphers      approached   [appellant],   and
          [appellant] started to resist and push away from
          him.      [Appellant] then began to reach for
          Trooper Cyphers who was still holding his duty
          weapon.       Trooper Cyphers pushed away from


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          [appellant] to put his gun in its holster and
          [appellant] started to run and was turning away from
          him. At that time Trooper Cyphers deployed his
          [t]aser and struck [appellant] in the chest with
          one (1) probe. [Appellant] pulled the probe off and
          began to run.          Never losing sight of him,
          Trooper Cyphers began to chase him down
          34th Street until [appellant] made a right onto
          Fairmount Avenue. Trooper Cyphers reloaded the
          Taser as [appellant] stopped and turned towards
          him. He yelled for [appellant] to get on the ground,
          but he still did not comply. As [appellant] turned to
          run again, Trooper Cyphers tased him for a second
          time. Two (2) probes struck, one on his shoulder
          blade and the other on his upper back. [Appellant]
          then went down on the ground.

                [Appellant]     continued      to    resist   as
          Trooper Cyphers was trying to handcuff him.
          [Appellant]      kicked      and        punched     at
          Trooper Cyphers[,] who was not sure if any of the
          kicks or punches actually landed since it was
          happening so fast.       Trooper Cyphers then felt
          [appellant] pulling on his belt “like he was trying to
          pull me to the ground.” Both probes were still on
          [appellant] so Trooper Cyphers hit the taser again,
          but there was no effect. [Appellant] stood right up
          and engaged Trooper Cyphers, who was then
          disarmed of his Taser; he still had his handcuffs.
          Facing each other, [appellant] grabbed behind
          Trooper Cyphers[’] head and interlocked both of his
          hands, trying to pull Trooper Cyphers down. They
          both went down onto the ground and after “wrestling
          for a better position,” Trooper Cyphers was able to
          get on top of [appellant]. [Appellant] began pulling
          down on Trooper Cyphers[’] collar and belt again. At
          this point, Trooper Cyphers stated that he felt the
          encounter turned from [appellant] trying to get away
          and resisting arrest to he was trying to incapacitate
          him to get away. Trooper Cyphers was able to stand
          up and [appellant] continued to pull on his gear,
          pulling him down.          Trooper Cyphers struck
          [appellant] in the face and that seemed to stop the
          struggle; however he was still not complying with


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            getting up.      A crowd started to gather and
            Trooper Cyphers was yelling for help to no avail.
            With no one helping him, Trooper Cyphers held onto
            [appellant] waiting for back-up. An older gentleman
            eventually came over and began talking to
            [appellant]. [Appellant] relaxed, rolled over, and
            handcuffs were placed on him. Trooper Cyphers
            estimated that the encounter lasted approximately
            five to seven minutes.

Trial court opinion, 5/19/17 at 2-5 (citations to notes of testimony and

footnotes omitted).

      On September 7, 2016, appellant waived his right to a jury and

proceeded to a bench trial. Following a one-day bench trial, the trial court

found appellant guilty of the aforementioned offenses.        On November 15,

2016, appellant filed a motion for extraordinary relief that was denied by the

trial court the following day.   As noted, appellant was sentenced to an

aggregate term of 4 to 8 years’ imprisonment, followed by 2 years’

probation, on November 16, 2016. Appellant did not file any post-sentence

motions. This timely appeal followed on December 9, 2016. On March 13,

2017, the trial court directed appellant to file a concise statement of errors

complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant

filed a timely Rule 1925(b) statement on April 3, 2017, and the trial court

filed its Rule 1925(a) opinion on May 19, 2017.

      Appellant raises the following issues for our review:

            1.    Was not the evidence insufficient to prove
                  beyond a reasonable doubt the charge of
                  aggravated assault as a felony of the first
                  degree in that the evidence failed to prove that


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                   [a]ppellant had caused or attempted to cause
                   serious bodily injury to a police officer?

            2.     Was not the evidence insufficient to prove
                   beyond a reasonable doubt the charge of
                   disarming law enforcement officer in that the
                   evidence failed to prove that [a]ppellant had
                   removed, attempted to remove or deprived the
                   officer of his use of a [t]aser?

Appellant’s brief at 2.

      Appellant first argues that there was insufficient evidence to sustain

his conviction for aggravated assault because “the Commonwealth failed to

prove that appellant [] caused or attempted to cause serious bodily injury to

[Trooper Cyphers].”       (Id. at 13.)    Appellant avers that Trooper Cyphers

suffered only minor injuries that “occurred during [his] attempt to resist

arrest, which was [his] only purpose.” (Id.)

      Our standard of review in assessing whether there was sufficient

evidence to sustain appellant’s convictions is well settled.

                  In reviewing the sufficiency of the evidence,
            we must determine whether the evidence admitted
            at trial and all reasonable inferences drawn
            therefrom, viewed in the light most favorable to the
            Commonwealth as verdict winner, is sufficient to
            prove every element of the offense beyond a
            reasonable doubt. As an appellate court, we may
            not re-weigh the evidence and substitute our
            judgment for that of the fact-finder. Any question of
            doubt is for 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.




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Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009)

(citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

      Instantly, appellant was convicted of aggravated assault, as a felony of

the first degree, under 18 Pa.C.S.A. § 2702(a). A person will be found guilty

of aggravated assault under Subsection (a)(1) 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[.]”    Id. § 2702(a)(1).     Likewise,

under Subsection (a)(2), a person will be found guilty of aggravated assault

if he “attempts to cause or intentionally, knowingly or recklessly causes

serious bodily injury to any of the officers, agents, employees or other

persons enumerated in subsection (c) . . . while in the performance of

duty[.]” Id. § 2702(a)(2).2 The term “serious bodily injury” is defined by

statute as “[b]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.

Where the victim does not sustain serious bodily injury, the Commonwealth

must prove that the defendant attempted to cause such injury.             See

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

(stating, “[a]n attempt under Subsection 2702(a)(1) requires some act,




2 A police officer is one of the enumerated            persons listed   under
Subsection (c). See 18 Pa.C.S.A. § 2702(c)(1).


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albeit not one causing serious bodily injury, accompanied by an intent to

inflict serious bodily injury.”), citing Commonwealth v. Matthew, 909 A.2d

1254, 1257-1258 (Pa. 2006).

                  For aggravated assault purposes, an “attempt”
            is found where an accused who possesses the
            required, specific intent acts in a manner which
            constitutes a substantial step toward perpetrating a
            serious bodily injury upon another.       An intent
            ordinarily must be proven through circumstantial
            evidence and inferred from acts, conduct or
            attendant circumstances.

Commonwealth        v.    Fortune,    68    A.3d    980,   984   (Pa.Super.    2013)

(en banc) (citations and some internal quotation marks omitted), appeal

denied, 78 A.3d 1089 (Pa. 2013).

      Here, it is undisputed that appellant did not cause serious bodily injury

to Trooper Cyphers.      Trooper Cyphers testified that following this incident,

he was treated at the hospital for injuries to his knee, as well as several

open wounds to his left hand, one of which appeared to be from a tooth

mark. (Notes of testimony, 9/7/16 at 45, 59.) Thus, the relevant inquiry is

whether appellant acted with the specific intent to cause serious bodily

injury.   See Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa.Super.

2006), (stating, “[w]here the victim does not sustain serious bodily injury,

the Commonwealth must prove that the appellant acted with specific intent

to cause serious bodily injury.” (citation omitted)).

      Viewing   the      evidence    in    the   light   most    favorable    to   the

Commonwealth, the verdict winner, we find that there was sufficient


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evidence from which the trial court could infer that appellant possessed the

requisite intent to cause serious bodily injury to Trooper Cyphers and took a

substantial step toward that end. As noted, the testimony presented at trial

established that appellant wrestled with, kicked and punched, and attempted

to pull Trooper Cyphers down to the ground multiple times by his belt and

collar during the course of their prolonged struggle.             (Notes of testimony,

9/7/16 at 39-41, 58.)           Trooper Cyphers testified that at one point,

“[appellant] grabbed behind [his] head and . . . interlocked both of his

hand[s]” behind his neck, in an attempt to pull him down. (Id. at 41.) The

record further indicated that this was not a single, isolated interaction.

Trooper    Cyphers     testified     that   his   struggle    with    appellant    lasted

approximately “five to seven minutes” and he “felt . . . it went from more of

[appellant] trying to get away and resist arrest to the point where he was

trying to incapacitate [him] to get away.”                   (Id. at 42-43 (emphasis

added).)

      Here,    the   trial   court   reasoned     that,   based      on   the   attendant

circumstances, “[i]t is clear from [appellant’s] action of wrapping of [sic] his

hands around Trooper Cyphers[’] neck that he not only intended to get

away, but his intent [was] to do whatever he had to do to get away,

including injuring Trooper Cyphers.” (Trial court opinion, 5/19/17 at 10.) In

rendering its verdict, the trial court further explained as follows:

              Once you wrap your hands around the back of
              someone’s neck, that’s [sic] indicates not only your


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                 intent to get away but your intent to do whatever
                 you have to do to flee and that includes serious
                 injury or death. That kind of grip is what is known
                 as a death grip. You will do whatever it takes so
                 that you are not apprehended.

Notes of testimony, 9/7/16 at 112-113.

        Based on the foregoing, we agree with the trial court that appellant

acted     with    the   requisite   intent    to   cause   serious   bodily    injury   to

Trooper Cyphers in this case.                Accordingly, we find that appellant’s

contention that the Commonwealth failed to present sufficient evidence to

sustain his conviction for aggravated assault must fail.                      See, e.g.,

Commonwealth v. Dailey, 828 A.2d at 356, 360-361 (Pa.Super. 2013)

(finding that the evidence was sufficient to sustain the defendant’s

conviction for, inter alia, aggravated assault under Section 2702(a)(2),

where it demonstrated that the defendant intended to inflict serious bodily

injury to a corrections officer by striking him twice in the face with a closed

fist, causing him to suffer a cut on his nose, swelling around his left eye, and

bruising).

        We now turn to appellant’s claim that there was insufficient evidence

to sustain his conviction for disarming a law enforcement officer “where the

evidence failed to prove that appellant had removed, attempted to remove

or deprived [Trooper Cyphers] of the use of [his] taser.” (Appellant’s brief

at 18.)      In support of this contention, appellant avers “there [was] no

testimony whatever [sic] that [he] attempted to grab the weapon,” and that



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the trial court’s rationale disregards the fact that Trooper Cyphers may have

simply “dropped or threw [the taser] away[.]” (Id. at 19-20.)

      The crime of disarming a law enforcement officer is set forth in

18 Pa.C.S.A § 5104.1, which provides, in relevant part, as follows:

            (a)   Offense defined.--A person commits the
                  offense of disarming a law enforcement officer
                  if he:

                  (1)    without      lawful     authorization,
                         removes or attempts to remove a
                         firearm, rifle, shotgun or weapon
                         from the person of a law
                         enforcement officer or corrections
                         officer,    or   deprives     a    law
                         enforcement officer or corrections
                         officer of the use of a firearm, rifle,
                         shotgun or weapon, when the
                         officer is acting within the scope of
                         the officer’s duties; and

                  (2)    has reasonable cause to know or
                         knows that the individual is a law
                         enforcement officer or corrections
                         officer.

Id. at § 5104.1(a).

      Here, we find that the evidence, when viewed in the light most

favorable to the Commonwealth, was sufficient to sustain appellant’s

conviction for disarming a law enforcement officer.        As recognized by the

trial court, Trooper Cyphers’ testimony at trial created a logical inference

that appellant intended to disarm Trooper Cyphers of his taser during their

ensuing struggle.     (See trial court opinion, 5/19/17 at 11.)       Moreover,

appellant’s argument disregards the fact that appellant’s actions did, in fact,


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“deprive [Trooper Cyphers] of the use of [his taser]” during the scope of his

official duties. (See 18 Pa.C.S.A § 5104.1(a)(1).) Trooper Cyphers testified

that after he succeeded in getting appellant down on the ground by tasering

him a second time, appellant resisted Trooper Cyphers’ attempt to place him

in handcuffs by rolling away, kicking at him, and punching.         (Notes of

testimony, 9/7/16 at 38-39.) Trooper Cyphers noted that during the course

of this struggle, he felt appellant pulling down on his duty belt “like he was

trying to pull [him] to the ground.”    (Id. at 39.)   After Trooper Cyphers

again tasered appellant, to no avail, appellant stood up and engaged him.

(Id.) Trooper Cyphers testified that at this point, he “was disarmed of [his]

taser” (see id.), but was not entirely sure of how this had occurred:

             Q.   When [appellant] stood up is he facing you?

             A.   Correct.

             Q.   You said -- where is your taser at this point?

             A.   I had it in my hand and it was disarmed.

             Q.   How?

             A.   I’m not sure exactly how but when he came at
                  me he grabbed onto me and that’s when I lost
                  the taser.

Id. at 40.

      Based on the foregoing, we find that appellant’s contention that there

was insufficient evidence to sustain his conviction for disarming a law




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enforcement    officer   must   fail.      Accordingly,   we   affirm   appellant’s

November 16, 2016 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/3/18




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