J. S02014/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
DONTE JACKSON,                            :          No. 1656 EDA 2016
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, May 13, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0010883-2012


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 10, 2019

        Donte Jackson appeals from the May 13, 2016 aggregate judgment of

sentence of 10 to 20 years’ imprisonment imposed after a jury found him

guilty of aggravated assault by physical menace, possessing an instrument of

crime (“PIC”), terroristic threats, and simple assault.1 After careful review,

we affirm.

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

              The victim, Courtney Smith, reported that on
              August 27, 2012 at approximately 1:30 p.m. she
              stopped at a grocery store to pick up snack food on
              her way to work as a City of Philadelphia Correctional
              Officer assigned to the City of Philadelphia Curran-
              Fromhold Correctional Facility located at 7901 State
              Road, Philadelphia, PA 19136. As is required by her
              employer, she had been dressed in full uniform with
              her nametag properly displayed. As she entered the

1   18 Pa.C.S.A. §§ 2702(a)(6), 907(a), 2706(a), and 2701(a), respectively.
J. S02014/19


          grocery store, [a]ppellant, who was a stranger to her,
          came from the back of the store toward her and
          looked at her nametag. He immediately began yelling
          at her words that included, “Smith, I don’t know that
          one,” and “You got the nut-ass pepper spray. That
          pepper spray don’t do shit for you in here. Y’all
          nut-ass guards think y’all something and I should
          shoot you right now. I’ll be right back.” After making
          repeated threats and slurs referencing her
          employment, [a]ppellant left the store.

          When Officer Smith walked outside the store toward
          her vehicle that would have transported her directly
          to her job location, [a]ppellant reappeared from
          around the corner, and holding what appeared to be
          a black gun wrapped in a grey towel. He stopped
          Officer Smith from getting to her vehicle and going to
          work. He raised and pointed the muzzle of the gun
          directly at Officer Smith’s torso and stated[,] “I should
          shoot you right now.” Officer Smith stated that the
          gun used by [a]ppellant appeared to be real based
          upon her experience owning a firearm and her
          previous training. At the time, Officer Smith was only
          armed with pepper spray as per her employment
          directives. She escaped by jumping around him and
          into her vehicle. She drove away from the area and
          immediately called police. The next day, Officer Smith
          was transported via police vehicle to the same general
          vicinity of the crime and positively identified
          [a]ppellant, who was wearing the same gray shirt and
          sweat pants that he had worn during the attack.

          A City of Philadelphia S.W.A.T. Officer, Aaron Willis,
          testified that on August 28, 2012 he had been
          assigned as a regular district patrol officer and had
          observed [a]ppellant near 56th and Race Streets in
          Philadelphia. Based upon the flash description of the
          perpetrator, which matched the appearance of
          [a]ppellant, Officer Willis briefly detained [a]ppellant.
          Officer Smith was brought to the location and
          unequivocally     identified     [a]ppellant    as    the
          perpetrator. While Officer Willis was transporting
          [a]ppellant in the police vehicle following the
          identification and arrest, [a]ppellant boastfully blurted


                                    -2-
J. S02014/19


              “I should have killed that bitch. When I see her again
              I’m going to murder her.”

Trial court opinion, 4/30/18 at 2-3 (citations to notes of testimony omitted).

        Appellant was charged with the aforementioned offenses, as well as

recklessly endangering another person (“REAP”)2 and three firearms offenses,

and proceeded to a jury trial on March 14, 2016.         The REAP charge was

nolle prossed by the Commonwealth prior to trial. On March 17, 2016, the

jury found appellant guilty of aggravated assault, PIC, terroristic threats, and

simple assault, and not guilty of the firearms offenses.3 As noted, appellant

was sentenced to an aggregate term of 10 to 20 years’ imprisonment on

May 13, 2016. Appellant did not file any post-sentence motions. This timely

appeal followed.4

        Appellant raises the following issues for our review:

              A.    Was the evidence insufficient to support the
                    guilty verdict for 18 Pa.C.S.A. § 2702(a)(6), as

2   18 Pa.C.S.A. § 2705.

3 Specifically, the jury found appellant not guilty of persons not to possess,
use, manufacture, control, sell, or transfer firearms; firearms not to be carried
without a license; and carrying firearms on public streets or public property in
Philadelphia.     See 18 Pa.C.S.A. §§ 6105(a), 6106(a), and 6108(a),
respectively.

4 Appellant and the trial court have complied with Pa.R.A.P. 1925. We note
that although represented by counsel, appellant filed a pro se amended
Rule 1925(b) statement on January 6, 2018, raising nine additional issues.
We decline to address the issues raised in appellant’s pro se Rule 1925(b)
statement, as this would constitute improper hybrid representation, and this
court previously denied appellant’s request to represent himself on appeal by
order dated December 19, 2017, and specifically directed that appellant be
represented by counsel on appeal.


                                       -3-
J. S02014/19


                    the assault on the complainant did not occur
                    “while in the performance of duty”?

              B.    Did the trial court err in omitting from the
                    verdict sheet language that specified that a
                    violation of 18 Pa.C.S.A. § 2702(a)(6) requires
                    the alleged victim be “in the performance of
                    duty”?

Appellant’s brief at 7.

      Appellant first argues that there was insufficient evidence to sustain his

conviction for aggravated assault of a corrections officer by physical menace

because “the assault on [Officer Smith] did not occur ‘while in the performance

of duty.’” (Id. at 10.) In support of this contention, appellant avers that,

“when [Officer Smith] stopped to get a pretzel at the corner store/bodega,

she was not on duty and was not acting in the capacity of a Corrections Officer

as the bodega is not a correctional facility.” Id. at 12. This claim is belied by

the record.

      Our standard of review in assessing a sufficiency of the evidence claim

is well settled.

              We must determine whether the evidence admitted at
              trial, and all reasonable inferences drawn therefrom,
              when viewed in a light most favorable to the
              Commonwealth as verdict winner, support the
              conviction beyond a reasonable doubt. Where there
              is sufficient evidence to enable the trier of fact to find
              every element of the crime has been established
              beyond a reasonable doubt, the sufficiency of the
              evidence claim must fail.

              The evidence established at trial need not preclude
              every possibility of innocence and the fact-finder is
              free to believe all, part, or none of the evidence


                                        -4-
J. S02014/19


            presented. It is not within the province of this Court
            to re-weigh the evidence and substitute our judgment
            for that of the fact-finder. The Commonwealth’s
            burden may be met 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. N.M.C., 172 A.3d 1146, 1149 (Pa.Super. 2017) (citations

omitted).

      Section 2702 of the Crimes Code defines the offense of aggravated

assault, in relevant part, as follows:

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

            ....

                   (6)   attempts by physical menace to put
                         any of the officers, agents,
                         employees     or   other    persons
                         enumerated in subsection (c), while
                         in the performance of duty, in fear
                         of imminent serious bodily injury[.]

18 Pa.C.S.A. § 2702(a)(6).

      The difference between Section 2702(a)(6) and the crime of simple

assault by physical menace, 18 Pa.C.S.A. § 2701(a)(3), is “the occupation of

the victim.”   Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.Super.

2003), abrogated in part on other grounds by Commonwealth v.

Matthews, 870 A.2d 924 (Pa.Super.2005) (en banc), affirmed, 909 A.2d

1254 (Pa. 2006). Unlike simple assault by physical menace, the aggravated



                                         -5-
J. S02014/19

assault subsection requires that the victim be one of 27 enumerated “officers,

agents, or employees[.]”      18 Pa.C.S.A. § 2702(a)(6).       An “[o]fficer or

employee of a correctional institution” is one of the individuals enumerated in

Subsection (c). Id. at § 2702(c)(9).

      Viewing the evidence in the light most favorable to the Commonwealth,

the verdict winner, we find that there was sufficient evidence to support the

jury’s conclusion that appellant committed an aggravated assault under

Section 2702(a)(6) when he pointed a gun at a uniformed corrections officer

who was attempting to reach her workplace. Specifically, our review of the

record demonstrates that on the afternoon of August 27, 2012, appellant

repeatedly threatened Officer Smith while she was inside a corner store that

she had briefly entered on her way to her work at the Curran-Fromhold

Correctional Facility. (Notes of testimony, 3/15/16 at 70-86.) Officer Smith

was dressed in full uniform with her correctional officer nametag displayed,

and appellant clearly targeted Officer Smith because she was wearing an

officer’s uniform. (Id.) Officer Smith testified that as part of the performance

of her duties, she was required to dress in full uniform and carry pepper spray

when going to and from the Curran-Fromhold Correctional Facility. (Id. at

90-92, 118-120.)    Officer Smith further testified that appellant repeatedly

chastised and threatened to shoot her for working at a correctional facility,

stating, “Smith, I don’t know that one . . . Y’all nut-ass guards think y’all

something and I should shoot you right now, I’ll be right back.” (Id. at 70-86.)



                                     -6-
J. S02014/19

The record establishes that when Officer Smith exited the store to travel

directly to her workplace to begin her shift, appellant reappeared from around

the corner, pointed a firearm wrapped in a towel at her, and attempted to

block her from entering her vehicle. (Id. at 86-92.) Contrary to appellant’s

contention,   it   is   in   this   moment   when   the   alleged   assault   under

Section 2702(a)(6) occurred, not inside the corner store. It is evident from

the record that appellant, through the use of menacing or frightening actions,

and coupled with his prior verbal threats to Officer Smith solely because she

was a corrections officer, not only intended to interfere with her performance

of her duties — namely, traveling to the correctional facility to begin her shift

— but actually did so by causing her to be late. (Id. at 86-92, 118-120.)5

      Based on the foregoing, appellant’s contention that there was

insufficient evidence to sustain his conviction for aggravated assault under

Section 2702(a)(6) must fail. See, e.g., Commonwealth v. McFadden, 156

A.3d 299, 307-308 (Pa.Super. 2017) (finding that there was sufficient

evidence to support appellant’s conviction for the aggravated assault of a

uniformed city school crossing guard who was standing on her assigned street

corner and performing her job tasks), appeal denied, 170 A.3d 993 (Pa.

2017); Repko, 817 A.2d at 554 (pointing a gun at an officer constitutes an




5The record reflects that when appellant was apprehended the following day,
he acknowledged to Philadelphia S.W.A.T. Officer Aaron Willis that, “I should
have killed that bitch. When I see her again I’m going to murder her.” (Notes
of testimony, 3/15/16 at 9-16, 90-98.)


                                        -7-
J. S02014/19

attempt by physical menace to place the officer in fear of imminent serious

bodily injury).

      Appellant’s next claim is that the trial court abused its discretion “in

omitting from the verdict sheet language that specified that a violation of

[Section] 2702(a)(6) requires the alleged victim be ‘in the performance of

duty.’”   (Appellant’s brief at 14.)   Appellant contends that the trial court’s

failure to specify this element of aggravated assault on the written verdict

sheet was “unduly prejudicial” and “misleading” to the jury. (Id.) This claim

is meritless.

      Contrary to appellant’s contention, there is no explicit requirement that

the trial court set forth each element of the charged offenses on the written

verdict sheet submitted to the jury. Here, the record reveals that the verdict

sheets utilized by the trial court in this matter simply identified the crimes for

which appellant was charged, as the trial court did not want to “place any

undue emphasis on any element of any particular offense by inserting

additional verbiage on the verdict sheet.” (Trial court opinion, 4/30/18 at 13.)

The record further reflects that the trial court adequately instructed the jury

on the elements of each of these charged offenses at the close of evidence.

With regard to the aggravated assault charge, the trial court gave the

following instruction to the jury:

             Now, the next charge is A6, attempt to put
             enumerated official in fear. Let me explain it to you.
             To find [appellant] guilty of this offense, you must find
             all of the following elements have been proven beyond


                                       -8-
J. S02014/19


            a reasonable doubt:        Number one, [appellant]
            attempted to put Correctional Officer Courtney Smith
            in fear of imminent serious bodily injury. Fear of
            imminent serious bodily injury means fear of an
            impairment of physical or -- I’m sorry. Strike that. It
            means fear of an impairment of physical condition that
            would create a substantial risk of death or that would
            cause serious, permanent disfigurement or protracted
            loss or impairment of the function of any bodily
            member or organ.

            In order to find that [appellant] attempted to put this
            victim in fear of imminent serious bodily injury, you
            must find that he engaged in conduct which
            constituted a substantial step toward causing such
            fear. An act is a substantial step if it is a major step
            toward commission of the crime and one that strongly
            corroborates your belief that [appellant] at the time
            he acted had that firm intent to put that victim in fear
            of that sort of injury. An act can be a substantial step
            even though other steps would have to be taken
            before the crime could actually be carried out.

            Number two, that [appellant] did so by use of physical
            menace. By that I mean [appellant] did some physical
            act that was menacing or frightening. Third, that
            [appellant’s] conduct in this regard was intentional.
            In other words, it was his conscious object or purpose
            to cause fear of imminent serious bodily injury to this
            victim. And, fourth, at the time of [appellant’s]
            actions this victim was acting in the
            performance of her duty as a correctional
            officer.

Notes of testimony, 3/16/16 at 137-138 (emphasis added).

      “It is well settled that the jury is presumed to follow the trial court’s

instructions.” Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016)

(citation omitted), cert. denied,     U.S.     , 137 S.Ct. 1202 (2017). Here,

appellant has failed to offer any evidence establishing that the jury failed to



                                     -9-
J. S02014/19

do so in the instant matter. Accordingly, we discern no abuse of discretion on

the part of the trial court in electing not to set forth every element of the

charged offenses on the written verdict sheet.

     For all the foregoing reasons, we affirm the trial court’s May 13, 2016

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/10/19




                                    - 10 -
