J-S02037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TYRONE ROBERT GRIFFIN

                        Appellant                  No. 300 EDA 2015


     Appeal from the Judgment of Sentence entered October 21, 2014
          In the Court of Common Pleas of Montgomery County
             Criminal Division at No: CP-46-CR-0001372-2014


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED April 27, 2016

     Appellant, Tyrone Robert Griffin, appeals from the judgment of

sentence the Court of Common Pleas of Montgomery County entered

October 21, 2014. Appellant argues the Commonwealth failed to prove he

intended to commit aggravated assault and challenges the discretionary

aspects of his sentence, alleging the sentencing court failed to take into

account the circumstances surrounding the underlying facts. We disagree.

Accordingly, we affirm the judgment of sentence.

     The trial court summarized the factual and procedural background of

the instant matter in its Pa.R.A.P. 1925(a) opinion of March 27, 2015, which

we incorporate here by reference.    Trial Court Opinion, 3/27/15, at 1-6.

Briefly, Appellant, an inmate, was punched in the face by another inmate.

Appellant attempted to respond in kind, but Officer David Landis, a
J-S02037-16



correctional officer present at the scene, was able to prevent it. Following

the incident, two officers accompanied Appellant to the infirmary, and other

officers escorted the aggressor to the section’s supervisor. While walking to

the infirmary, Appellant seized an opportunity to “get at” the aggressor.

When Appellant saw the door opening into the office where the attacker was

held, Appellant ran toward that office. Corporal Brian Smith was standing by

the office door. Despite being ordered to stop by the two officers escorting

Appellant to the infirmary, Appellant kept running “full sprint” toward the

office. Upon seeing Appellant coming toward him, Corporal Smith lowered

his right shoulder, bracing for the impact.      Eventually, Appellant slammed

into Corporal Smith. After the initial impact, Appellant tried to spin to get

around Corporal Smith.           Corporal Smith was able to block Appellant,

preventing him from getting around the officer.       A struggle ensued, which

resulted in the two falling on the ground, with Corporal Smith landing on his

right shoulder.     As result of the impacts, Corporal Smith suffered severe

injuries to his right shoulder, requiring surgery and extensive rehabilitation.

       On October 15, 2014, a jury found Appellant guilty of aggravated

assault (bodily injury)1 and, on October 21, 2014, the trial court sentenced

him to a term of two years to ten years’ imprisonment.            Following the

sentencing, Appellant, despite being represented by counsel, filed a pro se

____________________________________________


1
  The jury found Appellant not guilty of aggravated assault – serious bodily
injury.



                                           -2-
J-S02037-16



motion for reconsideration, which the trial court denied. On November 19,

2014, counsel filed a petition to withdraw as counsel.     On the same day,

Appellant filed a pro se “motion for direct appeal,” which the clerk of court

and the trial court treated as a notice of appeal. On January 2, 2015, the

trial court granted counsel’s petition to withdraw, and appointed the

Montgomery County Public Defender’s Office to represent Appellant on

appeal. This appeal followed.    Both the trial court and Appellant complied

with Rule 1925.

      On appeal, Appellant raises two issues: (i) The Commonwealth did not

establish   beyond   a   reasonable   doubt   that   Appellant   attempted   or

intentionally or knowingly caused bodily injury to Corporal Smith, and (ii)

the sentencing court abused its discretion in imposing a maximum sentence,

which exceeds the guidelines, without adequately considering the facts

giving rise to the instant matter.

      We review a sufficiency claim pursuant to the following standard:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.




                                      -3-
J-S02037-16


Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

       At issue here is whether the Commonwealth presented sufficient

evidence to show that Appellant acted with the required mens rea. A

defendant may be convicted of aggravated assault under Subsection

2702(a)(3) of the Crimes Code if he “attempt[ed] to cause or intentionally or

knowingly causes bodily injury to [an] officer[ ] . . . in the performance of

duty.” 18 Pa.C.S.A. § 2702(a)(3).2 Appellant conceded that Corporal Smith

suffered bodily injuries as result of the impact with Appellant.     Appellant,

however, argues that he did not attempt to cause, nor knowingly or

intentionally caused, bodily injury to Corporal Smith. Appellant argues the

impact between the two was accidental.

       In reviewing the evidence offered at trial, the trial court found the

impact was all but accidental. The trial court noted:

       Appellant wanted to “get at” [the aggressor] when he saw him in
       the supervisor’s office while being escorted to medical.
       However, Corporal Smith was in his way. The evidence was
       sufficient to show either that Appellant intentionally caused
       Corporal Smith bodily injury in order to get him out of the way to
       get to [the aggressor] or that he knowingly caused Corporal
       Smith bodily injury when he ran full force into him. Corporal
       Smith took a defensive stance in order to impede Appellant’s
       charge. Appellant refused to stop when ordered to do so by the
____________________________________________


2
  Subsection 2702(a)(3) applies to the assault of police officers, firefighters,
probation/parole officers, sheriffs, prison authorities, judges, and numerous
other public servants enumerated in Section 2702(c).




                                           -4-
J-S02037-16


       other officers. The incident only came to an end when Appellant
       was finally secured by Corporal Smith and the other officers not
       on Appellant’s own volition.

Trial Court Opinion, 3/27/15, at 12.

       We agree with the trial court’s analysis. Accordingly, we conclude the

trial court did not err in rejecting Appellant’s sufficiency of the evidence

claim.

       Next, Appellant contends the sentencing court abused its discretion in

imposing a maximum sentence exceeding the sentencing guidelines.

Appellant’s Brief at 18-22.        The trial court did not address this, finding it

waived because Appellant failed to properly and timely raise it. Trial Court

Opinion, 3/27/15, at 13-14.         In fact, the trial court noted that the pro se

post-sentence motion Appellant filed while still represented was a nullity,

which resulted in a waiver.             Id.      The trial court is correct.     See

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).

       Even if we were to conclude that Appellant preserved this issue for our

review,3 the claim would be nonetheless without merit.               The sentencing

judge, who also presided over the trial, stated he considered “the

presentence      report,     the    guidelines,     and   [Appellant]’s   character.”


____________________________________________


3
  For standard of review and discretionary aspects claim requirements, see,
e.g., Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014) (en banc).




                                           -5-
J-S02037-16


Commonwealth’s Brief at 14.4            Appellant emphasizes that the sentencing

court should have weighed in his favor the fact that the jury acquitted him

on the aggravated assault (serious bodily injury) charge. Appellant’s Brief at

20-21.     Appellant fails to explain how his acquittal of one crime has any

bearing on the sentence for the crime of he was convicted (aggravated

assault – bodily injury).5 If anything could be surmised from the acquittal,

one might think that the jury believed he intended to harm Corporal Smith,

____________________________________________


4
  Although Appellant is challenging the discretionary aspects of his sentence,
he failed to provide this Court with the notes of testimony of the sentencing
hearing. As both parties cite to it, it is clear the transcript exists. However,
it is not in the record before us. It is Appellant’s duty to ensure the record is
complete for our review. See, e.g., Commonwealth v. Bongiorno, 905
A.2d 998, 1000 (Pa. Super. 2006). Despite the deficiency, we are able to
address the contention.
5
    Indeed, our Supreme Court noted:

        Federal and Pennsylvania courts alike have long recognized that
        jury acquittals may not be interpreted as specific factual findings
        with regard to the evidence, as an acquittal does not definitively
        establish that the jury was not convinced of a defendant’s guilt.
        Rather, it has been the understanding of federal courts as well
        as the courts of this Commonwealth that an acquittal may
        merely show lenity on the jury’s behalf, or that the verdict may
        have been the result of compromise, or of a mistake on the part
        of the jury. Accordingly, the United States Supreme Court has
        instructed that courts may not make factual findings regarding
        jury acquittals and, thus, cannot upset verdicts by speculation or
        inquiry into such matters.

Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014) (internal
citations and quotation marks omitted).




                                           -6-
J-S02037-16


the only difference being the extent of the injuries inflicted (“serious bodily

injury” vs. “bodily injury”).

       Additionally, on the merits, as noted by Appellant, the sentencing

judge also presided over the trial “less than one week prior to sentencing.”

Appellant’s Brief at 20. The record, therefore,

       establishes that the court was fully informed of all the mitigating
       factors at play herein.[6] We presume that the court, which was
       in possession of those facts, applied them in this case. The
       sentencing court merely chose not to give the mitigating factors
       as much weight as Appellant would have liked . . . . We cannot
       re-weigh the sentencing factors and impose our judgment in the
       place of the sentencing court.

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation

omitted).

       In light of the foregoing, we conclude that the discretionary aspect

challenge, to the extent it is properly before us, is without merit.

       Judgment of sentence affirmed.




____________________________________________


6
  Furthermore, as noted above, the sentencing court stated it considered the
pre-sentence investigation report. “Where pre-sentence reports exist, we
shall continue to presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors[.] Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988).



                                           -7-
J-S02037-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2016




                          -8-
