J-A31041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GREGORY E. MORGAN

                           Appellant                   No. 772 EDA 2015


            Appeal from the Judgment of Sentence October 16, 2014
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0000586-2013

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 09, 2017

        Appellant, Gregory Morgan, appeals from the judgment of sentence of

eight to sixteen years’ imprisonment imposed after a jury found him guilty of

robbery,1 aggravated assault—causing serious bodily injury,2 and possession

of an instrument of crime (“PIC”).3 Appellant argues that (1) the evidence

was insufficient to sustain his conviction for aggravated assault, (2) the trial

court erred in utilizing an offense gravity score (“OGS”) for robbery, and (3)




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 907(a).
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the trial court erred by applying the deadly weapons enhancement 4

(“DWE/used”). We affirm.

        The trial court summarized the evidence adduced during trial as

follows:

              On November 11, 2012, around 6:00 pm, Nicole Poole
           dropped off Johnnie Moore [“Complainant”] at the comer of
           North 17th Street and West Westmoreland Street.
           [Complainant]      then    walked     to   his apartment,
           approximately two blocks away, located at 1721 W Tioga
           Street. As [Complainant] exited the vehicle, [Appellant]
           called out to him from the other side of the intersection,
           “Yo yo, yo, can I talk to you for a minute?”

              [Complainant] ignored [Appellant] and proceeded to his
           apartment. Moments later, when he arrived at the front of
           his apartment building, [Appellant] reappeared from an
           abandoned lot across the street and approached him. As
           [Appellant] walked towards [Complainant], he had his
           hand in his pocket and “bumped” [Complainant] while he
           was on the sidewalk in front of the apartment building.
           [Appellant] and [Complainant] exchanged words face-to-
           face. As they argued, [Complainant] backed away from
           [Appellant] and walked up the first set of stairs.
           [Appellant] followed [Complainant] up the stairs. When
           they reached the first landing platform below the porch
           stairs, [Appellant] drew a handgun and demanded
           [Complainant’s] cell phone as well as to be let inside the
           house. [Appellant] threatened to shoot [Complainant] if
           he declined. [Complainant] refused, turned away from
           [Appellant], and proceeded up the second set of stairs to
           the porch.

              When [Complainant] was midway up the porch stairs,
           he heard several “clicking” noises from the direction of
           [Appellant] who was still below on the platform.
           [Complainant] reacted to the clicking noises by turning
           around to face [Appellant], who then said, “I’m fucking

4
    204 Pa. Code § 303.10(a)(2)(iii).



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       with you.” [Complainant] continued to walk up the stairs
       to his apartment. At the very moment that he reached the
       porch entrance and inserted his key to unlock the door,
       [Complainant] heard multiple gunshots from behind him.

          In response to the gunshots, [Complainant] turned and
       tackled [Appellant]. During the ensuing fight, [Appellant]
       kicked [Complainant] and hit him over the head with a
       handgun. Eventually the fight ended after they both rolled
       down the stairs, past the landing, and onto the sidewalk,
       at which point [Complainant] took control of [Appellant’s]
       gun and shot at him. It was only after the confrontation
       was over that [Complainant] realized that he suffered
       wounds to his head, right shoulder, and ear.

          [Complainant] then entered his home, hid [Appellant’s]
       handgun in his home and called the police. Officer
       Rosemary King was the first officer who responded to a
       radio call at 6:20 pm for a person with a gun. She arrived
       at the 1700 block of Tioga Street within five minutes and
       observed [Complainant] bleeding from his earlobe.
       Detective Craig Coulter arrived on the scene within an hour
       after being notified of the shooting on the sidewalk in front
       of the apartment building. Detective Coulter observed a
       single Nike shoe and bloodstains[fn1] that belonged to
       [Appellant]. He also observed a bullet hole in the porch
       window and another bullet hole inside the vestibule
       doorway outside of a downstairs apartment. The day after
       the shooting, [Complainant] told Detective Coulter that he
       hid [Appellant’s] handgun inside his apartment.         After
       searching the apartment, police recovered a .22 caliber
       revolver and two rifles from inside [Complainant’s] closet.



          [fn1]
              David Hawkins is a forensic scientist with the
          Philadelphia Police Department’s Office of Forensic
          Science DNA Laboratory. He analyzed DNA samples
          collected from the sidewalk blood, the Nike shoe,
          [Complainant], and [Appellant]. In his expert report
          and testimony during trial, Hawkins concluded that
          the DNA of the bloodstain recovered from the crime
          scene sidewalk was consistent with originating from



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            [Complainant]. He further excluded the possibility of
            [Apppellant] as a contributor.


            Emergency room personnel at Temple Hospital treated
         [Complainant] for multiple gunshot wounds[ after his
         admission at 6:48 on November 11, 2012]. The radiology
         report indicated that two BB pellets were lodged in
         [Complainant’s] scalp and that [Complainant] suffered a
         third head wound. Officer Jesus Cruz, of the [Philadelphia]
         Firearms Identification Unit, testified that BBs produce
         smaller holes on impact compared with .22 caliber bullets.
         On the night of the shooting, [Complainant] wore a black
         hooded sweatshirt and two long-sleeve t-shirts. Each layer
         of [Complainant’s] clothing contained puncture holes on
         the right shoulder side.       At trial, Detective Coulter
         described the holes as “small” and testified that there were
         bloodstains on two pieces of [Complainant’s] clothing.

            After [Complainant] was discharged from the hospital,
         he gave a statement to detectives wherein he identified
         [Appellant] as the shooter by circling [Appellant’s] photo in
         a photo array on the following day. Poole also identified
         [Appellant] from a photo array. In addition to these
         identifications, DNA extracted from the Nike shoe
         confirmed [Appellant] was at the crime scene because the
         mixture detected an origination that included [Appellant’s]
         DNA profile.

            The Commonwealth and [Appellant] stipulated that
         [Complainant] suffered five gunshot wounds: one to his
         right shoulder, another to his right underarm, and three to
         his head. [Complainant’s] injuries were sufficiently serious
         to require emergency treatment at the hospital. In the
         two months that followed the shooting, [Complainant]
         returned to the hospital to have his sutures removed and
         for head pain that had yet to subdue.              Although
         [Complainant] required surgery for his gunshot injuries, he
         declined to have the surgery due to not having medical
         insurance. Two years after the shooting, [Complainant]
         testified that—as a result of the shooting—he gets frequent
         migraines and is nervous in crowds.

Trial Ct. Op., 12/31/15, at 1-3.


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      The jury found Appellant guilty of aggravated assault—causing serious

bodily injury, robbery and PIC.    However, the jury specifically found that

Appellant did not possess a firearm.5    The jury also acquitted Appellant of

attempted murder, aggravated assault—causing bodily injury with a deadly

weapon, and carrying a firearm in public in Philadelphia.6

      At the sentencing on October 16, 2014, the trial court determined that

Appellant’s prior record score was two.      The trial court, over Appellant’s

objections, concluded that (1) the OGS was twelve for robbery inflicting

serious bodily injury and (2) the DWE/used applied based on Appellant’s use

of a BB gun.7    The trial court thus sentenced Appellant to an enhanced

standard range sentence of 96 to 192 months’ imprisonment for robbery,

with concurrent sentences      of 84    to   168   months’ imprisonment    for

aggravated assault and 12 to 24 months’ imprisonment for PIC.8 Id. at 43.




5
  The jury issued this finding in response to an interrogatory regarding the
former mandatory sentence for visibly possessing a firearm. See 42 Pa.C.S.
§ 9712 (held unconstitutional in Commonwealth v. Valentine, 101 A.3d
801 (Pa. Super. 2014)).
6
  The trial court separately directed a not guilty verdict on the charge of
carrying a firearm without a license.
7
   The trial court calculated Appellant’s sentencing guidelines for robbery as
seventy-eight to ninety-six months (+/-12), based on a prior record score of
two, and OGS of twelve, and the DWE/used matrix.
8
  Additionally, the trial court sentenced Appellant to a consecutive term of
one to two years’ imprisonment for an unrelated drug conviction.



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J-A31041-16


        On October 27, 2014, Appellant filed post-sentence motions, which

were denied by operation of law on February 24, 2015. On March 17, 2015,

Appellant timely appealed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

        In this appeal, Appellant raises three issues:

           1. Was not the evidence legally insufficient to find
           [A]ppellant guilty beyond a reasonable doubt of
           aggravated assault—causing serious bodily injury, where
           the Commonwealth failed to establish beyond a reasonable
           doubt that the complainant suffered serious bodily injury?

           2. Did not the [trial] court erroneously calculate an offense
           gravity score of [twelve] for robbery rather than [ten],
           where the jury’s verdict was ambiguous as to whether
           [A]ppellant threatened or inflicted serious bodily injury
           upon the complainant?

           3. Did not the [trial] court abuse its discretion by applying
           the [DWE] to the charges of robbery and aggravated
           assault, where the jury specifically found [A]ppellant did
           not commit those crimes while visibly possessing a
           firearm, where the jury found [A]ppellant not guilty of
           assault with a deadly weapon and all gun charges, and
           where no evidence was presented that the instrument used
           by [A]ppellant constituted a deadly weapon?

Appellant’s Brief at 3.

        Appellant first argues that the evidence was insufficient to sustain his

conviction for aggravated assault due to the Commonwealth’s failure to

prove     that   Complainant   suffered     serious   bodily   injury.      Appellant

acknowledges      that    Complainant     “suffered   substantial   pain”   and   an

impairment of his physical condition, which could constitute “bodily injury.”

Id. at 24.       However, he asserts that “there was no proof here that


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[Complainant’s] injuries rose to the level of injuries that create a substantial

risk of death or cause permanent disfigurement or protracted impairment of

any bodily member or organ” required to sustain the finding that

Complainant suffered “serious bodily injury.” Id. We disagree.

      It is well settled that

         [t]he 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. In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.         Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the finder of fact [,]
         while passing upon the credibility of witnesses and the
         weight of the evidence produced is free to believe all, part
         or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).




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      Here, the jury found Appellant guilty of aggravated assault—causing

serious bodily injury.9   “A person is guilty of aggravated assault if he . . .

causes such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life.” 18 Pa.C.S. §

2702 (a)(1).     The Crimes Code defines “serious bodily injury” as “bodily

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. § 2301.      “Bodily injury” means

“impairment of physical condition or substantial pain.” Id.

      Courts have found serious bodily injury when the victim has undergone

hospitalization or suffered loss of bodily function for a protracted time

period. See Commonwealth v. Burton, 2 A.3d 598, 604-05 (Pa. Super.

2010) (en banc) (one punch hospitalized victim, risked death due to brain

trauma, two facial fractures and two spinal fractures); Commonwealth v.

Nichols, 692 A.2d 181, 184 (Pa. Super. 1997) (victim’s jaw “wired shut for

six   weeks    during   which   he   could   only   ingest   through   a   straw”);

9
  It is well settled that Section 2702(a)(1) permits the Commonwealth to
prove aggravated assault based on an attempt to cause serious bodily injury
or the infliction of serious bodily injury.       See Commonwealth v.
Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012). In the present case,
however, the jury was instructed only on the elements of aggravated
assault—causing serious bodily injury. The jury was not asked to consider
whether Appellant attempted to cause serious bodily injury. Therefore, we
do not consider whether the evidence was sufficient to prove aggravated
assault—attempting to cause serious bodily injury.




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J-A31041-16


Commonwealth v. Cassidy, 668 A.2d 1143, 1145 (Pa. Super. 1995)

(victim faded in and out of consciousness, was hospitalized for two days and

had to wear body brace for two months); Commonwealth v. Phillips, 410

A.2d 832, 834 (Pa. Super. 1979) (gunshot wound to leg, requiring two week

stay in hospital and resulting in inability to walk for one month). However,

less severe injuries, or injuries of shorter duration, do not constitute serious

bodily injury.    See Commonwealth v. Adams, 482 A.2d 583, 585, 587

(Pa. Super. 1984) (evidence that victim was struck on the head by door,

knocking her to floor but not unconscious, insufficient to prove serious bodily

injury); Commonwealth v. Benaglio, 385 A.2d 544, 546 (Pa. Super.

1978) (bump on head not serious bodily injury). But see Commonwealth

v. Caterino, 678 A.2d 389, 392-93 (Pa. Super. 1996) (evidence of broken

nose, in conjunction with severed artery that could have resulted in death

without three hours of emergency medical attention, constituted serious

bodily injury).

      Here, Appellant fired a weapon at Complainant five times at very close

range.     Two of the projectiles lodged in Complainant’s head, and

Coomplainant      suffered   a   third    head   wound.    Complainant   required

emergency hospital treatment.        Complainant testified that he was told he

needed surgery for his skull, but did not undergo surgery because he did not

have insurance. Complainant stated that there was “a fragment still in [his]

skull.”   N.T., 7/29/14, at 78.          The jury further heard that Complainant



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returned to the hospital two months after the incident to have sutures

removed and continued to complain of pain.     Complainant began suffering

frequent migraine headaches, which he did not have before the incident.

This evidence, when viewed in a light most favorable to the Commonwealth,

established more than substantial pain, and a reasonable juror could find “a

protracted impairment of the function of a bodily member or organ.” See 18

Pa.C.S. § 2301. Accordingly, we affirm Appellant’s conviction for aggravated

assault—causing serious bodily injury.

     Appellant’s next two arguments challenge the discretionary aspects of

the sentence. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266

(Pa. Super. 2014) (en banc) (addressing claim that DWE did not apply as a

discretionary aspect of sentence challenge); Commonwealth v. Williams,

151 A.3d 621, 625 (Pa. Super. 2016) (addressing claims that trial court

utilized wrong OGS as a discretionary aspect of sentence challenge).

        It is well settled that a challenge to the discretionary
        aspects of a sentence is a petition for permission to
        appeal, as the right to pursue such a claim is not absolute.
        Before this Court may review the merits of a challenge to
        the discretionary aspects of a sentence, we must engage in
        the following four-pronged analysis:

           [W]e conduct a four part analysis to determine: (1)
           whether appellant has filed a timely notice of appeal,
           see Pa.R.A.P. 902 and 903; (2) whether the issue
           was properly preserved at sentencing or in a motion
           to reconsider and modify sentence, see Pa.R.Crim.P.
           720; (3) whether appellant’s brief has a fatal defect,
           Pa.R.A.P. 2119(f); and (4) whether there is a
           substantial question that the sentence appealed from



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J-A31041-16


             is not appropriate under the Sentencing Code, 42
             Pa.C.S. § 9781(b).

Williams, 151 A.3d at 625 (some citations omitted).                   Appellant has

preserved his claims for review, and his claims raise substantial questions

warranting     appellate     review.     Buterbaugh,         91    A.3d   at     1266;

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en

banc).10

      Appellant contends the trial court erroneously calculated his OGS for

robbery. He claims that his OGS for robbery should have been ten instead

of twelve because the jury’s verdict did not conclusively determine whether

he threatened or inflicted serious bodily injury upon Complainant.                    He

further contends that the robbery and aggravated assault should be

construed as separate acts and that Complainant’s injuries resulted from the

aggravated assault, not the robbery.

      The Crimes Code defines robbery in relevant part as follows: “A person

is guilty of robbery if, in the course of committing a theft, he . . . inflicts

serious    bodily   injury   upon   another     [or]   threatens   another     with   or

intentionally puts him in fear of immediate serious bodily injury . . . .” 18

Pa.C.S. § 3701(a)(1)(i-ii).     The definition of “serious bodily injury” is the

same under the robbery statute as it is under the aggravated assault

10
   Although both of Appellant’s sentencing claims go to the discretionary
aspects of the sentence they involve questions of law, which we review de
novo. See Buterbaugh, 91 A.3d at 1266; Commonwealth v. Sunealitis,
153 A.3d 414, 421 (Pa. Super. 2016) (citation omitted);



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J-A31041-16


statute.        See Valentine, 101 A.3d at 807 (Pa. Super. 2014) (citing

definition of serious bodily injury in 18 Pa.C.S. § 2301 in appeal from

robbery conviction).

         The Sentencing Guidelines prescribe an OGS for robbery as twelve

when serious bodily injury is inflicted, but ten when serious bodily injury is

only threatened.        See 204 Pa. Code § 303.15.            We have held above,

however, that the evidence was sufficient to prove that Appellant caused

serious bodily injury to Complainant.

         Moreover, Appellant’s attempt to disaggregate the robbery from the

aggravated assault warrants no relief.          The use of force “in the course of

committing a theft” may occur “in an attempt to commit theft or in flight

after the attempt or commission.” 18 Pa.C.S. § 3701(a)(2). Instantly, the

record supports the trial court’s finding that the robbery and the aggravated

assault constituted a single episode and that Appellant caused serious bodily

injury     in   an   attempted   theft   or   flight   from   an   attempted   theft.11

Consequently, we affirm the trial court’s use of the OGS of twelve for the

robbery.

         Appellant, in his final argument, asserts that the trial court erred in

concluding that he used a deadly weapon for the purposes of the DWE.

Appellant notes that the jury acquitted him of aggravated assault—causing


11
  We add that aggravated assault and robbery do not merge.                        See
Commonwealth v. Payne, 868 A.2d 1257, 1263 (Pa. Super. 2005).



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bodily injury with a deadly weapon and asserts that the trial court heard no

evidence that a BB gun should be considered a deadly weapon. Appellant’s

Brief at 35-36. We are constrained to disagree.

     The Sentencing Guidelines provide:

        When the court determines that the offender used a deadly
        weapon during the commission of the current conviction
        offense, the court shall consider the DWE/Used Matrix (§
        303.17(b)). An offender has used a deadly weapon if any
        of the following were employed by the offender in a way
        that threatened or injured another individual:

                                    ***

           (iii) Any device, implement, or instrumentality capable
           of producing death or serious bodily injury.

204 Pa. Code § 303.10(a)(2)(iii).      The factual findings triggering an

enhancement of the suggested minimum sentence under the Section 303.10

require proof by a preponderance of the evidence.      Commonwealth v.

McKeithan, 504 A.2d 294, 298-99 (Pa. Super. 1986). “Items not normally

considered deadly weapons can take on such status based upon their use

under the circumstances.” Commonwealth v. Rhoades, 8 A.3d 912, 917

(Pa. Super. 2010) (citation omitted) (holding that “glass bottle forcibly

inserted into a body cavity” during sexual assault constituted deadly

weapon).

     We are mindful that the jury here made a specific finding that

Appellant did not possess a firearm and acquitted him of aggravated

assault—causing bodily injury with a deadly weapon.          However, the



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Sentencing    Guidelines    permitted    the     trial   court   to    determine   by    a

preponderance    of   the    evidence     that     Appellant’s        BB   gun   was    an

instrumentality capable of producing death or serious bodily injury.                   See

Rhoades, 8 A.3d at 917. In so doing, it properly considered the manner in

which Appellant used the BB gun—that is, firing numerous projectiles at

Complainant’s head from a close range—as well as the fact that Complainant

suffered serious bodily injury. Thus, we discern no error in the trial court’s

conclusion that Appellant’s use of BB gun under the circumstances of this

case constituted the use of an instrumentality capable of causing serious

bodily injury.   Accordingly, we affirm the trial court’s application of the

DWE/used.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2017




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