Com. v. Granville, F. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
FAHMEE GRANVILLE, : No. 233 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, November 28, 2017,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0003796-2017
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2018
Fahmee Granville appeals from the November 28, 2017 judgment of
sentence entered in the Court of Common Pleas of Delaware County
following his conviction in a jury trial of aggravated assault, simple assault,
and resisting arrest.1 The trial court imposed an aggregate sentence of 24
to 48 months of incarceration followed by one year of probation. We affirm.
The trial court set forth the following factual history:
On May 27, 2017 at 2:16AM there was a
911 telephone call for a possible drug overdose at
7044 Veronica Road, Upper Darby Township,
Delaware County, Pennsylvania. On May 27, 2017
while working the 11:00PM to 7:00AM shift, Upper
Darby Police Officer, Officer Michael DeHoratius,
received [a] dispatch from DELCOM following that
911 call. As Officer DeHoratius was around the
corner from the address provided, and he headed to
1 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), and 5104, respectively.
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the location to back up other officers and EMS
personnel. As he was so close to 7044 Veronica
Road, Officer DeHoratius arrived on location first,
within a minute of the DELCOM transmissions, and
was the first responder to enter the residence.
Officer DeHoratius testified that upon arrival to
7044 Veronica he was aware that the caller was the
Mother of the person who was non[-]responsive in
the house.
Officer DeHoratius testified that upon arrival it was
his goal to gather information and assess the needs
to the persons in the residence; he was met at the
front door by the person who called 911 and was
directed to the kitchen area of the house. Upon
entry to the kitchen Officer DeHoratius saw a black
male lying face up on the floor clothed in only his
underwear, who appeared to be breathing but
unresponsive. At the Trial, Officer DeHoratius
identified the black male lying unresponsive in the
kitchen area as Appellant. Upon locating Appellant
lying on the kitchen floor, Officer DeHoratius was
able to immediately detect a strong odor of alcohol
from his person. Officer DeHoratius attempted to
rouse Appellant by applying a sternum rub, which
had no effect on Appellant’s state of
unconsciousness. As Officer DeHoratius was
attempting to rouse Appellant he was also assessing
the scene, he was looking around for contraband and
any indications of drug use but was unable to find
either.
After the sternum rub did not arouse Appellant,
Officer DeHoratius began to check Appellant’s pupil
dilation. While checking to see Appellant’s pupils
Appellant began [sic] startled and woke up.
Appellant then immediately yelled at
Officer DeHoratius “I am going to fuck you up.” To
Appellant’s statement, Officer DeHoratius announced
that he was a police officer who was there to help
him. Appellant’s Mother also began telling Appellant
that the police were called to help him.
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Appellant attempted to get to his feet but initially
was off balance and fell back down.
Officer DeHoratius and Appellant’s Mother were both
attempting to calm down Appellant as Appellant
continued to try to stand and confront
Officer DeHoratius. When Appellant was successful
in getting to a standing position, and in an
aggressive stance which the Officer demonstrated for
the men and women of the jury, Appellant stood
before Officer DeHoratius with his fist clenched at his
sides telling him again, “I am going to get you now.”
At this point Office [sic] DeHoratius radioed DELCOM
for an officer assist. Appellant grabbed at
Officer DeHoratius around the bicep area and his
neck and the two men entered into an intense
struggle that moved them from the kitchen area to
the living room area. During the struggle another
first responder, a paramedic known as Doc
attempted to assist Officer DeHoratius,
unsuccessfully. During the struggle, Appellant’s
Mother was hit.
Paramedic Dwight “Doc” Warren was the second
person on scene on May 27, 2017. Upon arriving,
Doc was able to observe an Officer and Appellant
struggling in the kitchen area of the house. Doc
testified that he attempted to assist
Officer DeHoratius as it appeared to him that
Appellant was not being controlled and Doc was able
to put his hands on Appellant; however, he lost his
grip on Appellant and Officer DeHoratius and
Appellant continued to struggle.
Officer DeHoratius was struck in the neck and was
grabbed on the bicep by Appellant. Appellant
attempted to grab the Officer’s vest in the neck area
in an attempt to drag him down to the ground. At
one point during the extended and intense struggle,
Appellant was pinned by Officer DeHoratius[;]
however[,] Appellant was able to maneuver them
both so that the struggle still continued. While
Appellant was pinned, Officer DeHoratius told
Appellant to stop fighting but Appellant continued to
fight the Officer. Officer DeHoratius described it as a
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grappling struggle, a violent struggle that ended
when they both “went to the ground hard.”
Officer DeHoratius noted that when they both fell to
the ground, Appellant did continue to flail his arms
and legs. Other officers began to arrive and assist
Officer DeHoratius at this time. Officer DeHoratius
let the other officers handle Appellant at this time
and he returned to the police station to complete a
report.
After arriving back at the police station,
Officer DeHoratius realized that he was in pain, he
was sore and he discovered bruises on his bicep and
scratches on his neck. Pictures were taken of
Officer DeHoratius’ injuries. Officer DeHoratius’ neck
was all red; he had scratches all on his right
shoulder area, neck and bicep. The next day the
Officer still had scratches on his body as well as a
large bruise on his bicep. The bruise suffered by
Officer DeHoratius on his bicep was on the entire
portion of his bicep.
Officer DeHoratius credibly testified that both he and
Appellant’s Mother explained that he was a police
officer called to the location to help him and he also
remembered Appellant’s Mother screaming to stop,
although he was unsure who that command was
directed towards. Officer DeHoratius also credibly
testified that he did not call out [sic] of work nor did
he miss a shift as a result of his injuries sustained on
May 27, 2017.
Trial court opinion, 2/7/18 at 4-7 (record citations omitted).
The trial court set forth the following procedural history:
Despite the fact that Appellant was represented by
counsel, Appellant filed a timely pro se Motion for
Reconsideration on December 1, 2017. On
December 12, 2017, as Appellant was represented
by Counsel and as hybrid representation is a legal
nullity, this Court issued an Order Denying and
Dismissing the pro se Motion for Reconsideration.
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Appellant, also pro se[,] filed a timely appeal on
December 12, 2017. On December 14, 2017, this
Court issued an Order requiring Appellant’s Counsel
of record to submit a Concise Statement of [Errors]
Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)] within twenty[-]one days.
Appellant’s Counsel of record filed a second timely,
now counseled appeal, on December 27, 2017, this
Court then issued a second request to submit a
[Rule 1925(b) statement] on January 3, 2018. On
January 5, 201[8], Counsel of Record submitted a
Concise Statement . . . .
Id. at 3.
Appellant raises the following issue for our review:
[Whether] the [trial] court erred when it instructed
the jury, in response to a question the jury posed to
the court, that the police officer in question was
acting in the performance of his duty at the time in
question[?]
Appellant’s brief at 5.
“[A] trial court has broad discretion in phrasing its instructions, and
may choose its own wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration.” Commonwealth v.
Charleston, 94 A.3d 1012, 1021 (Pa.Super. 2014), appeal denied, 104
A.3d 523 (Pa. 2014) (citation omitted). “A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not clear or has a
tendency to mislead or confuse, rather than clarify, a material issue.”
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013).
Moreover, Pennsylvania Rule of Criminal Procedure 647(D) authorizes the
trial court to provide additional instructions to the jury after the jury has
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retired to consider its verdict. Pa.R.Crim.P. 647(D). This court has
explained that:
[t]he scope of supplemental instructions given in
response to a jury’s request rests within the sound
discretion of the trial judge. There may be situations
in which a trial judge may decline to answer
questions put by the jury, but where a jury returns
on its own motion indicating confusion, the court has
the duty to give such additional instructions on the
law as the court may think necessary to clarify the
jury’s doubt or confusion.
Commonwealth v. Davalos, 779 A.2d 1190, 1195 (Pa.Super. 2001),
appeal denied, 790 A.2d 1013 (Pa. 2001) (citations omitted).
Here, during deliberations, the jury submitted the following question to
the trial court in a written note: “Is the medical assessment and potential
administration of Narcan[] legally a duty of Michael DeHoratius as the first
responder/police officer?” (Notes of testimony, 9/13/17 at 261.) The trial
court heard argument on the issue of whether Officer DeHoratius was under
a legal duty to administer Narcan. (Id. at 260-264.) Following argument,
the trial court answered the jury’s question by writing “yes” on the note and
returning the note to the jury. (Id. at 264.)
Appellant complains that “the [trial] court’s simple answer of ‘yes’
regarding Officer DeHoratius and his handling of Narcan invades on the jury
of its role as the finder of fact” with respect to the duty elements of
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aggravated assault and one element of resisting arrest.2 (Appellant’s brief
at 16.) With respect to aggravated assault, a person commits that crime if
he attempts to cause or intentionally or knowingly causes bodily injury to a
police officer “in the performance of a duty.” 18 Pa.C.S.A. § 2702(c)(3).
With respect to resisting arrest, a person commits that crime “if with the
intent of preventing a public servant from effecting a lawful arrest or
discharging any other duty,” creates a substantial risk of bodily injury.
18 Pa.C.S.A. § 5401.
In its Rule 1925(a) opinion, the trial court stated that it did not answer
the jury’s question because it detected the jury was confused, but that it
exercised its discretion by “simply answer[ing] a question posed about the
2 We note that the trial court and the Commonwealth contend that appellant
failed to preserve this issue for appeal by failing to place a specific objection
on the record that the trial court’s response to the jury’s question
constituted an abuse of discretion because the trial court usurped the jury’s
fact-finding function on the issue of whether Officer DeHoratius was in the
performance of a duty and/or was discharging a duty when the assault
occurred. The record reflects that at the conclusion of argument on the
issue of whether Officer DeHoratius was under a duty to administer Narcan,
the following took place:
THE COURT: . . . I’m going to write down rather
than elaborate and explain it, I’m going to just write
yes. I will note your exception on the record.
[DEFENSE COUNSEL]: Thank you.
Notes of testimony, 9/13/17 at 264.
Because the trial court stated that it would note appellant’s exception on the
record at the conclusion of argument, we decline to find waiver.
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duties of a police officer as a first responder.” (Trial court opinion, 2/7/18
at 15.)
Our review of the record reveals that when Officer DeHoratius arrived
at the scene in response to a DELCOM dispatch following the 911 call placed
by appellant’s mother, he arrived in a marked patrol vehicle and in full
uniform. (Notes of testimony, 9/13/17 at 15-17.) The officer testified that
as the first responder, he was to gather “some quick information and assess
[appellant].” (Id. at 17.) Although the officer testified that he has been
trained to handle opioid overdoses and administer Narcan, nothing in the
record indicates that appellant suffered an opioid overdose or that the officer
administered Narcan. In fact, Officer DeHoratius testified that during his
assessment of appellant, the officer smelled alcohol emanating from
appellant’s person. (Id. at 23.) The officer further testified that he did not
observe any indication that appellant may have been on heroin or opioid
pills. (Id. at 23-24.) Therefore, appellant’s complaint that the trial court’s
affirmative answer to the jury’s question “regarding Officer DeHoratius and
his handling of Narcan” usurped the jury’s fact-finding role lacks merit.
Clearly, the trial court properly exercised its discretion in providing a simple
answer to the jury’s question regarding a police officer’s role as a first
responder.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/18
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