Com. v. Moore, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MOORE III
Appellant No. 2660 EDA 2014
Appeal from the Judgment of Sentence August 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010920-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 28, 2015
Appellant, Robert Moore III, appeals from the judgment of sentence
entered August 14, 2014, in the Court of Common Pleas of Philadelphia
County. We affirm.
The trial court summarized the pertinent facts of this case as follows.
Barrington Rhoden (Rhoden) testified that on June 27,
2012, at about 9:50 AM, he was working as a SEPTA bus driver
at 4th and Market Streets. [Appellant] boarded the bus, but did
not pay his fare. Mr. Rhoden closed the doors to the bus and
started to proceed into traffic. At [that] point [Appellant] made
a hard tap on Rhoden’s shoulder, and as Rhoden looked around,
[Appellant] started to choke Rhoden with his right arm, while
pulling back on Rhoden’s head with his left hand. As [Appellant]
was pulling Rhoden out of his seat, Rhoden engaged the bus[’s]
emergency brake.
Rhoden attempted to pull down on the arm that was
[choking] him, while loosening his seat belt, which was tying him
into his seat. Rhoden got free of the seat belt, stopped the bus
and stood up, and pushed his head against [Appellant’s] belly,
causing [Appellant] to fall to the floor, with Rhoden on top of
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him. Passengers then came to Rhoden’s assistance, while
another called 911 and the police responded. Rhoden was
treated at the hospital for a sprained left toe which was injured
during the incident. He was out of work for approximately two
months.
SEPTA Police Sergeant Kevin Mahoney testified that he was
working in uniform when he and his partner responded to a radio
call which took him to the bus at 4th and Market Streets.
Mahoney and his partner attempted to pull the seated
[Appellant] on the ground to handcuff him. [Appellant] flailed
his arms, and failed to stop when Mahoney and his partner
ordered him to do so 2-4 times. As he was attempting to
subdue [Appellant], [Appellant] bit Sgt. Mahoney on the left
hand. A utility knife was found underneath [Appellant]. The bite
did not bleed, just caused a bit of redness, and Sgt. Mahoney did
not require medical treatment.
Trial Court Opinion, 3/3/15 at 2-3 (unnumbered).
Appellant proceeded to a waiver trial on May 22, 2014, after which the
trial court convicted him of two counts of aggravated assault, two counts of
simple assault, two counts of recklessly endangering another person and one
count of resisting arrest. On August 14, 2014, the trial court sentenced
Appellant to an aggregate term of six to twelve years’ imprisonment,
followed by two years’ probation. This timely appeal followed.
Appellant raises the following issues for our review.
1. Whether the trial court erred in finding that the evidence was
sufficient to show as a matter of law that appellant was guilty
of aggravated assault (F1) where the Commonwealth failed to
establish beyond a reasonable doubt that appellant attempted
to cause or intentionally, knowingly or recklessly caused
serious bodily injury to a SEPTA bus driver while in the
performance of their duty where the Commonwealth failed to
present any evidence of the Complainant being hit, kicked or
struck in any way, no weapon was alleged to have been used
and the uncontradicted evidence was that appellant and
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Complainant wrestled with each other for no more than eight
seconds?
2. Whether the trial court erred in finding that evidence was
sufficient to show as a matter of law that appellant was guilty
of aggravated assault (F2) where the Commonwealth failed to
establish beyond a reasonable doubt that appellant attempted
to cause or intentionally or knowingly caused bodily injury to
a SEPTA police officer in the performance of their duty where
the evidence showed that appellant did not attempt to strike
the police officer in any way, he merely flailed his arms, and
the alleged “bite” to the officer’s hand resulted in no injury
whatsoever?
3. Did the sentencing court err in denying appellant’s timely filed
Motion for a New Trial and Motion to Reconsider?
Appellant’s Brief at 5.
Appellant first challenges the sufficiency of the evidence in support of
his convictions for aggravated assault.
The standard we apply when 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
trier 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. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
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However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted).
Appellant was convicted of one count of aggravated assault, graded as
a felony of the first degree (F1) as to SEPTA bus driver Barrington Rhoden,
and one count of aggravated assault, graded as a felony of the second
degree (F2) as to victim Sergeant Kevin Mahoney. A person commits F1
aggravated assault where, inter alia, he or she “attempts to cause or
intentionally, knowingly or recklessly causes serious bodily injury to … an
employee of an agency, company or other entity engaged in public
transportation, while in the performance of duty[.]” 18 Pa.C.S.A. §
2702(a)(2). 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 function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301. “For aggravated assault
purposes, an ‘attempt’ is found where the accused, with the required specific
intent, acts in a manner which constitutes a substantial step toward
perpetrating a serious bodily injury upon another.” Commonwealth v.
Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (citations omitted). “A person
acts intentionally with respect to a material element of an offense when ... it
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is his conscious object to engage in conduct of that nature or to cause such
a result.” Id. at 567-568 (citations omitted).
As previously noted, Appellant began to choke and pull at Mr. Rhoden,
who at the time was operating a moving SEPTA bus. As a result of the
assault, Mr. Rhoden was forced to engage the bus’s emergency brake and
rise from his seat in order to force Appellant to the ground and escape from
his chokehold. Although Appellant contends that the evidence did not
establish his intent to cause serious bodily injury because he did not “hit,
kick or strike” the SEPTA driver, we find this argument to be specious.
Appellant’s actions in choking a SEPTA bus driver who was actively engaged
in operating a moving public transportation vehicle clearly evinces
Appellant’s intent to cause serious bodily injury to that driver, and also
constitutes a substantial step towards that result. Although Mr. Rhoden did
not actually sustain serious bodily injury, had he not been able to thwart the
attack and engage the moving vehicle’s emergency brake, serious bodily
injury would have almost certainly occurred. Viewing this evidence in the
light most favorable to the Commonwealth, we find that the Commonwealth
presented sufficient evidence for the fact-finder to infer that Appellant
attempted to inflict serious bodily injury upon Mr. Rhoden.
We likewise find the evidence was sufficient to support Appellant’s
conviction of F2 aggravated assault. A person is guilty of F2 aggravated
assault if, among other things, he “attempts to cause or intentionally or
knowingly causes bodily injury to [a police officer], in the performance of
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duty[.]” 18 Pa.C.S.A. § 2702(a)(3). “[I]n a prosecution for aggravated
assault on a police officer[,] the Commonwealth has no obligation to
establish that the officer actually suffered a bodily injury; rather, the
Commonwealth must establish only an attempt to inflict bodily injury, and
this intent may be shown by circumstances which reasonably suggest that a
defendant intended to cause injury.” Commonwealth v. Rahman, 75
A.3d 497, 502 (Pa. Super. 2013) (citation omitted).
Here, Appellant repeatedly flailed his arms when Sergeant Mahoney
attempted to arrest him, and did not desist despite repeated requests do to
so. Appellant additionally bit Sergeant Mahoney in the hand during the
arrest. Although the bite did not require medical treatment, this violent
behavior clearly demonstrates that Appellant intended to cause Sergeant
Mahoney bodily injury. See Commonwealth v. Brown, 23 A.3d 544 (Pa.
Super. 2011) (finding jury could reasonably infer that the defendant
intended to cause the officer bodily injury when he responded violently to
the officer's attempt to arrest him). Accordingly, the evidence was sufficient
to convict Appellant of aggravated assault of a police officer under section
2702(a)(3).
Finally, Appellant argues that the trial court erred in denying his
motion for a new trial and motion to reconsider sentence. Appellant argued
in his motion for a new trial that “a new trial should be ordered as the
verdict was against the weight of the evidence.” Post Trial Motion for
Reconsideration of Sentence and/or for New Trial and/or In Arrest of
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Judgment, 8/18/14 at ¶5.2. In support of this argument on appeal,
Appellant merely repeats the arguments he raised in support of his challenge
to the sufficiency of the evidence, discussed above. As we have already
found these claims to be without merit, his challenge to the weight of the
evidence, premised on the same unavailing arguments, must likewise fail.
Appellant’s claim that the trial court erred in denying his motion to
reconsider sentence invokes a challenge to the discretionary aspects of his
sentence. Preliminarily, we must determine whether Appellant has the right
to seek permission to appeal the sentencing court’s exercise of its discretion.
See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
When an appellant challenges the discretionary aspects of his sentence, we
utilize a four-part test 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
is not appropriate under the Sentencing Code, 42
PA.CONS.STAT.ANN. § 9781(b).
Id. (internal citations omitted).
In the present case, our review of the record reveals that Appellant
failed to raise the specific arguments he now seeks for us to review in
support of his discretionary aspects of sentencing claim either in his post-
sentence motion or at sentencing. See Post Trial Motion for Reconsideration
of Sentence and/or for New Trial and/or In Arrest of Judgment, 8/18/14 at
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¶5.3. (stating only that “[t]he defendant respectfully prays that the [c]ourt
will reconsider his sentence.”); Matters Complained of on Appeal, 12/11/14
at ¶3 (arguing only that “the sentencing court err[ed] in denying appellant’s
timely filed Motion for a New Trial and Motion to Reconsider[.]”).
In the Rule 1925(a) opinion, the trial court noted with frustration that
Appellant “sought reconsideration of sentence, but offered no claims or basis
for such reconsideration, nor is there any indication in the 1925(b)
statement as what any alleged sentence error might consist of.” Trial Court
Opinion, 3/3/15 at 7 (unnumbered). As Appellant preserved none of the
arguments he now raises in support of his discretionary aspects of
sentencing claim in either his post-sentence motion or even in his Rule
1925(b) statement, they are not subject to our review. See
Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015);
Pa.R.A.P. 1925(b)(4)(ii) (“The statement shall concisely identify each ruling
or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.”); id. at (b)(4)(vii) (“Issues not
included in the statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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