Com. v. Johnson, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TRAVON JOHNSON :
:
Appellant : No. 1306 MDA 2021
Appeal from the Judgment of Sentence Entered July 19, 2021
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004250-2020
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: OCTOBER 11, 2022
Travon Johnson appeals from the judgment of sentence imposed
following a jury finding him guilty of aggravated assault, procurement/use of
a weapon as an inmate, and simple assault.1 For these offenses, Johnson was
sentenced, after a subsequent modification, to an aggregate incarceration
term of five to ten years. On appeal, Johnson primarily challenges the lower
court’s later amendment of his sentence, as it significantly increased the
amount of time he would spend incarcerated. In addition, Johnson challenges
the weight of the evidence utilized to adjudicate his guilt and further contests
the court’s granting of a motion in limine filed by the Commonwealth. After a
thorough review of the parties’ submissions as well as the record, we are
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 Retired Senior Judge assigned to the Superior Court.
1See 18 Pa.C.S.A. § 2702(a)(4); 18 Pa.C.S.A. § 5122(a)(2); and 18 Pa.C.S.A.
§ 2701(a)(1), respectively.
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unable to find any evidence that, in modifying his sentence, the court complied
with the notice requirement contained in 42 Pa.C.S.A. § 5505. Therefore, we
are compelled to vacate Johnson’s judgment of sentence and remand.
As cogently summarized by the trial court:
On August 12, 2020, Correctional Officer Dough Lehman …
was assigned to the D Block of Dauphin County Prison. When
[O]fficer Lehman reached the end of the block, he observed two
inmates “locked up” as if they were “horseplaying.” One inmate,
[Trevetres] Kendrick, was against the wall and the other,
[Johnson], was huddled into him with his head buried in his chest.
The two inmates did not respond to [O]fficer Lehman’s commands
to stop. Officer Lehman called for all available guards to respond.
Officer Lehman, along with other officers, entered the cell and
attempted to pull … Kendrick and [Johnson] apart. It took two
officers to pull [Johnson] off … Kendrick. The officers pulled
[Johnson] out of the cell through the door. At that point, someone
yelled that there was a shank. Officers were able to put [Johnson]
on the floor to handcuff him. Officer Lehman observed dots of
blood on … Kendrick’s shirt when [Johnson] was pulled off him.
[Johnson] was then escorted to another cell block. Officer Lehman
testified that … prior to this incident, there were no weapons laying
on the floor of the cell block.
Officer Kasey Sharp … responded to the all guards call for
this incident. Officer Sharp observed two inmates inside the cell
just standing by the wall embraced with each other. Officer Sharp
testified that the inmates did not stop what they were doing when
asked to. The officers had to physically remove [Johnson] from …
Kendrick. As the other officers restrained [Johnson] outside of the
cell, Officer Sharp remained inside the cell with … Kendrick. . . .
Kendrick was frazzled, had his hands up, and kept repeating that
[Johnson] had stabbed him. Officer Sharp observed blood on …
Kendrick’s hands.
Officer Pamela Arbogast also responded to the all guards call
on the day of the incident. Officer Arbogast did not enter the cell[.
H]owever, she observed the other officers bring [Johnson] out of
the cell and take him to the ground to be handcuffed. Officer
Arbogast observed a shank right by his hand as he was on the
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ground. The shank appeared to be a piece of wire, probably from
the fence, with a ripped piece of a sheet wrapped around it and a
loop on the end. Officer Arbogast testified that the shank was not
on the ground before [Johnson] was taken out of the cell and
placed on the ground. Officer Arbogast picked up the shank and
gave it to a sergeant. Officer Arbogast observed blood on …
Kendrick’s face.
Lieutenant Kyle Bahoric responded to the all guards call on
the day of the incident. Lieutenant Bohoric observed a struggle
between officers and an inmate when he arrived at the cell.
Lieutenant Bohoric observed that [Johnson] was “prepared” by
having his face and head covered by a sheet or shirt. Lieutenant
Bohoric did not observe any injuries on [Johnson].
Katelyn Wright …, a registered nurse with PrimeCare, was
working at Dauphin County Prison on the day of the incident. …
Wright observed that … Kendrick had multiple puncture wounds
and scratches to his left forearm, left shoulder, above the left ear,
and his forehead.
… Kenrick, the victim in this matter, testified that he does
not remember who his cellmate in Dauphin County Prison was,
who [Johnson] is, or what happened during the incident. …
Kendrick further testified that he did not have injuries that day.
On August 19, 2020, … Kendrick placed a phone call regarding this
incident[. H]owever, he testified that he does not remember
making that call. … Kendrick went on to testify that he was not
attacked and that he never sought treatment for his injuries. …
Kendrick could not explain how he had sustained the injuries that
… Wright observed, documented, and treated on the day of the
incident.
Approximately two weeks before trial, [Johnson] spoke to
Officer Lehman about this case, stating that he knows no one saw
him with the shank in his hand and that he was looking for the
loophole for the case. [Johnson] also spoke with Officer Sharp.
[Johnson] stated to Officer Sharp that he heard from his attorneys
that Officer Sharp had been lying about what he observed the day
of the incident. [Johnson] further questioned Officer Sharp if he
had seen [Johnson] stab … Kendrick or if he had seen [Johnson]
with a weapon. [Johnson] told Officer Sharp, “anybody can get it
at any time, to – like Freddy Krueger said, don’t sleep.”
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Trial Court Opinion, 12/7/21, 2-4 (record citations omitted).
Ultimately, a jury found Johnson guilty of the three offenses identified,
supra. At his initial sentencing, the court sentenced him to two to four years
of incarceration for the aggravated assault charge and one-and-a-half to three
years of incarceration for the weapons charge, with the simple assault charge
carrying no further penalty. The sentences were ordered to run concurrent to
each other, but consecutive to the time he was serving on various other
dockets.
Following sentencing, Johnson filed a post-sentence motion.
Approximately two weeks after this filing, the court, without any submission
from the Commonwealth, amended Johnson’s sentence, by way of a new
order, to forty to eighty months of incarceration for the former crime and
twenty to forty months for the latter, with both counts now ordered to run
consecutive to one another (in addition to being consecutive to the time he
was already serving in unrelated cases). The court reasoned that its original
sentencing scheme represented a downward departure from the sentencing
guidelines, but that it never noted, on the record, any specific reasons for
deviating from these guidelines. Therefore, pursuant to 42 Pa.C.S.A. § 5505,
it vacated its prior order and sentenced Johnson within the standard range of
the guidelines. In effect, the new sentence was, in the aggregate, five to ten
years of incarceration.
After the court modified Johnson’s sentence, he filed a motion for leave
to file a supplemental post-sentence motion, which was granted. Johnson then
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filed a supplemental post-sentence motion, which was ultimately denied.
In response to this denial, Johnson filed a timely notice of appeal.
Thereafter, the relevant parties complied with their obligations under
Pennsylvania Rule of Appellate Procedure 1925, so this appeal is ripe for
review.
On appeal, Johnson presents three issues:
1. Did the trial court err in resentencing Johnson sua sponte by
court order without giving him and his counsel an opportunity
to argue his case?
2. Did the trial court err in accepting the jury verdict, which went
against the weight of the evidence, specifically failing to
establish that Johnson assaulted the victim with a weapon?
3. Did the trial court err in granting the Commonwealth’s motion
in limine, allowing prejudicial testimony which served no
legitimate purpose?
See Appellant’s Brief, at 4.
In Johnson’s first claim, he contends that the court should not have
issued a second sentencing order that greatly increased his incarceration term
without, at a minimum, him being given the opportunity to be heard. Johnson
bolsters his assertion by indicating that, prior to sentencing, a court is
supposed to hold a proceeding that delves into facts relevant to the sentence,
gives the defendant a right to make a statement, and allows the court to hear
argument from the defendant and the Commonwealth about various
sentencing alternatives. See 42 Pa.C.S.A. § 9752(a)(1-3); see also
Pa.R.Crim.P. 704(C)(1) (establishing that a defendant is allowed the
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opportunity to make a statement on his behalf and that the parties may
present information and argument relevant to sentencing). Moreover, Johnson
lists several bases for sentence mitigation that his counsel adduced at the
original sentencing hearing. See Appellant’s Brief, at 14-15 (writing that
Johnson had been shot at age 11 and never received counseling to deal with
this incident, spent most of his life incarcerated, and was a father to a three-
year-old-daughter) (citations to the sentencing hearing omitted). At that same
hearing, the court favorably acknowledged Johnson’s cooperation throughout
the course of his trial.
Generally speaking, “a court upon notice to the parties may modify or
rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been taken
or allowed.” 42 Pa.C.S.A. § 5505 (emphasis added). Johnson does not dispute
that the court’s modification occurred within thirty days of the issuance of the
original sentencing order. Furthermore, Johnson concedes that there was no
appeal from the original sentencing order that could serve to remove the lower
court’s jurisdiction over the matter. Finally, Johnson acknowledges that his
present sentences are both within the standard range of their respective
guidelines.
Despite these concessions, Johnson’s brief emphasizes that the court’s
issuance of the present sentencing order, without any forewarning apparent
in the record, left him without the opportunity to respond. As best can be
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discerned from the record, Johnson was sentenced on July 19, 2021. Johnson
filed a post-sentence motion on July 29, 2021. The court issued an order on
August 2, 2021, which required the Commonwealth to respond to Johnson’s
post-sentence motion within thirty days of that order. Then, on August 11,
2021, the court issued another order that vacated the prior sentencing order
and simultaneously imposed new sentences.
Even in cases where there is a clear mistake apparent in a sentencing
order, the court is obligated “to give notice as required by 42 Pa.C.S.[A.] §
5505 to both the defendant and the district attorney of the proposed changes
and an opportunity to respond to those changes.” Commonwealth v. Blair,
230 A.3d 1274, 1277 (Pa. Super. 2020). “Not only is such a notice required
by 42 Pa.C.S.[A.] § 5505, [but] the sentencing process must also satisfy due
process, which similarly requires a notice and opportunity to respond.” Id.
(citations omitted).
As such, sentence modification may only happen if all parties are notified
prior to the amendment taking place. See id. (requiring the lower court to
declare its intention prior to altering a sentence). Acting in contravention of
Section 5505, which explicitly requires prior notice, “is inconsistent with the
accused being present at every vital stage of the criminal process.” Id.
(citation and internal quotation marks omitted). Stated succinctly, “if the
sentence is modified without giving notice, it is without effect.” Id. (citation
omitted).
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Here, we see nothing in the record to evidence that Johnson received prior
notice of the court’s desire to modify his sentence or that he had a
corresponding ability to respond prior to the issuance of that order.
Accordingly, we vacate Johnson’s judgment of sentence and remand for
resentencing so that the lower court can follow the dictates of Section 5505.
Despite our vacation of the judgment of sentence, we note that
Johnson’s two other issues presented warrant no relief. First, Johnson claims
that the verdict was against the weight of the evidence insofar as the evidence
failed to demonstrate that he assaulted the victim with a weapon.
As with all weight of the evidence claims,
our role [as an appellate court] is not to consider the underlying
question of whether the verdict was against the weight of the
evidence. Rather, we are to decide if the trial court palpably
abused its discretion when ruling on the weight claim. When doing
so, we keep in mind that the initial determination regarding the
weight of the evidence was for the factfinder. The factfinder was
free to believe all, some or none of the evidence. Additionally, a
court must not reverse a verdict based on a weight claim unless
that verdict was so contrary to the evidence as to shock one's
sense of justice.
Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(citations omitted).
For aggravated assault, the only specific verdict Johnson challenges, the
Commonwealth was required to prove, beyond a reasonable doubt, that
Johnson “attempt[ed] to cause or intentionally or knowingly cause[d] bodily
injury to another with a deadly weapon[.]” 18 Pa.C.S.A. § 2702(a)(4).
Johnson admits that the testimony reflects that a weapon was found near
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Johnson, but it was not uncovered on his person. Furthermore, at trial, the
victim, Kendrick, denied that Johnson had used a weapon on him or had any
intent to hurt him. In addition, no one testified to seeing the stabbing. As
such, the testimony merely reflected he was found in the vicinity of a weapon,
but nothing more.
Distilled down, Johnson avers that the Commonwealth never proved
that “he acted with a specific intent to cause such injury,” Commonwealth
v. Sanders, 627 A.2d 183, 186 (Pa. Super. 1993) (citation omitted), which
he suggests is required for the offense of aggravated assault. “A person acts
intentionally with respect to a material element of an offense when … it is his
conscious object to engage in conduct of that nature or to cause such a result.”
Id. (citation omitted) (alteration in original). However, “[c]riminal intent may
be proved by direct or circumstantial evidence.” Id. (citation omitted).
The court concluded that the Commonwealth presented enough
circumstantial evidence so as not to shock one’s sense of justice. In effect,
the Commonwealth demonstrated, beyond a reasonable doubt, that Johnson
was guilty of aggravated assault because he intentionally, albeit
circumstantially, injured Kendrick with a deadly weapon. We see no abuse of
discretion in this determination.
The first officer on the scene, Officer Lehman, saw that “one inmate
[(Kendrick)] was against the wall. The other one [(Johnson)] was … huddled
into him. Like, his head was buried in his chest[.]” N.T., 4/12/21, at 20-21.
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Sensing something was wrong and after calling for backup, the officers, in
separating the two, observed blood on Kendrick’s shirt and hands. See id., at
28, 44.
Although routine inspections of Johnson’s cell and adjacent area had
been performed that day, there were no weapons found at any point prior to
the incident between Johnson and Kendrick. See id., at 28, 44. As Johnson
was being handcuffed, one of the officers noted that there “was a shank right
by [Johnson’s] hand.” Id., 55. When Kendrick received medical treatment, it
was reported by a nurse that he had multiple puncture wounds and scratches
over his body. See id., at 84-86.
While Kendrick, at trial, did not remember what had happened, stating
that Johnson did not attack him, see id., at 95-96, 102, the officers’
voluminous testimonies contradicted Kendrick’s latter assertion. As cited,
supra, the officers unambiguously recalled that Johnson and Kendrick had to
be removed from one another and that, thereafter, Kendrick was bleeding and
treated accordingly for, inter alia, stab wounds. Additionally, the officers
emphasized that there were no weapons in the area prior to this altercation
between Johnson and Kendrick.
As circumstantial evidence can be used to demonstrate intent, it was
clearly not an abuse of discretion for the lower court to determine that there
was no validity to Johnson’s weight of the evidence assertion. In summary,
the officers saw a skirmish between Johnson and Kendrick, recognized that
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Kendrick was bleeding and required treatment from puncture wounds, and
while Johnson was being handcuffed, discovered a weapon on the ground, in
the form of a shank, that was close in proximity to Johnson. Under this factual
backdrop, the aggravated assault verdict does not shock the conscience, and
Johnson’s claim fails.
In his remaining issue, Johnson believes that the lower court erred in
granting the Commonwealth’s motion in limine, which sought to allow certain
statements he made to Commonwealth witnesses following jury selection in
this case.
A challenge to a motion in limine ruling requires application of our well-
settled standard of review:
When ruling on a trial court's decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard. A
trial court has broad discretion to determine whether evidence is
admissible, and a trial court's ruling regarding the admission of
evidence will not be disturbed on appeal unless that ruling reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support to be clearly erroneous.
Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014) (citations
and quotation marks omitted).
The first statement involved Johnson asking a correctional officer if
anyone had seen him with a shank in his hand. See Motion in Limine, Ex. A.
In addition, Johnson, to this same individual, indicated that he was trying to
find a loophole for his case. See id. In the second statement, which involved
another correctional officer, Johnson confronted this individual, accusing her
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of lying. See id., Ex. B. As reported, Johnson stated that the officer “said [he]
stabbed [his] cellie in his sleep and [he] ain’t do that shit.” Id. Johnson then
told the officer that she never saw him with a weapon or stab Kendrick.
Johnson finished the conversation by remarking: “Just like Freddy Krueger
said don’t sleep[.]” Id.Johnson acknowledges that relevant evidence is admissible, see Pa.R.E.
401, 402, but pursuant to Pa.R.E. § 403, contends that his statements’
probative value was outweighed by the danger of unfair prejudice. Johnson
believes that the statements merely implied his criminal intent, but did not
act as “an admission” and “served no probative value in the Commonwealth’s
case.” Appellant’s Brief, at 23-24. While the lower court considered Johnson’s
statements as establishing consciousness of guilt, it “did not give a
consciousness of guilt instruction.”2 Id., at 24.
The Commonwealth is allowed to demonstrate consciousness of guilt in
cases where a defendant has attempted to intimidate or influence witnesses.
See Commonwealth v. Lark, 543 A.2d 491, 500 (Pa. 1988) (citation
omitted). Paralleling the statement attached to the motion in limine, the one
officer testified that, just prior to trial, Johnson “made statement of that he
knows nobody saw the shank in his hand and that he was looking for a
loophole for the case.” N.T., 4/21/21, at 31. Similarly, another officer testified
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2 Johnson does not explain or indicate why such an instruction was required
or necessary.
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that Johnson conveyed to her that she “had been lying about what [she] had
[seen], and then [Johnson] questioned the fact of if [the officer] saw him
actually stab Kendrick or if I saw him with a weapon.” Id., at 46-47.
Immediately thereafter, Johnson made a Freddy Krueger reference about not
sleeping because anyone can “get it at any time.” Id., at 47.
The lower court remarked in addressing Johnson’s claim:
The concern here is that the statements would be prejudicial
as discussing these statements would lead the jury to believe that
[Johnson] was still incarcerated. However, the trial was for
charges that took place while [Johnson] was incarcerated. The
jury was aware that [Johnson] had been incarcerated at the time
the incident took place. Further these statements show a
consciousness of guilt as they show that [Johnson] was
threatening or intimidating the witnesses, the officers, for his trial.
Trial Court Opinion, 12/7/21, at 9.
We disagree with Johnson’s supposition that neither statement was
relevant. Clearly, by their very verbiage, Johnson’s statements intended to
influence or manipulate Commonwealth witnesses into either clouding the
narrative of what those witnesses saw as fact witnesses to the crimes Johnson
had been charged or, in the latter statement’s case, could be, in part, implicitly
construed as a threat. Therefore, it must be discerned whether admittance of
these statements constituted unfair prejudice.
Unfair prejudice “means a tendency to suggest decision on an improper
basis or to divert the jury's attention away from its duty of weighting the
evidence impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa.
2007).
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Evidence will not be prohibited merely because it is harmful to the
defendant. This Court has stated that it is not required to sanitize
the trial to eliminate all unpleasant facts from the jury's
consideration where those facts are relevant to the issues at hand
and form part of the history and natural development of the
events and offenses for which the defendant is charged.
Id.Although Johnson’s statements were certainly harmful, other than
making a few bald or cursory assertions, he has not saliently established that
their contents improperly suggested a decision or prevented the jury from
impartially weighing the evidence it had received. As such, when looking at
the statements, both singularly and in tandem with one another, he has failed
to demonstrate that he suffered unfair prejudice because they were admitted.
While we agree with Johnson that “[n]either statement was an
admission,” Appellant’s Brief, at 26, given the broad discretion afforded to
lower courts in making evidentiary determinations, the court’s finding that he
attempted to influence the Commonwealth’s witnesses by making these
statements was not an abuse of discretion. Accordingly, no relief is due.
Given our holding as to his first claim, as established, supra, we vacate
the judgment of sentence and remand for proceedings consistent with Section
5505.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2022
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