Com. v. Johnson, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYONA JOHNSON :
:
Appellant : No. 2417 EDA 2019
Appeal from the Judgment of Sentence Entered August 6, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007888-2018
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2020
Appellant, Tyona Johnson, appeals from the judgment of sentence of 6
to 12 months’ house arrest, followed by 5 years’ probation, after she was
convicted, following a non-jury trial, of aggravated assault, possessing an
instrument of crime, simple assault, and recklessly endangering another
person. We affirm.
The trial court summarized the facts and procedural history of
Appellant’s case, as follows:
On August 6, 2018, at approximately 1:46 p.m.,
Complainant Denise Berry was informed that there was someone
outside her house, located at 5814 Rodman Street, in the city and
county of Philadelphia. ([N.T.] Waiver Trial, [8/4/19, at] 9-10).
When she stepped outside, she saw Appellant…. ([Id. at] 10). At
that point in time, Appellant was standing on her porch and Ms.
Berry was standing on her own porch. Id. Their porches were
separated by a black iron railing that stood about four feet tall.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Id. at 10, 12. After an exchange of heated words, Appellant
swung at Ms. Berry. Id. at 13. Ms. Berry then went down her
steps and to the pavement. Id. at 13. Appellant attempted to get
off her porch as well, but an unidentified woman held her back.
Id. at 11. While Ms. Berry was on the pavement, Appellant spat
on Ms. Berry’s face and arm. Id. at 14. Appellant then went into
her house and came back out shortly after. Id. at 14, 29. Ms.
Berry, who was standing on the sidewalk, in front of her door, saw
Appellant step out, ran up to Appellant and hit her. Id. at 29.
They began to fight, and it carried on for a short while about one
or two houses away from their porches. Id. at 14-15, 30-32.
They began walking back to their houses. Id. at 14. Appellant
was walking in front of Ms. Berry and quickly hid in a bush located
near her porch. Id. By the time Ms. Berry approached, Appellant
jumped out [of] the bush and sprayed Ms. Berry in the face with
mace. Id. at 32-33. At this point their neighbor, Ms. Newkirk,
who was in her house, heard Ms. Berry scream, “I’ve been pepper
sprayed!” Id. at 46. Ms. Newkirk ran outside and down the street
to where Ms. Berry was standing. Id. Ms. Berry’s eyes were
extremely red. Id. Ms. Newkirk helped Ms. Berry up and brought
her back to Ms. Berry[’s] steps. Id. Ms. Newkirk went back to
her house to get some water and towels for Ms. Berry’s face. Id.
When she came back, Appellant was throwing plants in Ms. Berry’s
direction. Id. at 46-47. Ms. Newkirk finally got to the point where
she was able to get Ms. Berry in her house. Id. at 47. As Ms.
Berry stood up from her steps, Appellant ran up behind her and
grabbed Ms. Berry by the hair and [pulled her] down the flight of
concrete steps. Id. at 37, 47. Ms. Berry fell on her knee, and the
two began to struggle to get off each other. Id. at 38, 47. Ms.
Newkirk threw herself onto them so no more harm would result.
Id. At this point, other neighbors intervened and eventually sat
Ms. Berry on the bottom of her steps. Id.
Ms. Berry was treated at Penn Presbyterian for a broken
femur and stayed there for three days. She currently has a plate
and six screws installed in her right leg. Id. at 18-19. Ms. Berry
further testified that she could not walk on her right leg for two
months. Id. at 21.
After the close of the waiver trial, this [c]ourt found
Appellant guilty of all charges. On August 2, 2019, Appellant filed
a motion for extraordinary relief[,] stating that the evidence
present[ed] at trial was insufficient to sustain a conviction for a
felony 1 aggravated assault charge. Appellant’s Motion for
Extraordinary Relief[, 8/2/19, at] 1…. Appellant argued that the
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mens rea requirement, that Appellant acted recklessly under
circumstances manifesting an extreme indifference to the value of
human life[,] was not proven beyond a reasonable doubt. The
motion was denied on August 6, 2019. That same day Appellant
was sentenced to aggravated assault (F1), possessing
instruments of crime (M1), simple assault (M2), and recklessly
endangering another person (M2).
Trial Court Opinion (TCO), 1/31/20, at 1-3 (unnumbered).
On August 16, 2019, Appellant filed an “Addendum to Petitioner’s Motion
for Extraordinary Relief” (hereinafter “post-sentence motion”). However,
before the court ruled on that post-sentence motion, Appellant filed a notice
of appeal on August 21, 2019. Consequently, on September 10, 2019, this
Court issued a rule to show cause why the appeal should not be quashed as
interlocutory, as Appellant’s post-sentence motion was still pending.
Appellant filed a timely response, and on December 4, 2019, we entered an
order discharging the rule to show cause and referring the issue to the merits
panel. Appellant timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and the court
thereafter filed its Rule 1925(a) opinion.
Herein, Appellant raises two issues, which we reorder for ease of
disposition:
1. Should this appeal be quashed as interlocutory because
[A]ppellant’s [post-sentence motion] was still pending at the time
her [n]otice of [a]ppeal was filed?
2. Was not the evidence insufficient to sustain a verdict of guilt
beyond a reasonable doubt for aggravated assault[,] graded as a
felony of the first degree[,] inasmuch as the Commonwealth failed
to establish that [A]ppellant caused serious bodily injury
intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life, in
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violation of [A]ppellant’s constitutional rights under the state and
federal constitutions?
Appellant’s Brief at 3.
Appellant first argues that we should not quash her appeal, even though
it was filed before the court issued the order denying her post-sentence
motion. Appellant insists that her appeal was “perfected upon the trial court’s
proper consideration and denial of” that motion. Id. at 19. In support, she
cites Pennsylvania Rule of Appellate Procedure 905(a)(5), which states: “A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof.” Pa.R.A.P. 905(a)(5). Appellant also observes that “[i]n
similar scenarios, this Court has ‘deem[ed] done what should have been done
and [did] not quash the appeal for this reason.’” Appellant’s Brief at 20 (citing,
inter alia, Commonwealth v. Samuel, 102 A.3d 1001, 1004 n.2 (Pa. Super.
2014) (finding quashal unnecessary, even though a post-sentence motion was
filed after the filing of a notice of appeal, because the trial court eventually
entered the proper order)).
We agree with Appellant. This Court has previously relied on Rule
905(a)(5) to consider a premature appeal as being perfected after the trial
court entered the order denying a post-sentence motion. See
Commonwealth v. Ratushny, 17 A.3d 1269, 1271 n.4 (Pa. Super. 2011)
(relying on Rule 905(a)(5) to conclude that the appellant’s premature notice
of appeal should be considered “as having been filed after the order denying
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post-sentence motions”). We will do the same herein. Therefore, we will not
quash Appellant’s appeal.
Appellant next challenges the sufficiency of the evidence to support her
conviction of aggravated assault. Initially, we note:
When a challenge to the sufficiency of evidence is made, our task
is to determine whether the evidence and all reasonable
inferences therefrom, when viewed in the light most favorable to
the Commonwealth as the verdict winner, was sufficient to enable
the fact finder to find every element of the crime charged beyond
a reasonable doubt. Commonwealth v. Tapper, … 675 A.2d
740 ([Pa. Super.] 1996).
A person is guilty of aggravated assault if he attempts to cause
serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under the circumstances
manifesting extreme indifference to the value of human life. 18
Pa.C.S. § 2702(a)(1).
***
[W]here the victim suffers serious bodily injury, the
Commonwealth need not prove specific intent. Commonwealth
v. Hlatky, … 626 A.2d 575 ([Pa. Super.]
1993)…; Commonwealth v. Magnelli, … 502 A.2d 241 ([Pa.
Super.] 1985). The Commonwealth need only prove [the]
appellant acted recklessly under circumstances manifesting an
extreme indifference to the value of human life. Hlatky, … 626
A.2d at 581. “[F]or the degree of recklessness contained in
the aggravated assault statute to occur, the offensive act must be
performed under circumstances which almost assure that injury
or death will ensue.” Commonwealth v. O'Hanlon, 653 A.2d
616, 618 ([Pa.] 1995)….
Commonwealth v. Nichols, 692 A.2d 181, 184-85 (Pa. Super. 1997).
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In this case, Appellant claims that the Commonwealth failed to establish
that she acted with malice and, instead, demonstrated only that she acted
“negligently or with ordinary recklessness in causing Ms. Berry to suffer
serious bodily injury….” Appellant’s Brief at 10. Appellant stresses that
recklessness for purposes of demonstrating aggravated assault “must be ‘such
that life threatening injury is essentially certain to occur.’” Id. at 12 (quoting
O’Hanlon, 653 A.2d at 618). Appellant compares her case to the facts of
Magnelli, where the defendant “grabbed [a] police officer by his shirt and
pants, picked him up, and threw him forward and into nearby concrete steps.”
Magnelli, 502 A.2d at 243. We concluded “that the evidence was insufficient
to establish that [Magnelli] acted recklessly under circumstances manifesting
an extreme indifference to the value of human life.” Id. Appellant insists
that, “[a]s in Magnelli, the connection between [her] actions and the
resulting injury were so attenuated that the result was ‘in no way within the
intent or contemplation of [Appellant].’” Id. at 15-16 (quoting Magnelli, 502
A.2d at 242). She also argues that “[t]his case involves a common street fight
between two willing participants[,]” pointing out that Ms. Berry was hitting
her during the altercation, as well. Id. at 16. In sum, Appellant contends
that the Commonwealth’s evidence did not establish that she intended to
cause serious bodily injury or death to Ms. Berry, “or that she had any reason
to believe that a life-threatening injury was essentially certain to occur as a
result of her conduct.’” Id. at 17 (internal quotation marks omitted).
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Appellant’s argument is unconvincing. Initially, as the trial court
observes, there was no mutual combat at the point when Appellant pulled Ms.
Berry down the steps. See TCO at 6 (unnumbered). Instead, at that time,
Ms. Berry was attempting to clean the mace off her face that Appellant had
sprayed, and was not “intentionally interacting with Appellant” at all. Id.
(unnumbered). Moreover, Appellant’s actions were more certain to cause
injury than those in Magnelli. While the officer in Magnelli was thrown
forward into steps, here, Appellant grabbed Ms. Berry’s head from behind, and
pulled her backwards and down concrete steps. We conclude that Appellant
“could have reasonably anticipate[d] that serious bodily injury or death would
be the likely and logical consequence of [her] actions….” O’Hanlon, 653 A.2d
at 618. Accordingly, the Commonwealth presented sufficient evidence to
support Appellant’s aggravated assault conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/20
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