The opinion
J-A14010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN ANTHONY PINO,
Appellee No. 1431 MDA 2014
Appeal from the Judgment of Sentence entered August 5, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s):
CP-54-CR-0001715-2013
CP-54-CR-0001716-2013
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 17, 2015
John Pino (Appellant) appeals from the August 5, 2014 judgment of
sentence of an aggregate term of nine to twenty-four years’ imprisonment,
as amended by the trial court’s order dated August 7, 2014. Appellant now
challenges the sufficiency of the evidence supporting his conviction for
multiple counts of aggravated assault of a police officer. Appellant also
claims that, because there was a more specific offense that applied to his
conduct, he should not have been charged with aggravated assault. After
careful review, we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
J-A14010-15
Appellant was convicted, after a trial by jury, of numerous offenses
including three counts of aggravated assault of a police officer, 18 Pa.C.S. §
2702(a)(3).1 The trial court set forth a factual summary of this matter as
follows:
The evidence at trial showed that, after committing retail
theft, [Appellant] led the police who were pursuing him on a high
speed chase. He was pursued by a number of police vehicles
occupied by both state and local officers. After [Appellant] drove
over a spike strip laid down by one of the state police, his
driver’s side tires deflated, and he was running on the rims with
flat tires. Although this caused his vehicle to sag on the
driver’[s] side and to slow down significantly, [Appellant]
persisted in driving on.
The officers pursuing him attempted to box him in and
force him to stop. As he traveled in the westbound passing lane
of PA 54, there was a police vehicle driven by Trooper Michael
Allar traveling in front of [Appellant]’s vehicle and attempting to
force it to slow down. Other police vehicles were following close
behind [Appellant]’s vehicle. All police cars had lights and sirens
activated, but [Appellant] kept attempting to drive around Tpr.
Allar’s vehicle.
Shortly after [Appellant] crested a hill on Route 54, his
vehicle became hung up on the concrete strip dividing the
eastbound and westbound lanes of Route 54.
Officer Christopher Hand of the Frackville Borough Police
pulled his vehicle into the opposite lane to block [Appellant] from
driving away in that lane. Officer Hand exited his vehicle, drew
his gun and yelled at [Appellant] several times to turn off the
engine. The officer was only two feet from [Appellant]’s open
driver’s side window, and [Appellant] looked right at the officer
when he yelled to turn off the engine, but there was no
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1
Appellant was convicted of multiple offenses arising from the activities
herein described. Of the 22 offenses Appellant was convicted of, it is only
the three counts of aggravated assault which are here at issue.
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compliance with the command. Officer Hand then held his gun
to his chest with one hand, reached in and grabbed [Appellant]
by the shirt with his other hand. He again ordered [Appellant] to
put his vehicle in park.
Instead of complying with that order, [Appellant] was
moving the gear shift on the steering column. [Appellant] drove
his vehicle forward into the rear of Hand’s police car while Hand
was still holding on to [Appellant]. Then he put the vehicle in
reverse and backed into the vehicle of St. Clair Borough Chief
Michael Carey. This gave [Appellant] enough room to get out of
the blockade. Once Hand realized [Appellant] was about to go,
he let go of his hold and went to his own vehicle.
Chief Carey had stopped his vehicle behind [Appellant]’s
and left his car. Almost immediately after exiting the police
cruiser, Carey noticed that [Appellant] was rocking his vehicle
back and forth and was about to break free of the median strip.
Carey jumped back into his vehicle just as the rear of
[Appellant]’s slammed into the front of Carey’s car. As a result,
Carey experienced injuries to his back and left ankle. Carey was
still experiencing significant pain and had not been medically
cleared to return to work at the time of trial, more than nine
months after the accident.
Trooper Allar had stopped his vehicle west of [Appellant]’s
vehicle. He got out and began to approach [Appellant]’s vehicle
on foot. Suddenly [Appellant] gunned his engine and drove
toward Allar. He had to jump out of the way to avoid being hit.
Trial Court Opinion (T.C.O.), 10/29/14, at 2-4.
Following a jury trial, Appellant was convicted and sentenced as stated
above. Appellant filed a timely notice of appeal and complied with the trial
court’s order to file a Pa.R.Crim.P. 1925(b) statement.
Appellant now presents the following issue for our review:
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Were the charges of aggravated assault based on mere
recklessness and the facts insufficient to support a conviction?2
Appellant’s Brief, at 4.
Sufficiency of the Evidence
Appellant claims the evidence presented at trial was not sufficient to
establish the intent for the charge of aggravated assault. He argues that his
intent was to escape, to flee, to avoid capture rather than to cause specific
harm to the police officers pursuing him. The gravamen of his claim is that
the Commonwealth presented evidence which showed recklessness but did
not properly establish the requisite mens rea of specific intent necessary to
prove aggravated assault of a police officer. Appellant’s Brief, at 9.
The trial court found the evidence sufficient to enable a reasonable
jury to find beyond a reasonable doubt that the Appellant acted with the
requisite intent. We agree.
We review Appellant’s challenge to the sufficiency of the evidence
under the following, well-settled standard of review:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
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2
Appellant presents a second issue for our consideration in the
argument section of his brief. Therein, he contests he should not have been
charged with the general offense of aggravated assault because there is the
specific offense of aggravated assault by vehicle with which he could have
been charged. Appellant’s Brief, at 10.
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to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal
citations omitted).
Under the Pennsylvania Criminal Code, a person is guilty of aggravated
assault if he “attempts to cause or intentionally or knowingly causes bodily
injury to any of the officers, agents, employees or other persons enumerated
in subsection (c), in the performance of duty[.]” 18 Pa.C.S. § 2702(a)(3).
The Code defines “bodily injury” as “impairment of physical condition or
substantial pain.” 18 Pa.C.S. § 2301. A police officer is among the officers,
agents, employees or other persons enumerated. 18 Pa.C.S. § 2702(c)(1).
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901(a).
“As intent is a subjective frame of mind, it is of necessity difficult
of direct proof[.] [W]e must look to all the evidence to establish
intent, including, but not limited to, appellant's conduct as it
appeared to his eyes[.] Intent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct
or from the attendant circumstances.”
Commonwealth v. Roche, 783 A.2d 766, 768 (Pa.Super.2001), appeal
denied, 568 Pa. 736, 798 A.2d 1289 (2002).
To summarize, in order to prove aggravated assault against a police
officer, the Commonwealth was required to prove that Appellant (1) took a
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substantial step, (2) with the specific intent to cause bodily injury, (3) to a
police officer, (4) in the performance of his duties. See generally 18
Pa.C.S. § 2702(a)(3). As Appellant’s Brief focuses on the intent element of
the offense, and we find no error regarding the other elements, we address
only the mens rea element here.
In Commonwealth v. Brown, 23 A.3d 544 (Pa.Super. 2011), this
Court considered a similar argument to that made in the case at bar. In
Brown it was claimed that the actions taken did not have the requisite
specific intent because the actor was merely trying to avoid capture.
At trial, Officer Schiazza testified that when he attempted to
handcuff Brown, Brown pulled away, threw Officer DeBella to the
ground, and ran away. Officer Schiazza further testified that
after he tackled Brown, Brown struggled violently with him, and
that as Brown flailed his arms he struck the officer repeatedly on
the arm, shoulder and mouth, causing him to have a swollen lip.
Whether the officer's swollen lip constitutes a “bodily injury” for
purposes of section 2702(a)(3) is irrelevant, since in 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.
Marti, 779 A.2d 1177, 1183 (Pa.Super.2001). It was within the
jury's province to find that Brown, by throwing Officer DeBella to
the ground and then striking Officer Schiazza repeatedly by
wildly flailing his arms as he resisted arrest, intended to cause
injury to the officers.
Viewing this evidence in the light most favorable to the
Commonwealth as the verdict winner, as our standard of review
requires, we conclude that there was sufficient evidence to
enable the jury to find beyond a reasonable doubt that Brown
violated section 2702(a)(3). As a result, his sufficiency
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argument with regard to his conviction for aggravated assault on
a police officer lacks any merit.
Brown, 23 A.2d at 560-61 (citations to notes of testimony omitted).
Here, the Commonwealth presented evidence similar to that in
Brown. The police testified that Appellant led them on a high speed chase.
During the chase, Appellant drove over a spike strip eventually causing his
vehicle to become hung up on a concrete median strip. Officer Hand
approached Appellant’s vehicle, ordered Appellant to turn off the engine, and
grabbed him by the shirt. Appellant was able to remove his vehicle from the
median by first backing into Chief Carey’s police car, injuring Chief Carey.
Appellant then drove forward, in the direction of Trooper Allar, forcing Officer
Hand to release his hold. As in Marti, it is irrelevant the degree to which
Chief Carey suffered bodily injury as, for the purposes of 18 Pa.C.S.
2702(a)(3), the Commonwealth had no obligation to show actual bodily
injury.
Although it is possible that Appellant intended nothing further than to
flee, it is also possible that, in the moment, he intended to cause bodily
injury to Chief Carey, Officer Hand, and Trooper Allar. It is not for us to
decide what the mind of Appellant was at the time, that is a question for the
fact-finder. Rather, we consider whether the evidence was sufficient for a
reasonable jury to conclude that Appellant intended such harm.
When viewing this evidence in the light most favorable to the verdict
winner, we find that the Commonwealth presented sufficient information for
the fact-finder to infer that Appellant did specifically intend to cause bodily
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injury to the police officers involved. The jury could reasonably infer from
acts, conduct, or attendant circumstances that Appellant acted with the
specific intent to cause bodily injury to the police. We therefore find that
Appellant’s sufficiency claim lacks merit.
Specific Charge
Appellant raises a second issue for our consideration in the body of his
brief. He alleges that, pursuant to 1 Pa.C.S. § 1933,3 the charge of
aggravated assault, 18 Pa.C.S. § 2702, was improper and was required to
have been aggravated assault by vehicle, 75 Pa.C.S. § 3732.1. Appellant’s
Brief, at 10.
First, we note that, because Appellant did not set forth the issue in the
statement of questions, the matter is waived. The Pennsylvania Rules of
Appellate Procedure provide, in part, that “[n]o question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.” Pa.R.A.P. 2116. As the claim was not specifically
included in the statement of questions, nor was it fairly suggested thereby, it
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3
Section 1933 provides:
“Whenever a general provision in a statute shall be in conflict
with a special provision in the same or another statute, the two
shall be construed, if possible, so that effect may be given to
both. If the conflict between the two provisions is irreconcilable,
the special provisions shall prevail and shall be construed as an
exception to the general provision, unless the general provision
shall be enacted later and it shall be the manifest intention of
the General Assembly that such general provision shall prevail.”
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was not preserved for appellate review. See Com. v. Kittelberger, 616
A.2d 1, 3 (Pa. Super. 1992).
Although the issue has been waived for the reason stated above, we
also note that 42 Pa.C.S. 9303 resolves the issue entirely:
“Notwithstanding the provisions of 1 Pa.C.S. § 1933 (relating to
particular controls general) or any other statute to the contrary,
where the same conduct of a defendant violates more than one
criminal statute, the defendant may be prosecuted under all
available statutory criminal provisions without regard to the
generality or specificity of the statutes.”
“[T]he enactment of 42 Pa.C.S. § 9303 has halted operation of section
1933's “general-specific” rule of statutory construction in the context of
criminal prosecutions, and those cases, which applied that concept as a basis
for their holdings, are no longer precedential.” Com. v. Nypaver, 69 A.3d
708, 714 (Pa. Super. 2013).
For the foregoing reasons, we affirm the trial court’s judgment of
sentence.
Judgment of sentence AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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