Com. v. Crawford, A.

J-S70007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

ANTHONY J. CRAWFORD

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Appellant No. 3070 EDA 2015

Appeal from the Judgment of Sentence August 25, 2015

In the Court of Common P|eas of Delaware County

Crimina| Division at No(s): CP-23-CR-0007359-2014

BEFORE: OLSON, O`l'l' and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED January 12, 2017

Appellant, Anthony J. Crawford, appeals from the judgment of

sentence entered on August 25, 2015, following his jury trial convictions for

aggravated assault, possessing of an instrument of crime (PIC), carrying a

firearm Without a license, and recklessly endangering another person

(RElLiP).1 Upon review, we affirm.

The trial court set forth the facts and procedural history of this case,

as follows:

On June 7, 2013, Appellant had been drinking at Mil<e and

Johnny's Bar in Darby, Pennsylvania With many others to

celebrate Rosa Puller's birthday. The get-together included

many of Rosa Puller's family members, including her

siblings, cousins and her boyfriend, Brian Stokes. Also

present Was Brian Stol<es' friend, [] Appellant[.]

1 18 Pa.C.S.A. §§ 2702(a), 907, 6106(a), and 2705, respectively.

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Near closing time, about 2[:00] a.rn., Brian Stoi<es and []

Appel|ant got into an argument with some of the women

inside the [b]ar. The [v]ictim, Desman Johnson, came to

the defense of some of the women at the party after Brian

Stokes called the women a couple of bitches[.] This led to

an altercation in the parking lot of the [b]ar between Brian

Stoi<es and [] Appellant versus some individuals who came

to the defense of the women, including Desman Johnson.

During the altercation in the parking lot, Brian Stokes was

holding a gun in his hand.

The argument quickly escalated, and Appellant yelled out[,]

“Fuck all this arguing.” At this point, Appellant pulled out a

gun and shot Desman Johnson muitiple times. Brian Stokes

also fired his gun at this point, but he shot directly up into

the air.

Shortly after the shots were fired, several police officers

arrived at Mii<e and Johnny's Bar. Desman Johnson was

found unconscious on the ground, bleeding. Desman

Johnson Was shot multiple times, taken to the University of

Pennsylvania Hospital Trauma Unit, and survived the

shooting.

Brian Stokes was also on the ground at the scene as he had

been attacked by other individuals following the shooting.

The [o]fficers did what they could to control the crowd, offer

aid to those injured, and collect evidence. After speaking

with witnesses, the police ascertained that Brian Stokes

fired a gun into the air, and that Appeliant, who fled the

scene, had been the individuai who shot Desman Johnson.

* * >l<

[The Commonwealth charged Appe||ant with the

aforementioned charges, as well as attempted murder.] On

December 10, 2014, Appellant was arraigned. On January

12, 2015, Todd Fiore, Esquire, entered his appearance on

behalf of Appellant. On March 17, 2015, a [j]ury [t]rial

commenced On March 20, 2015, the [j]ury [t]rial resulted

in a [h]ung [j]ury. [The jury acquitted Appe|iant of

attempted murder, but could not agree on the remaining

charges.]

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On June, 1, 2015, a second [j]ury [t]rial commenced. On

June 3, 2015, the [j]ury found Appeilant [g]uilty of all [the

above mentioned] charges[.]

On June 9, 2015, Appellant filed a “[m]otion to [s]et [a]side

the [v]erdict as it was [a]gainst the [w]eight of the

[e]vidence.” On June 15, 2015, [the trial court] denied

[relief].

On Ju|y 29, 2015, [new counsel] entered his appearance on

behalf of Appellant.

On August 25, 2015, Appellant was sentenced as follows:

Count 2, [a]ggravated [a]ssault, 10 to 20 years [of

imprisonment]; Count 9, [PIC], 16 months to 32 months['

imprisonment], concurrent to Count 2; Count 10, [carrying

a firearm without a license], 42 months to 84 months [of

imprisonment], concurrent to Count 9 and Count 2, Count

12, [REAP], 12 months to 24 months[’ incarceration],

consecutive to Count 2. The aggregate sentence imposed

[was] 11 to 22 years [of imprisonment.]

On September 2, 2015, Appellant filed a [p]ost [s]entence

[m]otion requesting a new trial. On Septernber 11, 2015,

[the trial court] issued an [o]rder denying Appellant’s [p]ost

[s]entence [m]otion.

Trial Court Opinion, 1/21/2016, at 1-4 (record citations, original brackets

and most quotations omitted). This timely appeal resulted.2

On appeal, Appeilant presents the following issues for our review:

2 Appellant fiied a notice of appeal on September 21, 2015. On Septernber

28, 2015, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appeilant

complied timely after the trial court granted a requested extension. The trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 21, 2016.

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1. Was [Appe|lant’s] retrial for [a]ggravated [a]ssault a

violation of the principles of double jeopardy?

2. Did the [t]rial [c]ourt abuse its discretion and unfairly

prejudice [Appellant] when the [c]ourt denied an

objection and allowed Po|ice Officer Barr to offer

speculative testimony about [Appeliant's] retrieval of a

gun[?]

3. Was the verdict against the weight of the evidence?

4. Was the evidence sufficient to convict [Appeilant] of

[a]ggravated [a]ssault, [PIC], [f]irearms [n]ot [t]o [b]e

[c]arried [without aj [l]icense, and [REAP]?

Appellant’s Brief at 7 (internai citations and suggested answers omitted).

In his first issue presented, Appellant argues that because a jury

acquitted Appellant of attempted homicide during his first trial, his “retria| on

the charge of [a]ggravated assault violated constitutional guarantees against

double jeopardy.” Id. at 11 (citation omitted). More specifically, relying on

our Court's 1990 decision in Commonwealth v. Hickson, 586 A.2d 393

(Pa. Super. 1990), Appellant maintains:

[W]hen the jury found [Appellant] not guilty of an attempt

to commit criminal homicide, the jury determined that [he]

was not guiity of committing a malicious killing. [Appeliant]

was charged with violating 18 Pa.C.S. § 2702(a)(1), which

defines aggravated assault as an ‘attempt to cause serious

bodily injury to another or causing such injury intentionally,

knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life.’ 18 Pa.C.S.

§ 2702(a)(1). It was necessary for the Commonwealth to

show that the shooting of Mr. Desman Johnson had been

done with maiice. See Hickson, 586 A.2d at 396. Malice

‘exists not only where there is a particular iii will, but aiso

whenever there is a wickedness of disposition, hardness of

heart, wanton conduct, cruelty, recklessness of

consequences and a mind regardless of social duty.' Id.

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[(internal citation omitted)]. A conviction for aggravated

assault requires a shooting, which was done intentionally,

knowingly Or recklessly. See Hickson, 586 A.Zd at 396.

Therefore, the shooting required evidence of malice. Id. In

the first trial, the jury acquitted [Appellant] of attempt to

commit criminal homicide, a charge that requires a finding

Of malice.

Id. at 12-13 (original brackets omitted).

The Commonwealth initially responds that Appellant waived his double

jeopardy challenge for failing to include the issue in his concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Commonwealth's Brief at 8-10. We reject this contention. “[M]ere silence

by a defendant or iack of a specific objection will not amount to a waiver of

defendant's ‘very important constitutional right' of protection from double

jeopardy.” Commonwealth v. McCord, 700 A.2d 938, 942 (Pa. Super.

1997). Double jeopardy claims implicate the legality of sentence anci,

therefore, are not subject to waiver. See Commonwealth v. Andrews,

768 A.2d 309, 313 (Pa. 2001), citing Missouri v. Hunter, 459 U.S. 359,

366 (1983). l-ience, we will address Appellant’s double jeopardy claim as it

directly implicates the legality of Appellant’s sentence.

Our standard of review is as foliows:

An appeal grounded in double jeopardy raises a question of

constitutional iaw. This court's scope of review in making a

determination on a question of law is, as always, plenary.

As with all questions of law, the appellate standard of

review is de novo.

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008)

(quotations, ellipsis, and internal citations omitted).

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“The prohibition against double jeopardy set forth in Article I, § 10 of

the Pennsy|vania Constitution and the Fifth Amendment to the Constitution

of the United States of America protects against a second prosecution for the

same offense after an acquittal, a second prosecution for the same offense

after a conviction and multiple punishments for the same offense.” McCord,

700 A.2d at 941. The McCord Court has explained:

As a general rule, a mistrial because of a jury's inability to

reach a verdict does not implicate the principles of double

jeopardy, and retriai is not prohibited. However, an

exception to that rule exists when a defendant was

acquitted or convicted on some charges in the same trial,

and the same jury was unable to reach a verdict on other

charges. [This Court has previously determined that] retrial

of charges on which a jury has been unable to agree is not

barred unless the jury made findings on one or more other

charges which must be interpreted as an acquittal of the

offense for which the defendant is to be retried.

McCord, 700 A.2d at 946 (internal citations and quotations omitted).

The test for determining whether double jeopardy applies is the same

test utilized to decide sentencing merger. Commonwealth v. Davidson,

938 A.2d 198, 218, (Pa. 2007); see also Commonwealth v. Jones, 912

A.2d 815, 823 (Pa. 2006) (plurality) (Pennsylvania courts “employ[] the

same analysis in double jeopardy and sentencing merger cases [under the]

function of the Double Jeopardy Clause's prohibition which protects

against both successive punishments and successive prosecutions for the

same offense.”).

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On February 7, 2003, the Pennsylvania Legislature enacted the merger

doctrine at 42 Pa.C.S.A. § 9765, which provides:

No crimes shall merge for sentencing purposes unless the

crimes arise from a single criminal act and ai| of the

statutory elements of one offense are included in the

statutory elements of the other offense. Where crimes

merge for sentencing purposes, the court may sentence the

defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.

Thereafter, in Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009),

our Supreme Court stated:

Generaliy, the doctrine of merger is a rule of statutory

construction designed to determine whether the legislature

intended for the punishment of one offense to encompass

that for another offense arising from the same criminal act

or transaction. If the legislature were to tell us that crime A

merges into crime B, the problem would not arise, for the

legislative intent would be manifest. It is in cases where the

legislature has not given direction that we must devise a

rule.

[T]he legislature has provided [] ciear direction by its

enactment of Section 9765. 'i'he statute makes the

legislature's intent with respect to merger manifest. That

intent focuses solely on the elements of the offenses for

which a criminal defendant has been convicted.

Baldwin, 985 A.2d at 835-836 (original emphasis and internal citation

omitted). Accordingly, looking at the plain language of Section 9765, the

Baldwin Court ultimately determined the “statute's mandate is clear. lt

prohibits merger unless two distinct facts are present: 1) the crimes arise

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from a single criminal act; and 2) all of the statutory elements of one of the

offenses are included in the statutory elements of the other.” Id. at 833.

In this case, there is no dispute that the crimes arose from a single

criminal act, Appellant’s shooting of Johnson. Thus, we look at the statutory

elements of aggravated assault to determine whether they are subsumed by

the elements of attempted murder. The relevant provision of the

aggravated assault statute, under which Appeilant’s conviction resulted,

states: “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 circumstances manifesting extreme

indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). “Where

the victim suffers serious bodily injury,[3] the Commonwealth is not required

to prove specific intent.” Commonwealth v. Patrick, 933 A.2d 1043, 1046

(Pa. Super. 2007) (internal citations omitted). Instead, the Commonwealth

need only prove the defendant acted recklessly under circumstances

manifesting an extreme indifference to the value of human life. Id. “For the

degree of recklessness contained in the aggravated assault statute to occur,

3 “Serious bodily injury” is defined as “[t)]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301. Here, the victim was struck with multiple

bullets that passed entirely through his body; “he had two holes in his back,

two holes in his abdomen, two holes in his thighs, and one in his left groin.”

N.T., 6/2/2015, at 188. The victim had damage to his bladder and iliac vein,

which required surgical intervention. Id. at 186-187.

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the offensive act must be performed under circumstances which almost

assure that injury or death will ensue.” Id.

Whereas, a person commits criminal 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.A. § 901(a). Murder or “a

criminal homicide [...] is committed by an intentional killing.” 18 Pa.C.S.A. §

2502(a).4

We conclude that all of the elements of aggravated assault are not

included in the statutory elements of attempted murder. As previously

stated, in order to be convicted of attempted murder, the Commonwealth is

required to show an intent to kill. When the first jury acquitted Appellant of

attempted murder, it necessarily determined that an intent to kill was not

proven. However, in order to prove aggravated assault, the Commonwealth

needed only to prove that Appellant acted recklessly and that the shooting

took place under circumstances that almost assured that serious bodily

injury would ensue. The statutory elements for the crimes of attempted

murder and aggravated assault are not the same. Thus, we discern that

4 There can be no attempt to commit second- or third-degree murder. See

Commonwealth v. Griffin, 456 A.2d 171, 177, (Pa. Super. 1983) (“While a

person who only intends to commit a felony may be guilty of second degree

murder if a killing results, and a person who only intends to inflict bodily

harm may be guilty of third degree murder if a killing results; it does not

follow that those persons would be guilty of attempted murder if a killing did

not occur.”). “[I]n order to convict a person of attempted murder, an intent

to kill must be shown.” Id. at 178.

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double jeopardy did not preclude the Commonwealth from prosecuting

Appellant for aggravated assault, in a second trial, despite an earlier

acquittal for attempted murder. Accordingly, there is no merit to Appellant’s

first claim.

In his next issue presented, Appellant avers the trial court erred by

allowing Officer Matthew Barr to speculate about actions taken by Appellant

at the scene of the crime. Appellant's Brief at 14-16. Appeilant complains it

was error to permit Officer Barr to narrate the course of events transpiring

as the jury watched a surveillance video entered into evidence by the

Commonwealth. Id. at 14. More specifically, Appellant claims that Officer

Barr, who was not qualified as an expert and did not have personal

knowledge of the incident, speculated that the surveillance video showed

Appellant retrieve what the officer believed was a firearm, from underneath

the front seat of a car prior to the shooting. Id. at 15-16.

“The admission of evidence is committed to the sound discretion of the

trial court, 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-wil|, or such lack of

support to be clearly erroneous”. Commonwealth v. Ivy, 146 A.3d 241,

250 (Pa. Super. 2016). We have previously determined that it was not an

abuse of discretion to allow a detective to offer his observations about

images depicted in a surveillance video under Pa.R.E.701, Which governs the

admission of lay-person testimony. See Commonwealth v. Brown, 134

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A.3d 1097, 1106 (Pa. Super. 2016). Additionally, we note that after Officer

Barr offered his testimony, the trial court cautioned the jurors to draw their

own conclusions of what the video depicted. l\i.T., 6/1/20115, at 112. “The

law presumes that the jury will follow the instructions of the court.”

Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Moreover, at

trial, three eyewitnesses, Jameel Fields, Denise Gardner, and Regina Fields,

identified Appellant as the shooter. N.T., 6/2/2015, at 61, 106, and 149.

Accordingly, any error in admitting Officer Barr's testimony that he believed

Appellant had a gun was harmless, considering there was other evidence

that Appellant held and then shot a firearm. See Commonwealth v.

Wilson, 147 A.3d 7, 24 (Pa. Super. 2016) (citation omitted) (improperly

admitted evidence merely cumulative of other evidence and had no effect on

verdict; therefore, any error in admitting testimony harmless).

In his third and fourth allegations of error, Appellant claims that the

evidence was against the weight and sufficiency of the evidence,

respectively. Appellant’s Brief at 17-19. We will examine the sufficiency of

the evidence claim first. In his appellate brief, Appeilant does not set forth

the elements of his crimes for which he was convicted or establish what

element(s) the Commonwealth failed to establish, which results in waiver in

a sufficiency challenge. See Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa. Super. 2009) (finding the appellant's sufficiency claim waived where his

argument was underdeve|oped and he did not set forth the elements of the

crimes for which he was convicted or which specific elements were not met).

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Regardless, Appellant's claim lacks merit. “The standard we apply in

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.” Commonwealth v. Hansley, 24 A.3d

410, 416 (Pa. Super. 2011). Upon review of the parties' briefs, the relevant

law, and the trial court's opinion, we conclude there was sufficient evidence

to support Appellant’s convictions Three eyewitnesses identified Appellant

as the shooter. N.T., 6/2/2015, at 61, 106, and 149. The trial court

determined that the jury was free to infer that Appellant intended to cause

serious bodily injury and disregarded the safety of others by brandishing a

firearm and firing it at the victim’s vital body parts while a large crowd was

gathered. Trial Court Opinion, 1/21/2016, at 7-11. These determinations

support Appellant’s convictions for aggravated assault and REAP. Because

Appellant used a firearm to shoot the victim, the trial court found there was

sufficient evidence to support his PIC conviction. Finally, the Commonwealth

presented evidence that Appellant did not have a license to carry a firearm.

N.T., 6/2/2015, at 245-246. We discern no error of law in rejecting

Appellant’s sufficiency chailenge.

Finally, we address Appellant’s contention that his convictions were

against the weight of the evidence. More specifically, he claims the verdict

shocks the conscience of the court because the victim did not see Appellant

fire the gun, the surveillance video did not show him holding a firearm, the

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Commonwealth did not submit ballistics evidence to show there was

gunpowder residue on Appellant’s person or clothing, and there were

inconsistencies in Denise Johnson's testimony. Appellant's Brief at 17.

An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

Appellate review of a weight claim is a review of the

exercise of discretion, not of the underlying question of

whether the verdict is against the weight of the evidence.

Because the [factfinder] has had the opportunity to hear

and see the evidence presented, an appellate court will give

the gravest consideration to the findings and reasons

advanced by the trial judge when reviewing a trial court's

determination that the verdict is against the weight of the

evidence. One of the least assailable reasons for granting

or denying a new trial is the lower court's conviction that

the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the

interest ofjustice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

l-lere, the trial court determined Appellant’s convictions were not

against the weight of the evidence. Again, three eyewitnesses identified

Appellant as the shooter and the trial court concluded the jury credited the

witnesses’ testimony. Trial Court Opinion, 1/21/2016, at 15. In further

support, ballistic evidence showed that Brian Stokes shot his firearm into the

air and eliminated him as the one who shot the victim. Id. As seen on the

surveillance video, Appellant fled the scene of the crime. Id. F|ight

indicates a consciousness of guilt, which a factfinder may consider. See

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Commonwealth v. Dent, 837 A.2d 571, 57 (Pa. Super. 2003). There is no

dispute that the victim was seriously injured following the shooting. Based

upon our deferential standard of review, we discern no abuse of discretion in

denying relief on Appellant’s weight of the evidence claim.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Se|etyn, Es .

Prothonotary

Date: 1112[2017

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