February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MICAH SMITH, Appellant
Appeal from the Judgment of Sentence entered May 26, 2011, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0007570-2010
BEFORE: ALLEN, STABILE, STRASSBURGER [*], JJ.
Micah Smith ("Appellant") appeals from the judgment of sentence imposed after the trial court convicted him of aggravated assault, simple assault, recklessly endangering another person (REAP), resisting arrest, and disorderly conduct. We affirm.
The trial court summarized the pertinent facts and procedural history as follows:
On May 18, 2010, at approximately 9:40 a.m., Officer [Charles] Brown [of the SEPTA police] observed [Appellant] throwing water bottles at pedestrians on the sidewalk near the entrance to the Market-Frankford EL.... Upon being followed by the officer into the station, [Appellant] threw a bottle of water at Officer Brown as he was ascending the steps, missing his head by a few inches.
Officer Brown then approached [Appellant], inquiring if there was a problem. According to the officer, this inquiry was met only with a dead stare. After repeating the question and then directing [Appellant] to come towards him, Officer Brown indicated that [Appellant] then put his hands up in a fighting stance. Officer Brown instructed him to put his hands down and again inquired what was wrong. When Officer Brown approached, [Appellant] struck him in the chest.
At this point, Officer Brown maced [Appellant], who went down to the ground screaming but returned to a standing position in such a way that, according to the officer, indicated that the mace had no effect on him. [Appellant] resumed a fighting stance and was then struck in the leg by Officer Brown. As Officer Brown was macing [Appellant] again, a struggle ensued that resulted in both [men] tumbling into an open elevator. During the altercation, Officer Brown injured his elbow and also received mace on his face as a result of [Appellant's] continued struggle to escape.
On the ground level, the officer was eventually able to handcuff [Appellant] and place him into a squad car with the assistance of other officers who had arrived on the scene. While in the car, [Appellant] began screaming and banging his head against the door in an effort to escape. [Appellant] was eventually transferred to a local hospital to treat his mace-related injuries.
At the waiver trial, [Appellant] testified that he suffered a diabetic black out and did not remember and therefore did not contest any of the details of the altercation. [Appellant] claimed he did not regain consciousness until he was inside of the police vehicle. [Appellant's] mother, Larnsell Smith, testified that during previous incidents of "diabetic shock, " [Appellant was] unresponsive but docile, and that there was no history of violence during any of these episodes. Ms. Smith further testified that [Appellant] has never screamed during one of these blackouts, nor is he able to be revived without the administration of a sugary liquid. Officer Brown testified that no sugary liquid was given to [Appellant] during their interaction.
Trial Court Opinion, 8/2/13, at 2-3 (citations to notes of testimony omitted).
Following a non-jury trial on March 22, 2011, Appellant was convicted of the aforementioned crimes. On May 26, 2011 the trial court sentenced Appellant to 1 day to 23 months of imprisonment with immediate parole to house arrest for a period of nine months, followed by 2 years of reporting probation. On September 28, 2011, Appellant filed a pro se petition pursuant to the Post Conviction Relief Act ("PCRA") 42 Pa.C.S.A. §§ 9541-46, seeking reinstatement of his direct appeal rights. Counsel was appointed and filed an amended PCRA petition on May 14, 2012. Following the trial court's reinstatement of his direct appeal rights, Appellant filed a notice of appeal on February 12, 2013. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did Appellants' convictions for Aggravated Assault and Simple Assault fail to properly merge for the purposes of sentencing?
2. Was there insufficient evidence to support Appellant's REAP conviction when Appellant did not place anyone in danger of serious bodily injury or death?
Appellant's Brief at 4.
Appellant first argues that the trial court should have merged his convictions for aggravated assault and simple assault. Appellant's Brief at 8-9.
"A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Therefore, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.Super. 2012) (internal citation omitted). Section § 9765 of the Sentencing Code provides:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all 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.
Here, Appellant was convicted of aggravated assault (F2), simple assault (M2), REAP (M2), resisting arrest (M2) and disorderly conduct (M3). The trial court, in its Pa.R.A.P. 1925(a) opinion, explained that it did in fact merge the sentences for simple assault and aggravated assault. Trial Court Opinion, 8/2/13, at 4. Therefore, Appellant received a sentence of 1 day to 23 months with an immediate 9 months of parole for aggravated assault, to be followed by a consecutive 2 years for REAP and resisting arrest, with no further penalty for simple assault because it merged with aggravated assault. Id. Additionally, Appellant received no further penalty for disorderly conduct. Appellant claims, however, that the trial court imposed separate sentences for aggravated assault and simple assault. Appellant's Brief at 5, 8-9. Appellant maintains that the trial court imposed a sentence of 1 day to 23 months for aggravated assault, 2 years of probation for simple assault, and 2 years of probation for REAP. Id. Appellant argues that the sentences for simple assault and aggravated assault should have merged, and therefore requests a remand for resentencing. Id.
Our review of the record reveals that at the sentencing hearing, the trial court articulated its sentence on the record as follows:
Trial Court: [T]he sentence is going to be 1 day to 23 months with immediate parole to house arrest for a period of nine months, that is going to be followed by two years of reporting probation.
Clerk: Judge Coleman, what about the other counts/ No further penalty?
Trial Court: Concurrent – no, no further penalty.
Assistant District Attorney: I'd just ask that instead of giving no further penalty on the remaining charges, the Court give one probation to run concurrent, that way if [Appellant] does violate, the Court will have more time to play with.
Trial Court: That's what I'm doing now. That's going to be on Count 1 [aggravated assault]. On Count 3 [REAP] and 4 [resisting arrest], two years of reporting probation. They are to run concurrent to each other.
Appellant's Counsel: I'm not sure I completely – one day to 23 months on the aggravated assault charge with immediate parole –
Trial Court: To house arrest.
Appellant's Counsel: House arrest to 9 months, plus two
years consecutive probation beyond that ...
Trial Court: It's two years probation beyond
the house arrest, that's correct ...
Appellant's Counsel: And on the other charges, Your Honor ...
Trial Court: They're two years but they're running concurrent ...
Appellant's Counsel: Well, one's an M3. It can't be two years.
Trial Court: No, the M3 ... [w]hat I thought I said was no further penalty
Appellant's Counsel: All right. So it's a simple assault and what's the other charge?
Trial Court: It's the ag[gravated] assault, it's the recklessly endangering, and resisting arrest. The simple assault merges.
Appellant's Counsel: It merges. All right. They're two years to run concurrent.
Trial Court: Right.
N.T., 5/26/11, at 32-38.
Given the foregoing, we agree with the trial court that in imposing Appellant's sentence, it merged the sentence for simple assault with the sentence for aggravated assault. See Commonwealth v. Boettcher, 459 A.2d 806, 811 (Pa.Super. 1983) (simple assault is a constituent offense of aggravated assault and, for sentencing purposes, merges with the more serious offense).
The record belies Appellant's assertion that the trial court imposed a sentence of 2 years of probation for simple assault. Rather, the record indicates that the sentence for simple assault merged with aggravated assault, and the trial court imposed concurrent sentences of two years of probation for resisting arrest and REAP, with no further penalty for disorderly conduct. Appellant's claim that the trial court improperly sentenced him for simple assault is without merit.
Appellant next argues that the evidence was insufficient to support his conviction for recklessly endangering another person. Appellant's Brief at 9-10. When reviewing a challenge to the sufficiency of the evidence, we are bound by the following:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012).
Pursuant to 18 Pa.C.S.A. § 2705, a person commits the crime of reckless endangerment "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705. "To sustain a conviction for recklessly endangering another person, the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so. Danger, not merely the apprehension of danger, must be created. The mens rea for recklessly endangering another person is a conscious disregard of a known risk of death or great bodily harm to another person." Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa.Super. 2012) (citations omitted).
Appellant argues that his actions, as described by Officer Brown, do not support a conviction for REAP. However, the trial court disagreed. It explained:
The evidence shows that [Appellant's] actions before and during his interaction with Officer Brown substantially increased the risk that serious bodily injury to another person would occur. Officer Brown testified that he observed [Appellant] throwing full water bottles at pedestrians on the street. While a water bottle is not usually considered a dangerous weapon, when thrown at a person at some distance, particularly if it is directed towards a sensitive area of the body such as the head, the risk of serious bodily injury is clearly present. Officer Brown observed this activity occurring at the entrance to a subway station, an area that is often highly trafficked by pedestrians.
When the officer pursued [Appellant] into the subway entrance, [Appellant] threw a bottle of water at the officer, barely missing his head. When confronted, [Appellant] punched the officer in the chest, and then engaged in a struggle that resulte[d] in both men wrestling to the ground in an open elevator where both suffered from mace in their eyes as a result of [Appellant's] struggle to break free. At this point, [Appellant] continued to resist the officer's attempt to subdue him, striking the officer with his legs as both men were on the floor. The altercation eventually spilled out onto street level where the officer was finally able to handcuff [Appellant] and place him in a squad car with the assistance of several other officers arriving at the scene.
Trial Court Opinion, 8/2/13, at 5-6.
Viewing the record in the light most favorable to the Commonwealth as the verdict winner, we conclude that the evidence admitted at trial supports Appellant's conviction for reckless endangerment. Officer Brown testified that Appellant threw liquid-filled water bottles at pedestrians, and that Appellant stood at the top of a staircase and threw a water bottle at Officer Brown as he was ascending, with the bottle narrowly missing Officer Brown. N.T., 3/22/11, at 14-15. We conclude that this evidence was sufficient to sustain Appellant's conviction for recklessly endangering another person.
For the foregoing reasons, we affirm the judgment of sentence.