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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICAH SMITH, Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

ALLEN, J.

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.[1] 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 ...

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