Com. v. Alford

• Decision Date: 26 July 2005
• Parties: COMMONWEALTH of Pennsylvania v. Jeffery ALFORD, Appellant
• Court: Pennsylvania Superior Court

880 A.2d 666

COMMONWEALTH of Pennsylvania v. Jeffery ALFORD, Appellant

Superior Court of Pennsylvania.

Submitted March 1, 2005.

Filed July 26, 2005.

Andrew M. Hladio, Public Defender, Beaver, for appellant.

Dale M. Fouse, Assistant District Attorney, Beaver, for Commonwealth, appellee.

Before: FORD ELLIOTT, MUSMANNO, and LALLY-GREEN, JJ.

OPINION BY FORD ELLIOTT, J.:

¶ 1 Jeffery Alford appeals from his judgment of sentence entered on February 25, 2004. For the following reasons, we affirm in part, reverse in part, and remand for resentencing.

¶ 2 On February 21, 2003, appellant was being transported to the Beaver County Jail by Constable Michael Hutchinson ("Hutchinson") when he escaped. Although he was wearing leg irons and handcuffs, appellant managed to take Hutchinson's.45 caliber semi-automatic handgun from its holster; and after pistol-whipping Hutchinson, appellant jumped a fence and fled to a nearby neighborhood. Appellant pounded on the front door of Bertha Gall ("Gall"), who, recognizing appellant's green and white striped uniform as that of a jail inmate, refused him entry. When appellant pointed Hutchinson's handgun at Gall through the front-door window and again demanded to be let in, Gall ran out the kitchen door to a neighbor's house. Appellant entered the open kitchen door and was eventually apprehended by police, hiding beneath Gall's bed. Hutchinson's stolen handgun was recovered in Gall's basement.

¶ 3 After a jury trial, appellant was found guilty on December 12, 2003 of one count of simple assault, six counts of aggravated assault, one count of theft by unlawful taking, one count of burglary, two counts of robbery, one count of escape, and one count of criminal trespass. Appellant was found not guilty of one count of criminal attempt to commit homicide. On February 25, 2004, the Honorable John D. McBride imposed an aggregate sentence of 18½ to 67 years' incarceration. Appellant was also ordered to make restitution to Hutchinson in the amount of $1,111.59 and to Gall in the amount of $1,200.

¶ 4 Appellant filed a motion for reconsideration/modification of sentence, which was denied on August 3, 2004. A timely notice of appeal was filed on August 11, 2004. Appellant has complied with Pa.R.A.P. 1925(b).

¶ 5 Appellant brings the following issues for this court's review:

A. WHETHER THE CONVICTION AGAINST DEFENDANT SHOULD BE REVERSED REGARDING THE AGGRAVATED ASSAULT INVOLVING THE VICTIM GALL, WHEN IT WAS SHOWN THAT DEFENDANT MERELY POINTED THE GUN AT HER?

B. WHETHER THE IMPOSITION OF THE MANDATORY MINIMUM SENTENCE FOR THE ROBBERY CONVICTION SHOULD BE MODIFIED AND RECONSIDERED WHEN THE EVIDENCE SHOWED THAT THE DEFENDANT DID NOT VISIBLY POSSESS A FIREARM WHEN HE WAS ALLEGED TO HAVE COMMITTED A ROBBERY?

C. WHETHER THE IMPOSITION OF THE MANDATORY MINIMUM SENTENCE FOR THE BURGLARY CONVICTION SHOULD BE MODIFIED AND RECONSIDERED WHEN THE EVIDENCE SHOWED THAT WHEN THE DEFENDANT'S UNAUTHORIZED ENTRY OCCURRED, OR THE INTENT TO COMMIT A CRIME WHILE TRESPASSING, THEIR [SIC] WAS NO ONE PRESENT TO PLACE IN FEAR OF DEATH OR SERIOUS BODILY INJURY AS THE VICTIM HAD LEFT?

D. WHETHER THE DEFENDANT'S CONVICTION SHOULD BE REVERSED AS TO ROBBERY WHEN THE COMMONWEALTH FAILED TO SHOW THAT THE DEFENDANT COMMITTED FORCE AGAINST THE VICTIM IN THE COURSE OF COMMITTING A THEFT OF THE FIREARM?

E. WHETHER THE COMMONWEALTH FAILED TO MEET ALL ELEMENTS OF THE AGGRAVATED ASSAULT CHARGES FILED, AND THE DEFENDANT SHOULD ONLY BE CONVICTED OF LESSER AGGRAVATED ASSAULT CHARGES?

F. WHETHER THE COMMONWEALTH FAILED TO MEET ALL OF THE ELEMENTS OF THE BURGLARY CHARGE, AND THE DEFENDANT SHOULD ONLY BE CONVICTED OF THE CRIMINAL TRESPASS CHARGE?

Appellant's brief at 3.

¶ 6 First, appellant challenges the sufficiency of the evidence for his conviction for aggravated assault against Gall.

Our standard of review for a challenge to the sufficiency of the evidence is well settled. We must view all the evidence in the light most favorable to the verdict winner, giving that party the benefit of all reasonable inferences to be drawn therefrom. Additionally, it is not the role of an appellate court to weigh the evidence or to substitute our judgment for that of the fact-finder.

Commonwealth v. Gruff, 822 A.2d 773, 775 (Pa.Super.2003), appeal denied, 863 A.2d 1143 (2004) (citations omitted).

¶ 7 Aggravated assault is defined at 18 Pa.C.S.A. § 2702, which provides in relevant part:

(a) Offense defined. — A person is guilty of aggravated assault if he:

(1) 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;

(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;

(3) 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;

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

. . . .

(b) Grading. — Aggravated assault under subsection (a)(1) and (2) is a felony of the first degree. Aggravated assault under subsection (a)(3), (4), (5), (6) and (7) is a felony of the second degree.

18 Pa.C.S.A. § 2702(a), (b). A constable or deputy constable is among those officers, agents, employees and other persons referred to in subsection (a). 18 Pa.C.S.A. § 2702(c)(24), (25). "Serious bodily injury" is defined as "Bodily 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.

¶ 8 The record reflects that after escaping from Hutchinson's vehicle, appellant approached Gall's house. Gall heard a loud bang on the front door. (Notes of testimony, 12/10/03 at 361.) Gall's front door has a window covered by a curtain. (Id. at 362.) Gall drew the curtain aside and saw appellant in a green and white uniform; she recognized the uniform as belonging to a jail inmate. (Id. at 362-363.) Appellant "kept yelling and pounding on the door to let him in." (Id. at 363.) Gall said, "I can't let you in." (Id.) Appellant started screaming, "Let me in." (Id.) After Gall told appellant, "I can't open the door," he pointed Hutchinson's handgun at her through the front door window. (Id. at 363, 365-366.) Gall immediately ran out of the house through the kitchen side door. (Id. at 363.) As she ran to a neighbor's house, police were in pursuit of appellant and were already setting up a perimeter around Gall's house. (Id. at 364.)

¶ 9 Appellant argues that this evidence was insufficient to prove that he had the specific intent to cause serious bodily injury to Gall under Section 2702(a)(1) of the statute. We agree.

For aggravated assault purposes, an `attempt' is found where the accused, with the required specific intent, acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another. As our Court has previously stated: An 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.

Gruff, supra at 776 (citations omitted).

¶ 10 In the instant case, appellant demanded to be let into Gall's house. After Gall repeatedly refused, appellant raised his handgun and pointed it at Gall, who immediately fled. This evidence is insufficient as a matter of law to prove aggravated assault under (a)(1). It is well settled that merely pointing a gun at another person in a threat to cause serious bodily injury does not constitute an aggravated assault. Commonwealth v. Savage, 275 Pa.Super. 96, 418 A.2d 629, 632 (1980).

¶ 11 In Commonwealth v. Matthews, 870 A.2d 924 (Pa.Super.2005) (en banc), this court re-examined the law of aggravated assault in Pennsylvania. In that case, Chaka Matthews shoved a loaded firearm into the throat of an unsuspecting motorist, continued to restrain the motorist throughout the encounter by pointing the loaded firearm at him, and expressed his present intent to kill between seven to ten times during their encounter. Matthews only ended the encounter after a third party arrived at the scene. We held that Matthews' repeated threats, when viewed together with his own actions, would permit the fact-finder to infer that Matthews possessed the requisite intent to inflict serious bodily injury during the encounter. Id. at 933, citing Gruff, supra.

In so holding, we overruled Commonwealth v. Mayo, 272 Pa.Super. 115, 414 A.2d 696 (1979), and Commonwealth v. Repko, 817 A.2d 549 (Pa.Super.2003), to the extent that they stand for the proposition that the Commonwealth presented insufficient evidence of the defendant's intent, as a matter of law, where the defendant does not avail himself of an opportunity to follow through with his threats. Id.

¶ 12 The Commonwealth argues that appellant took a "substantial step" towards perpetrating a serious bodily injury upon Gall by showing up at her house, pounding on her front door and pointing the firearm at her. (Commonwealth's brief at 9.) The Commonwealth also argues that because appellant had just assaulted Hutchinson, the jury could properly infer that he also had the intent to harm Gall. (Id.) Although appellant's assault on Hutchinson and the circumstances of his escape are certainly relevant, we disagree that an intent to harm Hutchinson can somehow be transferred to Gall. Appellan...