Com. v. Sanders

• Decision Date: 17 June 1993
• Parties: COMMONWEALTH of Pennsylvania v. Jasper Earl SANDERS, Appellant.
• Court: Pennsylvania Superior Court

Page 183

627 A.2d 183

426 Pa.Super. 362

COMMONWEALTH of Pennsylvania v. Jasper Earl SANDERS, Appellant.

Superior Court of Pennsylvania.

Submitted April 15, 1993.

Filed June 17, 1993.

Joseph P. Burt, Erie, for appellant.

Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.

Before WIEAND, POPOVICH and HESTER, JJ.

WIEAND, Judge:

Jasper Earl Sanders was tried by jury and was found guilty of aggravated assault, recklessly endangering another person and carrying a firearm without a license. ¹ Post-trial motions were denied, and Sanders was sentenced to serve consecutive terms of imprisonment for not less than three (3) years nor more than ten (10) years for aggravated assault and not less than one (1) year nor more than five (5) years for carrying a firearm without a license. ² Thereafter, a direct appeal was filed in which appellant argued that: (1) the evidence was insufficient to sustain the conviction for aggravated assault; (2) the finding of guilt on the charge of aggravated assault was contrary to the weight of the evidence; and (3) the trial court abused its discretion by imposing a sentence in the aggravated range of the sentencing guidelines without stating adequate reasons for doing so.

Prior to addressing the merits of the instant appeal, we observe that appellant's appointed counsel has petitioned this Court for leave to withdraw from the case because of the absence of any meritorious issues to be advanced on appeal. In order to be permitted to withdraw from the case, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points he deems worthy of this Court's review.

Commonwealth v. Saunders, 394 Pa.Super. 347, 348-349, 575 A.2d 936, 937 (1990). See: Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Counsel has generally complied with these requirements. Our role, then, is to conduct an independent review of the record to determine whether counsel's assessment that the appeal is frivolous is correct. If counsel's assessment of the case is accurate, we may grant his petition to withdraw from the case. See: Commonwealth v. McClendon, supra; Commonwealth v. Wilson, 396 Pa.Super. 296, 299, 578 A.2d 523, 525 (1990).

In reviewing a challenge to the sufficiency of the evidence, we must determine "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense [ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). "Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

"A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence." Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). The decision whether or not to grant a new trial on this basis rests within the sound discretion of the trial court. Commonwealth v. Akers, 392 Pa.Super. 170, 182, 572 A.2d 746, 752 (1990). "A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). The role of an appellate court in reviewing the weight of the evidence is very limited. Commonwealth v. Purcell, 403 Pa.Super. 342, 348, 589 A.2d 217, 220 (1991). "The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court's judgment for that of the trial court." Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc).

Instantly, appellant was convicted of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(4), which provides that "[a] person is guilty of aggravated assault if he attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon." Where the defendant is charged with aggravated assault based upon his attempt to injure another person, the Commonwealth is required to prove that he acted with a specific intent to cause such injury. Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991). " 'A person acts intentionally with respect to a material element of an offense when ... it is his conscious object to engage in conduct of that nature or to cause such a result.' " Id., quoting 18 Pa.C.S. § 302(b)(1)(i). "Criminal intent may be proved by direct or circumstantial evidence." Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978).

The evidence at trial discloses that, on November 9, 1991, at or about 1:50 a.m., appellant and Randall Coleman were both patrons at "Hut's Place," a tavern located in Erie, Pennsylvania. The two men were known to each other and had been involved in a fight about one year earlier. According to Coleman, appellant approached him in the bar and said that he (appellant) did not like him and that "one day its going to be me and you one-on-one." In response, Coleman told appellant that he was ready to fight. Appellant then pulled out a gun and pointed it at Coleman's chest. Thereafter, appellant walked up to Coleman and placed the gun to Coleman's head, stating that he was going to blow Coleman's "mother fucking head off." While pointing the gun at Coleman's head, appellant's finger was on the trigger and the gun was loaded. Believing that he was about to be shot, Coleman grabbed appellant's wrist and attempted to wrestle the gun from him. During the struggle, Coleman was able to push appellant into the bar, where the owner of the tavern took the gun from appellant's hand. This version of events was substantially corroborated by the testimony of other persons who were in the tavern at the time of the incident.

Appellant testified on his own behalf and said that after their previous fight, Coleman had threatened that he was going to get appellant sooner or later. He said that Coleman had approached him in "Hut's Place" and had said "come on, lets get it on now." In response, appellant backed up, and because he felt threatened by Coleman, pulled out his gun to keep Coleman from advancing further. According to appellant, he held the gun to his side and did not point it at anybody. Coleman, however, continued to approach, grabbed appellant by the wrist and pushed him into the bar. The gun was then taken from appellant by the owner of the tavern. Appellant denied having any intent to injure Coleman with the gun.

In the brief filed by appointed counsel, it is asserted that the evidence was insufficient to sustain appellant's conviction for aggravated assault because appellant had intended only to scare the victim in order to ward off being attacked. Appellant, however, has filed a pro se brief in which he argues more specifically that his act of pointing a gun at the victim was insufficient as a matter of law to support his conviction under 18 Pa.C.S. § 2702(a)(4). According to appellant, the Commonwealth failed to prove that he acted with the specific intent to cause bodily injury to the victim with a deadly weapon. In making this argument appellant relies upon the decision in Commonwealth v. Savage, 275 Pa.Super. 96, 418 A.2d 629 (1980), where the Superior Court held that the trial court had erred when it instructed the jury that the defendant's act of pointing a gun at the victim could constitute an aggravated assault. In so holding, the Superior Court reasoned as follows:

The Crime[s] Code defines aggravated assault as follows:

(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 a police officer making or attempting to make a lawful arrest;

(3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer making or attempting to make a lawful arrest; or

(4)...