Com. v. Gerald, R., Com. v. Gerald, R. No. 2621 EDA 2015

Background

On Nov. 29, 2012, Jamison Towing employee Michael Yarnell hooked a 1998 Ford Expedition onto his tow truck; later, while photographing the tow near the 40th Street Bridge, two men (Gerald and co-defendant Thomas) approached and confronted him.
Yarnell testified Thomas put him in a chokehold and Gerald dragged him out of the truck by his testicles and kicked him; one of the men purportedly said, "Let’s throw the mother fucker off the bridge." Yarnell went limp and required medical treatment.
An off-duty Univ. of Pennsylvania officer intervened, drew his weapon, and the defendants stopped; police recovered Yarnell’s camera from one defendant.
Gerald claimed he and Thomas believed the Expedition had been stolen and that they were attempting to retake it; Gerald asserted (imperfect) defense of property/mistake of fact.
The non-jury trial court convicted both defendants of aggravated assault and other offenses (conspiracy, theft, RSP, REAP, terroristic threats, simple assault), and sentenced Gerald to 11½ to 23 months’ imprisonment (concurrent) plus probation.
On appeal Gerald challenged sufficiency and weight of the evidence, principally arguing his reasonable but mistaken belief that the car was stolen justified or negated the mens rea for the convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for aggravated assault (malice) given imperfect defense of property	Commonwealth: evidence supports malice and intent for aggravated assault; defendants attacked victim without legal justification	Gerald: his mistaken, reasonable belief that the car was stolen (imperfect defense of property) negated requisite intent/malice	Court affirmed: Commonwealth disproved justification under 18 Pa.C.S. §507; force was not immediately necessary, defendants were aggressors, and evidence established malice
Sufficiency for related convictions (simple assault, REAP, theft, RSP, conspiracy, terroristic threats) under defense-of-property claim	Commonwealth: conduct and threats support convictions; theft/RSP supported by evidence	Gerald: same justification/mistake of fact defense negates culpability for these offenses	Court affirmed: evidence sufficient for each conviction; defendants acted in tandem, used excessive force, and were not justified in using force
Preservation of a separate sufficiency challenge to malice (independent of defense-of-property)	Gerald raised a general argument that conduct lacked requisite egregiousness to show malice in briefing	Commonwealth: procedural rules require issues be preserved in Rule 1925(b) statement	Held: claim waived because Gerald’s Rule 1925(b) statement tied intent challenge to defense-of-property only; free-standing malice argument not preserved
Weight-of-the-evidence challenge	Gerald: verdict was against the weight given his character evidence and the claimed justification	Commonwealth: trial court’s factual credibility determinations should stand	Held: weight claim waived for appellate review because not preserved via post-sentence/oral motion before sentencing

Key Cases Cited

Commonwealth v. Murray, 83 A.3d 137 (Pa. 2013) (standard for sufficiency review)
Commonwealth v. Patterson, 91 A.3d 55 (Pa. 2014) (standards for appellate review)
Commonwealth v. O'Hanlon, 653 A.2d 616 (Pa. Super. 1995) (recklessness for aggravated assault must be equivalent to seeking to cause injury)
Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004) (malice as mens rea for aggravated assault)
Commonwealth v. Kling, 731 A.2d 145 (Pa. Super. 1999) (no distinction between malice for third-degree murder and aggravated assault)
Commonwealth v. Emler, 903 A.2d 1273 (Pa. Super. 2006) (application of defense-of-property limitations)
Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013) (standard and preservation for weight-of-the-evidence claims)
Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009) (waiver of weight claim absent timely preservation)