Com. v. Morgan, G.
Com. v. Morgan, G. No. 772 EDA 2015
| Pa. Super. Ct. | Jun 9, 2017Background
- On Nov. 11, 2012, Gregory Morgan approached Johnnie Moore near Moore’s apartment, displayed a handgun, demanded Moore’s phone and to be let inside, and then fired multiple shots. A close-range exchange followed; Moore sustained five gunshot wounds (two BBs lodged in his scalp), required emergency treatment, later had persistent headaches and was told he needed skull surgery.
- Police recovered a .22 revolver and other firearms from Moore’s apartment and DNA linking Morgan to a Nike shoe at the scene; Moore and a witness identified Morgan in photo arrays.
- A jury convicted Morgan of robbery (18 Pa.C.S. §3701(a)(1)(ii)), aggravated assault — causing serious bodily injury (18 Pa.C.S. §2702(a)(1)), and possession of an instrument of crime (18 Pa.C.S. §907(a)), but specifically found he did not visibly possess a firearm and acquitted him on related firearm/deadly-weapon counts.
- At sentencing the trial court (over objection) scored the robbery OGS at 12 (serious bodily injury inflicted) and applied the sentencing Deadly Weapons Enhancement (DWE/used) based on Morgan’s use of a BB gun, resulting in enhanced terms (96–192 months for robbery; concurrent 84–168 months for aggravated assault).
- Morgan appealed, arguing (1) insufficiency of evidence to prove serious bodily injury for aggravated assault, (2) erroneous OGS calculation for robbery (12 vs. 10), and (3) improper application of the DWE because the jury acquitted firearm/deadly-weapon charges and found no visible firearm possession. The Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault — serious bodily injury | Commonwealth: evidence (five shots, two pellets lodged in skull, emergency treatment, ongoing migraines) shows serious bodily injury | Morgan: injuries were not proven to cause substantial risk of death, permanent disfigurement, or protracted impairment required for "serious bodily injury" | Affirmed: evidence sufficient; protracted impairment (persistent headaches, fragment in skull, need for surgery) supports serious bodily injury |
| Correct OGS for robbery (12 v. 10) | Commonwealth: robbery occurred in course of attempted theft/flight and serious bodily injury was inflicted, so OGS 12 applies | Morgan: verdict ambiguous re: whether serious bodily injury was threatened or inflicted; injuries attributable to aggravated assault, not robbery, so OGS should be 10 | Affirmed: robbery and assault were part of a single episode; evidence supports inflicted serious bodily injury; OGS 12 proper |
| Application of DWE/used based on BB gun | Commonwealth: a sentencing court may find by preponderance that an instrument capable of producing death/serious injury was used; Morgan fired multiple projectiles at head at close range | Morgan: jury acquitted deadly-weapon and firearm charges and found no visible firearm; no proof BB gun is a deadly weapon | Affirmed: sentencing court may independently find by preponderance that the BB gun, as used, was capable of producing serious bodily injury; DWE/used properly applied |
Key Cases Cited
- Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015) (standard for sufficiency review)
- Commonwealth v. Burton, 2 A.3d 598 (Pa. Super. 2010) (hospitalization and severe trauma can establish serious bodily injury)
- Commonwealth v. Rhoades, 8 A.3d 912 (Pa. Super. 2010) (objects not normally deadly may be deadly based on manner of use)
- Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (jury findings about firearm possession and sentencing interplay)
- Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014) (discretionary-aspects-of-sentence review framework)
- Commonwealth v. Williams, 151 A.3d 621 (Pa. Super. 2016) (review of sentencing guideline calculations)
- Commonwealth v. McKeithan, 504 A.2d 294 (Pa. Super. 1986) (preponderance standard for sentencing factual findings)