COMMONWEALTH OF PENNSYLVANIA v. MARK EDWARDS
No. 3693 EDA 2017
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED FEBRUARY 12, 2020
2020 PA Super 37
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
J-A24007-19
2020 PA Super 37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARK EDWARDS :
: No. 3693 EDA 2017
Appellant :
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011484-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 12, 2020
Appellant, Mark Edwards, appeals from the judgment of sentence of an
aggregate term of 10-25 years’ imprisonment, imposed after he was convicted
of aggravated assault,
reasons that follow, we reverse four of his convictions, vacate the judgment
of sentence, and remand.
The trial court summarized the relevant factual and procedural history
as follows:
[O]n Saturday, August 15, 2015, just before 7:00 p.m., a tan
2004 Ford Mercury Grand Marquis occupied by a single
travelled at a high rate of speed and struck a moving vehicle
occupied by two adults and one child in a residential neighborhood
near the corners of Large Street and Magee Avenue in Northeast
Philadelphia. Eyewitnesses observed that following the striking of
the first occupied vehicle, the vehicle, … [the] Marquis, then
continued to travel erratically at a high rate of speed and without
stopping, turned from Magee Avenue and onto the 6600 block of
* Retired Senior Judge assigned to the Superior Court.
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Sylvester Street[,] where it collided with multiple parked vehicles
along the way.
After hitting numerous parked cars, witnesses saw this same
vehicle strike a six[-]year[-]old child who had been riding her bike
and playing on the sidewalk near her home located within the
same block. The force of the collision sent this slight and small
child flying into the air and landing head first in a neighbor’s side
garden. Appellant … was then observed unsuccessfully
attempting escape by driving the vehicle into another parked
car[,] which blocked his exit. Appellant was seen immediately
thereafter leaping from the driver’s side of the car and running on
foot away from the path of destruction he caused.
The injured child’s mother, Nuris Quezada, reported that just
before the crash she heard the screeching of an approaching
vehicle as it swerved and sped down the 6600 block of Sylvester
Street where she was standing in front of her home. As she saw
the vehicle striking numerous parked cars, she ran immediately
toward her daughter in an attempt to pull her from the sidewalk
to safety. To her horror, she could not save her daughter due to
the high rate of speed of the striking vehicle. She thought her
daughter had died because she was found unconscious in the
neighbor’s yard. As Nuris Quezada ran to her daughter[,] she saw
the back of the male driver of the striking vehicle as he exited the
driver[’s] side of the otherwise unoccupied vehicle and [ran] away
from his misdeeds.
Najah Imani Caldwell testified that she had fully viewed the tan
Marquis speed down the street, crash into a number of parked
cars, hit a child[,] and then hit another parked car. She saw
Appellant alight from the driver’s side of the otherwise unoccupied
Marquis and flee on foot. Her view was unobstructed, and … close
to the collision scene from the front steps of her residence located
within the 6600 block of Sylvester Street. She was a teenager at
the time who bravely came forward, provided a detailed
description of the offender[,] and rode around the area with
responding police officers to search for the man she saw operating
the striking vehicle. She later unequivocally identified Appellant
as the perpetrator. She consistently and positively identified
Appellant at the preliminary hearing and at trial as the operator
of the striking vehicle and as the man who she had seen jump out
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from the driver’s side of the Marquis and run away from the crash
site.1
After several preliminary hearings, arraignment, and scheduling
conferences, the case against [Appellant] proceeded to trial
without a jury on April 21, 2017….
Over the course of the trial, the Commonwealth introduced
compelling and
from uniformed police officers, assigned investigators[,] the child
victim, her mother[,] and other eyewitnesses to Appellant’s
actions. At trial, all of the medical records reflecting treatment of
the child victim, who sustained traumatic injury to her head and
a multi-fractured arm, as well as the damage reports concerning
all involved vehicles[,] had been entered into the record by way
of stipulation and stated agreement between the parties. At trial,
the victim’s mother reported that he[r] daughter’s broken arm had
never fully recovered despite medical treatment. Mercifully, this
child reported that she has little memory of what happened to her.
This [c]ourt, as the finder of fact, entered verdicts of guilt for all
offenses charged after reviewing all submitted physical evidence
and listening to the testimony and arguments presented.
This [c]ourt found Appellant … guilty of the following offenses in
order of gradation: one count of Aggravated Assault under 18
[Pa.C.S.] § 2702[(a)(1)], graded as a Felony of the First Degree;
one count of Aggravated Assault-By Vehicle under 75 [Pa.C.S.] §
3732.1[(a)], graded as a Felony of the Third Degree; one count
of Accident[s] Involving Death or Personal Injury under 75
[Pa.C.S.] § 3742[(a)], graded as a Felony of the Third Degree;
two counts of Criminal Mischief-Tampering With Property under
18 [Pa.C.S.] § 3304[(a)(2)], graded as Felony of the Third
Degree; two counts of Criminal Mischief-Tampering With Property
under 18 [Pa.C.S.] § 3304[(a)(2)], graded as Misdemeanors of
the Second Degree; one count of Simple Assault-Attempt or Cause
Bodily Injury to Child, under 18 [Pa.C.S.] § 2701[(a)(1)], graded
as a Misdemeanor [of the] First Degree; one count of Recklessly
Endangering Another Person [(REAP)] under 18 [Pa.C.S.] §
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2705[,] graded as a Misdemeanor [of the] Second Degree; one
count of Accident[s] Involving Damage Attended Vehicle/Property
under 75 [Pa.C.S.] § 3743[(a)], graded as a Misdemeanor [of the]
Third Degree; and Possessi[ng] Instrument[s] of Crime under 18
[Pa.C.S.] § 907[(a)], graded as a Misdemeanor of the First
Degree.
As the presiding trial judge, this [c]ourt directed the completion
of Presentence Evaluations and Mental Health Evaluations by the
First Judicial District Probation and Parole and Mental Health
Departments, and scheduled the sentencing hearing in due
course. After conducting a thorough review of all completed
presentence and mental health evaluations, victim impact
statements, and correspondence submitted on behalf of
Appellant[,] and considering all relevant data and live testimony
submitted at a full and fair sentencing hearing, this [c]ourt
imposed the following sentences:
Count 1: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal MischiefTampering With Property, M2: Minimum six (6) months[’]
supervised term of confinement to maximum twelve (12)
months[’] confinement, to run consecutively to Count 9;
Count 2: 75 [Pa.C.S.] § 3742[(a)]-Accident[s] Involving
Death or Personal Injury, F3: A determination of guilty with
no further penalty;
Count 3: 75 [Pa.C.S.] § 3732.1[(a)]-Aggravated Assault by
Vehicle, F3: A determination of guilty with no further
penalty;
Count 4: 18 [Pa.C.S.] § 2705-[REAP], M2: Minimum six (6)
months[’] supervised term of confinement to maximum
twelve (12) months[’] confinement, to run consecutively to
Count 1;
Damage Attended Vehicle/Property, M3: A determination of
guilty with no further penalty[;]
Count 6: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal MischiefTampering With Property, M2: Minimum six (6) months[’]
supervised term of confinement to maximum twelve (12)
months[’] confinement, to run consecutively to Count 4;
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Count 7: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal MischiefTampering With Property, F3: Minimum six (6) months[’]
supervised term of confinement to maximum twelve (12)
months[’] confinement, to run consecutively to Count 6;
Count 8: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal MischiefTampering With Property, F3: Minimum six (6) months[’]
supervised term of confinement to maximum twelve (12)
months[’] confinement, to run consecutively to Count 7;
Count 9: 18 [Pa.C.S.] § 2702[(a)(1)]-Aggravated Assault,
F1 (Cause Serious Bodily Injury): Minimum seven (7) years
and six (6) months of state supervised term of confinement
to maximum twenty (20) years[’] confinement;
Count 10: Simple Assault[, 18 Pa.C.S. § 2701(a)(1)], M2-A
determination of guilty with no further penalty[.]
The resulting aggregate sentence was a minimum period of ten
(10) years to a maximum period of twenty-five (25) years of
incarceration, with credit accorded for custodial time served.
Appellant was ordered to have no contact with the Commonwealth
witnesses. Rehabilitative conditions were imposed including
participation in anger management classes, vocational training,
employment, dual diagnosis evaluation and treatment, and drug
and alcohol screening. Submission to random drug and alcohol
testing and home visits were also imposed along with payment of
regular fines and costs. Restitution was ordered in the amount of
$3,724.00[,] based upon the reported aggregate insurance
deductible payments submitted by each automobile owner. No
restitution had been requested on behalf of the child that had been
injured. [Appellant] was deemed “RRRI”2 and “Boot Camp”
ineligible.
Trial Court Opinion (TCO), 10/16/2018, at 2-6.
Appellant filed a timely post-sentence motion, which was denied by the
trial court on October 18, 2017. On November 17, 2017, Appellant filed a
timely notice of appeal. Subsequently, on January 22, 2018, the trial court
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ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal “within [21] days from the entry of this [o]rder, or
[21] days after the [n]otes of [t]estimony are available, whichever is later.”
Order, 1/22/2018. On February 12, 2018, Appellant requested an extension
to file his statement until March 2, 2018, which the trial court granted. On
March 1, 2018, Appellant filed a preliminary Rule 1925(b) statement, as well
as a request for permission to file a supplemental Rule 1925(b) statement
after he received all of the notes of testimony.3 Although Appellant claims
that
5-6, the docket does not demonstrate that it ruled on this request.
Nevertheless, Appellant filed a supplemental Rule 1925(b) statement on July
2, 2018.4 The trial court addressed the issues raised in both of Appellant’s
concise statements in its Rule 1925(a) opinion.
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Presently, Appellant raises the following issues on appeal:
1. Was not the evidence insufficient to convict of all charges, as
the sole evidence linking [A]ppellant to the crimes was an
unreliable identification by one witness who had a poor
opportunity to observe the perpetrator, gave a barebones
description to police, and identified [A]ppellant based only on his
clothing and the fact that he had brown skin?
2. Was not the evidence insufficient to convict [A]ppellant of four
counts of criminal mischief under 18 Pa.C.S.[] § 3304(a)(2)
because damaging a car as a result of a car accident does not
constitute “tampering”?
3. Was not the evidence insufficient to convict [A]ppellant of two
counts of criminal mischief (F3) and two counts of criminal
mischief (M2) where the Commonwealth failed to prove the
required amount of pecuniary loss on each count?
4. Was not the evidence insufficient to convict [A]ppellant of two
counts of criminal mischief (F3) and two counts of criminal
mischief (M2) where he was not proven to have the requisite
intent to cause pecuniary loss?
5. Should not the sentences for aggravated assault and [REAP]
have merged where 1) the two offenses meet the elements test
set out in 42 Pa.C.S.[] § 9756; and 2) assuming arguendo the
elements test was not met, Section 9756 is unconstitutional on its
face and as applied, as it conflicts with the Pennsylvania judicial
test for merger and violates separation of powers and double
jeopardy rights under the Pennsylvania Constitution?
Appellant’s Brief at 3-4.
At the outset, we need not consider whether Appellant has preserved
for our review the issues raised in his second, supplemental Rule 1925(b)
statement, as Appellant raised all of the issues we address infra in his initial
Rule 1925(b) statement.5
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Issue 1
In Appellant’s first issue, he argues that “[t]he evidence was insufficient
to prove [him] guilty of any of the charged offenses, as the sole evidence
linking him to the crimes was one identifying witness who had a minimal
opportunity to observe the perpetrator and who based her identification of
Appellant on his baggy pants and ‘brown’ skin.” Id. at 11 (unnecessary
capitalization
Caldwell — had “only a fleeting view of the perpetrator” and provided a “vague
description” to police that the perpetrator was “a skinny black male in his 20s,
wearing a white T-shirt.” Id. at 15. He adds that “[t]he weak evidentiary
value of Ms. Caldwell’s identification is due not only to the vague and
commonplace description she provided, but also to the unduly suggestive
circumstances surrounding the identification.” Id. at 16. He elaborates that,
“[w]hen [Ms. Caldwell] was eventually transported to the location where
[Appellant] was being detained, he was standing outside of a police car, with
two officers next to him. It was ‘close to nighttime’ and from the inside of the
sergeant’s car, which was 15 to 20 feet from [Appellant], Ms. Caldwell
identified him as the perpetrator.” Id. at 16-17 (citations omitted). Appellant
asserts that Ms. Caldwell was unable to identify him at the preliminary hearing
and, “on cross-examination [at trial], she conceded that she was told prior to
trial that the person she identified on the night in question would be present
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in the courtroom.” Id. at 17.6
Moreover, Appellant contends that “the
Commonwealth introduced no evidence that corroborated Ms. Caldwell’s
identification of [Appellant] as the perpetrator. There was no physical
evidence, no other witness[] testimony, and no incriminating statements or
conduct by [Appellant] linking him in any way to the incident.” Id. Thus,
Appellant claims that, “[g]iven Ms. Caldwell’s minimal opportunity to observe,
the extremely vague description she provided, her stated basis for identifying
[Appellant] (ubiquitous baggy pants and brown skin), the suggestivity of her
post-incident identifications, her inability to make an identification at the
preliminary hearing, and the lack of any corroborating evidence, the proof that
[Appellant] was indeed the perpetrator of the charged crimes was so weak
that any verdict of guilt thereon must [be] the product of speculation or
conjecture.” Id. at 18 (citations omitted).
We apply the following standard of review to sufficiency-of-the-evidence
claims:
The standard we apply … is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying [the
above] test, we may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that the facts
and circumstances established by the Commonwealth need not
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preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the [trier]
of fact while passing upon the credibility of witnesses and the
weight of the evidence
of the evidence.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa. Super. 2011) (citations
and emphasis omitted).
Additionally, we acknowledge:
Evidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citations
omitted). We note that “[a] challenge to the weight of the evidence is distinct
from a challenge to the sufficiency of the evidence in that the former concedes
that the Commonwealth has produced sufficient evidence of each element of
the crime, but questions which evidence is to be believed.” Id. (citation
omitted; brackets in original).
Here, Ms. Caldwell identified Appellant at trial as the man who, after
striking the little girl, got out of the car and started running. See N.T. Trial,
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4/21/2017, at 52-53.7
At the time of the incident, she explained that she was
“sitting on [her] front step across the street” from where the girl was hit. Id.
at 54. She said that was able to see Appellant get out of the vehicle and start
running, testifying that he looked to be skinny, in his mid-20s, and African
American. Id. at 57-58. Subsequently, police drove Ms. Caldwell to two
different locations to view suspects. Id. at 59-60. At the first location, she
stated that the man police showed her was not the person that struck the little
girl because “he was heavyset. The man [who struck the girl] wasn’t
heavyset.” Id. at 60. Ms. Caldwell then testified:
[The Commonwealth:] Now, the second time, are you also asked,
is this the man that you saw strike the little girl?
[Ms. Caldwell:] Yes.
[The Commonwealth:] And what do you say then?
[Ms. Caldwell:] Yes.
[The Commonwealth:] Now, at that point in time[,] why are you
saying yes?
[Ms. Caldwell:] He had on the same clothing. It’s just happened
not too long ago, so I remember his face.
[The Commonwealth:] You remember his face --
[Ms. Caldwell:] And the clothes he had on.
Id.
On cross-examination, Ms. Caldwell conveyed that it was Appellant’s
“clothes and his skin complexion” that helped her identify him, and recalled
that he was “skinny” and had “a white T-shirt on with baggy jeans, baggy
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pants.” Id. at 62. When police took her to the second location to see if she
could identify the perpetrator, she said the police did not tell her why they
were taking her to that location. Id. at 63. Ms. Caldwell also testified that
she identified Appellant at trial as the perpetrator because she recognized him,
and not because somebody told her that the person that was arrested would
be in the courtroom that day. Id. at 65. However, she agreed with Appellant’s
attorney that she “basically”
up the street. Id. at 75; but see id. at 81 (stating that she saw the “side of
his face”).
Further, at trial, Sergeant Melissa Panebianco testified that she asked
Ms. Caldwell shortly after the incident whether she would be able to identify
the driver of the vehicle, and Ms. Caldwell answered yes. Id. at 106. Sergeant
Panebianco explained that “normally when I … drive a witness to a location, I
just tell them just to remember what they saw at the scene and to do the best
they can. And if they know for a fact, a hundred percent[,] that that is the
person, they have to say so. If they are unsure, then they have to say that,
as well.” Id. at 109. When Ms. Caldwell identified Appellant, Sergeant
Panebianco testified that Ms. Caldwell did not indicate that she was unsure or
hesitate at all. Id.
Officer Gene Crozier also testified that he had received information that
had led him to investigate Appellant. Specifically, he stated:
[The Commonwealth:] And what did you do, when you became
involved in this investigation?
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[Officer Crozier:] Other officers responded to the scene, at which
time they gave out the vehicle information, which was left at the
scene of the accident…. [I t]ook that information and ran the tag
through our system and it came back to an address of 6050
Lawndale Avenue and owner Naja Jones.
I went to that location and asked if she knew who was using her
vehicle and she stated that she had left that vehicle in the position
[sic] of a Shaquan Ellis. She gave me an address of 6610 Akron
Street. From there[,] I went to Akron Street and came in contact
with Shaquan Ellis who said that he –
[Appellant’s attorney]: Objection.
[The court]: Sustained.
[The Commonwealth:] As a result of going to Akron Street, what
did you do?
[Officer Crozier:] From Akron Street, based on information
received at Akron Street, I went to the 1200 block of Robbins
Avenue.
[The Commonwealth:] And you went to the 1200 block of Robbins
Avenue. And what did you do there?
[Officer Crozier:] I double-parked my car and was met by
[Appellant], who walked out to our vehicle from the house on that
block.
…
[The Commonwealth:] And were you looking for [Appellant] at
that point in time?
[Officer Crozier:] Yes.
[The Commonwealth:] He just walks out of his house and
approaches the police?
[Officer Crozier:] Yes.
[The Commonwealth:] [W]hat do you do at that point in time? …
[Officer Crozier:] We had already at that point had a vehicle.
Sergeant Panebianco was bringing over a witness from the original
location, leaving the scene of the accident, who came over and
positively ID’d [Appellant] at the location as the driver.
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Id. at 115-17.
Based on the foregoing, we deem the identification evidence sufficient
to sustain Appellant’s convictions in this case. In addition to Officer Crozier
receiving information linking Appellant to the offense, Ms. Caldwell confidently
identified Appellant shortly after the incident occurred and again at trial.
Although she did not recognize Appellant at the preliminary hearing and the
circumstances surrounding her initial identification are admittedly not ideal,
this Court has discerned that “any uncertainty in an eyewitness’s identification
of a
Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (deeming
identification evidence sufficient, even though the witnesses expressed
uncertainty in their identification at trial, where they had previously identified
the appellant in a photo array and at a preliminary hearing); see also Kinney,
157 A.3d at 971-72 (“[The a]ppellant argues that the victims provided
‘unconvincing’ and ‘vague’ identifications and ‘inconsistencies regarding the
Commonwealth’s physical evidence.’ Such claims are directed entirely to the
credibility of the victim’s testimony, and, as such, challenge the weight, not
the sufficiency, of the evidence.”) (citations omitted).8
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challenged the weight of the evidence on appeal. Accordingly, no relief is due
on this basis.
Issue 2
In Appellant’s second issue, he argues that “the evidence was
insufficient to convict [him] of four counts of criminal mischief under 18
Pa.C.S.[] § 3304(a)(2) because damaging a car as a result of a car accident
does not constitute ‘tampering[.’]” Appellant’s Brief at 21 (unnecessary
capitalization omitted). That statute provides, in pertinent part, that “[a]
person is guilty of criminal mischief if he … intentionally or recklessly tampers
with tangible property of another so as to endanger person or property[.]”
In its opinion, the trial court discerned that “‘tamper’ plainly means to
interfere with something in order to cause damage or make unauthorized
alterations.” TCO at 14. It determined that the evidence was sufficient to
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sustain Appellant’s convictions under Section 3304(a)(2) as “Appellant
intentionally and recklessly tampered with or interfered with and caused
significant damage to multiple vehicles as he intentionally and recklessly
operated the Mercury Marquis at a high rate of speed over the span of at least
two disconnected residential city[-]sized blocks without stopping until … [his]
escape was impeded by the last vehicle impacted.” Id.
On appeal, Appellant contends that, “[p]ursuant to the commonly
understood meaning of the term ‘tamper[,’] principles of statutory
construction, and this Court’s precedent, it is clear that recklessly crashing
into another vehicle, even where damage or injury results, does not constitute
‘tampering’ and, thus, does not fall within the intended reach of [Section]
3304(a)(2).” Appellant’s Brief at 9. In particular, he asserts that “Black’s Law
Dictionary defines ‘tamper’ as ‘1. [t]o meddle so as to
esp[ecially] to make changes that are illegal, corrupting or perverting. 2. To
interfere improperly; to meddle.’” Id. at 22 (citing Black’s Law Dictionary, 8th
Ed. (2004); brackets added by Appellant). Further, he claims that
“Pennsylvania courts have generally applied [Section] 3304(a)(2) to crimes of
intentional alteration or vandalism, for example, cutting phone lines,
damaging a competitor’s combine by attaching iron pieces to his corn stalks,
or manipulating tools to create a hole in a door lock.” Id. at 23-24 (citations
omitted). He points out that elsewhere in the Crimes Code — namely, in 75
Pa.C.S. § 3808(b) which concerns “Tampering with an ignition interlock
system” — “the legislature used the word ‘tampering’ in a way that is
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consistent with [its] normal usage, i.e., to denote surreptitious or dishonest
conduct.” Id. at 23.9
Moreover, Appellant directs our attention to the rest of the criminal
mischief statute, specifically Section 3304(a)(5), which provides that “[a]
person is guilty of criminal mischief if he … intentionally damages real or
personal property of another[.]”
“looking at the [criminal mischief] statute in its entirety, as required by the
principles of statutory construction, makes it particularly clear that the
legislature did not intend for [S]ubsection (a)(2) to encompass cases, like the
instant case, of merely causing damage.” Id. at 25. He elaborates that, “[i]f
that were so, then [S]ubsection (a)(5) would subsume [S]ubsection (a)(2),
because [S]ubsection (a)(5) only requires that property be damaged
knowingly or intentionally.” Id. (citation omitted).
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Conversely, the Commonwealth attacks Appellant’s argument that
Section 3304(a)(2) requires proof that he committed acts of an intentional,
surreptitious, or dishonest nature, asserting that “the plain language of the
statute expressly includes intentional and reckless conduct.”
Commonwealth’s Brief at 12 (emphasis in original). The Commonwealth
observes that, “[a]lthough the General Assembly did not define ‘tampers,’ it
modified the word to include an intentional or reckless level of culpability. To
ignore this plain language … and interpret the statute as prohibiting only
intentional acts, would violate settled principles of statutory construction and
render the word ‘reckless’ superfluous.” Id. at 13. Accordingly, the
Commonwealth says that “any definition of ‘tampers with’ must be modified
to include both intentional and reckless conduct[,]” and asserts that ‘tamper’
means “to interfere so as to weaken or change for the worse.” Id. at 13, 13
n.3. With respect to Appellant’s argument regarding the meaning of the word
‘tamper’ in the context of tampering with an ignition interlock system under
75 Pa.C.S. § 3808(b), it correctly observes that that provision does not include
the word ‘reckless,’ and argues that “the legislature intended Section
3304(a)(2) of the criminal-mischief statute to proscribe a broader range of
conduct than the intentional and surreptitious behavior described in Section
3808(b) of the Vehicle Code.” Id. at 14.
that:
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[B]ecause statutory interpretation implicates a question of law,
our scope of review is plenary and our standard of review is de
novo.
When interpreting a statute:
Our task is guided by the sound and settled principles set
forth in the Statutory Construction Act, including the
primary maxim that the object of statutory construction is
to ascertain and effectuate legislative intent.
1921(a). In pursuing that end, we are mindful that “[w]hen
the words of a statute are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of
pursuing its spirit.”
general rule, the best indication of legislative intent is the
plain language of a statute.” In reading the plain language,
“[w]ords and phrases shall be construed according to rules
of grammar and according to their common and approved
usage,” while any words or phrases that have acquired a
“peculiar and appropriate meaning” must be construed
according to that meaning.
However, when interpreting non-explicit statutory text,
legislative intent may be gleaned from a variety of factors,
including, inter alia: the occasion and necessity for the
statute; the mischief to be remedied; the object to be
attained; the consequences of a particular interpretation;
and the contemporaneous legislative history.
1921(c). Moreover, while statutes generally should be
construed liberally, penal statutes are always to be
construed strictly,
ambiguity in a penal statute should be interpreted in favor
of the defendant.
Commonwealth v. Hanna, 124 A.3d 757, 759-60 (Pa. Super. 2015) (some
citations and quotation marks omitted).
After careful review, Appellant has persuaded us that damaging a car as
a result of a collision does not constitute ‘tampering’ under Section
3304(a)(2). Looking at the common and approved usage of the word
‘tamper,’ and keeping in mind that penal statutes are always to be construed
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strictly, see Hanna, supra, we deem ‘tamper’ to mean more than merely
damaging; instead, it signifies interfering with, meddling with, or altering
something with the aim of changing it. Though Appellant had at least a
reckless state of mind and certainly endangered people and property through
his behavior, his act of colliding with and damaging cars while speeding
through a neighborhood is not ‘tampering.’ He did not interfere, meddle with,
or alter the cars in order to change them; he crashed into them as he sped
away.
We also find convincing Appellant’s argument that the legislature
intended for ‘tamper’ and ‘damage’ to have different meanings. Section
3304(a)(5) penalizes someone who “intentionally damages real or personal
property of another[,]” while the at-issue Section 3304(a)(2) penalizes
someone who “intentionally or recklessly tampers with tangible property of
another so as to endanger person or property[.]”
(a)(5) (emphasis added). The legislature’s use of these terms indicates that
it intended to define them differently. If not, Section 3304(a)(2) would appear
to subsume the offense expressed in Section 3304(a)(5). See
1921(a) (“Every statute shall be construed, if possible, to give effect to all of
its provisions.”).
In addition, we consider persuasive the recent, unpublished, nonprecedential memorandum decision, Commonwealth v. Sewell, 2019 WL
7290507 (Pa. Super. filed
[T]he trial court found the following relevant facts supported Sewell’s criminal mischief conviction: “[Sewell] reversed his car and slammed [it] into the front of the officers’ squad car. The squad car was pushed back several feet, narrowly missing [Officer] McPoyle as he moved behind [Sewell’s] car to reposition himself next to [Officer] Fritz.”
Sewell claims that in order to be guilty of criminal mischief under Section 3304(a)(2), the Commonwealth must prove that the defendant “meddle[d] with or ma[d]e changes to tangible property.” We agree. Here, Sewell did not tamper with the officers’ police cruiser, or any tangible property for that matter; rather, he intentionally backed up and crashed into the vehicle, causing it to sustain body damage. Cf. Commonwealth v. Herman, 924 A.2d 1231 (Pa. Super. 2007) (where defendant cut telephone lines to grocery store, evidence was sufficient to sustain conviction under
“intentionally damages real or personal property of another.” See
Id. at *5 (some citations and footnote omitted; emphasis in original).
We acknowledge that the factual circumstances in Sewell are slightly different from those in the case sub judice, as Sewell intentionally reversed and crashed into the police car while Appellant may have hit the vehicles only recklessly.11 Nevertheless, the Sewell Court determined that there was no evidence that Sewell tampered with the police car, only
Issue 5
Because we reverse Appellant’s criminal mischief convictions, we need not address his third and fourth issues. Instead, we proceed to Appellant’s final claim, in which he avers that his sentences for aggravated assault and
REAP should have merged. See Appellant’s Brief at 31. He states that “[t]he two offenses satisfy the elements test set out in
We note that the trial court and the Commonwealth both agree that Appellant’s sentences for aggravated assault and REAP should have merged. See TCO at 17-18; Commonwealth’s Brief at 22. However, “[a] claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Therefore, our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa. Super. 2015) (citations omitted).
This Court has previously determined that these two offenses do not merge, explaining:
The Pennsylvania Crimes Code defines the crime of aggravated assault in pertinent part as follows:
§ 2702. Aggravated assault
(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[.]
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.
Whether two offenses merge for sentencing now turns on
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
Instantly, a conviction for aggravated assault requires a person, under circumstances manifesting extreme indifference to the value of human life, to (1) attempt to cause serious bodily injury to another, or (2) cause such injury intentionally, knowingly or recklessly. See
person in danger of serious bodily injury without attempting to cause (or actually causing) serious bodily injury, which would support a conviction for REAP, but not for aggravated assault. See, e.g., Commonwealth v. Vogelsong, 90 A.3d 717 (Pa. Super. 2014) (affirming REAP conviction of defendant who twice let her horse wander unattended on busy roadway and consciously disregarded substantial risk of injury posed to passing motorists). Additionally, unlike aggravated assault, REAP requires the element of actual danger of death or serious bodily injury. An individual could attempt to cause serious bodily injury to another person without placing that person in actual danger, which would support a conviction for aggravated assault but not REAP. See, e.g., Commonwealth v. Lopez, 654 A.2d 1150 (Pa. Super. 1995) (holding defendant who discharged firearm into empty residence could be convicted of aggravated assault if he acted with intent to cause serious bodily injury to person he believed was in residence even though that person was elsewhere). Each offense requires proof of an element that is absent from the other offense, and one offense can be committed without committing the other offense.
Cianci, 130 A.3d at 782-83 (footnote omitted; emphasis in original).
Here, it is clear that Appellant’s aggravated assault and REAP convictions arose from a single criminal act, namely, his striking the girl with his vehicle. See Appellant’s Brief at 33; Commonwealth’s Brief at 21. Thus, merger hinges on whether all of the statutory elements of REAP are included in the statutory elements of aggravated assault. While Appellant acknowledges the apparent impediment to relief that Cianci poses to him, he distinguishes it on the basis that the Cianci Court “held that [Section] 2702(a)(1) generally and REAP do not merge under [Section] 9765[. T]he panel was not presented with the narrower question, at issue here, of whether a conviction under the ‘actually causing injury’ portion of [Section] 2702(a)(1) merges with REAP.” Appellant’s Brief at 34. He elaborates that he “was not
convicted under the ‘attempts to cause injury’ portion of [Section] 2702(a)(1). He was convicted of ‘actually causing injury’ and consequently, he was subject to higher sentencing guidelines that correspond to that offense.” Id. at 34-35.12 Thus, he submits that the holding in
While Appellant’s argument is clever, no relief is due. To begin, Appellant was not convicted of aggravated assault causing serious bodily injury; he was convicted of aggravated assault under
Count 9: 18 [
Pa.C.S. § 2702(a)(1) ]-Aggravated Assault, F1 (Causes Serious Bodily Injury): Minimum [7] years and [6] months of state supervised term of confinement to maximum [20] years[’] confinement[.]
TCO at 6; see also Appellant’s Brief at 32; Commonwealth’s Brief at 21.
meager authority and analysis to persuade us that we should apply
Similarly, the Cianci Court did not parse out which particular portions of the relevant aggravated assault subsection and REAP statute related to Cianci’s circumstances. In more detail, Cianci was convicted of, inter alia, aggravated assault under
committing REAP and vice versa, those offenses did not merge. See id. at 782-83.
Based on the above-stated precedent, we decline to include such particularized parsing of statutory sections (or subsections) in our merger analysis. As Cianci holds, because there are ways an individual could commit aggravated assault under
As an alternative argument, Appellant avers that his sentences for aggravated assault and REAP should merge because “[Section] 9756 conflicts with Pennsylvania courts’ merger test and, therefore, is unconstitutional in that it violates separation of powers and double jeopardy rights under the Pennsylvania Constitution.” Appellant’s Brief at 10. He claims that, prior to the enactment of
in Baldwin rejected a federal double jeopardy challenge to
“[T]he constitutionality of a statute presents a pure question of law. Therefore, our standard of review is de novo and scope of review plenary.” Commonwealth v. Wade, 33 A.3d 108, 115-16 (Pa. Super. 2011) (citations omitted). Moreover, we note that “[s]tatutes are presumed constitutional.” Id. at 116 (citation omitted).
Appellant’s constitutional arguments do not warrant relief. This Court has previously held that
legislature, via our double jeopardy clause, from defining merger of sentence issues.”). Accordingly, this challenge fails.
Conclusion
To summarize, we determine that the evidence was sufficient to establish Appellant’s identity as the perpetrator. However, we ascertain that the evidence was insufficient to sustain Appellant’s four convictions for criminal mischief under
In light of our disposition, specifically, by reversing four of Appellant’s convictions, we have upset the trial court’s overall sentencing scheme. Therefore, we vacate the judgment of sentence and remand for resentencing. See, e.g., Commonwealth v. McCoy, 199 A.3d 411, 420 (Pa. Super. 2018).
Convictions for criminal mischief under
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/20