J-S21012-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEAN HANTON,

Appellant No. 334 EDA 2014

Appeal from the Judgment of Sentence December 19, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009933-2011

BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015

Deon Hanton appeals from the judgment of sentence of six to twelve 

years imprisonment that the trial court imposed after he was convicted of 

aggravated assault, three violations of the Uniform Firearms Act (“VUFA”), 

and possession of an instrument of crime (“PIC”). We affirm. 

The trial court provided a comprehensive review of the proof adduced 

in support of the described convictions:

 On June 15th, 2011, at about 11:45 p.m., in the area of 59th 

Street and Lansdowne Avenue in Philadelphia, Hakeem McGill 

saw and spoke briefly with the defendant. Both men had 

attended seventh grade at Richard Allen Charter School. As the 

men were about to go their separate ways, McGill asked if the 

defendant needed any marijuana. The defendant declined the 

offer and McGill began to walk home. 

 Soon thereafter, the defendant yelled at McGill and asked if 

he was selling four bags of marijuana for fifteen dollars. When 

McGill indicated he was, the defendant pulled a gun out of the 

track bag he was carrying and pointed it at McGill. The 
J-S21012-15

- 2 -

defendant ordered McGill to give him the marijuana. As McGill 

attempted to grab the gun from defendant, the defendant 

stepped back and shot McGill in the leg. McGill immediately ran 

away; while he was running he heard the defendant fire a 

second shot. McGill ran to 1703 Edgewater Street where [he] 

encountered a woman in her car whom he requested call his 

mother and 911.

 At approximately 11:50 p.m., in response to a radio call, 

Police Officer Sokha Soy arrived at 1703 North Edgewood Street. 

Officer Soy found McGill sitting on the steps to the residence. 

Officer Soy observed that McGill had a gunshot wound to his left 

ankle. McGill explained that he had been shot on the 5900 block 

of Lansdowne Avenue, about three blocks away. McGill was 

transported to the University of Pennsylvania hospital. McGill 

was treated for a perforating gunshot wound to his left ankle. 

 On June 16, 2011, at approximately 3:30 a.m., Detective 

Robert Conway picked McGill up from the hospital and took him 

to the crime scene at 59th Street and Lansdowne Avenue. 

McGill directed Detective Conway to the area where he was shot. 

In the schoolyard near a dumpster Detective Conway found one 

45-caliber fired shell casing, a black knit hat, three Ziploc 

packets of marijuana and some beer cans. Across the street 

from the casing, in front of 1534 North 59th Street, Detective 

Conway found a jacket belonging to McGill. 

 That same day, at about 2:00 p.m., Detective Orlando Ortiz 

showed McGill a series of photographs. McGill identified the 

defendant. Later that evening, at 10:25 p.m., McGill gave a 

formal statement to police. During this statement, McGill 

identified the defendant from a photo array, which contained a 

more recent photo of the defendant than the one he was 

previously shown. 

Trial Court Opinion, 3/12/14, at 2-3 (citations to record omitted). Police 

obtained an arrest warrant for Appellant. On July 6, 2011, Philadelphia 

Police Officer Michael Alice saw and recognized Appellant, who was on the 

600 block of North Union Street. Appellant fled when Officer Alice attempted 
J-S21012-15

- 3 -

to effectuate an arrest. The officer pursued Appellant, who entered a house 

located at 659 Union Street. After Appellant was forcibly evicted by its 

occupants, the officer took him into custody. 

Based on this evidence, a jury convicted Appellant of first-degree 

felony aggravated assault, carrying an unlicensed firearm, carrying a firearm 

on a public street or property in Philadelphia, and PIC. The trial court then 

found Appellant guilty of persons not to possess a firearm. Appellant 

proceeded to sentencing on December 19, 2013, when he received an 

aggregate term of six to twelve years incarceration in this matter. This 

appeal followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) 

statement, but Appellant failed to comply with that directive. Upon his 

petition, we subsequently remanded for the filing of a statement nunc pro 

tunc. This document in question was filed, and the matter is now ready for 

resolution. Appellant raises the following allegations on appeal:

 1. Was not the evidence insufficient to convict appellant of 

aggravated assault, graded as a felony of the first degree, where 

the evidence did not support a finding that appellant attempted 

to cause serious bodily injury because he kept his gun pointed 

down towards the ground during the incident, shot the 

complainant once in the ankle and never verbally threatened the 

complainant in any way?

 2. Was not the appellant's sentence invalid where it was 

based on an unconstitutional mandatory minimum statute, 

specifically, 42 Pa. C.S. § 9712 [,which pertains to] Sentences 

for offenses committed with firearms, that has been rendered 

void and unenforceable pursuant to Commonwealth v. 

Newman, 2014 WL 408805 (August 20, 2014) (en banc) and 
J-S21012-15

- 4 -

Commonwealth v. Valentine, 2014 WL 4942256 (Pa. Super. 

October 3, 2014)?

Appellant’s brief at 4. 

Appellant’s first position is that the evidence was insufficient to 

support a conviction under 18 Pa.C.S. § 2702(a)(1), a first-degree felony, 

and that, instead, his “actions constitute an aggravated assault, graded as 

felony of the second degree under 270[2](a)(4).” Appellant’s brief at 16. 

We first set forth the pertinent standard and scope of review as to this 

claim:

“Whether sufficient evidence exists to support the verdict is a 

question of law; our standard of review is de novo and our scope 

of review is plenary.” Commonwealth v. Murray, Pa. , 83 

A.3d 137, 151 (2013). We review the evidence in the light most 

favorable to the verdict winner to determine whether there is 

sufficient evidence to allow the jury to find every element of a 

crime beyond a reasonable doubt. Commonwealth v. Cahill,

95 A.3d 298, 300 (Pa.Super. 2014).

 In applying the above test, we may not weigh the 

evidence and substitute our judgment for the factfinder. In addition, we note that the facts and 

circumstances established by the Commonwealth 

need not 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 finder of fact while passing upon the 

credibility of witnesses and the weight of the 
J-S21012-15

- 5 -

evidence produced, is free to believe all, part or none 

of the evidence.

Id.

Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa.Super. 2015).

The pertinent portions of § 2702 are 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; 

. . . . 

(4) attempts to cause or intentionally or knowingly 

causes bodily injury to another with a deadly 

weapon[.]

18 Pa.C.S. § 2702. “Aggravated assault under subsection (a)(1), (2) and 

(9) is a felony of the first degree. Aggravated assault under subsection 

(a)(3), (4), (5), (6), (7) and (8) is a felony of the second degree.” 18 

Pa.C.S. § 2702(b). Serious bodily injury is defined by the Crimes Code 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. § 2301. 

In this case, Appellant maintains that he did not cause the victim 

serious bodily injury and that the Commonwealth failed to prove that he 

attempted to cause such injury. It is established that, “Where the injury 

actually inflicted did not constitute serious bodily injury, the charge of 
J-S21012-15

- 6 -

aggravated assault can be” sustained only when the evidence supports a 

finding the defendant’s actions toward the victim were “accompanied by the 

intent to inflict serious bodily injury.” Commonwealth v. Alexander, 383 

A.2d 887, 889 (Pa. 1978); see also Commonwealth v. Matthew, 909 

A.2d 1254 (Pa. 2006). 

When we examine “whether [the] evidence established intent to cause 

serious bodily injury,” that inquiry “must be determined on a case-by-case 

basis. Because direct evidence of intent is often unavailable, intent to cause 

serious bodily injury may be shown by the circumstances surrounding the 

attack.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007) 

(citations omitted); see also Matthew, supra; Commonwealth v. 

Fortune, 68 A.3d 980 (Pa.Super. 2013) (en banc).

Appellant maintains that he did not commit first-degree felony 

aggravated assault because he “neither aimed his gun at the complainant's 

vital organs nor verbally threatened the complainant in any way. 

Throughout the course of their interaction, [Appellant] kept the gun pointed 

at the complainant's feet.” Appellant’s brief at 15-16. Acknowledging that 

the victim reported that a second shot was fired at him as he fled, Appellant 

insists that no inference can be made either that he fired the shot or that it 

was aimed at the victim. 
J-S21012-15

- 7 -

We reject Appellant’s sufficiency claim. Mr. McGill stated that 

Appellant removed a gun from a bag that he was carrying and pointed it at 

him. When the victim tried to grab the gun, Appellant stepped backward 

and shot at the victim’s leg. The bullet struck his ankle, but Mr. McGill 

managed to run. As he was running, the victim heard Appellant firing a 

second shot. When a defendant shoots in a person’s direction, regardless of 

whether the gun is aimed at the head or torso, such conduct evidences 

intent to cause serious bodily injury. Commonwealth v. McCalman, 795 

A.2d 412 (Pa.Super. 2002) (defendant’s convictions of aggravated assault 

under § 2702(a)(1) upheld when he shot in direction of the victims, even 

though no bullets struck them); Commonwealth v. Galindes, 786 A.2d 

1004, 1012 (Pa.Super. 2001) (“Even though [the victim] was not struck by 

any bullets, the act of firing a gun toward him constitutes an attempt to 

cause serious bodily injury.”); see also Commonwealth v. Matthews, 870 

A.2d 924, 929 (Pa.Super. 2005), aff’d on other grounds sub nom. 

Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006) (“[I]n instances 

where the defendant has both drawn and fired (or drawn and misfired) a 

gun, we have consistently held” that the Commonwealth has demonstrated 

that the defendant attempted to inflict serious bodily injury for purposes of § 

2702(a)(1).). In this case, Appellant shot at Mr. McGill’s leg, striking him in 

the ankle. The inferences from the evidence establish that Appellant fired a 
J-S21012-15

- 8 -

second shot in the direction of the victim as the victim was fleeing. Hence, 

we reject his challenge to the sufficiency of the evidence as to aggravated 

assault. 

Appellant next maintains that he was sentenced under a statute 

declared unconstitutional in Alleyne v. United States, U.S. , 133 S.Ct. 

2151 (2013), Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) 

(en banc) and Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 

2014); see also Commonwealth v. Ferguson, 107 A.3d 206 (Pa.Super. 

2015). Specifically, he suggests that his aggravated-assault sentence was 

premised upon application of 42 Pa.C.S. § 9712, which imposes a mandatory 

minimum sentence of five years incarceration on offenses committed when 

the defendant visibly possessed a firearm during the offense and when the 

defendant placed the victim in reasonable fear of death or serious bodily 

injury. This statute is unconstitutional under the noted case law.

Appellant’s position fails because the sentencing court herein did not 

apply that statute. The sentencing in question occurred on December 19, 

2013, and review of that transcript establishes that no one even mentioned 

§ 9712. Instead, the court expressly stated that it was not applying any 

mandatory minimum sentence due to the firestorm created by the Alleyne

decision, which held that a defendant’s right to a jury determination beyond 
J-S21012-15

- 9 -

a reasonable doubt applies to any fact required to apply a mandatory 

minimum. 

When he committed these crimes, Appellant was on probation for 

committing the crime of possession with intent to deliver (“PWID”), and the 

probation court had relinquished jurisdiction of the violation-of-probation 

(“VOP”) case to this court. N.T. Sentencing, 12/19/13, at 21. Appellant had 

a prior record score of two that did not reflect two juvenile arrests for PWID. 

The Commonwealth noted that Appellant was a habitual participant in the 

drug-dealing culture in Philadelphia and was declared delinquent for starting 

a fire at his school. 

The Commonwealth agreed to apply an offense gravity score of ten 

rather than eleven to the aggravated assault conviction since there was a 

dispute as to whether the ankle wound amounted to serious bodily injury. 

Using the deadly-weapon-used sentencing matrix, the guidelines called for a 

sentence of fifty-four to sixty-six months imprisonment for aggravated 

assault. The guidelines for the remaining offenses were: thirty-six to fortyeight months for the persons-not-to-possess; four to thirty-six months for 

possession of a firearm without a license; three to four months for carrying a 

firearm on a public street or property in Philadelphia; and restorative 

sanctions to nine months for PIC. 
J-S21012-15

- 10 -

The court had a presentence report and outlined its consideration of 

the appropriate factors. It found that Appellant violated probation by 

commission of the offenses herein. Id. at 26. The court noted that 

Appellant made a poor impression on the presentence investigator, who 

found that Appellant minimized his role in this case, denied the seriousness 

of shooting at someone, and “felt that there was nothing wrong with [his] 

lifestyle.” Id. at 28. Defense counsel spoke in mitigation of sentence, 

Appellant’s mother asked the court to be lenient, and Appellant exercised his 

right to allocution. 

The court sentenced Appellant to five to ten years imprisonment for 

the aggravated assault and a consecutive aggregate sentence of one to two 

years on the VUFA and PIC offenses, which was a downward departure from 

the guidelines. The court explained its decision: 

[THE COURT]: Now, [Appellant], I’m not done. You may 

think that’s a hard sentence, but actually I have to justify on the 

record the reason why I gave you so little time for the gun case, 

because the guidelines I should be giving you are 3 to 6 years. 

And the reason why I am deviating downwards is because 

I did give you a sentence squarely within the standard 

range for the aggravated [assault] sentence. 

Id. at 33 (emphasis added). The court imposed a VOP sentence of one to 

two years imprisonment, consecutive to the term of incarceration imposed in 

the present case. The court then specifically delineated: 
J-S21012-15

- 11 -

Counsel, for your benefit, that is a standard range sentence and 

that's the sentence I was giving irrespective of any mandatoryminimum. And whatever's going to happen to the mandatoryminimum is going to happen. But that is the sentence I'm giving 

based upon not a mandatory-minimum but the guidelines 

based upon your client's offense gravity score and prior record 

score. 

Id. at 36 (emphasis added). 

As Appellant’s position that he was sentenced pursuant to a mandatory 

minimum sentencing statute is refuted by the record, we reject his challenge 

to his sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015