J-S47029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT DARRYL DIXON, JR.

Appellant No. 1846 MDA 2014

Appeal from the Judgment of Sentence June 16, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0003141-2013

BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 04, 2015

Robert Darryl Dixon, Jr., appeals from the judgment of sentence 

entered on June 16, 2014, in the Court of Common Pleas of Lancaster 

County, following his conviction by a jury on charges of simple assault and 

aggravated assault.1 Dixon received an effective sentence of two to five 

years’ incarceration followed by five years of probation.2 This term of 

confinement represents an aggravated range sentence. In this timely 

appeal, Dixon claims there was insufficient evidence to support his 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2701(a)(1) and 2704(a)(4), respectively.

2 Dixon received two to five years plus probation on the aggravated assault 

conviction and a concurrent term of six months to two years’ incarceration 

for simple assault. 
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conviction of aggravated assault and that the trial court abused its discretion 

in sentencing him on the aggravated assault charge. After a thorough 

review of the submissions by the parties, relevant law, and the certified 

record, we affirm.

On May 28, 2013, Dixon sent a text message to his estranged 

paramour and mother of two of his children, Tavon Trowery, indicating he 

wanted to visit his children. She replied that it was too late, the children 

needed to sleep, and she had to get up early to go to work the next day. 

Despite being told not to visit, Dixon appeared at Trowery’s home. He 

attempted to enter through the back door, but it was locked. He peered 

through the kitchen window, where Trowery was doing dishes. She told him 

to leave. Dixon went to the basement door to gain entry. Trowery 

attempted to block access to the kitchen by putting a chair under the 

doorknob of the basement/kitchen door and then moving the refrigerator to 

block the door. Neither of those efforts deterred Dixon. 

Upon his entry into the kitchen, Trowery picked up a kitchen knife to 

defend herself. However, she put it down to call 9-1-1. A struggle ensued 

during which Dixon picked up a knife and pushed Trowery against the 

refrigerator. The knife was pressed to her throat. As they struggled, Dixon 

cut Trowery’s thumb. Although the cut was described by a medical doctor as 

minor, it was sufficient to cause bleeding and a scar. During the 

confrontation, Dixon punched Trowery multiple times in the face, dragged 

her by her hair, and held her in a chokehold. As he held her, he leaned 
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against her with such force the she suffered a separated shoulder. Dixon 

fled the scene prior to the arrival of the police. Police officers testified at 

trial that the kitchen was in a state of disarray when they arrived; a table 

was overturned, cutlery was scattered over the floor, the refrigerator was 

askew and a chair was broken. 

In his first claim, Dixon argues there was insufficient evidence to 

support his conviction of aggravated assault, specifically claiming, 

the evidence did not show that he intentionally or knowingly 

caused the cut on Tayvon Trowery’s hand, that he attempted to 

cause bodily injury to Ms. Trowery with a deadly weapon, that 

the knife Mr. Dixon was alleged to have been holding was a 

deadly weapon, or that the minor cut on Tayvon Trowery’s hand 

constituted bodily injury[.]

Appellant’s Brief at 5.

In examining this claim, we are guided by our oft-repeated standard of 

review:

With respect to such claims, we consider the evidence in the 

light most favorable to the Commonwealth as verdict winner. 

Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super. 

2005). In that light, we decide if the evidence and all reasonable 

inferences from that evidence are sufficient to establish the 

elements of the offense beyond a reasonable doubt. Id. We keep 

in mind that it was for the trier of fact to determine the weight of 

the evidence and the credibility of witnesses. Id. The jury was 

free to believe all, part or none of the evidence. Id. This Court 

may not weigh the evidence or substitute its judgment or that of 

the factfinder. Id.

Commonwealth v. Devries, 112 A.3d 663, 669 (Pa. Super. 2015).
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Relevant to this matter, a person commits aggravated assault when he 

“attempts to cause or intentionally or knowingly causes bodily injury to 

another with a deadly weapon.” 18 Pa.C.S. § 2702(a)(4).

First, Dixon argues the evidence failed to prove he intended or 

knowingly caused the cut on Trowery’s hand. Intent can be demonstrated 

circumstantially, through the totality of the circumstances. See 

Commonwealth v. Hall, 830 A.2d 537 (Pa. 2003) (intent to cause serious 

bodily injury within contest of aggravated assault may be proven by direct or 

circumstantial evidence); Commonwealth v. Caterino, 678 A.2d 389 (Pa. 

Super. 1996) (intent to cause serious bodily harm may be shown by 

circumstances surrounding the incident). Here, the evidence showed Dixon 

literally broke into the home by breaking the basement door, pushed aside a 

chair and refrigerator to get to the victim, and pushed the victim up against 

the refrigerator while holding a knife to her throat, ultimately cutting her 

thumb. Immediately thereafter, he dragged her by the hair, punched her 

repeatedly, put her in a chokehold and separated her shoulder. Under these 

circumstances, the jury could properly infer that Dixon’s intent in holding 

Trowery at knifepoint and cutting her thumb was not benign. Accordingly, 

there was sufficient evidence to prove Dixon’s intent to cut Trowery.

A second aspect of Dixon’s claim is that there was no evidence of 

intent to harm in placing the knife against Trowery’s throat. Essentially, 

Dixon argues he had the opportunity to harm Trowery, but did not, thereby 
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evidencing his lack of intent. The argument is unavailing in light of the 

totality of the circumstances demonstrated above and our Supreme Court’s 

decision in Commonwealth v. Mathews, 909 A.2d 1254 (Pa. 2006), that 

determined it is for the jury to determine whether the failure to follow 

through on the opportunity to cause injury demonstrated a lack of intent or 

merely a change of mind.3 

Next, Dixon argues there was insufficient evidence to prove the knife 

was a deadly weapon. It is true that the knife was not positively identified 

by Trowery. However, Trowery did state that it was a kitchen knife and the 

evidence positively demonstrated that it was sharp enough to cut her 

thumb. These facts would allow the jury to infer the knife was a sharp 

kitchen knife, such as a paring knife, rather than a typical blunt table knife. 

Further, the manner in which the object is used can help define the object as 

a deadly weapon. See generally, Commonwealth v. Sanders, 280 A.2d 

598 (Pa. Super. 1971) (broken bottle can be a deadly weapon). Here, Dixon 

used the knife to cut Trowery and held it to her throat while holding her 

against the refrigerator and yelling, “Do you want to stab me?” In light of 

the foregoing, we believe there was sufficient evidence to determine the 

knife qualified as a deadly weapon.

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3 We note that this aspect of Dixon’s argument was not contained in his 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. While this is 

cause for waiver, we have addressed the claim in that it might be considered 

as fairly contained as part of the lack of intent claim.
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Next, Dixon claims the cut on Trowery’s thumb does not qualify as 

“bodily injury.” Dixon is not entitled to relief on this issue. The jury was 

properly instructed that Dixon could be convicted of aggravated assault if he 

attempted to cause Trowery bodily injury with a deadly weapon.4 The trial 

judge further instructed the jury that to find Dixon made such an attempt, 

they must determine he took a substantial step toward cause Trowery bodily 

injury. The evidence is sufficient to support conviction under this scenario. 

As with the prior aspects of this claim, the totality of the circumstances 

allowed the jury to find Dixon had taken a substantial step in causing injury 

to Trowery, with a deadly weapon, by holding her against the refrigerator 

with a knife to her throat. See Commonwealth v. Donton, 654 A.2d 580 

(Pa. Super. 1995) (loading a gun and driving 90 miles to wife’s abode, 

without firing gun or aiming it, constituted a substantial step toward causing 

bodily injury). 

Because there was sufficient evidence to find Dixon attempted to 

cause Trowery bodily injury, we need not determine whether the cut was 

sufficient to meet the statutory definition of bodily injury.

Finally, Dixon raises a challenge to the discretionary aspects of his 

sentence. Specifically, he claims the trial court relied upon incorrect 

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4 Dixon has made no argument in his brief regarding “attempt”, therefore 

this aspect of the claim has been waived. Further, the issue was not raised 

in Dixon’s Pa.R.A.P. 1925(b) statement of matter complained of on appeal.
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sentencing guidelines, failed to state adequate reasons for imposition of the 

sentence, and failed to consider mitigating factors.

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Commonwealth 

v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court's jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the 

following four factors:

(1) whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) whether the issue was 

properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

whether appellant's brief has a fatal defect, Pa.R.A.P. 

2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under 

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014).

All four elements have been met. Regarding the existence of a 

substantial question, we note that an incorrect application of the guidelines 

is one of the three statutorily listed reasons for vacating a sentence, 

accordingly, the allegation of same raises a substantial question. 42 Pa.C.S. 

§ 9781. See also, Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. 

Super. 2004) (failure to state adequate reasons on the record presents a 

substantial question); Commonwealth v. Hyland, 875 A.2d 1175 (Pa. 

Super. 2005) (court cannot impose aggravated range sentence without 

considering mitigating factors). 
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Although Dixon has properly raised substantial questions for our 

review, the record belies his assertions and he is not entitled to relief.

First, although the trial court did misstate the guidelines in its opinion 

denying Dixon’s motion to modify sentence and Pa.R.A.P. 1925(a) opinion, 

the certified record demonstrates the trial court issued the sentence based 

upon the correct guidelines. Dixon had a prior record score of one and the 

offense gravity score for aggravated assault, 18 Pa.C.S. § 2702(a)(4), is 

eight. The sentencing matrix produces a standard range minimum sentence 

of between 12 to 18 months’ incarceration; an aggravated range minimum 

sentence is between 21 to 27 months. The offense gravity score for simple 

assault, 18 Pa.C.S. § 2701(a)(1) is three. Accordingly, the standard range 

minimum sentence is restorative sanctions to six months’ incarceration; an 

aggravated range minimum sentence is three to nine months’ incarceration.5 

At sentencing, the trial court was initially under the belief Dixon had a 

prior record score of two, which would have produced in incorrect minimum 

sentence. However, the trial court was corrected and the proper guideline 

sentences were placed before the trial court. See N.T. Sentencing Hearing, 

6/16/2014, at 15-16. Because the trial court did not base its sentence upon 

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5 The guideline ranges are based upon the sentencing matrix found at 204 

Pa.Code § 303.16(a); the offense gravity scores are found at 204 Pa.Code § 

303.15.
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an incorrect reading of the sentencing guidelines, Dixon is not entitled to 

relief.

We will address Dixon’s final two claims, the allegation of failure to 

state adequate reasons for sentencing and failure to consider mitigating 

circumstances, together.

Our review of the notes of testimony from the sentencing hearing, 

specifically pages 21 – 27, reveal a thoughtful and considered approach to 

Dixon’s sentence. The allegations of a failure to state adequate reasoning 

and a failure to consider mitigating circumstances are disproven by even a 

cursory reading of those pages. We will refrain from reiterating the entire

statement, but we will quote relevant comments from the trial judge:

There is a lot to consider, Mr. Dixon. That is one advantage that 

I think I have when I have been able to sit through the trial and 

hear the facts and then hear the jury’s verdict and from that 

glean that the jury is satisfied what has been proven beyond a 

reasonable doubt and what the charge is, what the convictions 

are about, because I’ve heard all of the evidence that’s been 

presented. And I have the benefit of the additional records.

[6]

In this instance, it is unfortunate that you had a lengthy history, 

but it did give me a lot of information and I hope a lot of 

accurate insight.

A couple of distinct things come out in reviewing your juvenile 

records. You are an intelligent, able, capable young man, and 

you have been since you have first been in the juvenile system.

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6 This refers to the Pre-Sentence Investigation, which the trial court 

reviewed, but which was sealed due to the references to Dixon’s juvenile 

record and counseling and rehabilitation reports. Those documents were not 

transmitted to our Court.
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When it suits your book, however, you will be passive or 

unavailing of treatment opportunities that were put your way or 

counseling or rehabilitation opportunities because it’s not what 

you want to do.

There was one of the evaluations that even questioned your 

academic abilities. I thought, you know, you are able to be so 

passive that you can snow an otherwise fairly good psychologist 

into believing that you’re limited.

I know you’re not and the psychiatric and later psychological 

evaluations, the KidsPeace records, the discharge from The Inn 

all indicate a young man who, if he had wanted to, could have 

reflected and made changes.

You came out of the juvenile system. So basically, I mean from 

2001 on, we have a continuous involvement with the juvenile 

system or the adult criminal system. With the exception of a 

2008 retail theft, all of them are violent, all of them are assaults, 

disorderly conduct, harassment, reckless endangerment.

As I go through them, one of the things that worries me is that I 

see this pattern continuing. You continually seem to rely on and 

even escalate violence to deal with your life. 

I’m telling you, I mean, it’s just not going to work. It’s going to 

keep you in and out of places like this. Eventually you’re going 

to run into the wrong person.

If you continue on with the attitude that these actions indicate 

you have held for so long, someone bigger and meaner is just 

going to take you out. I would hate to see that because it would 

leave children fatherless and it would take from us someone with 

abilities who, if he really made an effort, could be a talented, 

productive member of the community.

So I see these issues with authority. Those are clear. I see this 

escalation in the violence over time, the more serious charges 

that are coming, the more aggressive expressions of violence.
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But of grave concern is the fact that the events that took place 

that led to the convictions we are discussing now happened just 

21 days after you pled guilty on the simple assault charge that is 

the basis of the probation violation.[7]

That does make the Court sit up and take notice. It’s not right, 

it’s not good, it’s not safe for any individuals who come in your 

path to disagree with you. That’s dangerous. It’s dangerous for 

them and for you, and it’s serious. And it’s bad for the 

community to think that they’ve got to know who to avoid 

because he’s going to go off.

N.T. Sentencing Hearing, 6/16/2014, at 21-24.

We believe the above exerpt amply demonstrates that the trial court 

considered all relevant factors in sentencing, including mitigating factors. 

Additionally, the trial court provided, on the record, a proper statement of 

reasons for issuing the aggravated range sentence. Therefore, Dixon is not 

entitled to relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/2015

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7 Dixon had earlier assaulted the mother of one of his other children.