J-S63019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TROY ANTHONY ROBINSON,

Appellant No. 807 EDA 2015

Appeal from the Judgment of Sentence February 19, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005169-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, Troy Anthony Robinson, appeals from the judgment of 

sentence entered on February 19, 2015, following his conviction on October 

27, 2014, by a jury of aggravated assault, possession of a firearm without a 

license, carrying a firearm in public in Philadelphia, and possession of an 

instrument of crime (“PIC”), and by the court of possession of a firearm by a 

prohibited person via a bifurcated waiver trial. Trial Court Opinion, 2/12/16, 

at 2. We affirm.

The trial court summarized the facts of the crime as follows:

On November 24, 2011, at approximately 12:30 PM, 

Officer Timothy Fitzgibbon (hereinafter “Officer Fitzgibbon[”]) of 

the Philadelphia Police Department responded to a radio call 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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regarding a robbery in progress on Greeby Street in the Oxford 

Circle section of Philadelphia, PA. 10/23/2014 Notes of 

Testimony (N.T.) at 29. The radio call contained an 

accompanying description of four (4) African American males 

who were believed to be involved in the robbery. Id. While en 

route to the scene in his marked police patrol vehicle, Officer 

Fitzgibbon first observed appellant walking southbound on 

Cranford Street. Id. at 30. Officer Fitzgibbon’s attention was 

initially drawn to appellant due to appellant’s close proximity to 

the location of the recent robbery. Id. As Officer Fitzgibbon 

drew closer to appellant, he observed appellant conversing on 

his cellular phone. Id. at 33. It is at this time that Officer 

Fitzgibbon overheard appellant repeatedly state “it’s going 

down.” Id.

[1]

 Due to the nature of appellant’s statement, and in 

response to report of a very recent robbery nearby, Officer 

Fitzgibbon, while still inside his patrol vehicle, asked appellant if 

appellant could speak with him for a moment. Id. at 34. In 

response to this request, appellant began to walk towards Officer 

Fitzgibbon and proceeded to retrieve a firearm from a pocket 

located on the left side of his body. Id. 34-35. Appellant then 

raised the firearm and pointed it in the direction of Officer 

Fitzgibbon and his vehicle. Id. at 35. With appellant now closing 

in on Officer Fitzgibbon, Officer Fitzgibbon immediately “threw” 

his patrol vehicle into “Drive” and very quickly advanced his 

patrol vehicle approximately three (3) to four (4) car lengths up 

Passmore Street, away from appellant. Id. at 37-38. At this 

time, Officer Fitzgibbon glanced in his rearview mirror and 

observed appellant standing in the street behind him with the 

firearm still pointed towards his patrol vehicle. Id. at 38. 

Believing that he had just heard appellant discharge the firearm, 

Officer Fitzgibbon proceeded up Passmore Street at a high rate 

of speed. Id. at 38-39.8

____________________________________________

1

 Officer Fitzgibbon testified that he parked his car at an angle with his 

“driver’s door . . . facing [Appellant] as [Appellant] walked toward” him. 

N.T., 10/23/14, at 31. He was “ten feet maybe, give or take a foot or two” 

away from Appellant. Id. at 32. The weather was clear, it was daylight, 

and the officer’s window was down. Id. at 28, 32–33. Officer Fitzgibbon 

subsequently testified that initially, the distance was a bit further. Id. at 

47–48.
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8 This court notes that the record reveals that the 

Commonwealth did not produce any evidence which 

conclusively established that appellant did, in fact, 

discharge the firearm in question.

Upon reaching the top of the block, Officer Fitzgibbon 

came in contact with other Philadelphia Police Officers and 

provided a description of appellant, which description was then 

broadcast over police radio. Id. at 41, 83. Shortly thereafter, 

Officer Fitzgibbon proceeded around the block back to Passmore 

Street whereupon he encountered appellant again; by this time 

appellant had been stopped by Philadelphia Police Sergeant 

James Hawe (hereinafter “Sergeant Hawe”). Id. at p.42. 

Sergeant Hawe stopped appellant because of appellant’s 

resemblance to the flash information received over the radio via 

Officer Fitzgibbon. Id. at 83. Upon exiting his patrol vehicle, 

Officer Fitzgibbon pointed at appellant and stated “that’s him.” 

Id. at 88. As a result of Officer Fitzgibbon’s unequivocal 

identification, appellant was placed in police custody. Id. at 88.

A search of the area was then conducted by Officer 

Fitzgibbon and his brother officers for a firearm and any fired 

cartridge casings. Id. at 49. During the search, Officer 

Fitzgibbon observed a firearm underneath a motor vehicle. Id. 

This firearm was located approximately five (5) feet from where 

Sergeant Hawe had stopped appellant. Id. at 89. Officer 

Fitzgibbon subsequently identified the firearm as the black 

semiautomatic handgun that had been wielded by appellant. Id. 

at 51-52. The Philadelphia Police Crime Scene Unit 

photographed the firearm. Id. at 93. Upon further examination 

of the firearm, it was determined that the firearm was loaded 

with ten (10) live cartridges in the magazine. Id. at 150.

Trial Court Opinion, 2/12/16, at 3–4.

Following Appellant’s conviction of the above-described charges, 

sentence was deferred pending a presentence investigation. On January 13, 

2015, the trial court sentenced Appellant to an aggregate term of 

imprisonment of ten years, three months to twenty years, six months. 

Appellant filed a timely motion to modify sentence, which the trial court 
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granted. On February 19, 2015, the trial court imposed an aggregate 

sentence of nine years, nine months to nineteen years, six months of 

imprisonment, as follows: fifteen to thirty months for aggravated assault; a 

consecutive term of sixty to 120 months for possession of a firearm by a 

prohibited person; a consecutive term of forty-two to eighty-four months for 

possession of a firearm without a license; a concurrent term of twelve to 

twenty-four months for carrying a firearm in public in Philadelphia; and a 

concurrent term of nine to eighteen months for PIC. Reconsideration of 

Sentence Order, 2/19/15; Trial Court Opinion, 2/12/16, at 2 n.7. Appellant 

filed a timely notice of appeal, and both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises the following two issues for our review:

1. Was not the evidence insufficient to support [A]ppellant’s 

conviction for aggravated assault, where the testimony did 

not establish beyond a reasonable doubt that he 

specifically intended to place a police officer in fear of 

imminent serious bodily injury, when he pointed an 

unchambered firearm at a car occupied by a police officer?

2. Did not the trial court err by imposing an unreasonable 

and excessive aggregate sentence by imposing consecutive 

sentences for aggravated assault (15 to 30 month); 

[Violation of the Uniform Firearm Act] VUFA 6105 (60 to 

120 months); and VUFA 6106 (42 to 84 months),which 

yielded a maximum of almost twenty years for an offense 

in which no one was physically harmed?

Appellant’s Brief at 3.
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Appellant’s first issue assails the sufficiency of the evidence supporting 

his conviction for aggravated assault. Our standard of review for a 

sufficiency-of-the-evidence claim is well settled:

The standard we apply in reviewing the sufficiency of 

evidence 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 own 

judgment for that of the fact-finder. 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.

Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super. 

2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 

1211 (Pa. Super. 2003)). Furthermore:

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

evidence.

Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).

Appellant was convicted of aggravated assault as defined in 18 Pa.C.S. 

2702(a)(6), which provides as follows:

(a) Offense defined.--A person is guilty of aggravated assault 

if he:
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* * *

(6) attempts by physical menace to put any of the 

officers, agents, employees or other persons 

enumerated in subsection (c), while in the 

performance of duty, in fear of imminent serious 

bodily injury;

* * *

(c) Officers, employees, etc., enumerated.--The officers, 

agents, employees and other persons referred to in subsection 

(a) shall be as follows:

(1) Police officer.

18 Pa.C.S. § 2702(a)(6), (c)(1).

Appellant asserts that the evidence fails to establish that he “intended 

to place the officer in fear of serious bodily injury. The evidence established 

that [Appellant] merely pointed an unchambered handgun at the officer’s 

vehicle, but not necessarily at the officer who was inside.” Appellant’s Brief 

at 17. Appellant maintains that case law cited by the trial court is 

distinguishable because additional facts bearing on state of mind are not 

present in this case.

See e.g. Commonwealth v. Little, 614 A.2d 1146, 1152-53 (Pa. 

Super. 1992) (armed with a shotgun, the appellant shouted 

obscenities in a hostile manner, approached within three feet of 

deputies, and ordered officers off her property); Commonwealth 

v. Hudgens, 582 A.2d 1352, 1357 (Pa. Super. 1990) (armed 

with a sword, the appellant touched the victim in the hand with 

the sword, held it within five inches of the victim’s body, and 

threatened to “get him”); Commonwealth v. Dicenzo, 393 A.2d 

988, 988-89 (Pa. Super. 1978) (armed with a stone, the 

appellant threatened to bash the officer’s brains in); see also

Commonwealth v. Wood, 710 A.2d 626 (Pa. Super. 1998) 

(specific intent to cause serious bodily injury where appellant 
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actually discharged firearm into police vehicle); Commonwealth 

v. McCalam, 795 A.2d 412,415 -16 (specific intent to cause 

serious bodily injury where appellant, an expert marksman shot 

into car and missed victim by three inches).

Unlike Little, Hudgens, and Dicenzo, [Appellant] made no

statements, and unlike Wood and McCalam, [Appellant] 

exhibited no conduct beyond mere pointing that bore on a 

specific intent to scare Officer Fitzgibbon. As the firearm was 

unchambered, his conduct could not have physically harmed 

Officer Fitzgibbon.

Appellant’s Brief at 18.

The relevant statute required the Commonwealth to prove that 

Appellant attempted by physical menace to put a police officer, while in the 

performance of his duty, in fear of imminent serious bodily injury. 18 

Pa.C.S. §§ 2702(a)(6), (c)(1). In Commonwealth v. Fortune, 68 A.3d 

980, 984 (Pa. Super. 2013), this Court explained:

In the matter sub judice, there is no question that Appellant’s 

actions did not cause the victim to sustain actual, serious bodily 

injury; therefore, Appellant’s conviction for Aggravated Assault 

turns exclusively on whether he attempted to inflict serious 

bodily injury upon the victim. In this regard, this Court has 

stated the following:

Where the victim does not suffer serious bodily 

injury, the charge of aggravated assault can be 

supported only if the evidence supports a finding of 

an attempt to cause such injury. “A person commits 

an attempt when, with intent to commit a specific 

crime, he does any act which constitutes a 

substantial step toward the commission of that 

crime.” 18 Pa.C.S.A. § 901(a). An attempt under 

Subsection 2702(a)(1) requires some act, albeit not 

one causing serious bodily injury, accompanied by an 

intent to inflict serious bodily injury. 

Commonwealth v. Matthew, 589 Pa. 487, 909 

A.2d 1254 (2006). “A person acts intentionally with 
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respect to a material element of an offense when ... 

it is his conscious object to engage in conduct of that 

nature or to cause such a result.” Id. at 1257–58 

(quotation omitted). “As intent is a subjective frame 

of mind, it is of necessity difficult of direct proof.” 

Id. (citation omitted). The intent to cause serious 

bodily injury may be proven by direct or 

circumstantial evidence. Id.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 

2012) (emphasis added).

Fortune, 68 A.3d at 984–985.

The trial court correctly evaluated Appellant’s sufficiency challenge, as 

follows:

In the instant matter, Officer Fitzgibbon testified that after 

hearing appellant repeatedly state “it’s going down” while 

conversing on his cellular phone, the officer asked if appellant 

could speak with him for a moment. N.T. at 33-34. Appellant 

responded by producing a firearm from his pocket and pointing it 

at Officer Fitzgibbon and his patrol vehicle. Id. at 34 -35. With 

his gun drawn and pointed at Officer Fitzgibbon, appellant then 

continued to proceed towards the officer. Id. at 37. In response 

to [A]ppellant’s actions, Officer Fitzgibbon “floored the gas” and 

quickly and immediately fled from the area in his patrol vehicle. 

Id. at 38. While doing so, Officer Fitzgibbon glanced in his 

rearview mirror and observed appellant standing in the street 

with the firearm pointed towards his patrol vehicle. Id. 

Examination of the recovered firearm revealed that it was loaded 

with ten (10) cartridges in the magazine. Id. at 150.

Trial Court Opinion, 2/12/16, at 12.

Here, in response to the officer’s request to speak with Appellant, 

Appellant drew a loaded, semi-automatic weapon from his pocket and 

pointed it directly at Officer Fitzgibbon. N.T., 10/23/14, 34–35. Appellant 

then quickly moved toward the officer, despite being ten to twenty feet 
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away. Id. at 48, 54–55. The officer testified that he “was scared,” and he 

“leaned all the way to the right . . . covering myself from being exposed . . . 

because I wasn’t sure if he was going to shoot at me.” Id. at 37. Thus, we 

have no hesitation in concluding that the evidence supports the jury’s 

verdict.

Appellant’s second issue avers that the trial court imposed an 

excessive sentence where some of the individual periods of incarceration 

were imposed consecutively to each other. Appellant’s Brief at 19. This is a 

challenge to the discretionary aspects of his sentence. It is well settled that 

a challenge to the discretionary aspects of a sentence is a petition for 

permission to appeal, as the right to pursue such a claim is not absolute. 

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). “An 

appellant must satisfy a four-part test to invoke this Court’s jurisdiction 

when challenging the discretionary aspects of a sentence,” by (1) preserving 

the issue in the court below, (2) filing a timely notice of appeal, (3) including 

a Rule 2119(f) statement, and (4) raising a substantial question for our 

review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015) 

(citation omitted).

Appellant has met the first three parts of the four-prong test: 

Appellant filed a timely appeal; Appellant preserved the issue in a postsentence motion; and Appellant included a statement pursuant to Pa.R.A.P. 
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2119(f) in his brief.2 Thus, we assess whether Appellant has raised a 

substantial question with respect to the issues he presents.

A determination as to whether a substantial question exists is made on 

a case-by-case basis. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. 

Super. 2013). “A substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s actions were 

either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 

2015), appeal denied, 126 A.3d 1282 (Pa. 2015).

Appellant submits that a substantial question exists in this case 

because the consecutive sentences imposed on his convictions resulted in a 

manifestly excessive and unreasonable sentence. Appellant’s Brief at 11–12. 

We conclude that Appellant has presented a substantial question. See

Dodge, 77 A.3d at 1269 (stating that claims of a manifestly excessive 

sentence due to the imposition of consecutive sentences raises substantial 

question); Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 

____________________________________________

2

 While Appellant included a Pa.R.A.P. 2119(f) statement, Appellant’s Brief 

at 11, it is deficient because it fails to articulate how his sentence violates a 

particular provision of the Sentencing Code or is contrary to the fundamental 

norms underlying the sentencing process. Commonwealth v. Dodge, 77 

A.3d 1263, 1271 (Pa. Super. 2013). However, because the Commonwealth 

has not objected to this deficiency, and because appellate review is not 

hampered, we decline to find waiver. Id.
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2015) (challenge to the imposition of consecutive sentences as unduly 

excessive, together with claim that court failed to consider rehabilitative 

needs and mitigating factors presented substantial question).

The imposition of sentence is vested within the sound discretion of the 

trial court, which, absent an abuse of that discretion, will not be disturbed on 

appeal. “An abuse of discretion is more than an error in judgment—a 

sentencing court has not abused its discretion unless the record discloses 

that the judgment exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.” Commonwealth v. Colon, 102 A.3d 

1033, 1043 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). 

Moreover, the decision to impose consecutive rather than concurrent 

sentences is left to the discretion of the sentencing court. Commonwealth 

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

The record reflects that the trial court carefully considered the gravity 

of Appellant’s offenses, his rehabilitative needs, the protective needs of the 

community, and the impact of Appellant’s crimes on his victim. At the 

sentencing hearing, the trial court stated:

In fashioning a sentence, this court has considered the 

gravity of the offenses, the rehabilitative needs of [Appellant], 

the need[] to protect the community, the prior record score 

report, the mental health report, and the appropriate arguments 

from the Commonwealth, arguments of the defense, the letter 

on behalf of [Appellant] by his mother, as well as [Appellant’s] 

allocution.

N.T., 1/13/15, at 35.
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In addressing this issue in its Pa.R.A.P. 1925(a) opinion, the trial court 

explained:

[T]his Court measured mitigating factors such as [A]ppellant’s 

physical neglect and substance abuse from a young age, against 

the actions of [A]ppellant in the instant matter, which this court 

referred to as “one of the worst things that can happen in 

society.” Id. at 33-34. This court also considered the fact that 

[A]ppellant has continuously been under county supervision 

since 2000. Id. at 34. Therefore, by engaging in the due 

diligence that is required when sentencing a defendant, this 

court did not abuse its discretion by imposing [consecutive] 

sentences.

Trial Court Opinion, 2/12/16, at 10. Thus, we conclude that the trial court 

considered all necessary factors and did not abuse its discretion in imposing 

some terms of incarceration to run consecutively and some concurrently.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016