J-S30033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CURTIS GREENE

Appellant No. 991 EDA 2014

Appeal from the Judgment of Sentence November 15, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0007001-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED APRIL 15, 2016

Appellant Curtis Greene appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following his 

guilty plea to persons not to possess firearms, firearms not to be carried 

without a license, carrying firearms on public streets in Philadelphia, 

possession of an instrument of crime, simple assault, and recklessly 

endangering another person (“REAP”),1and his bench trial convictions for 

aggravated assault, endangering the welfare of a child (“EWOC”), terroristic 

threats, tampering with or fabricating physical evidence, and resisting 

arrest.2 We affirm.

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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, 907(a), 2701(a), and 2705.

2 18 Pa.C.S. §§ 2702(a), 4304(a)(1), 2706(a)(1), 4910(1), and 5104. 
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The trial court set forth the relevant factual history as follows:

This was a domestic dispute between [Appellant] and 

Vashti Thomas (“Thomas”) that escalated into a shooting. 

During the trial, the Commonwealth presented testimony 

from the complaining witness, Thomas, as well as from 

[police officer] Charlton, Sergeant Green and Detective 

Slobodian[3]from the Philadelphia Police Department.

Thomas and [Appellant] were living at 216 South 53rd 

Street in Philadelphia, [Appellant’s] father’s house. Notes 

of Testimony (“N.T.”), Aug. 16, 2013 at 23. On March 11, 

2012, [Officer] Charlton responded to a radio call and 

arrived on the scene. Id. at 61. [Officer] Charlton 

observed [Appellant] being pushed out of the home. Id. 

[Officer] Charlton and his partner, [Officer] John Sweeney 

exited their vehicle and approached [Appellant], who was 

kicking the front door. Id. at 62-63. When the officers 

asked what the problem was, [Appellant] said, “everything 

is fine, me and my girlfriend are just having a fight.” Id.

at 62. Thomas opened the door and said: “This mother 

fucker just shot me[,”] indicating [Appellant]. Id. 

[Appellant] attempted to leave and was handcuffed. Id. at 

63. As the officers lifted [Appellant] he spat in Thomas’ 

face and Thomas spat back. Id. When he was placed in 

the patrol car, [Appellant] tried to kick out the window. 

Id. at 65.

The incident began [earlier in the] evening when 

[Appellant] and Thomas began arguing. Id. at 25. After 

several hours of fighting, [Appellant] went upstairs to go to 

sleep. Id. at 25, 40. [When he woke up], the argument 

resumed.[4]Id. at 25-26. [Appellant] threw something at 

Thomas and the two began to tussle. Id. at 27-28. 

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3 Officer Charlton, Sergeant Green and Detective Slobodian did not provide 

their first names when they testified at trial. N.T., 8/16/2013, at 60, 70, 75.

4

 The trial court states Appellant fell asleep and the argument resumed the 

next morning. Opinion, 10/10/2014, at 3-4 (“1925(a) Opinion”). Although 

Appellant did fall asleep, he woke up, and the fight resumed, 30-40 minutes 

after he fell asleep. N.T., 8/16/2013, at 46.
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Thomas grabbed a nearby bottle of bleach and poured it 

on [Appellant]. Id. at 28-29. [Appellant] started 

screaming for Thomas to leave. Id. at 29. To get away 

from [Appellant], Thomas went into the hallway on the 

second floor and [Appellant] followed. Id. at 30. Thomas 

heard a gunshot while she was running down the steps; 

[Appellant] had fired his gun down the steps in her 

direction. Id. at 31, 37, 49.

[Appellant] pursued Thomas downstairs and onto the 

porch, where he fired again, striking Thomas’ right Achilles 

heel. Id. at 31-32, 37. She fell down onto the porch and 

[Appellant] followed her outside. Id. at 32. Thomas went 

back into the house, shut the door on [Appellant] and 

called the police. Id. at 33.

Thomas was treated at the University of Pennsylvania. Id.

at 33 -35. She testified that doctors could not remove the 

bullet without amputating her foot, so the fragments 

remain in her Achilles heel permanently. Id. at 34, 38.

At trial, the Commonwealth introduced evidence of 

[Appellant’s] prior interaction with Thomas. Thomas 

testified that on July 7, 2010, she and [Appellant] were at 

[Appellant’s] father’s house on South 53rd Street. Id. at 

19. [Appellant] had gone through Thomas’ phone to see 

who was texting her. Id. An argument ensued. Id. 

[Appellant] pulled out a shotgun, pointed it at Thomas and 

told her to leave. Id. Thomas grabbed her children, ran 

outside and waited for a ride, as [Appellant] continued to 

argue with her from the front porch. Id. at 19-22.

Opinion, 10/10/2014, at 3-4 (“1925(a) Opinion”). On August 19, 2012, 

following a bench trial, the trial court found Appellant guilty of aggravated 

assault, terroristic threats, tampering with evidence, resisting arrest, and 

EWOC. The trial court found Appellant not guilty of corrupting a minor. 

On November 15, 2013, the trial court sentenced Appellant to 10 to 20 

years’ imprisonment for the aggravated assault conviction and concurrent 

terms of 5 to 10 years’ imprisonment for the persons not to possess a 
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firearm conviction, 2 1⁄2 to 5 years’ imprisonment for the firearms not to be 

carried without a license conviction, 2 1⁄2 to 5 years’ imprisonment for the 

EWOC conviction, 1 to 2 years’ imprisonment for the carrying a firearm on 

public streets in Philadelphia conviction, 1 to 2 years’ imprisonment for the 

possession of an instrument of crime conviction, 1 to 2 years’ imprisonment 

for the terroristic threats conviction, 1-2 years’ imprisonment for the 

tampering with or fabricating physical evidence conviction, and 1-2 years’ 

imprisonment for the resisting arrest conviction. The simple assault and 

REAP conviction merged for sentencing purposes. 

On November 25, 2013, Appellant filed a post-sentence motion. On 

February 21, 2014, Appellant filed a notice of appeal, which this Court 

quashed as interlocutory because the trial court had not yet addressed the 

post-sentence motion. On March 25, 2014, the trial court denied the postsentence motion. Appellant filed a timely notice of appeal. Both Appellant 

and the trial court complied with Pennsylvania Rule of Appellate Procedure 

1925.

On February 11, 2015, Appellant requested remand to allow him to file 

a supplement statemental of errors complained of on appeal to include a 

claim based on Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(U.S.2013). On March 17, 2015, this Court remanded the case, vacated the 

briefing schedule, and permitted Appellant to supplement his statement of 

errors complained of on appeal. The trial court issued a supplemental 

1925(a) opinion on August 5, 2015, addressing Appellant’s Alleyne claims.
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Appellant raises the following issues on appeal:

A. Did not the lower court erroneously find Appellant guilty 

of aggravated assault, 18 Pa.C.S.[] §2702, graded as a 

felony of the first degree, where the Commonwealth failed 

to establish that the complainant, Vashti Thomas, suffered 

serious bodily injury when she was shot in the foot, or that 

Appellant intended to cause serious bodily injury, and in 

consequence of this error, did not the lower court err when 

it determined that Appellant caused serious bodily injury, 

and was therefore subject to an offense gravity score of 

eleven under the Sentencing Guidelines for the charge of 

aggravated assault?

B. Did not the lower court err and abuse its discretion 

when it imposed a sentence of ten to twenty years’ 

incarceration following a bench trial where the sentence 

was manifestly excessive and unreasonable, the court 

failed to examine and investigate adequately Appellant’s 

background, character, and rehabilitative needs, and failed 

to state adequate reasons on the record for imposing such 

a sentence?

C. Did not the lower court err when it sentenced Appellant 

pursuant to 42 Pa.C.S.[] §9712 (Sentences for offenses 

committed with firearms), since under the United States 

Supreme Court’s holding in Alleyne v. United States, 

133 S. Ct. 2151 (2013), and this Court’s ruling in 

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.

2014), portions of §9712 are facially unconstitutional and 

are nonseverable from the remaining provisions of the 

statute?

Appellant’s Brief at 4-5.

Appellant’s first claim alleges the Commonwealth failed to present 

sufficient evidence to establish he inflicted serious bodily injury upon 

Appellant or that he intended to cause serious bodily injury, and, therefore, 

the Commonwealth failed to establish Appellant committed aggravated 

assault. Appellant’s brief at 17.
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We apply the following standard when reviewing a sufficiency of the 

evidence claim: “[W]hether 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.” Commonwealth v. Lehman, 820 A.2d 766, 772 

(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth 

v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this 

standard, “we may not weigh the evidence and substitute our judgment for 

the fact-finder.” Id.

“[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Lehman, 820 A.2d at 

772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny 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.” Id. “The 

Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence.” Id.

In applying the above test, we must evaluate the entire record and we 

must consider all evidence actually received. DiStefano, 782 A.2d at 582. 

Further, “the trier 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.” Id.
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A defendant 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.” 18 Pa.C.S. § 2702(a)(1). “For 

aggravated assault purposes, an ‘attempt’ is found where the accused, with 

the required specific intent, acts in a manner which constitutes a substantial 

step toward perpetrating a serious bodily injury upon another.” 

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super.2012) 

(quoting Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa.Super.2003)). 

“Serious bodily injury” is defined as “[b]odily 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.

Appellant maintains the evidence established he fired the gun twice, 

into an upstairs wall and on the porch, when he pointed and fired the gun at 

the concrete floor. Appellant’s Brief at 18. He argued the victim was shot 

once in the ankle, and she testified that Appellant did not point the gun at 

her and that Appellant fired the gun to frighten her. Id. Appellant notes the 

victim also explained the bullet could not be retrieved from the ankle, but it 

caused her no pain and that she required no treatment following her release 

from the hospital. Id. Further, the bullet did not interfere with her daily 

activities and she did not believe the bullet would lead to future 

repercussions. Id. Appellant concludes there was no evidence the victim 
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suffered serious bodily injury or that he had the specific intent to cause 

serious bodily injury. Id. at 18-24.

The Commonwealth presented sufficient evidence to establish beyond 

a reasonable doubt that Appellant intended to cause the victim serious 

bodily harm. Appellant and the victim were arguing. Appellant grabbed the 

victim by the hair, and pinned her down. N.T., 8/16/2013, at 28. The 

victim poured bleach on Appellant. Id. When the victim attempted to 

gather her children, Appellant said she was “not getting the kids” and she 

“better get out.” Id. at 29-30. Appellant pulled out a gun, and fired it. Id.

at 31. The victim ran to the stairs, and Appellant ran after her. Id. 

Appellant shot at the victim again as the victim was exiting the house. Id.

at 32. The victim testified that Appellant only fired the gun to frighten her. 

Id. at 54. However, as the trial court noted, the victim was already fleeing 

from Appellant when he fired the shots. 1925(a) Opinion, at 7. Regardless 

whether Appellant aimed the gun at the cement or at the victim, because he 

fired a gun in the direction of the victim, a finder of fact could find Appellant 

intended to cause serious bodily injury to the victim. See Commonwealth 

v. McCalman, 795 A.2d 412, 417 (Pa.Super.2002) (“in carelessly 

brandishing and shooting a firearm, [Appellant] clearly displayed an attempt 

to cause ‘serious bodily injury’ as contemplated by the statute”).5

____________________________________________

5 Because we find Appellant intended to cause serious bodily injury, we need 

not address whether Appellant caused serious bodily injury.
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Further, because the Commonwealth presented sufficient evidence to 

support the trial court’s finding that Appellant was guilty of aggravated 

assault pursuant to 18 Pa.C.S. § 2702(a)(1), the court properly graded the 

offense as a first degree felony. 18 Pa.C.S. § 2702(b) (“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”).

Appellant’s next issue challenges the discretionary aspects of his 

sentence. “Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right.” Commonwealth v. Allen, 24 

A.3d 1058, 1064 (Pa.Super.2011) (quoting Commonwealth v. Sierra, 752 

A.2d 910, 912 (Pa.Super.2000)). Before this Court can address a 

discretionary challenge, we must engage in a four-part analysis to 

determine: 

(1) whether the appeal is timely; (2) whether Appellant 

preserved his issue; (3) whether Appellant’s brief includes 

a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary

aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence

is appropriate under the sentencing code. 

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see 

also Allen, 24 A.3d at 1064.

Appellant raised his discretionary aspect of sentence issue in a timely 

post-sentence motion and filed a timely notice of appeal. Further, 
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Appellant’s brief includes a statement of reasons relied upon for allowance of 

appeal pursuant to Rule 2119(f). We must therefore determine whether 

Appellant’s brief raises a substantial question. 

“The determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v. 

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists 

where a defendant raises a “plausible argument that the sentence violates a 

provision of the sentencing code or is contrary to the fundamental norms of 

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 

(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72 

(Pa.Super.2012)).

Appellant maintains the sentence was excessive and based on 

inappropriate reasons since the trial court ignored all mitigating evidence, 

focused on punishment and retribution, and calculated an incorrect offense 

gravity score. Appellant’s Brief at 13-14. Appellant maintains the trial court 

improperly imposed the deadly weapons enhancement and imposed an 

excessive sentence. Id. Appellant’s issue raises a substantial question. 

See Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa.Super.2014) 

(appellant raised substantial question when he alleged sentence was 

excessive and court failed to consider mitigating circumstances); 

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.Super.2010) 
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(“application of the deadly weapon enhancement presents a substantial 

question”). 

“Sentencing is a matter vested within the discretion of the trial court 

and will not be disturbed absent a manifest abuse of discretion.” 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010). 

(quoting Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). 

“An abuse of discretion requires the trial court to have acted with manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Id. (citing Commonwealth v. 

Walls, 926 A.2d 957 (Pa.2007)). “A sentencing court need not undertake a 

lengthy discourse for its reasons for imposing a sentence or specifically 

reference the statute in question, but the record as a whole must reflect the 

sentencing court’s consideration of the facts of the crime and character of 

the offender.” Id. at 1283 (citing Commonwealth v. Malovich, 903 A.2d 

1247 (Pa.Super.2006)). Further, “[w]here pre-sentence reports exist, we 

shall . . . presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Antidormi, 84 A.3d 736, 761 (Pa.Super.2014) (quoting Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa.1988)).

In the 1925(a) opinion, the trial court explained:

At sentencing, the [c]ourt considered [Appellant’s] prior 

interaction with Thomas when he pointed a shotgun at her 

in 2010. Additionally, the [c]ourt considered the 
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applicability of a five year mandatory minimum sentence 

under 42 Pa.C.S.[] § 9712, for offenses committed with 

firearms. In fashioning an appropriate sentence, the 

record reflects that the [c]ourt also considered the 

following: the Presentence Investigation report, the Mental 

Health evaluation, [Appellant’s] prior involvement with the 

criminal justice system, and the sentencing guidelines. 

The [c]ourt also considered the complaining witness, 

Vashti Thomas’ testimony, her letter to the [c]ourt and 

[Appellant’s] support from members of his family. 

Additionally, the court considered that a deadly weapon 

was used, the consequences of what happened, the safety 

of the victim, the prospect of [Appellant’s] rehabilitation[,] 

and whether [Appellant] had the opportunity to address 

his issues in the past.

1925(a) Opinion, at 13 (citations to record omitted).

The trial court did not abuse its discretion when it sentenced Appellant. 

Because Appellant used a firearm during the commission of aggravated 

assault, the trial court properly applied the deadly weapon sentencing 

guideline enhancement. See 204 Pa.Code § 303.10. Further, prior to 

imposing the 10 to 20 year sentence, the trial court considered the 

mitigating factors presented at the sentencing hearing, as well as Appellant’s 

pre-sentence investigation report and mental health evaluation. 

In Appellant’s last issue, he claims the trial court erred when it 

sentenced him pursuant to the mandatory minimum sentence contained in 

42 Pa.C.S. § 9712, which has been held unconstitutional. Appellant’s Brief 

at 27-31. He further maintains the trial court erred when it maintained that 

the deadly weapon enhancement could still be applied, as the deadly 

weapon enhancement also was unconstitutional. Id. 
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In Alleyne v. United States, the Supreme Court of the United States 

found that any fact, other than a prior conviction, that triggers a mandatory 

minimum sentence is an element of the offense that must be found by a jury 

beyond a reasonable doubt. 133 S.Ct. 2151, 2160-62, 1260 n.1 (U.S.2013). 

Pursuant to Alleyne, this Court has found 42 Pa.C.S. § 9712, which provides 

a mandatory minimum for use of a firearm while committing a crime of 

violence, unconstitutional.6 Commonwealth v. Valentine, 101 A.3d 801, 

811-12 (Pa.Super.2014). The trial court sentenced Appellant to 10 to 20 

years’ imprisonment for the aggravated assault conviction, above the fiveyear mandatory minimum contained in section 9712. The sentence, 

therefore, was constitutional. Commonwealth v. Zeigler, 112 A.3d 656, 

662 (Pa.Super.2015) (where sentence imposed exceeds mandatory 

minimum, the sentence does not present a constitutional problem, as trial 

court did not apply the unconstitutional mandatory minimum).

Further, this Court has found Alleyne does not impact the use of the 

sentencing enhancements, as sentencing guideline enhancements do “not 

bind the trial court to impose any particular sentencing floor.” 

Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super.2015); accord 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 

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6 The sentencing hearing occurred after the issuance of Alleyne, but prior to 

issuance of this Court’s decisions addressing the constitutionality of 

Pennsylvania’s mandatory minimum statutes. 
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(Pa.Super.2014) (en banc). Therefore, the trial court did not err by applying 

the deadly weapon enhancement.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2016