J-S36011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM PERCHA

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 215 WDA 2020

Appeal from the Judgment of Sentence Entered January 14, 2020

In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP-26-CR-0001478-2016

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.* MEMORANDUM BY OLSON, J.: FILED AUGUST 26, 2020

Appellant, William Percha, appeals from the judgment of sentence

entered on January 14, 2020. We affirm.

The trial court ably summarized the underlying facts of this case:

[The Commonwealth charged Appellant with aggravated

assault, simple assault, and recklessly endangering another

person (“REAP”).1 Trial was scheduled for July 10, 2018.]

[O]n July 10, 2018, [Appellant] failed to appear for trial and

a bench warrant was issued for his apprehension.

Subsequently, [Appellant] was apprehended and, on

December 20, 2018, he was ordered to appear for the

January 2019 criminal court session[,] which began on

January 7, 2019. When [Appellant] failed to appear as

ordered during the January 2019 criminal court session, on

January 8, 2019, another bench warrant was issued for his

arrest. After he was again apprehended, on May 17, 2019, ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), and 2705, respectively.
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the bench warrant was lifted and [Appellant] was ordered to

appear for his criminal jury trial which was to be held on June

3, 2019.

On June 3, 2019, once again, [Appellant] failed to appear as

ordered for trial and the Commonwealth called the case for

trial in the absence of [Appellant]. At that time, and on the

record, the Commonwealth stated the history of [Appellant]

failing to appear for trial, as well as him being present on May

17, 2019, and being told by the Court that he was to appear

for trial on June 3, 2019. Further, the Commonwealth stated

that its witnesses were either present or about to appear.

Counsel for [Appellant] then asked for a continuance without

offering any explanation for [Appellant’s] absence. That

motion was denied by th[e trial] court . . . and, thereafter,

trial was held. . . . [The jury found Appellant guilty of all charges and Appellant]

was ordered to appear for sentencing on June 11, 2019.

Once again [Appellant] failed to appear and another bench

warrant was issued for his arrest. After [Appellant] was

apprehended in January[] 2020, he was sentenced[, on

January 14, 2020, to serve an aggregate term of two to four

years in prison for his convictions].

. . . [During the trial,] the Commonwealth presented the

testimony of William Myers, the victim in this matter, who, at

the time of trial, was a retired corrections officer, having

[recently] retired from [State Correctional Institution (“SCI”)

Fayette].

Officer Myers testified that[,] on January 28, 2016, he was

[working as a corrections officer at SCI Fayette] and came

into contact with [Appellant] who, at that time, was an

inmate at the facility. Since [Appellant] did not have a valid

pass to be in the area where he was at th[e] time, Officer

Myers told [Appellant] he would have to return to his block.

When [Appellant] refused, Officer Myers informed him he was

taking him into custody. As the officer reached for his

handcuffs, [Appellant] swung and hit [Officer Myers] in his

left temple. [Appellant] then grabbed the officer's radio and

struck the officer with it and they fell to the ground.
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On the ground, [Appellant] continued to strike the officer with

the radio. Among [the] injuries sustained by Officer Myers

was an injury to his MCL, causing him to be off work for over

a month.

In addition to the testimony of Officer Myers, the

Commonwealth provided the testimony of Sergeant Norio

Angelo and Officer William Solomon, both of whom serve at

SCI Fayette. [Sergeant] Angelo testified that[,] on the day

[of the assault], he received a Signal 13 on his radio

indicating a staff assault. He responded to the scene of the

incident within 20 to 30 seconds and observed [Appellant] on

top of Officer Myers and striking him with the radio. . . . Officer Solomon testified that[,] on the day [of the assault],

he also received a Signal 13 indicating that an officer was in

distress or under attack and responded. At the scene of the

incident, he observed several officers and a combative

inmate, [who was Appellant]. He also observed Officer Myers

get out from underneath [Appellant].

Trial Court Opinion, 3/25/20, at 2-7 (citations and some capitalization

omitted).

As noted above, the jury found Appellant guilty of aggravated assault,

simple assault, and REAP and the trial court sentenced Appellant to serve an

aggregate term of two to four years in prison. Appellant filed a timely notice

of appeal and now raises the following claims to this Court:

[1.] Did the trial court abuse its discretion by holding the trial

in this matter without the defendant present?

[2.] Did the Commonwealth fail to present sufficient evidence

to prove beyond a reasonable doubt that Appellant

intentionally caused bodily injury to an officer, agent, or

employee, or other enumerated person?

Appellant’s Brief at 7 (some capitalization omitted).
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First, Appellant claims that the trial court erred when it tried him in

absentia. “A person accused of a crime has a constitutional right pursuant to the

Sixth Amendment of the United States Constitution and Article 1, § 9 of the

Pennsylvania Constitution to be present at every stage of a criminal trial.” Commonwealth v. Wilson, 712 A.2d 735, 737 (Pa. 1998). “In non-capital

cases, a defendant may, by his actions, waive this right expressly or implicitly.

The waiver must be knowing and voluntary.” Id.

The above precepts are codified in Pennsylvania Rule of Criminal

Procedure 602. In relevant part, Rule 602 states:

The defendant shall be present at every stage of the trial

including the impaneling of the jury and the return of the

verdict, and at the imposition of sentence, except as

otherwise provided by this rule. The defendant's absence

without cause at the time scheduled for the start of trial or

during trial shall not preclude proceeding with the trial,

including the return of the verdict and the imposition of

sentence.

Pa.R.Crim.P. 602(a).

The Comment to Rule 602 provides:

upon a finding that the [defendant’s] absence was without

cause, the trial judge may conduct the trial in the defendant's

absence when the defendant fails to appear without cause at

the time set for trial or during trial. The burden of proving

that the defendant's absence is without cause is upon the

Commonwealth by a preponderance of the evidence. See

Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980)

(when a constitutional right is waived, the Commonwealth

must show by a preponderance of the evidence that the

waiver was voluntary, knowing and intelligent);

Commonwealth v. Tizer, 684 A.2d 597 (Pa. Super. 1996)[;
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see also] Commonwealth v. Bond, 693 A.2d 220, 223 (Pa.

Super. 1997) (“[A] defendant who is unaware of the charges

against him, unaware of the establishment of his trial date or

is absent involuntarily is not absent ‘without cause.’”).

. . . A defendant's presence may be deemed waived by the

defendant intentionally failing to appear at any stage of the

trial after proper notice. See Commonwealth v. Wilson, 712 A.2d 735 (Pa. 1998) (a defendant, who fled courthouse

after jury was impaneled and after subsequent plea

negotiations failed, was deemed to have knowingly and

voluntarily waived the right to be present); Commonwealth

v. Sullens, 619 A.2d 1349 (Pa. 1992) (when a defendant is

absent without cause at the time his or her trial is scheduled

to begin, the defendant may be tried in absentia).

Pa.R.Crim.P. 602 cmt. On appeal, Appellant claims that the Commonwealth did not prove, by

a preponderance of the evidence, that he was absent from trial without cause.

Appellant’s Brief at 13. In support of this claim, Appellant baldly contends

that he “never received notice of his trial date” and he “was unaware of the

charges against him.” Appellant’s Brief at 12-14. Appellant’s claim fails.

The record reflects that, prior to Appellant’s June 3, 2019 trial,

Appellant twice failed to appear for his scheduled trial and, as a result,

Appellant was twice apprehended on bench warrants. See Trial Court Order,

7/18/18, at 1 (directing the clerk of courts to issue a bench warrant for

Appellant’s arrest, as Appellant failed to appear for his scheduled trial); Trial

Court Order, 12/20/18, at 1 (lifting the bench warrant, reinstating Appellant’s

bond, and ordering Appellant to appear for trial on January 7, 2019); Trial

Court Order, dated 1/8/19, at 1 (directing the clerk of courts to issue a bench
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warrant for Appellant’s arrest, as Appellant failed to appear for his scheduled

trial); Trial Court Order, 5/17/19, at 1 (lifting the bench warrant, reinstating

Appellant’s bond, and ordering Appellant to appear for trial on June 3, 2019).

Further, in its May 17, 2019 order, the trial court specifically directed Appellant

to “report for criminal jury trial on June 3, 2019.” Trial Court Order, 5/17/19,

at 1.

We additionally note that when Appellant failed to appear for his June

3, 2019 jury trial, the trial court questioned both the Commonwealth and

Appellant’s counsel regarding Appellant’s failure to appear. See N.T. Trial,

6/3/19, at 1-4. The Commonwealth informed the trial court that Appellant

was present during the May 17, 2019 proceeding, where the trial court lifted

the bench warrant and ordered Appellant to appear for trial on June 3, 2019.

Id. at 4. Moreover, Appellant’s counsel provided no explanation for

Appellant’s failure to appear for trial. See id. Indeed, Appellant has never

provided any explanation for his absence, other than to make the baseless

claims that he “never received notice of his trial date” and he “was unaware

of the charges against him.” Appellant’s Brief at 12-14.

Based upon these facts, it is clear that the Commonwealth proved, by a

preponderance of the evidence, that Appellant had actual notice of charges

against him, that Appellant had actual notice of his June 3, 2019 trial, and

that Appellant “willfully decided to absent himself without cause or

justification.” See Sullens, 619 A.2d at 1353. To be sure, Appellant was

twice apprehended for failure to appear for trial, twice released from the bench
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warrant, and, at the May 17, 2019 proceeding – during which Appellant was

present – the trial court specifically ordered Appellant to appear for trial on

June 3, 2019. Trial Court Order, 5/17/19, at 1; N.T. Trial, 6/3/19, at 1-4.

Thus, Appellant’s bald claim that he “never received notice of his trial date” and he “was unaware of the charges against him” is frivolous. Next, Appellant claims that the evidence is insufficient to support his

aggravated assault conviction.2 We review Appellant's sufficiency of the

evidence challenge under the following standard:

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2 Appellant was convicted of aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(3). In relevant part, this type of aggravated assault is defined as

follows:

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

assault if he:

. . . (3) attempts to cause or intentionally or knowingly causes

bodily injury to any of the officers, agents, employees or

other persons enumerated in subsection (c), in the

performance of duty;

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

agents, employees and other persons referred to in

subsection (a) shall be as follows:

. . . (9) Officer or employee of a correctional institution,

county jail or prison . . . 18 Pa.C.S.A. § 2702.
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The standard we apply in reviewing the sufficiency of the

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 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. 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 produced, is free to believe

all, part or none of the evidence.

Commonwealth v. Vargas, 108 A.3d 858, 867-868 (Pa. Super. 2014) (en

banc), quoting Commonwealth v. Brown, 23 A.3d 544, 559–560 (Pa.

Super. 2011) (en banc). According to Appellant, the evidence is insufficient to support his

aggravated assault conviction because “it is entirely possible that this was a

case of mutual combat where[] both Appellant and the prison guard each

decided to fight on their own accord, and not merely an attack upon the prison

guard.” Appellant’s Brief at 16. This claim fails. Officer Myers – the victim in this case – testified that, immediately

before the attack, he saw Appellant in an unauthorized area of the prison.

N.T. Trial, 6/3/19, at 35-36. Officer Myers testified that he confirmed

Appellant did not have a valid pass to be in the area and he thus ordered
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Appellant to return to his cell block. Id. at 38. Appellant, however, refused

the order. Id. Officer Myers testified:

Well I told him several times that he would have to go back

to his block. Each time he refused so then I told him that

since he refused, I was taking him into custody. I told him

to turn around, put his hands behind his back. He started to

turn. I reached back for my cuffs and at that time, that’s

when he swung around [and] hit me . . . [in my] left temple.

. . . After he hit me the first time, . . . I struck him back. . . . [Appellant then] grabbed my radio and struck me with it. . .

. I grabbed his jacket. And when I went down, I pulled him

down on top of me. And he continued to strike me and I just

hung on because I knew other [corrections officers] were

coming.

Id. at 38-39.

The above evidence demonstrates that Appellant was in an unauthorized

area of the prison, refused to comply with a valid order from Officer Myers, and then, when Officer Myers was attempting to place Appellant into custody

for violating prison regulations, Appellant punched Officer Myers in his left

temple. There is simply no evidence that “this was a case of mutual combat

where[] both Appellant and the prison guard each decided to fight on their

own accord.” Appellant’s Brief at 16. Rather, viewing the evidence in the light

most favorable to the Commonwealth, the evidence demonstrates that

Appellant was the aggressor in this case. Appellant’s claim on appeal thus

fails.

Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/26/2020