Opinion
J-S16038-14 No. 1385 MDA 2013
04-09-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SAMUEL L. FOSTER, II, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 28, 2013
in the Court of Common Pleas of Lancaster County
Criminal Division, at No(s): CP-36-CR-0000522-2013
BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Samuel L. Foster, II (Appellant) appeals from the June 28, 2013 judgment of sentence of two to six years of incarceration following his conviction for one count of aggravated assault, 18 Pa.C.S. § 2702(a)(3). We affirm.
The trial court summarized the facts underlying Appellant's conviction as follows.
On September 3, 2012, [Appellant] was an inmate housed in the medical unit at the Lancaster County Prison. [Appellant's] cell was equipped with a camera, and he was being monitored by Officer Stephen Napolitan, a corrections officer supervising inmates in the medical unit, and Officer Todd Bowers, who was walking around the unit checking on inmates every fifteen minutes. Shortly after 8:00 a.m., [Appellant] began screaming obscenities and was loud and disruptive, ignoring instructions to stop. As the morning went on, [Appellant] covered the camera in his cell with either wet toilet paper or butter and smeared butter on the front window of his cell, blocking the view inside.Trial Court Opinion, 9/20/2013, at 3-6 (citations to the record omitted).
Officer Napolitan instructed [Appellant] to remove the substances from the camera and the window of the cell, but [Appellant] refused. Shortly after 11:30 a.m., Officer Napolitan entered [Appellant]'s cell and cleaned the butter off the door. While Officer Napolitan was cleaning the camera, [Appellant] darted out of his cell, where he was stopped by Officer David Anderson, another corrections officer working in the medical unit.
Officer Anderson put both hands on [Appellant] and pushed him toward the wall. [Appellant] resisted and pushed the officers away and attempted to climb a railing. Officer Anderson and Officer Napolitan pulled [Appellant] off the bars of the railing and pushed him toward his cell. [Appellant] was "barking," resisting and acting violently. Officer Napolitan instructed [Appellant] to go back into his cell, but [Appellant] refused. Officer Anderson and Officer Napolitan took hold of [Appel lant]'s arms and moved him back into his cell, but [Appellant] was resisting, struggling and acting aggressive.
Officer Napolitan called for backup, and Officer Todd Bowers came into [Appellant]'s cell to help subdue [Appellant]. [Appellant] was instructed to get on the ground, but he did not do so. Once in the cell, Officer Napolitan restrained [Appellant]'s head and neck to control him, Officer Anderson held [Appellant]'s arm behind his back and Officer Bowers took hold of [Appellant]'s legs. Sergeant Robert Wolfe, the shift supervisor, came into the cell and the four officers restrained [Appellant] and took him to the ground in the doorway of the cell where Sergeant Wolfe handcuffed him.
During the struggle, [Appellant] was bucking and trying to force the officers out the cell door. At one point, [Appellant] raised his right leg and struck Officer Napolitan in the groin with his right knee causing Officer Napolitan pain. Officer Bowers and Sergeant Wolfe heard Officer Napolitan say that [Appellant] hit him in the groin and [Appellant] was kicking his legs, so Officer Bowers took hold of [Appellant]'s legs to prevent it from happening a second time. Officer Bowers testified that he saw [Appellant]'s knee contact Officer Napolitan's groin, which is why he grabbed [Appellant]'s legs.
The altercation was captured on the surveillance camera in [Appellant]'s cell. While the footage is of low quality, the video
shows the officers struggling to restrain [Appellant]. At one point in the struggle, the video shows an officer, identified as Officer Napolitan, stand straight up. Sergeant Wolfe testified that he felt a movement different from the rest of the struggling and saw Officer Napolitan's body come up in the air as if he was hit by a directed shot. He thought Officer Napolitan was in pain, so he told the officer to step out of the cell.
[Appellant] took the stand and testified that he was not given his medication while in Lancaster County Prison. Due to his mental health conditions and lack of medication, he was hallucinating and hearing voices, which is why he was screaming obscenities. [Appellant] also testified that he was acting out and covering the window and the camera to get the attention of a supervisor.
When Officer Napolitan entered his cell, [Appellant] claimed he had been sleeping and was startled and thought Officer Napolitan was coming in to attack him which is why he left the cell. [Appellant] testified he had a panic attack and feared he would be harmed by the officers which is why he was making noises and trying to climb the railing. He claimed that he was being choked by the three guards and was struggling because he did not want to fall. [Appellant] maintained that during the struggle, he had no intent to harm the officers. He further maintained that he could not have kicked anybody because his legs were being held.
Having heard this evidence, a jury convicted Appellant of aggravated assault on May 7, 2013. Following a presentence investigation, Appellant was sentenced as detailed above. Appellant timely filed a notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents one question on appeal: "In a prosecution for aggravated assault of a corrections officer at the county jail, was not the evidence insufficient to prove that [Appellant] either inflicted bodily injury or attempted to inflict bodily injury?" Appellant's Brief at 4 (most capitalization omitted).
We consider a challenge to the sufficiency of the evidence pursuant to the following standard.
[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa. Super. 2013) (internal quotations and citations omitted). The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).
Appellant was convicted of violating subsection 2702(a)(3) of the crimes code, which provides in relevant part: "A person is guilty of aggravated assault if he ... 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...." 18 Pa.C.S. § 2702(a)(3). Subsection (c) includes an "[officer or employee of a correctional institution, county jail or prison...." 18 Pa.C.S. § 2702(c)(9). "Bodily injury is defined as "impairmen t of physical condition or substantial pain." Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013) (quoting 18 Pa.C.S. § 2301).
"'[I]n a prosecution for aggravated assault on a [corrections] officer[,] the Commonwealth has no obligation to establish that the officer actually suffered a bodily injury; rather, the Commonwealth must establish only an attempt to inflict bodily injury, and this intent may be shown by circumstances which reasonably suggest that a defendant intended to cause injury.'" Id. (quoting Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011) (emphasis in original)).
Appellant argues that "[n]ot all pain-inducing events, even those suffered by police officers in the performance of duty, give rise to a finding that the actor either caused bodily injury or attempted to cause bodily injury." Appellant's Brief at 14 (citing Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super 1997); Commonwealth v. Kirkwood, 520 A2d 451 (Pa. Super. 1987); Interest of J.L., 475 A.2d 156 (Pa. Super. 1984)).
An examination of those cases is instructive. The facts underlying the conviction in Kirkwood are as follows.
Paula Sheasley testified that on the evening of August 11, 1984, she, along with her husband, her sister, and her brother-in-law, went to the Greendale Tavern in Cowanshannock Township, Armstrong County, to dance and to get something to eat. At approximately 1:30 a.m. on the following morning, she observed that Kirkwood was also at the tavern. Sheasley was a correctional officer at the Armstrong County Prison, and she knew Kirkwood as a former inmate who was then on parole.Kirkwood, 520 A.2d at 452-453. Kirkwood was convicted of simple assault under 18 Pa.C.S. § 2701(a)(1), which provided that a person is guilty of assault if he or she attempted to cause or intentionally, knowingly or recklessly caused bodily injury to another. After discussing at length the meaning of the term "bodily injury," this Court held that the evidence was insufficient to sustain Kirkwood's conviction:
Later, while she was dancing a fast dance with the other members of her party, she said, Kirkwood had approached her, had grabbed her by the arm and had begun to swing her violently around the dance floor. Sheasley said that she had pleaded with Kirkwood to stop because he was hurting her, but that he had continued to swing her until her husband intervened. The incident, she said, lasted approximately forty seconds and left her with bruises and cut marks on her arms. As a result, she testified, she suffered pain in her arms and her right knee for a short period of time thereafter.
In the instant case, [Kirkwood's] uninvited attentions and violent dancing, according to the victim, caused bruises and slight cuts on her arms, and her right knee and arms hurt as a result of the manner in which appellant swung her during the dance. There was no evidence that she had consulted a physician or that she had lost time from work. We conclude that this evidence was insufficient to establish either the "physical impairment" or the "substantial pain" which is necessary to prove the crime of criminal assault as defined in 18 Pa.C.S. § 2701. Temporary aches and pains brought about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability upon a dance partner for assault. Appellant's invitation to the dance, even if uncivil and harassing, was not assaultive within the meaning of the statute.Id. at 454. Notably absent from the Court's opinion is any discussion of whether Kirkwood attempted to cause bodily injury.
A conviction for aggravated assault against an officer of the Commonwealth under § 2702(a)(3) and a conviction for simple assault under § 2701(a)(1) both require proof that the defendant caused or attempted to cause bodily injury.
The assault conviction in the Wertelet case was based upon the following evidence.
The testimony of Trooper Funk was that as [Wertelet] struggled while the troopers attempted to handcuff her [to arrest her for interfering with utility workers attempting to work in a right-of-way on her property,] he was "kicked" by [Wertelet's] right heel twice in the left shin. Trooper Funk, although stating that the pain he experienced from the "kicks" was "substantial," in a more descriptive moment testified that the pain was "similar to bumping your shin on a coffee table in the dark when you're walking through the house." Trooper Funk did not require any medical treatment for the "injury" and was able to perform his duties for the remainder of the shift.Wertelet, 696 A.2d at 210. On appeal, Wertelet argued "that her 'kicking' did not inflict a 'bodily injury' for purposes of" subsection (a)(3) of the aggravated assault statute. Id. In discussing the meaning of "bodily injury," this Court cited Kirkwood for the proposition that "the assault section of the Crimes Code was intended to protect and preserve one's physical well being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living." Wertelet, 696 A.2d at 211 (citing Kirkwood, 520 A.2d at 454). In holding the evidence insufficient, the Wertelet Court explained:
There is no evidence that [Wertelet] reared back and kicked Trooper Funk as hard as she could. Indeed, she kicked him with the back of her heel as she was flailing about and squirming while the troopers attempted to handcuff her. Trooper Funk was not seriously impaired by the kicks, he was able to continue working, and he did not report even any bruising or swelling.Id. at 212-213 (footnote omitted). Again, the Court did not address the issue of whether the evidence was sufficient to show such an attempt.
Trooper Funk's characterization of the pain as similar to "bumping your shin on a coffee table" aligns the encounter with those described above and does not fall within the general connotation of the term "injury." ... For all the above reasons we believe the evidence was insufficient to prove that Trooper Funk experienced a "bodily injury" within the meaning of the statute. Consequently, the evidence was insufficient to sustain the conviction for aggravated assault.
By noting that there was no evidence that Wertelet reared back and kicked as hard as she could, the Court may have found proof of attempt to cause injury was also lacking.
The issue of attempt is addressed in Interest of J.L. The facts giving rise to the adjudication of delinquency in that case are as follows.
On April 14, 1982, [J.L.] was living in the home of her older brother, ... who had been appointed to act as [her] legal guardian. At or about 2:30 p.m. on that day, [J.L.] became angry because her guardian had physically restrained her from leaving home in Union City to visit her boyfriend in Erie. She retreated to her bedroom, where she petulantly engaged in loud conduct calculated to make known her displeasure. She returned in a little while to the living room with a bag of candy. As she sat on the sofa eating candy, her two year old nephew sat by her side and rested his head on her arm. At least one witness speculated that the child was begging for a piece of candy. Although the evidence of what happened next is conflicting, the hearing court could have found that the juvenile used her elbow to strike the youngster and push him away from her. The young nephew was startled but did not cry or exhibit evidence of pain. He did not fall from the couch and was not injured in any way.In Interest of J.L., 475 A.2d at 156-157. J.L. was adjudicated delinquent for violating 18 Pa.C.S. § 2701(a)(1), the statute at issue in Kirkwood.
The Court accepted that J.L.'s nephew did not sustain actual bodily injury. It properly noted that this fact "is not alone con trolling, however, for it is not essential to a conviction for assault that the victim sustain actual injury. It is enough if the actor attempted to inflict bodily injury." Id. at 157 (emphasis in original). The Court nonetheless concluded that the evidence was insufficient to support the adjudication.
The evidence in this case was insufficient to permit a reasonable inference that appellant's act of pushing her nephew away with her elbow was intended to injure him or cause him substantial pain. Even after we view the evidence in the light most favorable to the Commonwealth, as we are required to do, it is impossible to find therefrom an intent to inflict bodily injury upon appellant's two year old nephew.Id. (citations omitted).
Within the confines of the family, it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking, that not infrequently occur between siblings or other members of the same family. Altercations between juvenile members of the same family, even when they become less than civil, are usually too trivial to be a target of the Crimes Code. In the absence of a criminal or malicious intent, such intra-family spats will not support criminal prosecution.
Based upon Wertelet, Kirkwood, and Interest of J.L., Appellant argues that "It is clear then that an actor's infliction of pain, even when coupled either with anger ... or with obnoxiousness ..., does not prove that such actor intended to inflict bodily injury." Appellant's Brief at 17. Rather, Appellant claims, the "evidentiary record must include additional facts from which the inference of intent to injure can reasonably be made." Id. Because the evidence in this case shows only that there was incidental contact wh ile the officers "were engaged in taking [him] to the ground," Appellant maintains that the evidence was insufficient to establish that the officer sustained bodily injury or that it was Appellant's "conscious object to inflict bodily injury." Id. at 21.
This Court has rejected similar comparisons to cases such as Wertelet in Brown, supra, and Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000), overruled on other grounds by Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). The facts underlying the conviction in Brown are as follows.
At trial, Officer Schiazza testified that when he attempted to handcuff Brown, Brown pulled away, threw Officer DeBella to the ground, and ran away. Officer Schiazza further testified that after he tackled Brown, Brown struggled violently with him, and that as Brown flailed his arms he struck the officer repeatedly on the arm, shoulder and mouth, causing him to have a swollen lip. Whether the officer's swollen lip constitutes a "bodily injury" for purposes of section 2702(a)(3) is irrelevant, since in a prosecution for aggravated assault on a police officer the Commonwealth has no obligation to establish that the officer actually suffered a bodily injury; rather, the Commonwealth must establish only an attempt to inflict bodily injury, and this intent may be shown by circumstances which reasonably suggest that a defendant intended to cause injury. It was within the jury's province to find that Brown, by throwing Officer DeBella to the ground and then striking Officer Schiazza repeatedly by wildly flailing his arms as he resisted arrest, intended to cause injury to the officers.Brown, 23 A.3d at 560 (citations omitted). This Court specifically rejected Brown's reliance on Wertelet in challenging the sufficiency of the evidence:
here we reject reliance on cases such as [ Wertelet, ] in which the appellant kicked the arresting officer in the shin with the back of her heel as she was being handcuffed. In Wertelet, we indicated that "[t]here is no evidence that appellant reared back and kicked Trooper Funk as hard as she could," and further noted that the officer testified that the injury was nothing more serious than "bumping your shin on a coffee table[.]" For these reasons, we concluded that this "relatively harmless physical contact with a police officer" did not satisfy the requirements for aggravated assault under section 2702(a)(3).Brown, 23 A.3d at 560 n.16 (citations omitted).
Similarly, this Court found evidence of kicking while resisting restraint sufficient to support an aggravated assault conviction in Petaccio. In that case,
Philadelphia Police Officer Mary Drescher, while responding to a radio call, observed [Petaccio] hitting an unidentified female and dragging her by her hair toward his vehicle. [Petaccio] released the woman and began running down a nearby driveway, with Officer Drescher in pursuit. [Petaccio] subsequently attempted to hide from the officer. With weapon drawn, Officer Drescher demanded that [Petaccio] show his hands, and he slowly obliged. As Officer Drescher attempted to re-holster her weapon, [Petaccio] began running toward her. She grabbed him and he punched her in the jaw.Id. at 584. The Court rejected Petaccio's reliance upon Wertelet as follows.
[Petaccio] attempted to run toward his vehicle, but Officer Drescher grabbed his coat and informed him that he was under arrest. While the officer tried to subdue [Petaccio], another officer arrived and provided assistance. During the ensuing fracas, [Petaccio] kicked Officer Drescher in the stomach. The two officers repeatedly tried to restrain [Petaccio], but it was only after a third officer arrived on the scene that [Petaccio] was placed into custody.
It is clear that [Petaccio's] behavior was more egregious than "relatively harmless physical contact with a police officer." It is likewise clear that [Petaccio's] victim suffered a more severeId. at 585-586 (citing Commonwealth v. Biagini, 655 A.2d 492 (Pa. 1995) (holding that bodily injury was proved where the defendant punched a police officer in the face)).
injury than the police officer in Wertelet. Officer Drescher testified that she experienced pain and bleeding from appellant's closed-fist punch to her jaw. And although the officer did not testify to any pain she experienced as a result of appellant's kick, such conduct clearly constitutes an attempt to inflict bodily injury. We hold that a punch to the face of an officer, accompanied by a kick to her stomach, is the very type of conduct prohibited by § 2702(a)(3).
The instant case is far more analogous to Brown and Petaccio than to Kirkwood, Wertelet, or Interest of J.L. As the trial court noted in its opinion, "The jury heard Officer Napolitan's testimony that [Appellant] had kneed him in the groin and that of Sergeant Wolfe, who testified feeling the sudden movement of what he described as a 'directed' shot, and seeing Officer Napolitan jerk straight up after he said [Appellant] struck him in the groin." Trial Court Opinion, 9/20/2013, at 6. Based upon Brown and Petaccio, we hold that a knee directed at a sensitive area of the officer's body was sufficient to prove that Appellant at least attempted to cause him bodily injury, regardless of whether Officer Napolitan actually suffered what amounts to a "bodily injury" under section 2702(a)(3).
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary