J-S49008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMES COTTLE

                            Appellant                 No. 3475 EDA 2015


           Appeal from the Judgment of Sentence October 21, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division, at No(s): CP-23-CR-0006306-2014


BEFORE: PANELLA, J., and OLSON, J., STEVENS, P.J.E.,*

MEMORANDUM BY PANELLA, J.                            FILED AUGUST 04, 2016

        James Cottle (“Appellant”) appeals from the judgment of sentence

imposed after he was convicted of aggravated assault.1 We affirm.

        The trial court summarized the pertinent facts as follows.

              On July 23, 2014, the victim, Joseph Hans, took the
        Market-Frankford Line SEPTA bus home from work. Mr. Hans
        worked a night shift. He was sitting in the front of the bus at
        about 4:30 a.m. when he heard some “commotion” coming from
        the back of the bus. See N.T. 8/14/15 [at] 6-18. [Appellant] was
        in the rear of the bus arguing with two women. The argument
        went on for about ten minutes and during its course [Appellant]
        used profanity and threatened to punch the women. See id. at
        8-15. Mr. Hans spoke to a fellow passenger at the front of the
        bus and said, “He ain’t going to hit a lady. . . I’ll knock him
        out.[”] Id. at 11, 27. [Appellant] told Mr. Hans that he had
        heard him and asked him where he “got off” the bus. Mr. Hans
____________________________________________


1
    18 Pa.C.S.A. § 2702(a).


*Former Justice specially assigned to the Superior Court.
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     replied, “69th Street” and [Appellant] said, “I got you.” Id. at 11-
     12. The conversation took about ten seconds. Mr. Hans did not
     engage in further conversation with [Appellant] and he never
     threatened him. [Appellant] returned to harassing the women.

             The women left the bus at 52nd Street. The bus continued
     on to the 69th Street Terminal and Mr. Hans rose from his seat to
     exit. He carried a cup of coffee in his left hand and headed
     toward the rear of the bus to exit. Id. at 19-21. [Appellant] was
     still in his seat. After alighting, Mr. Hans walked toward the front
     of the bus. [Appellant] rose from his seat and followed Mr. Hans
     off the bus. He continued to follow him on the sidewalk and then
     came up behind Mr. Hans and “sucker punched” him from the
     rear. [Appellant] struck Mr. Hans’s jaw and knocked him
     unconscious. Id. at 20-25. Mr. Hans never saw [Appellant]
     coming. He went down, hitting his head on the curb and “split
     [his] skull wide open.” See id. at 20-23. The assault was
     captured on video tape. It was viewed by the trial court and
     admitted into evidence at trial. Exhibit C-1. After Mr. Han[s] fell
     to the pavement unconscious, [Appellant] ran. He was arrested
     eight days later after he was identified in a photo array. N.T.
     8/20/15 [at] 7.

            Mr. Hans suffered serious bodily injury. Detective Edward
     Silverstein responded to the scene but found only a pool of blood
     and Mr. Hans’s possessions because Mr. Hans had been
     transported to the University of Pennsylvania Hospital Trauma
     Center. [Id. at] 4-5. Eighteen hours later he woke up with
     thirty-two staples in his head, a concussion and fractures
     through his jaw line. N.T. 8/14/15 [at] 23. He suffered from
     Vertigo, was out of work for two weeks[,] and thirteen months
     later, at the time of trial, he was still experiencing residual
     headaches. Id. at 23-26.

            [Appellant] testified at trial. He stated that during their
     brief interaction on the bus Mr. Hans told him that he “was going
     to get laid the ‘f’ out if he hit [the women].” N.T. 8/20/15 [at]
     17. He claimed that Mr. Hans gave him a “dirty look” as Hans
     left the bus and that he felt threatened. On cross-examination
     [Appellant] admitted that he prepared for a fight. He took his
     jacket off before he left the bus and as Mr. Hans walked away
     from the bus and away from [Appellant] he chased him down.
     Mr. Hans never turned around and never threatened or
     confronted [Appellant]. Id. at 17-24.


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Trial Court Opinion, 12/15/15, at 4-5.

      At the conclusion of a bench trial, the trial court, in rendering its guilty

verdict, credited the testimony of Mr. Hans, while finding Appellant’s

testimony “totally incredible.” N.T., 8/20/15, at 36. The court further

expressed its belief that Appellant not only intended to assault Mr. Hans, but

that it was a premeditated attack. The trial court stated:

      This is something that didn’t arise out of the course of a - – the
      heat of an instance. This was premeditated. [Appellant] had
      sufficient time to understand what was about to take place.
      What the video shows and what the victim testified are one and
      the same; that he [the victim] was leaving the bus and he has a
      cup of coffee or some type of liquid. He’s obviously not expecting
      to have a fight in this particular instance. [Appellant] comes up
      behind him and it’s a sucker punch clearly. It’s thrown with
      enough force to not only knock [Mr. Hans] off his feet [but also
      to] break his jaw when he’s thrown to the ground. This could
      have easily resulted in a murder case if he had struck his head in
      a different fashion. [Mr. Hans] did in fact sustain serious bodily
      injury in this particular case.

Id. at 36-37.

      The trial court sentenced Appellant to a term of four to eight years of

imprisonment, and a consecutive three-year probationary term. This timely

appeal follows.

      Appellant raises the following issue: “Did the [t]rial [c]ourt err in

convicting [Appellant] of the offense of Aggravated Assault because the

Commonwealth failed to prove beyond a reasonable doubt that he possessed

the requisite intent at the time of the encounter?” Appellant’s Brief at 5.

      Our standard of review is well settled.


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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 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
     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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

     A person is guilty of aggravated assault if he “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.A. § 2702(a)(1).

Serious bodily injury is defined as bodily 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 organ.”

18 Pa.C.S.A. § 2301.




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     When,    as    here,     a    victim    suffers   serious   bodily    injury,   the

Commonwealth       is   not       required    to   prove    specific      intent.    See

Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en

banc). Instead, the Commonwealth need only prove that the defendant

acted with malice, which is defined as acting recklessly under circumstances

manifesting an extreme indifference to the value of human life. See id. To

rise to the level of malice, an offensive act must be performed under

circumstances that “almost assure that injury or death will ensue.”

Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995).

     Here, in rejecting Appellant’s sufficiency challenge, the trial court

likened the facts before it to a more recent en banc decision from this Court,

and similarly concluded that Appellant’s actions in this case demonstrated

malice.

           In Commonwealth v. Burton, 2 A.3d 598 (Pa. Super.
     2010) [(en banc)] the Superior Court considered “whether the
     delivery of a single punch is sufficient to sustain a conviction for
     aggravated assault.[”] Id. at 601. As in this case, the victim in
     Burton suffered serious bodily injury. The Superior Court looked
     to the surrounding circumstances to determine whether
     “[Burton] intentionally or knowingly caused [serious bodily
     harm] or if he proceeded in such a manner that manifested an
     extreme indifference to the value of [the victim’s] life. Id. at
     603. The surrounding circumstances included a disparity in
     weight between [Burton] and the victim, [Burton’s] celebratory
     behavior after the fact while the victim lay unconscious, the fact
     that [Burton] prepared to fight and hit the victim when the
     victim had his hands behind his back and was unprepared for the
     blow. Similarly, in this case [Appellant] delivered a blow to the
     head, a vital body part, with such force that he fractured Mr.
     Hans’s jaw and knocked him to the ground, splitting his head
     open. The blow was unprovoked and unexpected. Mr. Hans was

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      walking away from [Appellant] holding a cup of coffee in his
      hand. He was in a vulnerable position and defenseless under the
      circumstances. [Appellant’s] behavior leading up to the assault
      demonstrated his intent to engage in a fight and the means he
      employed, a “sucker punch” to the head from behind[,]
      manifested an extreme indifference to the value of Mr. Hans’s
      life. Afterward, when Mr. Hans lay bleeding and unconscious on
      the pavement, [Appellant] ran. See also Commonwealth v.
      Patrick, 933 A.2d 1043 (Pa. Super 2007) (reckless indifference
      to human life was substantiated where defendant caused serious
      bodily injury with a single punch to the side of the unsuspecting
      victim’s head, causing the victim to fall “without reflexive
      protection”); Commonwealth v. Bruce, [916 A.2d 657 (Pa.
      Super. 2007) (the manner of the attack may reflect intent to
      inflict serious bodily harm[)].

Trial Court Opinion, 12/15/15, at 6-7.       Our review of the record amply

supports the trial court’s conclusion that the Commonwealth presented

sufficient evidence to convict Appellant of aggravated assault.

      Appellant’s claims to the contrary are unavailing. Initially, we note

that, in making his arguments, Appellant does not acknowledge this Court’s

holdings in Burton and Patrick. Instead, he cites to two significantly older

cases, neither of which involved the “single punch” scenario. See Appellant’s

Brief at 13-14 (citing Commonwealth v. Magnelli, 502 A.2d 241 (Pa.

Super. 1985), and Commonwealth v. Rockwell, 340 A.2d 553 (Pa. Super.

1975)). Both cases are plainly inapposite.

      Appellant also refers to his trial testimony that he believed he was

about to be attacked. Although he acknowledges that the trial court found

this testimony unworthy of belief, he refers to subsequent testimony and

medical evaluations regarding his mental health presented at the time of



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sentencing to challenge the trial court’s credibility determination. According

to Appellant, the trial court’s finding as to his credibility “leaves unaddressed

his medical history and psychological assessment which lend credence to his

[trial] testimony and cast grave doubt that he could have possessed the

requisite intent to commit the crime of Aggravated Assault.” Appellant’s Brief

at 15.

         Appellant cites no case law that permits the trial court to disturb its

credibility determinations based up on trial testimony with information

gained subsequent to Appellant’s convictions. Thus, we do not consider this

claim further. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super.

2007) (holding that undeveloped claims will not be considered on appeal).

         Judgment of sentence affirmed.

  Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2016




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