J-S40010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                             Appellee

                        v.

    OZELL THOMAS,

                             Appellant                    No. 1668 WDA 2018


        Appeal from the Judgment of Sentence Entered October 10, 2018
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005303-2017

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:

                                                      FILED DECEMBER 06, 2019

        While I concur with the Majority that the evidence was sufficient to

support Thomas’s conviction for endangering the welfare of children, I do not

agree that the evidence was sufficient to sustain his convictions for aggravated

assault,    simple   assault,    and    recklessly   endangering   another   person.

Accordingly, I respectfully concur in part and dissent in part.

        To begin, the record ostensibly fails to contain, and the Commonwealth

does not point to, crucial facts that would support a finding of recklessness.

Consequently, I cannot determine that the evidence shows a substantial and

unjustifiable risk of injury that Thomas consciously disregarded. Absent from

the record is evidence establishing the size disparity between Thomas and the
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*   Retired Senior Judge assigned to the Superior Court.
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victim at the time of the incident, which I deem pertinent to assessing the risk

of injury posed by Thomas’s conduct. For example, the risk of injury posed

by a 250-pound man throwing a 55-pound boy would logically be more

substantial than a 150-pound man throwing an 80-pound boy.                  The

Commonwealth contends that “[t]he fact that [Thomas], a middle-aged man,

was able to throw the victim, a nine-year-old third grader, by grabbing his

shirt with one hand shows that there was a great disparity in size and strength

between [the] victim and [Thomas].” Commonwealth’s Brief at 10. However,

in my view, that argument raises another problem with the evidence proffered

to prove the risk posed by Thomas’s conduct. Grabbing a boy by his shirt with

one hand and throwing him would seemingly present less of a risk of injury

than lifting a boy up overhead and throwing him across the room with two

hands.1    Without the foregoing information, it is difficult to say, beyond a

reasonable doubt, that Thomas consciously disregarded a substantial and

unjustifiable risk that injury would result from his throwing the victim across

the room.

       I also regard Commonwealth v. Cassidy, 668 A.2d 1143 (Pa. Super.

1996), which both the trial court and the Majority rely on, as distinguishable.

Initially, I agree with Thomas that the Cassidy Court’s analysis of
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1 It is also unclear to me how far Thomas threw the victim. At trial, on cross-
examination of the victim, Thomas’s counsel asked about the distance he was
thrown, and the victim testified that it was as far as the space between where
he was sitting and where certain papers were set on a table in the courtroom.
N.T. Trial, 8/9/2018, at 19-20. Obviously, this description is not useful for
purposes of appellate review.

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recklessness is non-binding dicta. See Thomas’s Brief at 18-19; see also

Cassidy, 668 A.2d at 1146 (“As we already have concluded, [the] appellant

… caused serious bodily injury intentionally; thus, the issue of recklessness

need not be addressed.”). Nevertheless, the facts in Cassidy were also more

developed than the case at bar. In Cassidy, the defendant was convicted of

aggravated assault after he “picked up his wife and threw her with such force

that she struck the door frame to the bathroom, ricocheted across the hall and

struck the door frame to [a] bedroom, and finally landed on the floor.”

Cassidy, 668 A.2d at 1144. The Cassidy Court noted that the defendant

conceded that “he is larger and stronger than his wife[,]” and observed that

the defendant was enraged at the time and “picked her up and threw her

across the room with such force that she bounced from one doorjamb to

another, finally coming to rest on the ground.” Id. at 1146; see also id. at

1144.

        Here, in contrast, the victim testified that he did not hit any furniture or

walls, but that his wrist landed on the broom and he hit the floor. N.T. Trial

at 19. Thus, the evidence does not indicate that Thomas tried to throw the

victim into any object or threw him with such great force that he ricocheted

off of anything or traveled far, which would make injury more certain to ensue.

Although one could argue that the fact that the victim broke his wrist

demonstrated the great force used by Thomas, Thomas cautions us of the

“false logic” of “arguing from the temporal sequence to cause and effect

relationship” — in other words, just because the victim suffered a broken wrist

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does not mean, in and of it itself, that Thomas acted recklessly. See Thomas’s

Brief at 14 (citing In re K.J.V., 939 A.2d 426 (Pa. Super. 2007)). Thomas

emphasizes “accidents — even tragic ones — can occur through a parent’s

mistake, ordinary negligence, or inadvertence, not only as a result of reckless

conduct.”   Id. at 15.   In addition, this incident occurred in the context of

Thomas’s trying to discipline the children, not during a heated marital

argument like in Cassidy, which supports an inference that the injury may

have occurred negligently or accidentally, rather than intentionally or

recklessly. In sum, while Thomas should not have thrown the victim across

the room, I conclude that the Commonwealth did not prove beyond a

reasonable doubt that he acted recklessly in doing so. As a result, I would

reverse Thomas’s convictions for aggravated assault, simple assault, and

recklessly endangering another person.




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