J-A20027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN JOSEPH WYDA                          :
                                               :
                       Appellant               :   No. 43 MDA 2019

        Appeal from the Judgment of Sentence Entered December 5, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0001038-2017


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

MEMORANDUM BY McLAUGHLIN, J.:                       FILED DECEMBER 06, 2019

        Brian Joseph Wyda appeals from the judgment of sentence entered

following his jury-trial conviction for two counts of aggravated assault, and

one count each of simple assault, recklessly endangering another person,

resisting arrest, and disorderly conduct.1 The court also found Wyda guilty of

the summary offense of harassment.2 Wyda challenges the sufficiency of the

evidence to support the aggravated assault, simple assault, and REAP

convictions, arguing the Commonwealth failed to prove he had the requisite

mental state to commit the crimes. We affirm.

        The convictions arose from an incident that occurred in April 2017.

Officer Michael Albert of the Scranton Police Department responded to a report
____________________________________________


1 18 Pa.C.S.A. §§ 2702(a)(2), 2702(a)(3), 2701(a), 2705, 5104, and
5503(a)(1), respectively.

2   18 Pa.C.S.A. § 2709(a)(1).
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of a male laying on the side of the road, with a possible medical condition.

N.T, 9/5/18, at 36. Officer Albert later learned the male was Wyda. Id. at 51.

During the encounter, Wyda punched Officer Albert, causing severe pain, and

herniation of two discs.

       The following testimony was presented at a September 2018 trial. Paul

Kearns testified that during the evening of April 21, 2017, he and his wife

were watching television when they heard a pounding noise and screaming.

N.T., 9/4/18, at 25. He then observed Wyda,3 pounding on a trunk of a car

and screaming. Id. His wife called 911. Id. Kearns went onto his front porch,

where he saw Wyda fall to the ground. Id. He testified that when the

emergency medical technicians (“EMTs”) arrived, they tried to put Wyda on a

stretcher, and Wyda woke up. Id. Kearns testified that Wyda started to get

“combative,” and a police officer attempted to help. He stated Wyda “woke

up, started screaming and yelling again, [and] moved toward the cop.” Id. at

26. The police officer told him to back off, and tased Wyda. Id. Kearns testified

that the police officer and Wyda ended up on the ground and “then two or

three more cop cars came, and the[ officers] go to the man and put him on

the side.” Id.

       Christina Sullivan testified that she was driving home on April 21, 2017,

when she saw Wyda laying on the side of the road. Id. at 37. He was flailing
____________________________________________


3 Neither Kearns nor another eyewitness Christina Sullivan identified Wyda at
trial as the man they observed. Because Wyda’s identity is not at issue, and
for ease of discussion, we will refer to the person observed by Kearns and
Sullivan as Wyda.

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his body and “hitting himself off of the pavement of the road.” Id. Sullivan

pulled over and called 911. Id. Sullivan said that by the time she pulled over,

Wyda was lifeless. Id. at 39. She testified that Wyda woke up after he was

placed on the stretcher, and asked what was going on. Id. at 49. The EMTs

and police officer attempted to reassure Wyda, but he got louder, tried to get

up from the stretcher, and proceeded to go after the police officer. Id. at 41.

The police officer warned Wyda several times that he would be tased if he did

not calm down. Id. at 42. The officer tased Wyda, and he fell to the ground,

but got back up and again went after the officer. Id. Sullivan remembers that

the officer and EMTs were trying to subdue Wyda, who was very combative.

Id. at 44. She observed that the officer was injured. Id. at 45.

      A paramedic, Jeffrey Kovalchik, also testified at trial. On the night of the

incident, he was dispatched to assist with a disorderly male on the side of the

road. Id. at 54. When he arrived he observed a male, later identified to be

Wyda, lying on the side of the road. Id. at 56. When he and his partner

approached, Wyda’s eyes were open, and he was mumbling. Id. at 57.

Kovalchik stated that he was not sure if Wyda “knew [they] were there.” Id.

at 70. They picked Wyda up and placed him on a stretcher. Id. at 59. Wyda’s

eyes were open and fixated on Officer Albert, who arrived at the scene with

the EMTs. Wyda started to yell, “I didn’t do anything. I didn’t do anything. I

didn’t do anything.” Id. Wyda jumped off the stretcher, and focused on Officer

Albert. Id. at 60. Kovalchik testified that Officer Albert was telling Wyda to

relax and that they just wanted to check him out. Id. at 61. Wyda kept going

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toward Officer Albert in a “threatening manner.” Id. Kovalchik testified that

he went to the ambulance to retrieve something to subdue Wyda, and he

heard Officer Albert deploy a taser. Id. at 59, 61. He stated that the taser had

gone through Wyda’s coat, which he wiggled out from. Wyda then retrieved

the mattress from the stretcher and threw it at Officer Albert, and charged at

Officer Albert. Id. at 62. Wyda and Officer Albert were struggling on the

ground, and Kovalchik and his partner went to help. Id. at 63. During the

struggle, Wyda punched Officer Albert, and the contact hyperextended Officer

Albert’s neck. Id. at 64. Back-up officers then arrived and placed Wyda into

custody. Id. at 65-66. Kovalchik testified that from the time they placed Wyda

on the stretcher to the time back-up officers arrived, was approximately five

to six minutes. Id. at 80.

      Kovalchik’s partner, Jason Evankavitch, provided testimony similar to

Kovalchik’s testimony. He testified that Wyda was not conscious when initially

placed on the stretcher, but woke up as they were buckling him into the

stretcher. Id. at 90. However, unlike Kovalchik, he testified that he was not

able to understand what Wyda was saying when he was yelling at Officer

Albert. Id. at 91-92.

      Officer Albert testified that when he and the EMTs arrived, Wyda was

unresponsive, had a “blank stare,” and was “focused” on Officer Albert. N.T,

9/5/18, at 37-38. Officer Albert told him he was not in trouble and was not

under arrest, and that he was there to help. Id. The EMTs placed Wyda on a

stretcher, after which he started swinging his arms and kicking at the

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stretcher. Id. Officer Albert testified that Wyda was mumbling and that he

could not understand what Wyda was saying. Id. Wyda jumped off the

stretcher and walked toward Officer Albert. Id. at 39. Officer Albert testified

that he told Wyda to get back on the stretcher and let the EMTs do their job,

and he warned that he would use his taser if Wyda did not cooperate. Id. at

39. He testified that after Wyda turned toward one of the paramedics, who

was defenseless, he tased Wyda. Id. Wyda fell to the ground, but

“immediately got up swinging his arms.” Id. at 40. Officer Albert testified that

Wyda “started cursing, ‘Why the fuck did you do that?’” and said, “Now you’re

going to fucking get yours.” Id. He stated that he and Wyda got into a physical

altercation, and Officer Albert grabbed Wyda with his right arm, and then “saw

[Wyda’s] right fi[]st was coming at [him.] [He] went back to try and avoid it,

and as I did so he caught me.” Id. at 41. Officer Albert fell back and hit the

ground, and his neck snapped back. Id. Officer Albert felt immediate pain, but

crawled over to get on top of Wyda, and then the EMTs were able to assist in

containing Wyda. Id.

      Officer Albert testified that he and the EMTs remained on top of Wyda,

but were unable to handcuff him. They waited until back-up officers arrived,

who were able to place Wyda into custody. Id. at 42-43. Officer Albert testified

that the incident, from the time he arrived until they had the physical struggle,

lasted about three minutes. Id. at 57. He further testified that from his

observations, including “enormous strength, babbling, nothing making sense,




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screaming, [and] a lot of yelling,” it appeared Wyda was under the influence

of a mood-altering substance. Id. at 58-59.

      Officer Albert testified that he had a herniation in two discs, which

eventually required surgery. Id. at 46-48. He has had pain every day since

the incident, id. at 45, and, as of the time of trial, had not been able to return

to work. Id. at 49.

      Police Officer Gerald Tallo also testified at the trial. He self-dispatched

to the scene when he heard that an officer needed assistance. Id. at 61. When

he arrived, he saw three to four officers that were struggling with a male, who

he later learned was Wyda. Id. at 62. He testified they were able to get Officer

Albert away from Wyda and he could see Officer Albert was in pain. Id. Officer

Tallo testified that Wyda continued to struggle, and Officer Tallo tased him,

and Wyda continued to struggle after being tased. Id. at 63-64. The officers

were eventually able to take Wyda into custody. Id. at 64. Officer Tallo

testified that, based on his observations of Wyda’s behavior, Wyda was “under

the influence of something.” Id. at 71.

      Officer Steven Levin testified that he also self-dispatched to the scene.

Id. at 73. He described a similar scene as Officers Albert and Tallo, but also

testified that he observed a white substance, either spit or foam, coming from

Wyda’s mouth, and recalls Wyda saying, “Get the fuck off me.” Id. at 78. He

further testified that after Wyda was in custody, he interviewed witnesses. Id.

at 76. He learned through the investigation that Wyda had been seen walking

down the street, acting erratic. Id. at 77. He was banging on cars, flopping

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around, and flailing his arms. Id. As EMTs treated him, he became disorderly

and attacked Officer Albert. Id. He testified that the witnesses said Wyda was

tased several times, and told several times to calm down and that the officer

and EMTs were there to help him. Id.

      Wyda’s mother, Sherry G. Wyda, testified for the defense. She stated

that Wyda had not been well and was walking to her house so that she could

get him a ride to the hospital. Id. at 86.

      Wyda testified in his own defense. He testified that he had an abscess

tooth, and had been to the hospital twice in the days preceding the incident.

Id. at 91. He was on antibiotics, was “real tired,” and had no appetite. Id. at

92. He had swallowed a plastic partial tooth, and was really weak on the day

of the incident. Id. He told his mother he would come to her house. Id. During

the walk to his mother’s house he had trouble breathing, and thought he was

choking. Id. He hit into a car because he was scared, as he could not intake

air to breath. Id. He testified that he remembered “banging [his] body, like

slamming [his] chest, [his] head, everything, and screaming, hitting it off the

ground,” and then he “was out cold.” Id. That is the last thing he remembers.

He does not recall the incident with Officer Albert. Id. He testified that “bits

and pieces” started to come back, and he remembers “a little bit of a

stretcher,” but he does not know “what happened between them picking me

up or putting me in the car.” Id. at 95. He testified that the last thing he

remembered “was thinking I was dying, screaming, hitting the road, and that

was it.” Id.

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       Timothy Burke, Wyda’s housemate, also testified. He stated Wyda was

very sick the week and day of the incident due to an abscess tooth. Id. at

102. He was sleeping a lot, and could not eat or drink anything. Id. at 103.

He testified that Wyda was not using drugs or alcohol on the day in question.

Id. Wyda left to go to his mother’s, so that she could get him a ride to the

hospital. Id. at 103-04.

       The jury and trial court convicted Wyda of the above-referenced

offenses.4 The trial court sentenced Wyda to six to 15 years’ incarceration for

the aggravated assault conviction (intentionally, knowingly, or recklessly

causing serious bodily injury to a police officer). The second aggravated

assault conviction and the simple assault, REAP, and resisting arrest

convictions merged for sentencing purposes and the court imposed no further

penalty for the disorderly conduct and harassment convictions. Wyda filed a

timely notice of appeal.

       Wyda raises the following issue on appeal:

          1. Whether there was sufficient evidence presented at trial
          to enable the fact-finder to find each element necessary for
          conviction for the charges of aggravated assault under both
          18 Pa.C.S.A. § 2702(a)(2) and (a)(3); simple assault, and
          recklessly endangering another person since the evidence
          presented at trial was insufficient to establish that [Wyda]
          had the requisite mental state necessary to be convicted of
          each crime?

Wyda’s Br. at 2.

____________________________________________


4The trial court found Wyda not guilty of public drunkenness and similar
misconduct, 18 Pa.C.S.A. § 5505.

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      Wyda argues that the Commonwealth failed to establish that he acted

with the mens rea required for each conviction. Wyda notes that the various

convictions required proof beyond a reasonable doubt that he acted

knowingly, intentionally, or recklessly, depending on the conviction. Wyda

contends that the evidence here at most shows he was unaware of his conduct

and that he was not “consciously doing anything.”

      In support, Wyda notes the testimony of the eyewitnesses that he was

unconscious when the officers and EMTs arrived, and points out that an EMT

testified that he did not believe Wyda knew they were there. He also observes

that some of the witnesses testified that when he regained consciousness, he

appeared to be unable to comprehend what was going on and not to know

that EMTs were present. Wyda argues that the evidence thus established he

was “unaware, confused, unconscious and incoherent,” Wyda’s Br. at 14, and

that he had a “blank stare,” was unresponsive to questions, was incoherent

and mumbling. Id. at 16. He also notes testimony that the incident occurred

in three to six minutes. Id. at 17. He thus argues that there was insufficient

evidence   that   his   “mental   state   changed   from    unawareness     and

incomprehension to one of comprehension in seconds.” Id. at 21.

      When reviewing a sufficiency of the evidence claim, we must determine

whether, when viewed in the light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find each element of the crime beyond a reasonable doubt. See

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc).

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“The Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Id. (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-

06 (Pa.Super. 2008)).

      Wyda was convicted under two different subsections of the aggravated

assault statute. Under one subsection, the Commonwealth had to establish

that Wyda “attempt[ed] to cause or intentionally, knowingly or recklessly

cause[d] serious bodily injury to” a police officer “while in the performance of

duty.” Under the other subsection, the Commonwealth was required to prove

that Wyda “attempt[ed] to cause or intentionally or knowingly cause[d] bodily

injury to” a police officer “in the performance of duty.” 18 Pa.C.S.A. §

2702(a)(3).

      For the simple assault conviction, the Commonwealth bore the burden

of proving that Wyda “attempt[ed] to cause or intentionally, knowingly or

recklessly cause[d] bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). For

REAP, the Commonwealth had to establish that Wyda “recklessly engaged in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S.A. § 2705.

      Thus, to support the aggravated assault conviction for causing serious

bodily injury to a police officer and the simple assault, and for the REAP

conviction, the Commonwealth had to prove that Wyda acted intentionally,

knowingly, or recklessly. For the remaining aggravated assault conviction, the

Commonwealth had to prove that Wyda acted intentionally or knowingly.

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       The Crimes Code defines the mental states at issue as:

          (b) Kinds of culpability defined.--

          (1) A person acts intentionally with respect to a material
          element of an offense when:

              (i) if the element involves the nature of his conduct or
              a result thereof, it is his conscious object to engage in
              conduct of that nature or to cause such a result; and

              (ii) if the element involves the attendant
              circumstances, he is aware of the existence of such
              circumstances or he believes or hopes that they exist.

          (2) A person acts knowingly with respect to a material
          element of an offense when:

              (i) if the element involves the nature of his conduct or
              the attendant circumstances, he is aware that his
              conduct is of that nature or that such circumstances
              exist; and

              (ii) if the element involves a result of his conduct, he
              is aware that it is practically certain that his conduct
              will cause such a result.

          (3) A person acts recklessly with respect to a material
          element of an offense when he consciously disregards a
          substantial and unjustifiable risk that the material element
          exists or will result from his conduct. The risk must be of
          such a nature and degree that, considering the nature and
          intent of the actor’s conduct and the circumstances known
          to him, its disregard involves a gross deviation from the
          standard of conduct that a reasonable person would observe
          in the actor’s situation.

18 Pa.C.S.A. § 302(b)(1)-(3).5

____________________________________________


5 Wyda further claims that, to support the aggravated assault conviction under
a finding that a person acted recklessly, the “recklessness must . . . be such
that life threatening injury is essentially certain to occur.” Commonwealth
v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995). Therefore, Wyda claims, to



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       Contrary to Wyda’s argument, the evidence supports a finding that

Wyda regained consciousness and was aware of his actions. Although he was

lying on the ground and had a blank stare when Officer Albert and the EMTs

arrived, he woke up as he was being placed on the stretcher, and said “I didn’t

do anything.” Further, after Officer Albert used his taser, Wyda said to him,

“Why the fuck did you do that?” The witnesses also testified that Wyda woke

up, fixated on Officer Albert, and attacked him. Such evidence supports a

finding that Wyda was conscious and aware of his actions and that he

intentionally or knowingly caused bodily harm to Officer Albert and

intentionally, knowingly, or recklessly caused serious bodily harm to Officer

Albert.

       Judgment of sentence affirmed.

       President Judge Emeritus Ford Elliott joins the Memorandum.

       President Judge Emeritus Gantman concurs in the result.

____________________________________________


establish an aggravated assault conviction based on reckless conduct, the
person must “have a specific state of mind to commit serious bodily injury.”
Wyda’s Br. at 11. In O’Hanlan, the court addressed a different section of the
aggravated assault statute, a section that required that the defendant act
“intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” O’Hanlon, 653 A.2d at 617;
18 Pa.C.S.A. § 2502(a)(1). Here, the subsections at issue do not require that
the defendant act “under circumstances manifesting extreme indifference to
the value of human life.” Rather, one of the subsections at issue, subsection
2702(a)(2), requires that the actions be against a police officer, or other
statutorily designated individual. 18 Pa.C.S.A. § 2702(a)(2). The other
subsection at issue, subsection 2702(a)(3), does not allow a conviction based
on reckless conduct. Rather, under that subsection the Commonwealth must
prove the defendant acted intentionally or knowingly. See 18 Pa.C.S.A. §
2707(a)(3).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/06/2019




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