J-S07015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHYHEEMA D. MORRIS-CARR                    :
                                               :
                       Appellant               :   No. 532 EDA 2019

        Appeal from the Judgment of Sentence Entered January 31, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006995-2017

BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 03, 2020

        Appellant Shyheema D. Morris-Carr appeals from the judgment of

sentence following a bench trial and convictions for aggravated assault of a

victim less than thirteen years old, endangering welfare of a child, simple

assault, and recklessly endangering another person.1             Appellant only

challenges the sufficiency of the evidence for her aggravated assault

conviction under 18 Pa.C.S. § 2702(a)(9), specifically, whether she acted

recklessly. We affirm.

        We state the facts as set forth by the trial court:

        At around 5:30 or 6 p.m. on Tuesday, May 23, 2017, Teresa House
        dropped her twenty-month-old daughter, S.B., off at 553 East
        Rittenhouse Street in Philadelphia. There, [Appellant] watched
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 2702(a)(9), 4304(a)(1), 2701(a), and 2705, respectively.
J-S07015-20


     S.B. overnight. [Appellant’s] boyfriend lived at this house, and
     [Appellant] stayed there with him several nights each week.

     On the afternoon of May 24, 2017, [Appellant] texted Ms. House
     six times, requesting that she call [Appellant] as soon as possible,
     and she informed [Appellant] that her daughter had been burned.
     [Appellant] initially told Ms. House an implausible story about how
     her daughter received the burns, and this story was largely
     consistent with her initial interview with Detective McGoldrick of
     the Special Victims Unit (SVU). Ms. House then travelled from
     New Jersey via public transit for several hours, arriving at 553
     Rittenhouse around 6 p.m. She immediately noticed that S.B.’s
     feet were swollen, and when she pulled off S.B.’s socks, she saw
     severe burns on her feet.

     Ms. House initially brought S.B. to Chestnut Hill Hospital, and S.B.
     was subsequently transferred to St. Christopher’s Hospital for
     Children. There, medical personnel determined that S.B. had
     partial thickness burns (a.k.a second-degree burns) to her feet
     and ankles, covering approximately six percent of the entire
     surface of her body. S.B. spent one month in the hospital
     recovering from the burns and a related infection.

     The facts presented in this case were otherwise contested. The
     Commonwealth mainly argued, through Dr. Marita Lind’s expert
     testimony, that [Appellant] intentionally caused [S.B.’s] burns
     through willful child abuse. [Appellant] admitted that she initially
     lied to Ms. House and Detective McGoldrick in a second voluntary
     SVU interview with Detective Kahn, and [Appellant] argued at trial
     that the events she narrated in the subsequent interview were
     truthful and that they prove that her actions were negligent, not
     reckless.

     During her second SVU interview, [Appellant] stated that in the
     afternoon on May 24, 2017, she gave S.B. a bath in the second
     floor bathroom. She put S.B. in the bathtub and then ran the
     water. While the water was running, she left S.B. sitting on her
     butt with her feet in the water. [Appellant] claimed that when she
     felt the water, it was warm. She left the bathroom while the water
     was about halfway up S.B.’s legs. [Appellant] walked out of the
     bathroom while the water was still running, and went downstairs.
     “I was playing on my phone,” she stated in her interview. “I guess
     eventually, I end[ed] up . . . hearing [S.B.] scream. So I’m like,
     ‘Oh, snap. The water’s still on.’ So I ran[] upstairs, and the water

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       was up right here [gesturing to her hip line, around where her
       navel is].” When [Appellant] felt the water, it was hot, so she
       removed S.B. from the bathtub. She didn’t notice the “marks on
       her feet” until after she dried S.B. off and saw her sit down on the
       hallway floor. She then observed that S.B.’s skin was peeling off
       and bubbling.

       [The trial court] determined that, based on her own admissions at
       trial, [Appellant] acted recklessly by leaving a twenty-month-old
       child in running bathwater that everyone in the house knew to be
       hot,[fn3] walking downstairs, and playing on her phone until she
       heard the child screaming.

              In [Appellant’s] second videotaped interview with the
          [fn3]

          SVU, [Appellant] stated that “[e]verybody knows that the
          water’s too hot . . . . [T]he maintenance told [Appellant’s
          boyfriend], ‘You got to turn it down, because the water gets
          real hot.’ The downstairs water gets real hot.”

Trial Ct. Op., 6/14/19, at 1-4 (citations and some footnotes omitted). We

note that the trial court based some of its facts on Commonwealth’s Exhibit

11, which was not transmitted to this Court as part of the certified record.2

       We add that a police officer testified that after turning on the water, he

measured the water temperature as between 73.36 and 80 degrees, and after

two minutes, the water measured around 110 degrees. N.T. Trial, 11/5/18,

at 104-05. The parties also stipulated that on June 19, 2017, a social worker

visited Appellant’s home, “observed the bathtub and let the water run for sixty

seconds on its highest temperature. The water became very hot and he was



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2  Appellant does not contend the trial court’s recitation of the facts is
inaccurate. We remind the parties of their duty to ensure the complete record
is transmitted to this Court. See generally Pa.R.A.P. 1921.


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unable to leave his hand under the water. He observed the hot water heater

in the home[, which] was set on the fourth highest” setting out of six settings.

Id. at 125.

        On November 5, 2018, following a bench trial, the trial court found

Appellant guilty of the above charges, and ordered a presentence investigation

and mental health evaluation. N.T. Hr’g, 1/11/19, at 8; N.T. Trial, 11/5/18,

at 131-32. The trial court subsequently sentenced Appellant to eleven-and-

a-half to twenty-three months’ incarceration. N.T. Sentencing Hr’g, 1/31/19,

at 30. Appellant did not file a post-trial motion but timely appealed.

        On February 28, 2019, the trial court ordered Appellant to comply with

Pa.R.A.P. 1925(b). After receiving an extension of time, Appellant filed a Rule

1925(b) statement on April 4, 2019, challenging the sufficiency of evidence

for whether she intentionally, knowingly, or recklessly caused serious bodily

injury. The trial court prepared a Rule 1925(a) opinion.3

        Appellant raises the following issue:

        Was not the evidence insufficient to sustain [A]ppellant’s
        conviction for aggravated assault, 18 Pa.C.S. § 2702(a)(9), where
        the evidence failed to establish that [A]ppellant recklessly caused
        serious bodily injury to the [victim]?

Appellant’s Brief at 3 (some formatting altered).4

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3   We summarize the trial court’s Rule 1925(a) opinion below.
4 “Appellant does not dispute that S.B. suffered serious bodily injury or that
the evidence was []sufficient to establish the age elements of the crime.”
Appellant’s Brief at 9 n.3.


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      In Commonwealth v. Soto, 202 A.3d 80 (Pa. Super. 2018), appeal

denied, 207 A.3d 291 (Pa. 2019), this Court set forth our standard of review:

      Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary. We review the evidence in the light most
      favorable to the verdict winner to determine whether there is
      sufficient evidence to allow the jury to find every element of a
      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.

Soto, 202 A.3d at 93 (citation and quotation marks omitted).

      Appellant argues that although she “acted recklessly, her recklessness

did not reach the heightened level of recklessness,” as defined under 18

Pa.C.S. § 302(b)(3).     Appellant’s Brief at 10.    Appellant asserts “that a

heightened degree of recklessness, akin to malice in a homicide case, is

required for aggravated assault convictions[.]”        Id. at 10-11 (quoting

Commonwealth v. Smith, 956 A.2d 1029, 1036-37 (Pa. Super. 2008)). In

Appellant’s view, this “standard of recklessness requires a high degree of

culpability [i.e., an] element of deliberation or conscious disregard,” which “is

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not the same as the mens rea recklessness element” in REAP. Id. at 11 (citing

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

Appellant points out that our “Supreme Court has distinguished the

recklessness that is malice and mere recklessness of the kind that occurred”

here.     Id.   “Mere or ‘ordinary recklessness,’” Appellant contends, “is

insufficient to establish malice.” Id. (citing Commonwealth v. Hoffman,

198 A.3d 1112, 1119 (Pa. 2018)).

        Appellant notes the mens rea for REAP, i.e., “a conscious disregard of a

known risk of death or great bodily harm to another person.” Id. at 11-12

(citing Commonwealth v. Martuscelli, 54 A.3d 940 (Pa. Super. 2012)).

Appellant states that by leaving S.B. “unattended in a bathtub,” she “satisfied

the mens rea element of reckless endangerment.”          Id. at 12.    “But the

evidence did not support a finding of malice as required for aggravated

assault,” Appellant insists. Id.   Appellant argues that although she “initially

gave an implausible account to the police,” see Trial Ct. Op. at 3, the record

did not establish “malice, that is        recklessness ‘under circumstances

manifesting extreme indifference to the value of human life,’” as to support

an aggravated assault conviction. Id. (quoting O’Hanlon, 653 A.2d at 617).

        Appellant then argues that the non-Pennsylvania cases cited by the trial

court in its Rule 1925(a) opinion, which is summarized below, are

distinguishable.    See id. at 12-14.       Appellant asserts that based on

Pennsylvania’s definition of recklessness, the evidence was insufficient to


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establish that she “engaged in the increased degree of recklessness under

circumstances manifesting an extreme indifference to the value of human life

. . . .”5 Id. at 15. Therefore, Appellant concludes, this Court should vacate

her aggravated assault conviction under subsection (a)(9) and remand for

resentencing on the remaining convictions. Id.

       In response, the Commonwealth counters that the record established

the mens rea requirement for aggravated assault. Commonwealth’s Brief at

8. Further, the Commonwealth contends that legally sufficient mens rea was

established for the conviction by the following evidence:

       The possibility of seriously hurting S.B. by leaving her unattended
       in a bathtub with water that “gets real hot” was readily apparent.
       [Appellant] told police that she knew the water gets too hot, so
       she clearly was aware that the water was a source of possible
       injury to S.B. Even if that weren’t the case, nothing more than
       common sense is needed to know that leaving a young toddler
       alone in a bathtub of water creates an extremely high risk of the
       child dying by drowning.

       Furthermore, [Appellant] did not give any explanation that would
       justify her leaving S.B. alone in the tub of running water. She did
       not give police any reason why she initially went downstairs while
       S.B. was still in the bath, nor why she was downstairs “playing”
       on her phone until she heard S.B. screaming. Her response to
       S.B.’s visibly severe injuries—burns with her skin peeling off and
       bubbling—were wholly inadequate. She only put Vaseline on the
       wounds and made no effort to take S.B. to a hospital or otherwise
       seek medical advice. She instead chose to wait hours for Ms.

____________________________________________


5As we discuss below, that phrase exists only in subsection (a)(1) aggravated
assault, and Appellant was convicted of subsection (a)(9) aggravated assault,
which lacks that phrase.




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       House to travel from New Jersey to pick up S.B. and get her
       medical care.

Id. at 9 (footnote omitted).        The Commonwealth did not discuss the non-

Pennsylvania case law cited by the trial court.6

       In its opinion, the trial court held that Appellant “consciously

disregarded a substantial and unjustifiable risk that S.B. would be burned—or

worse—when she left her alone in running bathwater.” Trial Ct. Op. at 7. The

trial court claimed that although it “did not find any factually analogous

binding precedent,” the court discussed four non-Pennsylvania cases that

“have persuasively reasoned that leaving a child unsupervised in bathwater is

reckless.”    Id. (discussing Commonwealth v. Chapman, 744 N.E.2d 14

(Mass. 2001), State v. Brooks, 17 So.3d 1261 (Fla. Dist. Ct. App. 2009),

State v. Botelho, 83 A.3d 814 (N.H. 2013), and People v. White, 2009 WL

3466003 (Mich. Ct. App. Oct. 27, 2009) (per curiam) (unpublished op.)).

Based on those non-Pennsylvania cases, the trial court advanced four reasons

for why Appellant’s “actions were a gross deviation from the standard of


____________________________________________


6 We note that the Commonwealth, like Appellant, also cited to caselaw
interpreting subsection (a)(1). See Commonwealth’s Brief at 8 (citing to
Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017), Commonwealth v.
Smith, 956 A.2d 1029 (Pa. Super. 2008) (en banc), and Commonwealth v.
Kling, 731 A.2d 145 (Pa. Super. 1999)). In Packer, Smith, and Kling, each
defendant was convicted of subsection (a)(1) aggravated assault. See
Packer, 168 A.3d at 163 n.2; Smith, 956 A.2d at 1036; Kling, 731 A.2d at
147.




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conduct that a reasonable person would follow in her situation.” Trial Ct. Op.

at 8. According to the trial court, first, Appellant “left the child alone in running

bathwater,” second, Appellant “knew that the bathwater could run very hot in

that particular home,” third, Appellant left the bathroom and went downstairs

to play on her phone, and fourth, Appellant’s “response to [S.B.’s] injuries

[was] inadequate . . . .” Id.7

       We state the following as background for Appellant’s claim that the

aggravated assault statute specifies a heightened standard of recklessness,

which applies to her conviction under subsection (a)(9). Section 2702(a) of

the Crimes Code defines aggravated assault as follows:

       (a) Offense defined.—A person is guilty of aggravated assault if
       he:

       (1) 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 [and]

                                       *       *   *

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7  The trial court noted that at trial, “the Commonwealth argued that
[Appellant’s] behavior was intentionally [sic] abuse conduct” but that the trial
court “did not reach that finding, due to [Appellant’s] own admission of facts
that amounted to criminally reckless conduct.” Trial Ct. Op. at 6. The trial
court and Commonwealth are referring to Dr. Lind’s expert testimony, as
summarized in our quotation from the trial court’s opinion above. Dr. Lind
had testified that S.B.’s injuries were consistent with intentional child abuse,
i.e., S.B. was restrained in the bathtub. Id. at 3; N.T. Trial at 55-57
(discussing the burns had a “clear line of demarcation” consistent with being
held down).




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       (9) attempts to cause or intentionally, knowingly or recklessly
       causes serious bodily injury to a child less than 13 years of age,
       by a person 18 years of age or older.

18 Pa.C.S. § 2702(a)(1), (a)(9) (emphases added).8

       The Crimes Code defines “recklessly” as follows:

       (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. § 302(b)(3) (emphases added).

       In Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997), the

Court explained “the phrase ‘under circumstances manifesting extreme

indifference to the value of human life’ modifies ‘recklessly’ such that reckless

conduct not circumstantially manifesting such indifference will not support an

aggravated assault conviction under this subsection[, i.e., subsection (a)(1)].”

Nichols, 692 A.2d at 186 (emphasis added); see also id. at 186 n.5 (stating

the “recklessness defined in 18 Pa.C.S. § 302(b)(3) does not establish the

malice required to convict under 18 Pa.C.S. § 2702(a)(1).” (emphasis added

and citations omitted)). In other words, instructing the jury on “recklessness

only in accordance with Section 302(b)(3)” “requires reversal [of subsection


____________________________________________


8 The aggravated assault statute was amended effective January 1, 2014, to
include subsection (a)(9).


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(a)(1) aggravated assault conviction] when a trial court fails to include the

critical language ‘recklessly under circumstances manifesting extreme

indifference to the value of human life.’”            Commonwealth v. Myers, 722

A.2d 1074, 1078 (Pa. Super. 1998) (explaining Nichols holding).

       Our research has identified no relevant reported cases addressing

aggravated assault convictions under subsection (a)(9), which uses the term

“recklessly” without the qualifier “under circumstances manifesting extreme

indifference to the value of human life.”9 Compare 18 Pa.C.S. § 2702(a)(9),

with 18 Pa.C.S. § 2702(a)(1). Nevertheless, the rules of statutory

construction     support    a   conclusion     that    the   heightened   standard   of

recklessness applicable to aggravated subsection (a)(1) does not apply to

subsection (a)(9).         See 1 Pa.C.S. § 1921(a)-(b); Commonwealth v.

Berryman, 649 A.2d 961, 965 (Pa. Super. 1994) (noting that “[w]here a


____________________________________________


9 We note, however, that a party may cite to non-precedential cases for their
persuasive value to the extent those cases were filed after May 1, 2019. See
Pa.R.A.P. 126(a)-(b). In Commonwealth v. Thomas, 1668 WDA 2018,
2019 WL 6682194 (Pa. Super. filed Dec. 6, 2019) (unpublished mem.), a non-
precedential case, the defendant was convicted of subsection (a)(9)
aggravated assault and argued on appeal that the Commonwealth failed to
establish that he acted recklessly. Thomas, 2019 WL 6682194 at *2. The
Thomas Court quoted Section 302(b)(3), and recited the evidence of record
that established that the defendant “should have known that he could cause
serious bodily injury by throwing a nine-year-old child across a room.” Id. at
*3. The Thomas Court noted that such evidence included the victim’s
testimony of the defendant’s assault and the size disparity between the
defendant, an adult male, and the nine-year old victim. Id.




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legislature includes specific language in one section of a statute and excludes

it from another, that language should not be implied where excluded.”

(citation omitted)).

       Moreover, our Courts, however, have construed “recklessly” in

addressing other crimes and offenses that rely on the Section 302(b)(3)

definition of “recklessly.”     For example, in In re T.G., 208 A.3d 487 (Pa.

Super. 2019), this Court construed the statutory definition of “child abuse”10

in determining whether the trial court erred. In re T.G., 208 A.3d at 490.

The T.G. Court noted that the relevant statutory chapter referenced the

definitions set forth in the Crimes Code, including 18 Pa.C.S. § 302(b)(3). Id.

at 491.

       The T.G. Court considered whether the trial court erred “by ignoring

uncontroverted evidence of [the mother’s] reckless serious physical neglect”

of the victim, who was born with numerous “health conditions . . . .” Id. at

488, 492. We do not summarize the extensive facts in T.G., but based on the

record, the T.G. Court held that the victim’s neglect was “the direct result of

[the defendant’s] conscious disregard of the substantial and unjustifiable risk

that her neglect of [the victim’s] essential needs would impair [the victim’s]

health and development.”           Id. at 496.     The T.G. Court held that the


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10Specifically, the “term ‘child abuse’ shall mean intentionally, knowingly or
recklessly . . . [c]ausing serious physical neglect of a child.” In re T.G., 208
A.3d at 490-91 (quoting 23 Pa.C.S. § 6303).


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defendant’s disregard “evinces a ‘gross deviation from the standard of conduct

that a reasonable person would observe in [her] situation.’” Id. at 495

(quoting 18 Pa.C.S. § 302(b)(3)).

       In Commonwealth v. Moyer, 171 A.3d 849 (Pa. Super. 2017), the

inebriated defendant ran a stop sign, which resulted in a car accident causing

death. Moyer, 171 A.3d at 851. The defendant was convicted of homicide

by vehicle, which is defined as “[a]ny person who recklessly or with gross

negligence” kills another person while driving a vehicle. Id. at 852.11 The

Moyer Court noted “recklessly” was defined as set forth above in Section

302(b)(3), and “gross negligence is encompassed within the concept of

recklessness as set forth in § 302(b)(3).”         Id. at 852 (some formatting

altered).   Therefore, the Moyer Court noted, “we have upheld convictions

where the defendant’s conduct ‘evidenced a conscious disregard of the

substantial and unjustified risk that he would be involved in a traffic accident

causing death.’” Id.

       The Moyer Court reiterated the factual record, which established among

other things, that the defendant slowed her vehicle from 25 miles per hour to

12 miles per hour after the stop sign and she knew a building obscured the

view of oncoming traffic. Id. at 854. As a result, the Moyer Court held that



____________________________________________


11  For our discussion, we simplified the homicide-by-vehicle statutory
definition. See 75 Pa.C.S. § 3732(a).


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that the defendant exhibited a “conscious disregard of the substantial and

unjustified risk that [s]he would be involved in a traffic accident causing

death.” Id.

         The Moyer defendant also challenged whether she acted recklessly,

citing    O’Hanlon     (which    the   instant   Appellant   cited   above),   and

Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004). Moyer, 171

A.3d at 853.       The Moyer Court pointed out that both cases involved a

sufficiency challenge to a conviction for Section 2702(a)(1) aggravated

assault, which requires a mens rea of recklessness “under circumstances

manifesting extreme indifference to the value of human life,” i.e., malice. Id.

         [T]he mens rea for [section 2702(a)(1)] aggravated assault is
         recklessness     “under   circumstances    manifesting    extreme
         indifference to the value of human life.” Thus, “the offensive act
         must be performed under circumstances which almost assure that
         injury or death will ensue.” . . .

         [R]ecklessness manifesting extreme indifference to human life is
         malice. Malice, in turn, is “wickedness of disposition, hardness of
         heart, cruelty, recklessness of consequences, and a mind
         regardless of social duty, although a particular person may not be
         intended to be injured.”

Id. (citations omitted and some formatting altered).           The Moyer Court

rejected the defendant’s reliance on O’Hanlon and McHale, as Section

2702(a)(1) aggravated assault has a different mens rea requirement than

mere recklessness, i.e., “malice [was] not at issue.” Id. at 853-54.

         In sum, our review compels us to conclude that in the context of

subsection (a)(9) aggravated assault, a person is guilty of aggravated assault


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if she recklessly, i.e., “consciously disregards a substantial and unjustifiable

risk” that “serious bodily injury to a child less than 13 years of age” “will result

from [her] conduct.” 18 Pa.C.S. §§ 302(b)(3), 2702(a)(9).             Accordingly,

Appellant’s argument that the heightened standard of recklessness under

subsection (a)(1) of the aggravated assault statute applies to subsection

(a)(9) fails.

       Turning to the merits of the present case, we conclude that the

Commonwealth proved the lesser degree of recklessness, i.e., conscious

disregard of a substantial and unjustifiable risk of “serious bodily injury to a

child less than 13 years of age.” See 18 Pa.C.S. §§ 302(b)(3), 2702(a)(9).

As noted above, Appellant argues that the record “failed to establish [she]

recklessly caused serious bodily injury” to S.B. by leaving S.B. in a bathtub

while hot water was running. Appellant’s Brief at 9. The record, however,

established Appellant’s awareness that “everybody” knew the water was “too

hot” and got “real hot.” Trial Ct. Op. at 4 n.3. 12 The record also established

that after sixty seconds, the water was physically unbearable and after two

minutes, the bath water measured around 110 degrees. See N.T. Trial at

104-05, 125. Although Appellant was aware the water was “too hot,” she



____________________________________________


12As stated above, the trial court quoted from Commonwealth’s Exhibit 11,
which was not transmitted as part of the certified record. Appellant did not
challenge the trial court’s quotation from Exhibit 11. We cannot consider this
exhibit because it is not part of the certified record.


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nonetheless left the twenty-month old victim alone in the bathtub so she could

play on her phone downstairs. Trial Ct. Op. at 3-4 (citing Commonwealth’s

Exhibit 11).

      S.B.’s injuries, like the victim’s injuries in T.G., were the direct result of

Appellant’s conscious disregard of the substantial and unjustifiable risk that

leaving S.B. would result in injury.       See T.G., 208 A.3d at 495-96.          A

reasonable person would not have left a twenty-month-old infant unattended

in a bathtub with running water that was known to be “too hot.” See id. at

495; see also Moyer, 171 A.3d at 854 (summarizing evidence that the

defendant knew about the substantial danger of a traffic accident but

consciously disregarded it by her conduct of not stopping and checking for

oncoming traffic).    Viewing the record in the light most favorable to the

Commonwealth as the verdict-winner, we conclude that Appellant “could

reasonably anticipate that serious bodily injury” was “the likely and logical

consequence” of leaving an infant in a bathtub with “too hot” running water.

See T.G., 208 A.3d at 495, Moyer, 171 A.3d at 854, Thomas, 2019 WL

6682194 at *2. We therefore reject Appellant’s contention that the evidence

did not support a finding of malice, see Appellant’s Brief at 12, because malice

is not an element of subsection (a)(9) aggravated assault. See 18 Pa.C.S. §




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2702(a)(9).13 Given this record, we need not discuss the non-Pennsylvania

cases cited by the trial court or Appellant’s argument that such cases are

distinguishable because the Commonwealth’s evidence established the

requisite level of mens rea for aggravated assault under Section 2702(a)(9).

See Soto, 202 A.3d at 93. For these reasons, we affirm.

       Judgment of sentence affirmed.


       Judge King joins the memorandum.

       Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2020




____________________________________________


13 Cf. Commonwealth v. Hart, 501 A.2d 675, 676 (Pa. Super. 1985)
(rejecting the defendant’s claim that evidence established simple assault and
did not establish aggravated assault when the record established the following
injuries to the two-year-old victim: “burn marks on his lower abdomen, black
and blue bruises on his buttocks and back, a burn scar on his right knee, and
a scar over his right eye [and] scars and bruises over his entire body: arms,
legs, back and stomach”); cf. also In re J.S.W., 651 A.2d 167, 169 (Pa.
Super. 1994) (noting that the defendant pled guilty to aggravated assault
after immersing infant in scalding water).


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