J-A01017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

JAMES W. WORTHINGTON

                            Appellant                        No. 685 EDA 2015


             Appeal from the Judgment of Sentence March 2, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0004535-2014


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                      FILED MARCH 11, 2016

        James W. Worthington appeals from the judgment of sentence

imposed on March 2, 2015, in the Court of Common Pleas of Bucks County

following a bench trial before the Honorable Albert J. Cepparulo, Jr.

Worthington      was    found    guilty   of   aggravated    assault   and   recklessly

endangering another person1 and received an aggregate sentence of 36 to

72 months’ incarceration followed by 7 years of probation.              In this timely

appeal, Worthington claims the verdict was against both the weight and

sufficiency of the evidence in that the Commonwealth failed to prove the

mens rea to commit aggravated assault, and that his sentence was

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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a)(1) and 2705, respectively.
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improperly based upon the ill-will and prejudice of the trial court.   After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

      The trial court has provided an exhaustive, 12-page recitation of the

facts underlying this matter.   See Trial Court Opinion, 6/4/2015, at 1-12.

We rely upon those facts in rendering our decision. For ease of reference,

we summarize the facts, thusly:

      On St. Patrick’s Day, March 17, 2014 and into the early morning hours

of March 18, 2014, the victim, Anthony McGeehan, and Worthington were

drinking at the Green Parrot, a bar in Newtown Township, Bucks County,

Pennsylvania. Although the two men had mutual acquaintances, who were

also at the bar, they were unknown to each other and were not drinking

together; they simply happened to be at the same bar at the same time.

      As McGeehan and his party left the bar for the night, one of the

women who was in the McGeehan party was outside the bar talking with

Worthington. McGeehan went over to the pair and, for reasons unexplained,

a shouting match ensued between McGeehan and Worthington. Worthington

then tackled McGeehan in the parking lot, between two cars. Worthington, a

professional physical trainer who was taller, heavier than McGeehan, as well

as being a trained fighter, bit McGeehan on the throat and then on the right

ear. While biting the ear, he pulled with his teeth, tearing the outer aspect

of McGeehan’s ear from his head. Bystanders then pulled Worthington off

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McGeehan.       McGeehan attempted to get to Worthington, but Worthington

ran away, spitting the ear into the parking lot, some distance from the scene

of the fight.

      Our standard of review for challenges to the sufficiency and weight of

the evidence are well settled:

      Our standard of review for a challenge to the sufficiency of the
      evidence is de novo, but our scope of review is limited to
      considering the evidence of record, and all reasonable inferences
      arising therefrom, viewed in the light most favorable to the
      Commonwealth as the verdict winner. Commonwealth v.
      Rushing, 627 Pa. 59, 99 A.3d 416, 420-21 (2014). Evidence is
      sufficient if it can support every element of the crime charged
      beyond a reasonable doubt. Commonwealth v. Forrey, 108
      A.3d 895, 897 (Pa. Super. 2015); Commonwealth v.
      Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). The trier of
      fact, while passing upon the credibility of witnesses and the
      weight of the proof, is free to believe all, part, or none of the
      evidence. Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d
      1203, 1211 (2003).

Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015).

      Additionally, we note,

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
      319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
      538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial
      should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Widmer, 560 Pa. at 319-320,
      74 A.2d at 752. Rather, “the role of the trial judge is to
      determine that ‘notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.’ ” Id. at 320,
      744 A.2d at 752 (citation omitted). It has often been stated that

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      “a new trial should be awarded when the jury's verdict is so
      contrary to the evidence as to shock one's sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.” Brown, 538 Pa. at 435, 648
      A.2d at 1189.

      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question of
           whether the verdict is against the weight of the evidence.
           Brown, 648 A.2d at 1189. Because the trial judge has had
           the opportunity to hear and see the evidence presented,
           an appellate court will give the gravest consideration to the
           findings and reasons advanced by the trial judge when
           reviewing a trial court's determination that the verdict is
           against the weight of the evidence. Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
           of the least assailable reasons for granting or denying a
           new trial is the lower court's conviction that the verdict
           was or was not against the weight of the evidence and that
           a new trial should be granted in the interest of justice.
      Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

      With these standards in mind, we examine Worthington’s claims that

the Commonwealth failed to demonstrate he possessed the mens rea to

have committed aggravated assault.           Because his claims regarding the

weight and sufficiency of the evidence are linked, we will address the claims

together.

      In relevant part, the statutory definition of aggravated assault is as

follows:



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       (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;

18 Pa.C.S. § 2702(a)(1).

       Serious bodily injury is statutorily defined as:

       Bodily injury which creates a substantial risk of death or which
       causes serious, permanent disfigurement or protracted loss or
       impairment of any bodily member or organ.

18 Pa.C.S. § 2602.2 Additionally,

       When a victim actually sustains serious bodily injury, the
       Commonwealth can, but does not necessarily have to, establish
       specific intent to cause such harm.

Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010).3

       The intent to cause serious bodily injury-the only element of
       aggravated assault at issue here-may be proven by direct or
       circumstantial evidence. Where one does not verbalize the
       reasons for his actions, we are forced to look to the act itself to
       glean the intentions of the actor. Where the intention of the
       actor is obvious from the act itself, the finder of fact is justified
       in assigning the intention that is suggested by the conduct.

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2
  Here, there is no challenge to the fact that McGeehan suffered serious
bodily injury when approximately one-half of his right ear was torn from his
head. See Appellant’s Brief at 4.
3
  The Commonwealth may also prove the defendant acted recklessly under
circumstances manifesting extreme indifference to human life.      The
Commonwealth has not argued this standard.



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Commonwealth v. Hall, 830 A.2d 537 (Pa. 2003).

       Although Worthington presently claims, and testified at trial, that his

action in biting McGeehan was taken in self-defense and was additionally the

product of the heat of battle, the trial court rejected those claims, finding

Worthington’s version of the events at issue incredible.                See Trial Court

Opinion,    6/4/2015      at    19.      Rather,     the    trial   court   credited   the

Commonwealth’s        version    of   the      events,   with   Worthington    knowingly

engaging in a fight with McGeehan, escalating the situation by tackling

McGeehan to the ground and straddling him, and then biting him first on the

neck and then on the ear. While biting his ear, the evidence demonstrated

he not only bit down, but he tore at the ear, removing a large portion of it.

The trial court also found that Worthington’s flight from the scene and

admission to at least two other people he had bitten someone’s ear off in a

fight, as evidence of intent. We further note that the evidence demonstrated

Worthington was larger than McGeehan, was formally trained in various

forms of combat, and had to be forcibly pulled from McGeehan to stop the

attack.4
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4
  To counter these observations, Worthington argues in his brief the effects
of alcohol on McGeehan: “As part of the failure to factor in alcohol the court
below fails to perceive that alcohol is in many way a great leveler, sapping
the skill of the able and emboldening someone such as McGeehan who
professed not to be a fighter. Who among us has not experienced the
alcohol fueled rage and uncommon strength it gives to someone who is
(Footnote Continued Next Page)


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      In light of our standard of review, we find no error in the trial court

inferring   the   requisite       mens    rea    to   Worthington   based   upon   this

circumstantial evidence.

      In much the same vein, we find no abuse of discretion in the trial

court’s refusal to grant Worthington relief on his challenge to the weight of

the evidence. The trial court found inconsistencies in the testimony of the

witnesses    presented       by    both   defense     and   the   Commonwealth,    but

determined the specific facts used to find intent were amply supported from

multiple witnesses. See Trial Court Opinion at 19-20; Commonwealth v.

Robinson, 128 A.3d at 264. Accordingly, the verdict did not shock the trial

court’s sense of justice. See Commonwealth v. Clay, 64 A.3d at 1054-55.

      Finally, Worthington claims he is entitled to resentencing because the

trial court demonstrated prejudice against him. Specifically, he contends the

trial court showed class prejudice by implying Worthington was a child of

wealth, and further demonstrated prejudice by questioning Worthington’s

mother about prior biting incidents even though none of the alleged

incidents resulted in arrest or prosecution.

      The Commonwealth claims this is a challenge to the discretionary

aspect of Worthington’s sentence and Worthington failed to include the
                       _______________________
(Footnote Continued)

under the influence.” Appellant’s Brief at 32-33. We need not comment on
this argument.



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mandatory      Pa.R.A.P.    2119(f)     statement,   thereby   waiving   the   claim.

Worthington, on the other hand, claims his challenge is one of fundamental

fairness and due process and is not a challenge to the discretionary aspect of

his sentence, therefore no Rule 2119(f) statement was required. Neither the

Commonwealth nor Worthington have provided case law directly on point.

We believe the claim is the functional equivalent of a claim of vindictive

sentencing.

       [A] claim of vindictiveness is a waivable challenge to the
       discretionary aspects of the sentence. Appellant failed to include
       this claim within his Rule 2119(f) statement. The Commonwealth
       has objected. Thus, we hold that this issue is waived.
       Tuladziecki; Goggins; Roser.[5]

Commonwealth v. Robinson, 931 A.2d 15, 22 (Pa. Super. 2007) (en

banc).

       Accordingly, we agree with the Commonwealth that the claim is

waived.    However, in an abundance of caution, we will also address the

substance of the claim to resolve the issue in the alternative.

       Our review of the certified record leads us to conclude this allegation is

frivolous, at best. In its Pa.R.A.P. 1925(a) opinion, the trial judge explains

that rather than demonstrating prejudice or ill will, he was properly

____________________________________________


5
   Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987);
Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc);
and Commonweqlth v. Roser, 914 A.2d 447 (Pa. Super. 2006).



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considering Worthington’s entire background and circumstances. We quote

the Honorable Albert J. Cepparulo, Jr.:

      In this case, [Worthington] claims that this court committed
      error and evidenced bias by doing what is required of us by law
      – considering [Worthington’s] background, which undoubtedly
      includes his financial situation, familial support and previous
      potential to receive treatment and become a successful member
      of this society before such a violent criminal incident were to
      occur. In fact, [Worthington’s] pre-sentence investigation report
      is replete with instances in which [Worthington] reacted to
      previous situations with anger, violence and force.       It was
      revealed that on at least three (3) prior occasions [Worthington]
      bit another individual, breaking the skin and causing bleeding.
      Although the majority of these occurrences did not result in
      formal charges, we did take into consideration [Worthington’s]
      background of fighting and violent behavior. However, it is
      significant to note that this factor was just one among many
      which we carefully considered in imposing [Worthington’s]
      sentence.

                                    ***

      Based on the foregoing, [Worthington’s] claims are without
      merit, as [Worthington’s] familial support and financial situation
      was just one factor among many considered by this court and,
      parenthetically, we brought up [Worthington’s] resources only to
      show that it was part of a pattern begun as a juvenile that when
      [Worthington] did something unlawful his family backed him with
      whatever was needed to avoid the long arm of the law and we
      believed that this, in part, contributed to [Worthington’s]
      increasing level of violence – he thought he could do so with
      impunity. We did not base our sentence on any bias or solely on
      the charge for which [Worthington] was convicted and, on the
      contrary, we carefully considered all proper sentencing factors in
      imposing sentence in this complex case.

Trail Court Opinion, 6/5/2015 at 23-24.




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      We have carefully reviewed the notes of testimony from the

sentencing hearing of December 30, 2014 and the reconsideration hearing of

March 2, 2015.    The original hearing of December 30, 2014 covers 139

pages of testimony and is one of the most complete sentencing hearings we

have reviewed.      That hearing included multiple witnesses speaking on

Worthington’s behalf. Our review of the entire sentencing procedure leads

to the conclusion that the trial court conducted a fair, unbiased, non-

prejudiced hearing, and issued Worthington’s sentence based upon a

thorough and proper consideration of the facts and circumstances particular

to Worthington’s case. Accordingly, Worthington is not entitled to relief on

this issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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