J-S45012-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TRACY DEL HANNA,

                          Appellant                  No. 2046 MDA 2014


          Appeal from the Judgment of Sentence September 24, 2014
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007808-2013


BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J:                           FILED OCTOBER 09, 2015

       Tracy Del Hanna appeals from the September 24, 2014 judgement of

sentence of seven and one-half years to fifteen years incarceration, which

was imposed following his conviction of two counts of aggravated assault

and one count each of simple assault and possession of marijuana.        We

affirm.

       On September 28, 2013, Appellant and Timothy Morton fought over an

electric bill. During the course of the altercation, Appellant stabbed Morton

with a knife. Morton was transported by ambulance to the emergency room

and treated for a five and one-half inch deep stab wound to the buttocks.

Appellant was charged with aggravated assault (serious bodily injury),


*
    Former Justice specially assigned to the Superior Court.
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aggravated assault (causing bodily injury with a deadly weapon), simple

assault, and possession of marijuana.

      Appellant   filed   a   post-sentence   motion    alleging   that   the   jury

instruction regarding aggravated assault was erroneous and warranted a

new trial. The motion was denied. Appellant timely filed a notice of appeal

and complied with the trial court’s order to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises one issue

for our review:

      1. Whether the trial court committed an error of law by
         commingling the standards for attempting to cause serious
         bodily injury and causing serious bodily injury under 18
         Pa.C.S. § 2702(a)(1) when it gave instructions to the jury?

Appellant’s brief at 4.

      Appellant was charged with two counts of aggravated assault, the first

count being a violation of 18 Pa.C.S. §2702(a)(1):

      § 2702. Aggravated assault.

      (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).

      The law is established that, “Where the injury actually inflicted did not

constitute serious bodily injury, the charge of aggravated assault can be”

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sustained only when the evidence supports a finding the defendant’s actions

toward the victim were “accompanied by the intent to inflict serious bodily

injury.”   Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978);

see also Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006). Thus, if

serious bodily injury results, the mens rea requirement is that the defendant

may have acted knowingly, recklessly or intentionally; if no such injury

occurred, a defendant must act with specific intent to cause such injury to

be guilty of the crime.

      Appellant contends that the trial court’s aggravated assault instruction

erroneously led the jury to believe that he could be convicted of this offense

if he recklessly attempted to cause serious bodily injury. He points to three

instances during the charge when the trial court incorrectly told the jury that

an attempt to cause serious bodily injury could be based on a reckless

attempt to cause serious bodily injury.

      In reviewing claims of improper or incorrect jury instructions,

      this Court will look to the instructions as a whole, and not simply
      isolated portions, to determine if the instructions were improper.
      We further note that, it is an unquestionable maxim of law in
      this Commonwealth that a trial court has broad discretion in
      phrasing its instructions, and may choose its own wording so
      long as the law is clearly, adequately, and accurately presented
      to the jury for its consideration. Only where there is an abuse of
      discretion or an inaccurate statement of the law is there
      reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014)

(citations omitted).

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      Appellant first directs our attention to that portion of the charge where

the court instructed the jury as follows. In describing the type of mens rea

required, the court blurred the distinction between the situation where

serious bodily injury actually results and where serious bodily injury was

only attempted.       The court advised the jury: “as you recall, I said the

Defendant     needs     to   intentionally,   knowingly   or   recklessly   under

circumstances indicating an indifference to the value of human life cause or

attempt to cause serious bodily injury.” Id. at 125.

      A moment later, the court instructed the jury that

            You must find that the Defendant intentionally or
      knowingly or recklessly under circumstances manifesting an
      extreme indifference to the value of human life caused or
      attempted to cause serious bodily injury to the victim in this
      case.

N.T. Jury Trial, 8/6/14, at 126.       According to Appellant, the court again

commingled the attempt to cause serious bodily injury with causing serious

bodily injury when it advised the jury:

            In order to find the Defendant guilty of this aggravated
      assault, you must find that the Commonwealth has proven
      beyond a reasonable doubt that the Defendant intentionally,
      knowingly or recklessly under circumstances manifesting an
      extreme indifference to the value of human life caused serious
      bodily injury or attempted to cause serious bodily injury.

Id. at 136.

      Although the trial court subsequently clarified that an attempt

required the intent to causes serious bodily injury and a substantial step



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taken toward that end, id. at 137, Appellant contends that the instruction

as a whole was confusing. Furthermore, the confusion was not harmless as

Appellant received a self-defense instruction acknowledging that he used

deadly force, i.e., force capable of causing serious bodily injury. He argues

that the aggravated assault charge incorrectly implied that the self-defense

could be overcome if Appellant used a reckless amount of force sufficient to

cause serious bodily injury, which was a lower threshold.

      We agree with Appellant that the trial court’s charge regarding

aggravated assault impermissibly invited the jury to find Appellant guilty if

he recklessly attempted to cause serious bodily injury. Counsel for Appellant

registered an objection to the charge on this ground. However, after further

discussion with Appellant, counsel advised the court that the instruction was

acceptable as they wished to downplay the aggravated assault. Id. at 132.

Nonetheless, the court decided to address Appellant’s concern regarding the

attempt to cause serious bodily injury portion of its charge. Counsel noted

an exception for the record, explaining, “we are prepared to leave it as it is

without rehashing all of them.”    Id. at 134.   The trial court revisited the

attempt to cause serious bodily injury language in § 2702(a)(2):

            There’s another aspect to that also that he attempted to
      cause serious bodily injury. With regard to attempt, it’s the
      same thing as intentional, it’s that I want to cause serious bodily
      injury, and with regard to attempt, it’s that I want to cause
      serious bodily injury and I do a substantial step towards causing
      that serious bodily injury.



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             You don’t have to actually make a determination that
       serious bodily injury resulted, but that I wanted to cause serious
       bodily injury.

              Go back to my analogy previously with regard to the
       aggravated assault. I take a baseball bat and I swing it at your
       head and you duck, didn’t cause serious bodily injury, but I can
       tell you if I do that, and I would never do it, I’m attempting to
       cause serious bodily injury.      That’s the aggravated assault
       serious bodily injury.

Id. at 136.

       We find that the aforementioned instruction corrected the trial court’s

earlier instruction that erroneously implied that an aggravated assault

conviction could be based on a reckless attempt to cause serious bodily

injury. Moreover, Appellant, by choosing to acquiesce in the court’s earlier

misstatement of the law, waived any claim that the trial court’s charge as to

the mens rea for an attempt to cause serious bodily injury constituted

reversible error.1 Hence, no relief is due.


____________________________________________


1
   After the jury was excused to begin its deliberations, it sent a note to the
trial court asking it to “[p]lease define the states of mind and confirm that
any one of them can cause guilt.” Id. at 158. The court re-instructed the
jury: “. . . any one of [the states of mind], intentional, knowing or reckless,
with regard to the aggravated assault is fine. If you find any one of those
states of mind for the first aggravated assault, that’s sufficient.” Id. at 160.
“So the states of mind necessary for the first aggravated assault,
intentionally, knowingly or recklessly, any one of those.” Id. “With regard
to the attempt to cause serious bodily injury, again, I want to cause serious
bodily injury and serious bodily injury does in fact occur.” Id. at 162.
Appellant did not object or renew his earlier objection to this instruction.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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