J-S71008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RICKY DAVID SMITH                       :
                                         :
                   Appellant             :   No. 2357 EDA 2018

        Appeal from the Judgment of Sentence Entered July 5, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002026-2017


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 24, 2020

     Ricky David Smith appeals from his July 5, 2018 judgment of sentence

and challenges the sufficiency of the evidence supporting his convictions of

aggravated assault and recklessly endangering another person (“REAP”).

After thorough review, we affirm.

     The trial court summarized the facts as follows.

           On March 2, 2016, at approximately 4:30 PM, Appellant, an
     inmate at Curran-Fromhold Correctional Facility (CFCF), entered
     a designated officers’ area while Corrections Officer Jaimie Harris
     worked on inmate discharges. Notes of Testimony, 8/15/2018
     (“N.T.” 8/15/2018) at 14-15. Appellant then moved into the
     nearby phone room before returning to the officers’ area, at which
     point he positioned himself slightly less than one foot away from
     Officer Harris’ desk with his foot propped up on a commissary box.
     Id. at 15.

           Officer Harris testified that Appellant then placed his hands
     in the front of his pants and exposed his genitals to her. Id. at
     15-16. The situation escalated, leading Officer Harris to lock
     Appellant in that area for his own protection, as other inmates had
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      begun reacting to the confrontation and “getting rowdy.” Id. at
      17. Throughout this interaction, Officer Harris repeatedly
      demanded the inmate stop exposing himself to her and stop using
      obscene language. Id. at 19.

            Officer Harris subsequently walked Appellant back to his
      cell. Id. at 19. Approximately halfway to the cell, Appellant
      stopped and resisted the officer’s effort. Id. at 20. Appellant
      moved close to Officer Harris, at which point she turned to get
      help from her partner, Office Langdon. Id. at 20-21. Officer
      Harris then felt a sharp blow to the left side of her face near the
      corner of her mouth and under her nose. Id. at 21. She testified
      that the resulting wound bled heavily and that “you could stick
      your finger through the cut” and move it back and forth. Id. at
      23. Officer Harris confirmed that Appellant was the person who
      wounded her, but she could not be certain whether or not
      Appellant had a weapon in his hand when he struck. Id. at 24.
      She did indicate that she could feel her skin tearing. Id. at 24.

            Officer Harris then turned and struck Appellant in the face.
      Id. at 24. She watched Appellant, gripping his own face, enter
      another inmate’s cell and begin to wash the blood from his hands.
      Id. at 25. It is unclear whether the blood came from Officer
      Harris’s wound or his own. Id. at 25. Officer Harris was taken for
      medical treatment at the prison. Id. at 33. The wound was so
      severe that medical staff on site could not stop the bleeding. Id.
      at 33. She was then transported to Erie [sic] Torresdale (Hospital)
      on Knight’s Road for emergency care. Id. at 33.

             Due to the severity of the injury, Officer Harris underwent
      plastic surgery at approximately 6:00 AM the following morning
      on March 3, 2016. The initial procedure required 35 stitches and
      a second surgery had to be performed on January 11, 2017. Id.
      at 34. Officer Harris now suffers from numbness on the left side
      of her face due to nerve damage from this injury. Id. at 34. She
      also experiences twitching and has to drink with a straw and eat
      with the right side of her mouth. Id. at 34. There is a visible 3/4-
      inch scar running from the inside of her lip and up to her nostril.
      Id. at 34.

Trial Court Opinion, 6/12/19, at 2-3.




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       Appellant waived his right to a jury trial after an on-the-record colloquy,

during which he was apprised of his rights.         Following a non-jury trial,

Appellant was found guilty of indecent assault, aggravated assault, simple

assault, and REAP. He was sentenced on July 5, 2018, to four to eight years

of incarceration on the aggravated assault charge, and no additional sentence

on the remaining charges. Appellant timely filed an appeal to this Court, and

complied with the court’s order to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal.

       Appellant presents one issue for our review: “Was not the evidence

insufficient to find Appellant guilty beyond a reasonable doubt of aggravated

assault and recklessly endangering another person where the evidence failed

to prove, under the circumstances of the case involving a single ‘punch’ by

Appellant, that Appellant intentionally, knowingly or recklessly caused serious

bodily injury to the complainant?” Appellant’s brief at 3.1

       In reviewing a challenge to the sufficiency of the evidence, “we must

determine whether the evidence admitted at trial, and all the reasonable

inferences derived therefrom, viewed in favor of the Commonwealth as verdict

winner, support the jury’s finding of all of the elements of the offense beyond

a reasonable doubt.” Commonwealth v. Le, 208 A.3d 960, 969 (Pa. 2019)

(citing Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009)).                A

____________________________________________


1 Appellant sought permission to file an untimely reply brief late. Although we
did not formally rule on the motion, we considered Appellant’s reply brief in
the disposition of the instant appeal.

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conviction may be sustained on wholly circumstantial evidence, and the trier

of fact is free to believe all, part, or none of the evidence. Commonwealth

v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007).

     Appellant contends that the evidence was insufficient to prove that he

intentionally, knowingly or recklessly caused serious bodily injury to the

complainant, an element of both aggravated assault and REAP. The pertinent

portion of the aggravated assault statute provides:

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

                 ...

           (2) attempts to cause or intentionally, knowingly or
           recklessly causes serious bodily injury to any of the officers,
           agents, employees or other persons enumerated in
           subsection (c) or to an employee of an agency, company or
           other entity engaged in public transportation, while in the
           performance of duty;

                 ...

     (c)   Officers, employees, etc., enumerated. — The officers,
           agents, employees and other persons referred to in
           subsection (a) shall be as follows:

                 ...

           (9) Officer or employee of a correctional institution, county
           jail or prison, juvenile detention center or any other facility
           to which the person has been ordered by the court pursuant
           to a petition alleging delinquency under 42 Pa.C.S. Ch. 63
           (relating to juvenile matters).

18 Pa.C.S. § 2702.

     REAP is defined as follows: “A person commits a misdemeanor of the

second degree if he recklessly engages in conduct which places or may place


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another person in danger of death or serious bodily injury.”       18 Pa.C.S.

§ 2705.

      A defendant 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).

      Appellant does not challenge the trial court’s finding that the

complainant sustained serious bodily injury.     He contends, however, that

evidence proving beyond a reasonable doubt that he acted recklessly in

causing serious bodily injury was lacking.   He argues that the trial court’s

conclusion that his use of foul language and the act of exposing himself

“roused other inmates” and contributed to the risk of severe bodily injury is

unsupported by the record. Appellant’s brief at 14. Appellant reasons that if

the blow itself was unlikely to cause serious bodily injury, then the fact that

other inmates were rowdy did not change that. Furthermore, Appellant points

to the complainant’s testimony that she was worried about the attitude of

other inmates towards Appellant, not herself. Moreover, Appellant argues that

the discrepancy in size between Appellant and the complainant was not “so

significant as to create enough of a risk of serious bodily injury” simply from

the act of striking her. Appellant’s brief at 16. Finally, Appellant complains

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that the trial court focused too heavily on the outcome of the blow, i.e., the

fact that the complainant suffered serious bodily injury, rather than the

manner in which the injury occurred. Appellant distinguishes the facts herein

from those in In the Interest of N.A.D., 205 A.3d 1237, 1240 (Pa.Super.

2019), where the single blow was forceful enough to break the complainant’s

jaw and render him unconscious. He maintains that this was a cut consistent

with an injury caused by a fingernail, not a punch. Appellant contends that

the injury was negligently, not intentionally or recklessly, inflicted, and not

the type of contact that would normally cause serious bodily injury.

      The Commonwealth counters that Appellant’s arguments disregard this

Court’s standard of review and are impermissibly premised on a view of the

evidence in the light most favorable to him, rather than the Commonwealth.

The Commonwealth argues that it was only required to prove that Appellant

attempted to cause serious bodily injury to an on-duty corrections officer or

caused said injury intentionally, knowingly, or recklessly. See 18 Pa.C.S. §

2702(a)(2).   It contends that since it is undisputed that the complainant

suffered serious bodily injury, proof that Appellant acted recklessly was

sufficient to support the conviction. A person acts “recklessly” with respect to

causing serious bodily injury when he consciously disregards a substantial and

unjustifiable risk of such an injury.       18 Pa.C.S. § 302(b)(3).         The

Commonwealth cites Interest of N.A.D., supra, for the proposition that the

mens rea element can be proven with circumstantial evidence.


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       Viewing the evidence in the light most favorable to the Commonwealth,

the Commonwealth contends there was ample proof that Appellant acted at

least recklessly in causing serious bodily injury to complainant. The evidence

established that Appellant “repeatedly confronted and then assaulted a

smaller on-duty corrections officer, slashed her face with a weapon while she

was caught off-guard, and left a severe and significant laceration on her face

that required over 30 stitches and two surgeries to repair and left behind on-

going numbness and physical difficulties.”     Commonwealth’s brief at 6-7

(citing N.T. Hearing, 3/15/18, 15-16, 20-21, 33-35). With the foregoing facts

in mind, the Commonwealth directs our attention to Commonwealth v.

Nichols, 692 A.2d 181 (Pa.Super. 1997), where swinging a bat at a person’s

head was held to be recklessness, and Commonwealth v. Stevenson, 894

A.2d   759,   774-75   (Pa.Super.   2006),   overruled   on   other   grounds,

Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), holding the act of

thrusting his booted foot backwards at an officer and potentially striking the

knee was sufficient to sustain an aggravated assault conviction.          The

Commonwealth argues that either Appellant used a weapon, or he struck the

complainant with such force as to lacerate the skin. He struck her while she

was in close proximity, but unaware and unable to defend herself from the

blow, comparable to a sneak attack, and serious bodily injury resulted.

Commonwealth’s brief at 9.




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       With regard to the REAP conviction, the Commonwealth maintains that

proof that Appellant engaged in conduct which placed, or could have placed,

the complainant in danger of death or serious bodily injury was sufficient. See

Commonwealth’s brief at 6; see also 18 Pa.C.S. § 2705.          It adopts the

reasoning of the trial court that the same demonstrated conscious disregard

which established recklessness for aggravated assault was sufficient to

support the conviction for REAP, citing Commonwealth v. Williams, 434

A.2d 717, 720 (Pa.Super. 1981) (characterizing REAP as a “constituent

offense” of aggravated assault, and reasoning that where a defendant’s

recklessness has met § 2702 requirements, the same evidence will satisfy the

elements of § 2705). See also Commonwealth v. Garnett, 485 A.2d 821,

829 (Pa.Super. 1984) (holding conviction for REAP will stand where defendant

recklessly engaged in conduct which placed another person in danger of death

or serious bodily injury for purposes of the aggravated assault statute, 18

Pa.C.S. § 2705, and holding convictions on the lesser count merges for

sentencing purposes).2

       The record, viewed in the light most favorable to the Commonwealth,

reveals the following. The complainant was accompanying Appellant to his

cell after he had exposed his genitals to her. Appellant became both verbally



____________________________________________


2 Merger is not implicated herein for sentencing purposes as the trial court
imposed sentence only on the aggravated assault conviction, and did not
impose any sentence for REAP.

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and physically resistant, prompting the complainant to turn around to seek

assistance from her partner. As she turned, Appellant’s fist struck her across

the face “like a cut[;]” “it wasn’t a punch.” N.T. Hearing, 8/15/18, at 21. She

“felt something ripping her skin.”             Id.   She was bleeding profusely.

Photographs depicting the complainant’s injury were introduced, and she

testified regarding the medical treatment to repair the laceration and the

permanent nature of her injury. The record amply supports the trial court’s

finding that Appellant inflicted serious injury.

       The trial court rejected the argument that Appellant merely threw a

single punch that caused a freakish injury that was not foreseeable.3 N.T.

Hearing, 8/15/18, at 72-73. As the Commonwealth pointed out, this Court

has sustained convictions for aggravated assault where serious injury resulted

from a single blow or punch. See e.g., Commonwealth v. Burton, 2 A.3d

598 (Pa.Super. 2010) (en banc), and Commonwealth v. Patrick, 933 A.2d

1043, 1047 (Pa.Super. 2007) (en banc). In Burton and Patrick, this Court

held that the Commonwealth did not have to establish a specific intent to

cause such harm. Rather, proof that the defendant acted recklessly under

circumstances manifesting an extreme indifference to human life was enough.

Evidence that the attack was a surprise to an unsuspecting victim, that the

blow was directed at a vital body part, or of disparity in size between the


____________________________________________


3 Appellant took the stand in his own defense and testified that he had no
interaction with the complainant on the day in question.

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assailant and his victim, constituted circumstantial proof from which

recklessness could be inferred.

       In this case, Appellant was engaged in an ongoing pattern of combative

and verbally abusive behavior towards the complainant. He was considerably

taller than the complainant. Appellant struck the complainant in the face as

her head was turned and attention diverted. The trial court found, based on

the foregoing proof, that Appellant’s entire course of conduct showed reckless

behavior up to and including the moment he struck the blow that seriously

injured the complainant. Viewing the record in the light most favorable to the

Commonwealth as the verdict winner, we find the evidence legally sufficient

to sustain the convictions for aggravated assault and REAP, and no relief is

due.

       Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/20




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