J-A05028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ROBERT WILLIAM DUNKEL, JR.,

                         Appellant                   No. 563 WDA 2016


      Appeal from the Judgment of Sentence Entered March 24, 2016
              In the Court of Common Pleas of Butler County
           Criminal Division at No(s): CP-10-CR-0000631-2015


BEFORE: BENDER, P.J.E., SHOGAN, J. and MOULTON, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 16, 2017

      Appellant, Robert William Dunkel, Jr., appeals from the judgment of

sentence of 1 year less 1 day to 2 years less one day of incarceration,

followed by 24 months’ probation, imposed after he was convicted of

aggravated assault, simple assault, obstructing administration of law, and

resisting arrest.   On appeal, Appellant challenges the sufficiency of the

evidence to sustain two of his convictions. After careful review, we affirm.

      Following a jury trial in February of 2016, Appellant was convicted of

the above-stated offenses based on evidence that he was disruptive and

violent during a sentencing hearing in an unrelated case, which culminated

in Appellant’s fighting with several sheriffs as they attempted to subdue him

and place him under arrest. One of the sheriffs involved in the confrontation

with Appellant sustained a cut to her finger.
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      On March 24, 2016, the court sentenced Appellant to the above-stated

term of incarceration for his aggravated assault conviction, as well as a

consecutive term of 24 months’ probation for simple assault, and concurrent

terms of 24 months’ probation for his obstructing administration of law and

resisting arrest convictions. Appellant filed a timely post-sentence motion,

which the court granted to the extent that it vacated Appellant’s sentence

for simple assault, which should have merged with his aggravated assault

conviction for sentencing purposes.      The court also modified Appellant’s

sentence of probation for resisting arrest, directing that it run consecutively

to his term of incarceration, thus resulting in the same aggregate sentence

as the court initially imposed.

      Appellant filed a timely notice of appeal, and he also timely complied

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

errors complained of on appeal. Herein, he raises the following two claims

for our review:

      [I.] Whether [Appellant] can be convicted of 18 Pa.C.S.A. § 2701
      (a) (3) Aggravated Assault[?]

      [II.] Whether [Appellant] can be convicted of 18 Pa.C.S.A. §
      5101 Obstruction of the Administration of Justice[?]

Appellant’s Brief at 3.

      In both of his issues, Appellant challenges the sufficiency of the

evidence to sustain his convictions.

           In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light

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       most favorable to the verdict winner, are sufficient to support all
       elements of the offense. Commonwealth v. Moreno, 14 A.3d
       133 (Pa. Super. 2011). Additionally, we may not reweigh the
       evidence or substitute our own judgment for that of the fact
       finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
       2009). The evidence may be entirely circumstantial as long as it
       links the accused to the crime beyond a reasonable doubt.
       Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

       Appellant    first   states    that     he   is   attacking   his   conviction   for

aggravated assault; however, he then discusses the elements of simple

assault.      See Appellant’s Brief at 10.                Even more problematically,

Appellant’s entire argument is premised on discussing the elements of

simple assault as defined in section 2701(a)(3), while he was actually

convicted of simple assault as defined in section 2701(a)(1).1                          The

difference between these two provisions is significant: section 2701(a)(3)

requires an “attempt[] by physical menace to put another in fear of

imminent serious bodily injury[,]” while section 2701(a)(1) requires an

“attempt[] to cause or intentionally, knowingly, or recklessly caus[ing]

bodily injury to another[.]”         18 Pa.C.S. §§ 2701(a)(1), (a)(3).         Again, the

entirety of Appellant’s argument pertains to the elements of section

2701(a)(3).     See Appellant’s Brief at 11 (arguing that “[t]he element of
____________________________________________


1
  We recognize that Appellant was charged with simple assault under
section 2701(a)(3), but at trial, the Commonwealth moved for that charge to
be amended to section 2701(a)(1). See N.T. Trial, 2/10/16, at 62. The
court granted that amendment without objection from Appellant. Id. at 63.
Therefore, the jury was charged with simple assault as defined in section
2701(a)(1), id. at 101-02, and it convicted Appellant of that offense.



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physical menace cannot be satisfied[,]” and he “did not put anyone in fear of

imminent serious bodily injury”); id. at 12 (arguing that a cut to a finger

does constitute serious bodily injury). Because Appellant does not present

any meaningful argument regarding the elements of simple assault as

defined in section 2701(a)(1), his first issue is meritless.

      In Appellant’s next issue, he challenges the sufficiency of the evidence

to sustain his conviction for obstructing administration of justice, an offense

which is defined as follows:

      A person commits a misdemeanor of the second degree if he
      intentionally obstructs, impairs or perverts the administration of
      law or other governmental function by force, violence, physical
      interference or obstacle, breach of official duty, or any other
      unlawful act, except that this section does not apply to flight by
      a person charged with crime, refusal to submit to arrest, failure
      to perform a legal duty other than an official duty, or any other
      means of avoiding compliance with law without affirmative
      interference with governmental functions.

18 Pa.C.S. § 5101.

      In this case, the thrust of Appellant’s argument is that he was not the

aggressor of the physical confrontation with the deputy sheriffs in the

courtroom. According to Appellant, he merely made verbal comments that

did not disrupt the sentencing proceeding, and he was then attacked by the

deputies. He maintains that he did not commit any “affirmative act[,]” and

that “[t]he Commonwealth cannot prove intent to obstruct because

[Appellant] was obnoxious and noisy.”       Appellant’s Brief at 16.   Appellant

also contends that his physical confrontation with the deputies began after



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the court announced a recess for an unrelated reason and, therefore,

“[t]here were no ongoing proceedings” that were obstructed. Id. at 8, 17.

      Appellant’s version of his conflict with the deputy sheriffs is completely

contradicted by the evidence presented at his trial.     There, Deputy Sheriff

Eric McLafferty testified that he was working in courtroom number two on

February 24, 2015, when Appellant was called before the court for a

sentencing hearing in an unrelated case.        N.T. Trial, 2/10/16, at 6-7.

Deputy McLafferty explained that the victim in that case came forward to

read a statement to the court and, as she did, Appellant “began sighing

heavily[,]” making “snorts of derision[,]” and other “short utterances … that

would interrupt … her speaking where she would have to stop, … and then …

pick back up and resume…, which was interrupting the proceeding.” Id. at

10-11. Deputy McLafferty moved “within an arm’s distance” of Appellant “in

an attempt … to dissuade him from that type of behavior.” Id. at 11, 13.

Nevertheless, Appellant’s “behavior did not stop” but, instead, he “continued

to escalate[,]” becoming “a little bit louder” and “more frequent” in his

comments and noises. Id. at 15.

      At that point, Deputy McLafferty told Appellant that “he need[ed] to

calm down[,]” but that verbal command “really had no effect….” Id. at 16.

The deputy then decided to “remove [Appellant] temporarily … to the side”

of the courtroom in order to calm him down so the proceeding could finish.

Id.   Deputy McLafferty testified that he placed “an open hand on

[Appellant’s] elbow” and “said, [‘]come on have a seat over here at the

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J-A05028-17



bench[’].”   Id. at 16, 17.     Appellant’s counsel followed the deputy and

Appellant to the bench on the side of the courtroom where Appellant sat

down, and counsel spoke softly to Appellant, trying to get him to calm down

because court was still in session. Id. at 18-19.

      However,    Appellant’s   behavior   continued   to   escalate,   with   his

“outbursts … getting louder” and “more frequent.”       Id. at 19-20.    Deputy

McLafferty testified that at that point, the judge had “to call for a recess” so

“matters could be brought back under control.” Id. at 21-22. The deputy

explained that as the judge began “to walk off the bench” toward his

chambers, Appellant “got up out of his seat” and moved “right into [Deputy

McLafferty] knocking [him] back … a couple of steps.”          Id. at 22.      The

deputy then decided to take Appellant into custody, but Appellant began

shoving Deputy McLafferty, seemingly “trying to get [the deputy] … out of

[the] way or go directly through [him]….” Id. at 23. Ultimately, it took two

other deputies, and Deputy McLafferty, to restrain Appellant and handcuff

him. Id. at 24-25.

      In sum, the testimony of Deputy McLafferty sufficiently established

that Appellant intended to - and did - obstruct the court proceeding that was

taking place. Appellant ignored repeated requests from Deputy McLafferty

and his attorney to calm down, and he escalated the situation into a physical

confrontation that took several deputies to quell.          Appellant’s conduct

resulted in the court’s “adjourn[ing] the … hearing” until the deputies “could

bring the courtroom back under control.”         N.T. Trial, 2/10/16, at 27.

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J-A05028-17



Clearly, this evidence was sufficient to sustain Appellant’s conviction for

obstructing administration of law.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




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