J-S53028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL TOWNS,                             :
                                               :
                       Appellant               :   No. 78 EDA 2018

           Appeal from the Judgment of Sentence December 29, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010313-2016


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 24, 2018

        Michael Towns appeals from the judgment of sentence of one year and

six months to three years of confinement followed by four years of probation,

which was imposed after he was convicted by the trial court of aggravated

assault, simple assault, and resisting arrest.1 We affirm.

        The facts from the testimony at the non-jury trial were that on

September 17, 2016, at 4:25 a.m., Officers Hunter Freeman and Arsinio Perez

were in a marked patrol car on the Belmont Plateau in Fairmount Park in

Philadelphia when they saw Towns’ automobile parked in a lot far away from

any other vehicles. N.T., 11/13/2017, at 8, 11-12. The officers exited their


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   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2702(a)(3), 2701(a), and 5104, respectively.
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vehicle and approached the front doors of Towns’ vehicle, when they saw that

the two occupants appeared to be unconscious. Officer Freeman tapped on

the window, and the parties awoke.     The officers asked the occupants for

identification, which they provided. Officer Freeman was standing about one

foot away from the driver’s side of the automobile, and Officer Perez was

standing on the passenger’s side. Towns then started the engine, sped out of

the parking lot in reverse, and became stuck on an incline. Id. at 12. The

officers advanced toward the vehicle with their firearms drawn. Towns exited

the vehicle and ran. Officer Freeman holstered his gun before chasing Towns.

Id. at 12-14, 25-26. Officer Freeman grabbed Towns’ shirt, but Towns twisted

around, shoved the officer, and escaped.      Id. at 13-14, 21.    As Officer

Freeman walked back to the parking lot, he noticed that his right hand was

swollen and that he could not bend his middle finger. Id. at 14-17, 25-26.

Officer Freeman was later diagnosed with a broken finger and a detached

tendon. Id. Towns was subsequently arrested.

     Prior to trial, Towns challenged the legality of “the stop,” contending

that the entire interaction between the police and Towns was illegal. N.T.,

8/10/2017, at 13. Officer Freeman testified during the suppression hearing.

Id. at 14-29. The trial court denied the suppression motion, explaining its

reasoning as follows:

     This is a unique case; the facts and circumstances of the case, but
     at 4:25 in the morning, the officers are patrolling the Fairmount
     Park area, they are driving through the lot and they see a car that


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      is isolated in an area, so as they drive by it, they see two bodies
      inside the vehicle that are not moving.

      I would akin this more to a safety check than a stop. You know,
      when you pull up on a vehicle when there’s no lighting, you have
      to illuminate it. When you illuminate it and you see two people in
      there that are not moving.

      I can only imagine if the officers just left and they were critically
      ill and died and they didn’t get medical attention, what we would
      be hearing now. I think it would have been negligent of the
      officers to pull away with two bodies laying in a car that were not
      moving without ensuring the safety of those individuals, so I don’t
      akin this to a stop. It’s more of a safety check. And they have
      the right to see if those people need medical aide or are moving
      because it’s not normal for people at that time to be sleeping in a
      vehicle in a public park so they’re not moving and the officers see
      that. That’s part of what their job is, to ensure public safety.

      After they knock and the windows come down and the smell that
      they get, whatever that leads to it leads to, but I don’t akin that
      this was an improper, that everyone’s been calling it a stop,
      because I don’t believe it was a stop. The vehicle was stopped
      and it was more of a safety check and I think that part of it was
      proper[.]

Id. at 39-40.

      On November 13, 2017, Towns waived a jury trial and immediately

proceeded to a bench trial. N.T., 11/13/2017, at 3. Officer Freeman also

testified during trial.   Id. at 8-26.    At the conclusion of trial, Towns was

convicted of the aforementioned charges.

      On December 29, 2017, Towns moved for reconsideration of the

suppression ruling based upon the case of Commonwealth v. Livingstone,

174 A.3d 609 (Pa. Nov. 27, 2017), which had been decided by the Supreme




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Court of Pennsylvania after the initial suppression hearing. The trial court

concluded:

       [I]t wasn’t actually a stop. It was an investigatory inquiry in my opinion.
       Because you can’t in today’s climate see two people that could be
       sleeping, passed out, or dead, in a car in a public place, not moving, at
       that time of the morning. And as I said I think it would be criminal or
       negligent for officers not to do that. And all they did is what any normal
       person would do, try to arouse the passengers inside the vehicle.

       And it went from knocking to banging before they could arouse, and
       then immediately when the window is down, the marijuana which then
       takes it to another level.

       If the Livingstone case were to apply, the Livingstone case, the officer
       pulled up beside a woman who was on her phone looked like she was
       putting directions into her navigation. The officer pulled up beside her
       with his lights on, on a dark isolated road, and the Court deemed that
       to be a stop. That she wasn’t free to leave because the lights and sirens
       and things like that. Whether I agree with that or not is of no
       importance, but for the purposes of today, and being today is my last
       day here, I am going to deny your motion for extraordinary relief
       because I don’t believe Livingstone in this case applies based on the
       facts as were relayed in the motion to suppress.

N.T., 12/29/2017, at 8-9.

       Prior to imposing sentence, the trial court clarified that it “did[ not] find

that the car was used as a weapon in this case.” Id. at 11.

       The trial court then sentenced Towns. This appeal followed.2

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2  On December 29, 2017, immediately following sentencing, Towns filed his
notice of appeal and concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The trial court did not file an opinion pursuant
to Pa.R.A.P. 1925(a), because the trial judge “is no longer sitting as a judge
in Philadelphia County[.]”      Letter from Penelope Graves to Super. Ct.
Prothonotary (Feb. 16, 2017). However, the trial judge did enter his findings
of fact and legal conclusions on the record immediately following the testimony



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       Towns raises the following issues on appeal:

       [1.] Whether the [trial c]ourt properly denied Mr. Towns’ motion
       to suppress by concluding that there was no stop and in any event
       that the community caretaker doctrine applied?

       [2.] Whether the evidence was insufficient to support a
       conviction for Aggravated Assault (18 Pa.C.S. § 2702(a)(3)) in
       that the evidence failed to establish the requisite mental state,
       i.e., that Michael Towns attempted to inflict bodily injury, or that
       he acted intentionally or knowingly in doing so?

       [3.] Whether the evidence was insufficient to support a
       conviction for Aggravated Assault (18 Pa.C.S. § 2702(a)(3))
       because the Commonwealth failed to prove the requisite causal
       relationship between Mr. Towns’ conduct and Officer Freeman’s
       injury where Officer Freeman conceded that he lunged at
       Mr. Towns first and further that he realized he was injured after
       the entire interaction was over and was thus speculating as to the
       actual cause of the injury?

Towns’ Brief at 10 (issues re-ordered to facilitate disposition).

       During the suppression hearing, Towns argued the initial interaction

between himself and the officers was illegal. See N.T., 8/10/2017, at 13-14.

Towns renewed his argument that the trial court erred when it denied his

motion to suppress in his appellate brief. See Towns’ Brief at 14-18. Towns

argues that the trial court “misapplied the community caretaker doctrine as

Officer Freeman was primarily motivated by a desire to investigate criminal

activity and the Commonwealth failed to adduce specific, objective, and




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presented at the suppression hearing, as quoted above. N.T., 8/10/2017, at
39-40.

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articulable facts that would reasonably suggest Mr. Towns needed assistance.”

Id. at 14.

      “In reviewing the denial of a suppression motion, our role is to

determine[] whether the suppression court’s factual findings are supported by

the record and whether the legal conclusions drawn from those facts are

correct[.]”   Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super.

2018) (citations omitted; some formatting). “Our scope of review is limited

to the evidence presented at the suppression hearing.” Id. (citation omitted).

      In Livingstone, 174 A.3d 609, the Pennsylvania Supreme Court

considered the community caretaking exception to the warrant requirement:

      The community caretaking doctrine has been characterized as
      encompassing three specific exceptions: the emergency aid
      exception; the automobile impoundment/inventory exception;
      and the public servant exception, also sometimes referred to as
      the public safety exception. . . . Each of the exceptions
      contemplates that the police officer’s actions be motivated by a
      desire to render aid or assistance, rather than the investigation of
      criminal activity. . . . Specifically, we first hold that, in order for
      the public servant exception of the community caretaking doctrine
      to apply, police officers must be able to point to specific, objective,
      and articulable facts that would reasonably suggest to an
      experienced officer that a citizen is in need of assistance. . . .
      Second, we hold that, in order for the public servant exception of
      the community caretaking doctrine to apply, the police caretaking
      action must be independent from the detection, investigation, and
      acquisition of criminal evidence.

Id. at 626-627, 634-635 (citation omitted).

      Here, the record reflects the “police officers [were] able to point to

specific, objective, and articulable facts that would reasonably suggest to an

experienced officer that a citizen is in need of assistance.” Id. at 634. During

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the suppression hearing, Officer Freeman testified that, at 4:25 a.m., he saw

two people unconscious in an automobile in a remote section of a parking lot,

about 150 feet away from any other car. N.T., 8/10/2017, at 16-18, 28.

       In addition, “the police caretaking action [was] independent from the

detection, investigation, and acquisition of criminal evidence.” Livingstone,

174 A.3d at 635.         During the suppression hearing, when asked why he

knocked on the window, Officer Freeman explained: “[T]he two males were

unconscious[.] . . . They could have left the car on, they could have been

inhaling carbon monoxide. We wanted to check on their well-being to make

sure they were all right.” N.T., 8/10/2017, at 28-29. Officer Freeman testified

he did not see anything illegal in Towns’ automobile prior to or while knocking.

Id. at 27-28. Officer Freeman also articulated a rationale for approaching and

rapping on Towns’ car that was distinct from the officers’ reasons for being in

that section of Fairmount Park,3 which Officer Freeman explained was a high-

crime area with “a lot of drug activity [and] prostitution[.]”      Id. at 17.

Accordingly, based on the testimony of Officer Freeman at the suppression

hearing, we would conclude the trial court did not err in denying Towns’

motion, because the community caretaking doctrine applied to the officers’

actions in approaching and tapping on Towns’ automobile.


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3   N.T., 8/10/2017, at 16.




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       Next, Towns challenges the sufficiency of the evidence to support his

conviction for aggravated assault4 pursuant to 18 Pa.C.S. § 2702(a)(3). “A

person is guilty of aggravated assault if he . . . attempts to cause or

intentionally or knowingly causes bodily injury to any of the officers, agents,

employees or other persons enumerated in subsection (c), in the performance

of duty[.]”      Id.    Subsection (c) includes police officers.       18 Pa.C.S.

§ 2702(c)(1). “[I]ntentionally” and “knowingly” are defined as follows:

       (1) A person acts intentionally with respect to a material element
       of an offense when:

          (i) if the element involves the nature of his conduct or a
          result thereof, it is his conscious object to engage in conduct
          of that nature or to cause such a result; and

          (ii) if the element involves the attendant circumstances, he
          is aware of the existence of such circumstances or he
          believes or hopes that they exist.

       (2) A person acts knowingly with respect to a material element of
       an offense when:

          (i) if the element involves the nature of his conduct or the
          attendant circumstances, he is aware that his conduct is of
          that nature or that such circumstances exist; and

          (ii) if the element involves a result of his conduct, he is
          aware that it is practically certain that his conduct will cause
          such a result.




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4 The lack of an opinion by the trial court pursuant to Pa.R.A.P. 1925(a) does
not hinder our analysis of the sufficiency of the evidence, including the
element of causation.

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18 Pa.C.S. § 302(b).        Lastly, 18 Pa.C.S. § 2301 defines “bodily injury” as

“impairment of physical condition or substantial pain.”

       Towns contends “the evidence failed to establish mens rea and

causation[,]” because he only “placed his hands on Officer Freeman’s chest.”

Towns’ Brief at 20, 22; see also id. at 24 (evidence was insufficient “to

establish a causal result between [his] conduct and Officer Freeman’s

injuries”).5   Relying upon Commonwealth v. Rementer, 598 A.2d 1300,

1307 (Pa. Super. 1991), for the principle that foreseeability is necessary to

establish causation, Towns further contends that, “even if [his] conduct was

an antecedent to Officer Freeman’s injuries, it is simply unfair to attach

criminal liability under these circumstances[,]” because “the result here

(bodily injury) was not a foreseeable consequence of [his] conduct.” Towns’

Brief at 28. He argues that he did not intentionally or knowingly cause Officer

Freeman’s injury, because his “intention was to flee. He did not intend to

harm Officer Freeman. The actual harm - bodily injury - was entirely different

than that which was contemplated -- a thwarted arrest.” Id. at 29.6


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5   Towns does not challenge the sufficiency of the evidence as to his
convictions for simple assault or resisting arrest; he also does not contest that
Officer Freeman suffered bodily injury. See generally Towns’s Brief.

6  The Commonwealth responded to Towns’ argument with the following:
“Given these facts, the evidence is sufficient to prove that [Towns] intended
to cause injury or knew that an injury was ‘practically certain’ when he struck
the officer in the chest with both hands with enough force to break the officer’s
grip in his attempt to flee. 18 Pa.C.S.A. § 302(b)(2)(ii).” Commonwealth’s
Brief at 24.

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      In reviewing the sufficiency of the evidence, our standard of
      review is as follows:

      Whether viewing all the evidence admitted at trial in the light most
      favorable to the verdict winner, there is sufficient evidence to
      enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. . . .
      Finally, the trier 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.

Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted) (some formatting), appeal denied, 174 A.3d 558

(Pa. 2017).

      “In order to impose criminal liability, causation must be direct and

substantial.”   Commonwealth v. Fabian, 60 A.3d 146, 152 (Pa. Super.

2013) (citation omitted).

      In Rementer, we set forth a two-part test for determining
      criminal causation. First, the defendant’s conduct must be an
      antecedent, but for which the result in question would not have
      occurred.     Rementer, 598 A.2d at 1305; 18 Pa.C.S.A.
      § 303(a)(1). . . . . [T]here must exist a “causal connection
      between the conduct and the result of conduct; and causal
      connection requires something more than mere coincidence as to
      time and place.” Rementer, 598 A.2d at 1305, n.3 (quoting
      LaFave and Scott, Substantive Criminal Law, Vol. 1, Ch. 3., at
      391–392 (1986)). Second, the results of the defendant’s actions
      cannot be so extraordinarily remote or attenuated that it would be
      unfair to hold the defendant criminally responsible. Rementer,
      598 A.2d at 1305.

Commonwealth v. Spotti, 94 A.3d 367, 375 (Pa. Super. 2014) (en banc).

      Pursuant to the above standard of review – i.e., viewing all the evidence

admitted at trial in the light most favorable to the Commonwealth as verdict


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winner, see Fortson, 165 A.3d at 14–15, we agree with the Commonwealth’s

rationale. See Commonwealth’s Brief at 23-24. There is no debate as to

when the injury occurred; during his trial testimony, Officer Freeman

described the altercation between himself and Towns, repeatedly stating that

his finger was broken and the tendon was torn “when” Towns spun around

and shoved him with two hands in the chest to break his grip:

      I attempted to grab the . . . back of [Towns’] shirt with my right
      hand. In doing so, the shirt wrapped around my right finger and
      we got into like a brief struggle and he turned around and pushed
      me and that’s when my finger, the tendon snapped off the bone.
      . . . He kind of spun around causing the shirt to wrap around my
      fingers and my hand got stuck, that’s when he kind of like shoved
      me, and the shirt was still stuck on my finger, causing it to break.

N.T., 11/13/2017, at 13 (emphasis added).          Officer Freeman was able to

describe when and how his injury occurred, as there was no intervening

incident that could have caused it.           Furthermore, both prongs of the

Rementer test were established. See Spotti, 94 A.3d at 375. Towns twisted

and shoved Officer Freeman, which was the antecedent “but for” cause to the

broken finger    and torn    tendon.     N.T.,    11/13/2017, at 13-14, 21.

Consequently, his conduct was the direct and substantial factor that caused

Officer Freeman’s injury.   See Fabian, 60 A.3d at 152.        Accordingly, the

evidence was sufficient to enable the trial court, as fact-finder, to find the

element of causation beyond a reasonable doubt. See Fortson, 165 A.3d at

14–15.




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      As for Towns’ assertion that he could not have acted intentionally or

knowingly because Officer Freeman’s injury was not foreseeable, Towns’ Brief

at 28-29, this challenge also lacks merit.

      [I]n a prosecution for aggravated assault on an officer[,] the
      Commonwealth has no obligation to establish that the officer
      actually suffered a bodily injury; rather, the Commonwealth must
      establish only an attempt to inflict bodily injury, and this intent
      may be shown by circumstances which reasonably suggest that
      [an appellant] intended to cause injury.

Commonwealth v. Rahman, 75 A.3d 497, 502 (Pa. Super. 2013) (quotation

marks, quotation, and emphasis omitted).          Moreover, “[a] person acts

intentionally with respect to a material aspect of an offense when ... it is his

conscious object to engage in conduct of that nature or to cause such a

result[.]” 18 Pa.C.S. § 302(b)(1)(i). “‘As intent is a subjective frame of mind,

it is of necessity difficult of direct proof.’” Commonwealth v. Matthew, 909

A.2d 1254, 1257 (Pa. 2006) (citations omitted).

      Here, as provided above, while Officer Freeman was attempting to seize

Towns, Towns tried to flee on foot, but the officer grabbed the back of Towns’

shirt and then the two men engaged in a struggle, in which Towns placed his

hands on the officer, pushed him, and subsequently escaped.           See N.T.,

11/13/2017, at 13-14, 21. The officer’s finger was caught in Towns’ shirt and

as a result of the struggle, the officer suffered a broken finger. Based on these

circumstances, one can reasonably infer that it was Towns’ intention not only




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to flee, as he acknowledges,7 but, more importantly, to not be apprehended

at any cost, even if that meant hurting, including inflicting “substantial pain”

on, Officer Freeman. See 18 Pa.C.S. § 2301. Moreover, it was “[Towns’]

conscious object to engage in conduct of that nature or to cause such a

result[.]”   18 Pa.C.S. § 302(b)(1)(i).        Indeed, Towns intentionally shoved

Officer Freeman while the officer’s hand was caught in his shirt so that Towns’

escape would not be hindered by the officer, who was acting in accordance

with his official duty in attempting to stop Towns. Accordingly, the judge,

sitting as fact-finder, could reasonably infer from these circumstances that

Towns intended to cause bodily injury for purposes of finding him guilty of

aggravated assault under Subsection 2702(a)(3).8

       Based on the foregoing, we affirm the trial court’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/18


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7 See Towns’ Brief at 29.
8   See Commonwealth v. Butler, 512 A.2d 667) (Pa. Super. 1986)
(concluding sufficient evidence to affirm appellant’s aggravated assault
conviction with respect to police officer where appellant punched officer one
time, without causing bodily injury, and even though he alleged “intent was
not to injure the officer but to flee the scene.”).

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