J-S39018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MEGAN ELIZABETH PUCHALSKI                  :
                                               :
                       Appellant               :   No. 1916 MDA 2017

            Appeal from the Judgment of Sentence December 6, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001962-2016


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 20, 2018

        Megan Elizabeth Puchalski (Appellant) appeals from the judgment of

sentence imposed after a jury convicted her of two counts each of aggravated

assault and simple assault, and one count of recklessly endangering another

person (REAP).1 Appellant claims the evidence was insufficient to support her

convictions. Upon review, we affirm.

        The trial court recounted at length the facts presented at trial.   See

Trial Court Opinion, 2/9/18, at 1-9. The victims in this case, namely Sandra

Wolfe and Charles VanDusen, are first-responders.2         It is undisputed that

Appellant was intoxicated on the morning of May 29, 2016, when Sandra

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1   18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1) and 2705.

2 Appellant’s convictions of simple and aggravated assault pertain to Ms. Wolfe
and Mr. VanDusen; Appellant’s REAP conviction pertains to the individuals
transporting her in an ambulance, including the EMT, Ms. Wolfe.
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Wolfe, an emergency medical technician (EMT); Patti Kreitzer, a paramedic;

Richard Kreitzer, Bunker Hill Fire Chief; Charles VanDusen, Bunker Hill Deputy

Fire Chief; Pennsylvania State Trooper David Lebron; and Pennsylvania State

Trooper Michael Stramara, all responded to Appellant’s residence, based on

an “emergency call” from Appellant’s mother of a “critical sick person.” N.T.,

10/4/17, at 12, 14, 49.     These six individuals testified at trial about their

efforts to administer medical aid to Appellant and transport her to the hospital.

The essence of their testimony was that Appellant was partially clothed,

covered with bruises, extremely belligerent, physically combative, and

resisted the first-responders’ efforts to provide medical aid by flailing,

punching, kicking and biting.

      Ms. Wolfe described Appellant as “out of control.”       Id. at 17.    She

testified that although she did not think Appellant was acting “intentionally,”

Appellant “hit” and “kicked” her. Id. at 20-21, 37. Ms. Wolfe also stated that

she was afraid for Appellant’s safety as well as her own. Id. at 21. Deputy

Fire Chief Charles VanDusen testified that Appellant “dug her fingernails into

me quite a few times.”     Id. at 100, 104.     Ms. Kreitzer testified that she

requested and received approval from the “command doctor” to administer a

sedative to Appellant based on her belief that Appellant was a danger to the

first-responders. Id. at 58. She noted that Appellant “had already struck

[Ms. Wolfe] and then tried to bite a State Trooper. . . . and she was trying to

hit everyone there.” Id. at 59. Trooper Lebron confirmed that Appellant “tried

to bite my arm – my hand again.” Id. at 116. Ms. Kreitzer stated that “things

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went downhill” when Appellant got loose in the back of the ambulance and

tried to hit her. Id. at 62.

      Ms. Wolfe stated that upon being restrained and placed in the

ambulance, Appellant “was wilder than ever” and broke free of her restraints.

Id. at 25. As a result, the paramedic, Ms. Kreitzer “was screaming for help,”

and the driver, Ms. Wolfe, was concerned that Appellant would cause an

accident, pulled to the side of the road and called for back-up. Id. at 26-28.

Fire Chief Richard Kreitzer testified to seeing Appellant when the ambulance

pulled over.    He described the “[s]ame thing as what’s at the house[,

Appellant] kicking, flailing, trying to grab things. Trying to grab the – either

the officers or the medical people.” Id. at 83. Deputy Fire Chief VanDusen

also witnessed the scene when the ambulance pulled over, and stated that

from “looking in” he saw “[a] lot of kicking, a lot of yelling, screaming” by

Appellant. Id. at 102.

      The Commonwealth also introduced video evidence. Trooper Stramara

had a mobile video recorder (MVR) on his patrol car. He testified that the MVR

recorded approximately 20 minutes when he responded to the initial call.

Commonwealth Exhibit 1. That video was played for the jury. A second video,

approximately 10 minutes in length, and depicting events when Trooper

Stramara responded to the ambulance after it pulled over, was also played.

N.T., 10/4/17, at 135-136. Finally, the Commonwealth called Pennsylvania

State Trooper Franklin Linn, who investigated the incident.       Trooper Linn

testified that he interviewed the various individuals involved, including the

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first-responders and Appellant, and ultimately filed the charges against

Appellant. Id. at 154, 162.

       Appellant was the sole defense witness. She testified to being “irate”

when the first-responders appeared at her home and telling them to leave.

Id. at 169. She stated that she attempted to prevent the first-responders

from taking her from her home, but had no intent to fight with or harm

anyone. Id. at 172-173. Appellant testified that she acted her “best to keep

myself from being taken down and held against my will unlawfully.” Id. at

181.

       At the conclusion of trial, the jury found Appellant guilty of the

aforementioned offenses. On December 6, 2017, the trial court sentenced

Appellant to 23 months of intermediate punishment followed by 6 months of

electronic monitoring.    In addition, the court “set special conditions . . .

including Drug and Alcohol Evaluation, Drug and Alcohol Testing and requiring

Appellant to wear a SCRAM bracelet for ninety (90) days.” Trial Court Opinion,

2/8/18, at 9. Appellant filed this timely appeal. Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

       Appellant presents the following five sufficiency claims on appeal:

       1. Whether there was sufficient evidence to support the jury’s
       verdict as to aggravated assault as the Commonwealth failed to
       prove that the Appellant’s actions established that the Appellant
       intentionally, knowingly or recklessly caused bodily injury to
       Sandra Wolfe, an officer, employee, etc. of an enumerated class,
       or that Appellant attempted to cause bodily injury to Sandra
       Wolfe?



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      2. Whether there was sufficient evidence to support the jury’s
      verdict as to simple assault as the Commonwealth failed to prove
      that Appellant’s actions established that Appellant intentionally,
      knowingly or recklessly caused bodily injury to Sandra Wolfe or
      that Appellant attempted to cause bodily injury to Sandra Wolfe?

      3. Whether there was sufficient evidence to support the jury’s
      verdict as to aggravated assault as the Commonwealth failed to
      prove that the Appellant’s actions established that the Appellant
      intentionally, knowingly or recklessly caused bodily injury to
      Charles VanDusen, an officer, employee, etc. of an enumerated
      class, or that Appellant attempted to cause bodily injury to Charles
      VanDusen?

      4. Whether there was sufficient evidence to support the jury’s
      verdict as to simple assault as the Commonwealth failed to prove
      that Appellant’s actions established that Appellant intentionally,
      knowingly or recklessly caused bodily injury to Charles VanDusen
      or that Appellant attempted to cause bodily injury to Charles
      VanDusen?

      5. Whether there was sufficient evidence to support the jury’s
      verdict as to recklessly endangering another person as the
      Commonwealth failed to prove that the Appellant’s actions placed
      or may have placed any of the EMT’s, State Police or local
      firefighters in danger of death or serious injury?

Appellant’s Brief at 5-6.

      Appellant argues that the Commonwealth’s evidence failed to establish

that she “actually caused bodily injury to either Sandra Wolfe or Charles

VanDusen.” Appellant’s Brief at 10. Appellant also asserts that the evidence

failed to show that she “attempted to cause bodily injury to Sandra Wolfe or

Charles VanDusen.” Id. Finally, Appellant maintains that “the evidence failed

to prove any individual was in danger of death or serious bodily injury at any

point during the incident.” For these reasons, Appellant asks this Court to

vacate her convictions.


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     We review Appellant’s sufficiency claims mindful of the following:

         The standard we apply in reviewing the sufficiency of
         evidence is whether, viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the factfinder 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 that of the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence. Any doubts regarding a defendant’s
         guilt may be resolved by the fact-finder unless the evidence
         is so weak and inconclusive that as a matter of law no
         probability of fact may be drawn from the combined
         circumstances. The Commonwealth may sustain its burden
         of proving every element of the crime beyond a reasonable
         doubt by means of wholly circumstantial evidence.
         Moreover, in applying the above test, the entire record must
         be evaluated and all evidence actually received must be
         considered. 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. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)

(citations omitted).    Again, a conviction may be sustained wholly on

circumstantial evidence, and the jury, as the trier of fact—while passing on

the credibility of the witnesses and the weight of the evidence—is free to

believe all, part, or none of the evidence. Commonwealth v. Melvin, 103

A.3d 1, 39 (Pa. Super. 2014). In conducting review, the appellate court may

not weigh the evidence and substitute its judgment for the fact-finder. Id. at

39–40.




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      Instantly, Appellant was convicted of aggravated assault of Ms. Wolfe,

an EMT, and Mr. VanDusen, the Deputy Fire Chief, as statutorily prescribed:


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

      (3) 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;

18 Pa.C.S.A. § 2702 (emphasis added). The “persons enumerated” include

firefighters and EMTs. 18 Pa.C.S.A. § 2702(c)(2), (21).

      With regard to simple assault, Appellant was convicted of simple assault

of Ms. Wolfe and Mr. VanDusen under § 2701(a)(1), which provides a similar

disjunctive provision that “a person is guilty of assault if he: (1) attempts to

cause or intentionally, knowingly or recklessly causes bodily injury to

another[.]” (emphasis added).

      Appellant’s final conviction of REAP, relative to her actions in the

ambulance, occurs when someone “recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.” 18 Pa. C.S.A. § 2705 (emphasis added).

      Again, Appellant argues that she did not cause “actual bodily injury” to

Ms. Wolfe and Mr. VanDusen; that her actions lacked intentionality, and that

her victims were never “in danger of death or serious bodily injury.”

Appellant’s Brief at 10. Case law does not support Appellant’s claims.




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      We recently explained:

             A person acts intentionally with respect to a material
      element 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. [I]ntent can be proven by direct
      or circumstantial evidence; it may be inferred from acts or conduct
      or from the attendant circumstances.

Commonwealth v. Bullock, 170 A.3d 1109, 1119 (Pa. Super. 2017)

(quotation marks and citations omitted), appeal denied, No. 539 EAL 2017,

2018 WL 2018053 (Pa. Apr. 30, 2018). Further, “intent ordinarily must be

proven through circumstantial evidence and inferred from acts, conduct or

attendant circumstances.” Id. (emphasis added).

      Upon review, and in conjunction with both our summary of the facts and

the trial court’s factual findings, as well as the statutory elements and case

law set forth above, we find no support for Appellant’s sufficiency claims. We

agree with the trial court’s straightforward analysis, in which it explained:

             The testimony provided by the Commonwealth’s witnesses
      indicates that [Appellant] hit Sandra Wolfe in the face. Sandra
      testified that it occurred and several other emergency personnel
      testified that they heard Sandra indicate that she had been hit.
      While no other witnesses testified that they saw [Appellant]
      actually hit Sandra, and [Appellant] herself conte[st]s the validity
      of such a claim, the jury itself is free to believe some, none or all
      of the testimony presented. The Commonwealth may show intent
      from the circumstances surrounding the events and the testimony
      provided indicates that [Appellant] was struggling and fighting
      with emergency personnel, which may in itself evince
      [Appellant’s] intent.

            Testimony provided at trial also indicated that [Appellant]
      dug her nails into Charles VanDusen’s arms during the events that
      occurred the day of the incident. VanDusen himself indicated that


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     the injury was superficial, but that it left a mark. However, the
     victim need not have suffered actual bodily injury if such an intent
     may be shown from the circumstances. As stated, the
     circumstances of the incident may demonstrate [Appellant’s]
     intent and the jury is free to infer such an intent from the
     testimony.

           Appellant next challenges the Commonwealth’s evidence to
     support the jury’s verdict of conviction on the aggravated assault
     charges in relation to Sandra Wolfe and Charles VanDusen. To
     sustain a conviction for aggravated assault, the Commonwealth
     must show that a person “attempt[ed] to cause or intentionally or
     knowingly cause[d] bodily injury to any of the officers, agents,
     employees or other persons enumerated in subsection (c)
     [including firefighters and emergency medical services
     personnel], in the performance of duty.” 18 Pa.C.S.A. § 2702. Our
     Superior Court has stated:

       Where the victim does not suffer serious aggravated bodily
       injury, the charge of assault can be supported only if the
       evidence supports a finding of an attempt to cause such
       injury. “A person commits an attempt when, with intent to
       commit a specific crime, he does any act which constitutes a
       substantial step toward the commission of that crime.” 18
       Pa.C.S.A. § 901(a). An attempt under Subsection requires
       2702(a)(1) some act, albeit not one causing serious bodily
       injury, accompanied by an intent to inflict serious bodily
       injury. Commonwealth v. Matthew, 589 Pa. 487, 909 A.2d
       1254 (2006). “A person acts intentionally with respect to a
       material element of an offense when ... it is his conscious
       object to engage in conduct of that nature or to cause such a
       result[.]” Id. at 1257-58 (quotation omitted). “As intent is a
       subjective frame of mind, it is of necessity difficult of direct
       proof.” Id. (citation omitted). The intent to cause serious
       bodily injury may be proven by direct or circumstantial
       evidence. Id.

     Com. v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012).

           Having found the evidence sufficient to support the jury’s
     verdict of guilty on the charges of simple assault against Sandra
     Wolfe and Charles VanDusen, the same elements may support the
     aggravated assault charges with the additional element
     thereunder. See Com. v. Frank, 398 A.2d 663, 670 (Pa. Super.

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     1979)(“Simple assault is, of course, a lesser-included offense of
     aggravated assault.”). 18 Pa.C.S.A. § 2702(a)(6) provides that
     aggravated assault may occur where the person attempts to cause
     or intends to cause bodily injury to, among other enumerated
     classes of people, firefighters and emergency medical services
     personnel. Sandra Wolfe is an emergency medical technician and
     Charles VanDusen is a firefighter, according to their respective
     testimony. There is no doubt that both victims were of the class
     of people enumerated under Section 2702(c). Again, the jury
     heard testimony from the Commonwealth’s witnesses and from
     [Appellant] and were able to make a determination as to the
     veracity of all such testimony, thereby deriving the facts upon
     which they rendered their decision. We cannot supplant the jury’s
     determinations for our own interpretation of those facts.

           Appellant has finally challenged the sufficiency of the
     evidence presented by the Commonwealth to support the jury’s
     verdict convicting her of the REAP charge. “A person commits a
     misdemeanor of the second degree if he recklessly engages in
     conduct which places or may place another person in danger of
     death or serious bodily injury.” 18 Pa.C.S.A. § 2705. Furthermore,
     “[r]eckless endangerment is a lesser included offense of
     aggravated assault and where the evidence is sufficient to support
     a claim of aggravated assault it is also sufficient to support a claim
     of recklessly endangering another person.” Com. v. Smith, 956
     A.2d 1029, 1036 (Pa. Super. 2008)(citing Com. v. Thompson,
     739 A.2d 1023, 1028 n. 13 (Pa. Super. 1999).

           The jury heard all of the testimony, including testimony
     provided that [Appellant] was fighting with the paramedic in the
     back of the ambulance while the ambulance was moving on a
     public road. Both the EMT and paramedic testified that there is an
     opening between the back area of the ambulance and the front
     cab, and that an individual fighting in the back area presents a
     danger that such fighting could cause a distraction to the driver,
     or worse could risk the peril of interfering with the driver’s control
     of the vehicle and endanger the occupants of the ambulance and
     other drivers on the road.

           Viewing the evidence presented at trial in the light most
     favorable to the Commonwealth, as the verdict winner in the
     specific charges challenged, we find that there is sufficient
     evidence to uphold the jury’s convictions. The jury, as the finder
     of fact, was free to lend more credence to the testimony of the

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     Commonwealth’s witnesses than to the testimony of [Appellant].
     Furthermore, the deliberative nature of the jury’s determinations
     are evident in the fact that the jury found [Appellant] not guilty of
     the charges it believed the Commonwealth had not proved beyond
     a reasonable doubt.

Trial Court Opinion, 2/9/18, at 12-14.

     The trial court’s reasoning is supported by the record. Therefore, we

find no merit to Appellant’s sufficiency claims and affirm the judgment of

sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018




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