J-S28018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ADAM HIGGS

                            Appellant                  No. 1097 WDA 2016


              Appeal from the Judgment of Sentence June 29, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0012087-2015


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                                FILED JULY 25, 2017

       Adam Higgs appeals from the June 29, 2016 judgment of sentence

entered in the Allegheny County Court of Common Pleas following his bench

trial conviction for simple assault.1 We affirm.

       The trial court set forth the following factual history:

               In 2015, the victim in this case, two-year-old [B.K.],
            resided with his mother, [A.K.]. His father, [Higgs],
            frequently babysat him. From August 16-19, 2015, [B.K.]
            was in the care of [Higgs]. During that period, [Higgs]
            contacted [A.K.] and asked to keep [B.K.] for a few more
            days. [A.K.] agreed to the extension. On August 21,
            2015, [A.K.] picked up [B.K.] from [Higgs’] residence late
            in the evening. [A.K.] returned home and put [B.K.] to
            bed.
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           18 Pa.C.S. § 2701(a)(1).
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               The next morning, on August 22, 2015, [A.K.] noticed
            significant bruising on [B.K.]’s buttocks while changing his
            diaper. In response, [A.K.] took [B.K.] to the hospital
            later that day, where he was examined. According to
            Doctor Adelaide Eichmann of the Child Advocacy Center,
            [B.K.] suffered from scratch marks on the side of his neck,
            fingernail prints on his abdomen, and multiple patterned
            bruises on his buttocks with areas of redness surrounding
            the bruises. The bruises were circular in nature, and
            classic for inflicted marks.        In Doctor Eichmann’s
            professional opinion, there was no accidental way that
            [B.K.] could have received those bruises. The infliction of
            these bruises would have caused substantial pain to [B.K.].

               [Higgs] was questioned by the Allegheny County Police
            Department at the local police station in Bridgeville
            regarding [B.K.]’s injuries. [Higgs] at first attempted to
            blame the redness on [B.K.] sitting on the toilet, but
            eventually acknowledged that he had struck his two-year-
            old son with a spoon, more than once, because [B.K.]
            urinated in his diaper instead of telling [Higgs] that he
            needed to use the toilet.

Opinion, 1/17/17, at 3-4 (“1925(a) Op.”).

       On September 16, 2015, Higgs was charged with aggravated assault

(victim less than six years of age) and endangering the welfare of a child;2

the endangerment charge was dismissed before trial.           Higgs proceeded to

non-jury trial on February 8, 2016 and June 23, 2016.3 On June 29, 2016,

the trial court found Higgs not guilty of aggravated assault but found Higgs

guilty of the lesser-included offense of simple assault. That same day, the
____________________________________________


       2
           18 Pa.C.S. §§ 2702(a)(8) and 4304, respectively.
       3
       On February 8, 2016, Higgs requested a continuance. The trial court
granted the continuance, but the court and parties agreed to take Dr.
Eichmann’s testimony that day.




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trial court sentenced Higgs to two years’ probation.        Higgs timely filed a

notice of appeal.

       Higgs’ sole issue4 on appeal is whether “[t]he trial court erred when it

convicted [Higgs] of [s]imple [a]ssault where the Commonwealth failed to

present evidence sufficient to prove [Higgs’] guilt beyond a reasonable

doubt.” Higgs’ Br. at 4. This Court’s standard for reviewing a sufficiency of

the evidence claim is as follows:

               We must determine whether the evidence admitted at
           trial, and all reasonable inferences drawn therefrom, when
           viewed in a light most favorable to the Commonwealth as
           verdict winner, support the conviction beyond a reasonable
           doubt. Where there is sufficient evidence to enable the
           trier of fact to find every element of the crime has been
           established beyond a reasonable doubt, the sufficiency of
           the evidence claim must fail.

              The evidence established at trial need not preclude
           every possibility of innocence and the fact-finder is free to
           believe all, part, or none of the evidence presented. It is
           not within the province of this Court to re-weigh the
           evidence and substitute our judgment for that of the fact-
           finder.   The Commonwealth’s burden may be met by
           wholly circumstantial evidence and any doubt about the
____________________________________________


       4
         In his brief, Higgs argues that his actions were justifiable pursuant to
18 Pa.C.S. § 509(1), which provides a defense for parents if certain
parameters are met. Higgs, however, raised this issue neither in his
Pennsylvania Rule of Appellate Procedure 1925(b) statement nor in the
statement of questions involved in his brief. We addressed this precise
situation in Commonwealth v. Bradley, 69 A.3d 253, 256 (Pa.Super.
2013), concluding that because a “[s]ection 509 issue cannot be construed
as subsidiary” to a sufficiency challenge under Pennsylvania Rule of
Appellate Procedure 1925(b)(4)(v), the appellant had waived this challenge
by failing to include it as a separate matter in his Rule 1925(b) statement.
Accordingly, Higgs has waived his section 509 issue.



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         defendant’s guilt is to be resolved by the fact[-]finder
         unless the evidence is so weak and inconclusive that, as a
         matter of law, no probability of fact can be drawn from the
         combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      A person may be convicted of simple assault “if he . . . attempts to

cause or intentionally, knowingly or recklessly causes bodily injury to

another.” 18 Pa.C.S. § 2701(a)(1). “The Crimes Code defines ‘bodily injury’

as ‘[i]mpairment of physical condition or substantial pain.” Commonwealth

v. Tukhi, 149 A.3d 881, 887 (Pa.Super. 2016).

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to support Higgs’ conviction.     Higgs admitted that he

struck two-year-old B.K. on the buttocks with a wooden spoon.             N.T.,

6/23/16, at 38-40. Dr. Eichmann provided her expert opinion that, based on

the bruises left on B.K., these strikes would have caused substantial pain.

N.T., 2/8/16, at 24-25.     Further, the evidence fully supported the trial

court’s conclusion that B.K.’s injuries were not accidentally inflicted and that

Higgs acted at least recklessly.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




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