J-S84005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
            v.                             :
                                           :
                                           :
FREDERICK E. OWENS                         :
                                           :
                   Appellant               :   No. 690 MDA 2017

        Appeal from the Judgment of Sentence November 30, 2016
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0004271-2015


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                             FILED MARCH 21, 2018

     Appellant, Frederick E. Owens, appeals from the judgment of sentence

imposed    after   a   jury    convicted       him   of   aggravated   assault,

18 Pa.C.S. § 2702(a)(1). We affirm.

     This case arises out of Appellant’s assault of his girlfriend, Zuleika

Marcucci (“Marcucci”). The trial court summarized the evidence as follows:

            On June 16, 2015, Yomaris Ruiz-Santiago walked over to
     her sister’s apartment. Upon arriving at the apartment she heard
     yelling and screaming and saw her sister, Zuleika Marcucci, was
     badly injured.     Marcucci was arguing with her boyfriend
     [Appellant] and Ruiz-Santiago demanded that [Appellant] let her
     sister go.     Marcucci and Ruiz-Santiago left the apartment
     unhindered and made their way to their mother’s home. (Notes
     of Testimony, Jury Trial, Sept. 26-27, 2016, p. 27, 32).

           Ruiz-Santiago saw that her sister was bruised all over,
     crying and nervous and limping. (N.T. p. 28-29). Their mother
     called their pastor and his wife at Marcucci’s request. (N.T. p.
     29, 33). They came over and ultimately took Marcucci to the
     hospital. (N.T. p. 31).
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           Waleska Cruz, the pastor’s wife, recalled entering the
     home and finding Marcucci in bed. She was screaming and crying
     that she was going to die and asked them to pray over her.
     (N.T. p. 102). Marcucci uncovered herself and they saw that she
     was covered head-to-toe in bruises. (N.T. p. 103). They obliged
     and prayed over her until she calmed down, and then took her to
     the hospital. (N.T. p. 103).

           Following Marcucci’s release form [sic] the hospital, she
     stayed with the Cruzes. (N.T. p. 104). Marcucci was afraid to
     return home because the person who injured her might return.
     (N.T. p. 104). She was unable to move, Waleska bathed her,
     fed her, helped her walk and sit. (N.T. p. 104). Four days later,
     Waleska asked a still unwell Marcucci to leave because Marcucci
     was secretly communicating with Appellant. (N.T. p. 105).

           Medical records show that Marcucci suffered from
     tenderness in the area of the L1 lumbar spine, which was
     consistent with a nondisplaced fracture of the left L1 transverse
     process. (N.T. p. 55-56). A CT scan showed a fracture in this
     area and the notes indicated that surgery was not necessary,
     however, it would take two to three months to heal. (N.T. p.
     57).    notes also indicated that Marcucci reported she was
     assaulted “last night into today” with fists, a hammer and a
     drumstick and she reported hearing loss in her left ear. (N.T. p.
     58-59). She rated her pain level as 10. (N.T. p. 59).

            On June 18, 2016, Officer Kennedy of the Harrisburg Police
     Department, went to the apartment were [sic] the assault took
     place. (N.T. p. 47). As soon as he entered the apartment, he
     saw a drumstick laying on the couch. (N.T. p. 47-48). On the
     second floor, stuffed under clothing in a closet, they discovered a
     claw hammer with a rubber handle. (N.T. p. 48 No DNA testing
     or fingerprint testing of these items was performed. (N.T. p. 68-
     72).

           He then met with Marcucci at Waleska Cruz’s home. He
     had originally tried to have her come down to the precinct as
     they prefer to take statement[s] in a more formal setting, but
     Marcucci was unable to move so he went to her. (N.T. p. 53).
     He saw her covered head-to-toe in bruises and unable to stand.
     (N.T. p. 53).




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             On June 19, 2016, Investigator Lyda went to Waleska
       Cruz’s home to take pictures of Marcucci. (N.T. p. 38). She
       witnessed an obviously sore and bruised Marcucci being helped
       around by someone. (N.T. p. 39). Lyda took pictures of a
       swollen, [sic] eye, extensive bruising behind her ear, on her
       back, arms, abdomen, breasts, legs, and buttocks. (N.T. p. 40-
       41). Marcucci was unable to stand up from a seated position on
       her own, but was able to balance once standing. (N.T. p. 44).

             On June 29, 2016, Officer Kennedy went to York County
       Prison to transport Appellant to Dauphin County Prison on these
       charges. (N.T. p. 62). He advised Appellant of his constitutional
       rights.   Nevertheless a brief conversation ensued wherein
       Appellant indicated he was in York at the time of the assault and
       not in Dauphin County. (RT. p. 63).

Trial Court Opinion, 7/12/17, at 1–3 (footnote omitted).

       Appellant    was    arrested    and     charged    with   attempted   homicide,

aggravated assault, unlawful restraint, and theft by unlawful taking. 1           The

Commonwealth withdrew the charge of theft by unlawful taking prior to trial.

Appellant proceeded to a jury trial on September 26–27, 2016, during which

Marcucci refused to testify.        Appellant requested a jury instruction on the

lesser-included offense of simple assault, 18 Pa.C.S. § 2701(a), which the

trial court denied. The jury acquitted Appellant of attempted homicide and

unlawful    restraint     and   convicted      him   of   aggravated   assault.    On

November 30, 2016, the trial court sentenced Appellant to incarceration for

eight and one-half to twenty years. Appellant filed a timely post-sentence

motion on December 8, 2016, which the trial court denied on March 24,

____________________________________________


1   18 Pa.C.S. §§ 901, 2702(a)(1), 2902(a), and 3921, respectively.



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2017.     This appeal followed.   Appellant and the trial court complied with

Pa.R.A.P. 1925.

        On appeal, Appellant presents two questions for our consideration:

           I. Was not the evidence insufficient to sustain a conviction
        for aggravated assault (causing serious bodily injury) when the
        injuries described by the evidence did not meet the statutory
        definition of serious bodily injury?

           II. Did not the court err in refusing to instruct the jury as
        requested by [Appellant] on the lesser-included offense of simple
        assault?

Appellant’s Brief at 4 (full capitalization omitted).

        Appellant first challenges the sufficiency of the evidence supporting his

conviction for aggravated assault.     Because a determination of evidentiary

sufficiency presents a question of law, our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Sanchez, 36 A.3d 24,

37 (Pa. 2011).       In reviewing the sufficiency of the evidence, we must

determine whether the evidence admitted at trial and all reasonable

inferences drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, were sufficient to prove every element of

the offense beyond a reasonable doubt.        Commonwealth v. Von Evans,

163 A.3d 980, 983 (Pa. Super. 2017).           “[T]he facts and circumstances

established by the Commonwealth need not preclude every possibility of

innocence.” Commonwealth v. Colon–Plaza, 136 A.3d 521, 525–526 (Pa.

Super. 2016) (quoting Commonwealth v. Robertson–Dewar, 829 A.2d

1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-finder to

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determine the weight to be accorded to each witness’s testimony and to

believe all, part, or none of the evidence. Commonwealth v. Tejada, 107

A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its

burden of proving every element of the crime by means of wholly

circumstantial evidence.   Commonwealth v. Mucci, 143 A.3d 399, 409

(Pa. Super. 2016). Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

      Aggravated assault is defined as follows:

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

         (1) attempts to cause serious bodily injury to another, or
         causes such injury intentionally, knowingly or recklessly
         under circumstances manifesting extreme indifference to
         the value of human life[.]

18 Pa.C.S. § 2702. Serious bodily injury is “[b]odily injury which creates a

substantial risk of death or which causes serious permanent disfigurement or

protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S. § 2301.

      Appellant argues that the jury could convict him of aggravated assault

only if they found Marcucci suffered serious bodily injury because neither the

verdict slip nor the trial court’s charge included the “attempt” version of

aggravated assault. Appellant’s Brief at 16. See N.T., 9/26–27/16, at 140–

141 (instructing jury on aggravated assault). According to Appellant:


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      [t]here was no evidence that the injuries involved a substantial
      risk of death. Likewise, there is no evidence that the victim
      suffered any permanent disfigurement.

      Accordingly, the conviction for aggravated assault can be
      sustained only if the injuries caused a protracted loss or
      impairment of the function of any bodily member or organ.

                                    * * *

            The bottom line is that there is no Pennsylvania appellate
      decision stating that a displaced fracture of a vertebrae
      constitutes “protracted loss or impairment of the function of any
      bodily member or organ.”

Appellant’s Brief at 18, 19 (emphasis in original).

      In disposing of Appellant’s sufficiency challenge, the trial court opined:

            The extreme nature of Marcucci’s injuries indicate an intent
      to cause serious bodily injury to another. Per testimony by her
      caretaker at the time, Marcucci was unable to feed or bathe
      herself as a result of her injuries. She believed she was dying.
      There is certainly sufficient evidence for a jury to find that
      [Appellant] caused serious bodily injury to Marcucci.

Post Sentence Motion Order and Memorandum Opinion, 3/24/17, at 2.

      Upon review, we conclude that Appellant’s sufficiency claim does not

warrant relief.   Appellant physically assaulted Marcucci, using his fist, a

drumstick, and a hammer.        N.T., 9/26–27/16, at 47–48.         Fortunately,

Appellant’s attack was interrupted by the arrival of Marcucci’s sister, but not

before he inflicted on Marcucci a swollen eye, “injuries on pretty much every

surface of her body,” and a nondisplaced fracture of her L1 vertebra left

transverse process. Id. at 18, 55–56. As a result, Marcucci “wasn’t able to

move. She wasn’t able to get around whatsoever[;]” a friend “had to bathe


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her and help her how to walk and eat and sit, even feed her.” Id. at 53,

106, 121–122.   Additionally, she experienced hearing loss in her left ear,

and her injuries raised concern “for the retroperitoneal hematoma, liver or

splenetic laceration.” Id. at 58–59. Based on the foregoing, we agree with

the trial court that the evidence was sufficient to establish that Appellant

committed aggravated assault by causing serious bodily injury to Marcucci.

18 Pa.C.S. § 2702(a).

     Next, Appellant challenges the trial court’s refusal to instruct the jury

on the elements of simple assault.    Appellant’s Brief at 20.   According to

Appellant, the trial court was required to instruct on the lesser-included

offense of simple assault because “the offense has been made an issue in

the case and the evidence would reasonably support such a verdict.” Id. at

23 (quoting Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super.

2008) (citation omitted)). In contrast, the Commonwealth argues:

            [Appellant] failed to demonstrate that the evidence would
     have rationally supported a conviction for simple assault and an
     acquittal of aggravated assault. . . . [Also,] the record is devoid
     of any evidence to dispute the Commonwealth’s overwhelming
     proof that [Appellant] intended to cause serious bodily injury.
     Without any such evidence, the [c]ourt was justified in refusing
     to instruct the jury on simple assault.

Commonwealth’s Brief at 12, 13–14.

     When evaluating the propriety of jury instructions:

     this Court will look to the instructions as a whole, and not simply
     isolated portions, to determine if the instructions were improper.
     We further note that, it is an unquestionable maxim of law in
     this Commonwealth that a trial court has broad discretion in

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      phrasing its instructions, and may choose its own wording so
      long as the law is clearly, adequately, and accurately presented
      to the jury for its consideration. Only where there is an abuse of
      discretion or an inaccurate statement of the law is there
      reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).

Additionally, “jury instructions regarding particular crimes or defenses are

not warranted where the facts of the case do not support those instructions.”

Commonwealth v. Washington, 692 A.2d 1024, 1028 (Pa. 1997).

      In denying Appellant’s post-sentence motion and in its opinion to this

Court, the trial court disposed of this challenge as follows:

             [Appellant] also contends that this [c]ourt erred in refusing
      to instruct the jury [on] the lesser[-]included offense of simple
      assault. Such an instruction is proper only where the evidence
      presented at trial would make it “rational for the jury to render a
      verdict of not guilty of the greater offense but guilty of the
      lesser.” Commonwealth v. Sirianni, 428 A.2d 629, 631 (Pa.
      Super. 1981). The Court also pointed out that there is no basis
      “for the proposition that the specific result caused was the exact
      result intended. It is, therefore, proper to consider only those
      facts and circumstances which are probative of the actor’s frame
      of mind at the moment he committed the act.” Id.

             In this case, the injuries were serious. Marcucci was
      unable to perform basic bodily functions alone, she had massive
      bruising all over the body and a broken vertebrae. She suffered
      serious bodily injury as defined by law. Further, focusing on
      [Appellant’s] frame of mind at the moment he committed the
      act, we can only use the evidence available to us to infer his
      state of mind. The evidence available is the serious injuries, the
      fact that the beating was ongoing until Marcucci’s sister removed
      her from the home, and her statements to medical staff that he
      used a hammer and a drumstick as well as his fists to cause the
      injuries. This indicates an intent to cause serious bodily injury.

Order and Memorandum Opinion, 3/24/17, at 2–3.


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      Appellant argues that this [c]ourt should have instructed the jury
      on the lesser[-]included offense of simple assault. Initially,
      counsel did not request the simple assault instruction until after
      the jury went to deliberate. Second, based on the testimony and
      evidence presented at trial in the [courtroom], the
      Commonwealth established serious bodily injury. The facts did
      not demonstrate simple assault. The Commonwealth presented
      ample evidence for aggravated assault. Therefore[,] simple
      assault was not charged.

             The Commonwealth staked its entire case on this being an
      aggravated assault. If the jury felt that the evidence was not
      sufficient to prove aggravated assault, as defined in the charge,
      then the proper result would have been an acquittal. Obviously,
      as the jury acquitted Appellant of the other charge, they were
      able to make determinations as to the sufficiency of the evidence
      in all counts.

Trial Court Opinion, 7/12/17, at 5–6.

      Upon review of the trial court’s jury instruction, we discern no abuse of

the trial court’s discretion or an inaccurate statement of the law. As noted,

Appellant requested a jury instruction on simple assault.      That offense is

defined, in relevant part, as follows:

      (a) Offense defined.-- Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if
      he:

            (1) attempts to cause or intentionally, knowingly or
            recklessly causes bodily injury to another;

            (2) negligently causes bodily injury to another with a
            deadly weapon[.]

18 Pa.C.S. § 2701(a).

      On the facts of this case, we find there is no evidence in the record

from which a jury could reasonably conclude that Appellant intended to


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cause bodily injury, but not serious bodily injury. The record indicates that

Appellant beat Marcucci using his fists, a hammer, and a drumstick, causing

her to suffer extensive bruising, a swollen eye, and a broken vertebra. As

Appellant exercised his option not to testify, and thereby did not offer any

testimony concerning his intent, “[t]his is all uncontradicted evidence of

record indicating an intent to cause serious bodily injury.” Commonwealth

v. Sirianni, 428 A.2d 629, 633 (Pa. Super. 1981). In fact, the defense did

not present any evidence to rebut the testimony of the Commonwealth

witnesses. Id. at 634.

      Because the record reveals there was no evidence presented by

Appellant to dispute the Commonwealth’s overwhelming proof of an intent to

inflict serious bodily injury, a charge on simple assault would have been

unwarranted. Sirianni, 428 A.2d at 633 (citation omitted). Thus, Appellant

cannot succeed on his claim that the trial court should have charged the jury

on simple assault; the evidence presented did not warrant such an

instruction.   See Commonwealth v. Walker, 36 A.3d 1, 15 (Pa. 2011)

(holding that jury instruction regarding heat of passion and imperfect self-

defense voluntary manslaughter not warranted where evidence did not

support such instruction); Washington, 692 A.2d at 1028–1029 (holding

that jury instruction regarding particular defense not warranted where

evidence does not support such instruction).     We, therefore, hold the trial

court did not err in refusing to charge the jury on simple assault.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




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