J-S54026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PARISH LEE BROWN, SR.

                            Appellant                    No. 2202 MDA 2013


           Appeal from the Judgment of Sentence October 31, 2013
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0000631-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                             FILED SEPTEMBER 22, 2014

        Appellant, Parish Lee Brown, Sr., appeals from the October 31, 2013

aggregate     judgment of sentence             of six and one-

imprisonment imposed after a jury found him guilty of aggravated assault

and endangering the welfare of children.1           After careful review, we affirm

the judgment of sentence.

        The relevant facts and procedural history of this case may be

summarized as follows. On December 12, 2012, Appellant struck his minor

child, P.B., with a belt and fist, then placed him in scalding hot water in a

bathtub, causing second and third-degree burns on approximately 8% of his

body. N.T., 9/30-10/1/13, at 82-84, 169. P.B. was subsequently admitted
____________________________________________


1
    18 Pa.C.S.A. §§ 2702 and 4304, respectively.
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to Memorial Hospital after it was discovered that the skin on his foot, leg,

and buttocks had bubbled. Id. at 125-128. P.B. was later transferred to the

Lehigh Valley Hospital Regional Burn Center for treatment, including skin

grafts, where he remained for 11 days. Id. at 169-170.

        Appellant was subsequently charged with one count each of simple

assault,2 aggravated assault, and endangering the welfare of children. The

case proceeded to a jury trial on September 30, 2013.             At trial, the trial

court instructed the jury, utilizing the standard jury instructions defining

aggravated assault and defining the element of recklessness. Additionally,



injuries during its deliberations that had been admitted into evidence during

the course of the trial. Following a two-day jury trial, Appellant was found

guilty of aggravated assault and endangering the welfare of children on

October 1, 2013.3        As noted, the trial court sentenced Appellant to an

aggregate term of six and one-half t

31, 2013.      On November 8, 2013, Appellant filed a timely post-sentence




____________________________________________


2
    18 Pa.C.S.A. § 2701.
3
    The simple assault charge was nolle prossed prior to trial.




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motion, which was denied by the trial court that same day. On December 9,

2013, Appellant filed a timely notice of appeal.4

       On appeal, Appellant raises the following issues for our review.

              I.     Whether the trial court committed an error in

                     special instruction to the jury regarding the
                     fact that the recklessness needed for
                     aggravated assault requires that the offensive
                     act be performed under circumstances which
                     almost assure that injury or death will ensue
                     and must be such that life threatening injury is
                     essentially certain to occur?

              II.    Whether the trial court committed an error in
                     law by sending photographs of the victim back
                     to the jury when Appellant and Commonwealth
                     had stipulated that serious bodily injury had
                     occurred and the only argument related to
                                  mens rea?
                         5
Appella



permitting several photographs of P.B. to be viewed by the jury during



____________________________________________


4

excluded from the computation of time. See 1 Pa.C.S.A. § 1908 (providing
that when the last day of a calculated period of time falls on a Saturday or
Sunday, as is the case herein, such day shall be omitted from the
computation). Additionally, Appellant and the trial court have complied with
Pa.R.A.P. 1925.
5
  For the ease of our
claims in a different order than presented in his appellate brief.




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serious bodily injury had occurred and the only argument related to

              mens rea        Id.

the injuries [depicted in the photographs] were inflammatory[

no probative value [in determining whether Appellant possessed the

requisite mens rea       Id. at 11, 13. For the following reasons, we disagree.

                   Pennsylvania Rule[] of Criminal [P]rocedure
             [646] provide[s] that, upon retiring, the jury may
             take with it such exhibits as the judge deems proper,
             with the exception of a trial transcript, written or
             recorded confession, the information or indictment,
             or written jury instructions, other than portions of
             the charge on the elements of the offense. Allowing
             the jury to view, in deliberations, documentary
             evidence used to illustrate or explain, although not
             admitted into evidence, does not per se create
             prejudicial error. An error may be harmless where
             the properly admitted evidence of guilt is so
             overwhelming and the prejudicial effect of the error
             is so insignificant by comparison that it is clear
             beyond a reasonable doubt that the error could not
             have contributed to the verdict.

Commonwealth v. Stetler, --- A.3d ---, 2014 WL 2472308, *23 (Pa.

Super. 2014) (citations and internal equations marks omitted).

      Upon    careful    review,    we      agree   with   the   trial   court    that    the



             mens rea                                                                     t so

prejudicial as to       preclude    their    introduction to     the     jury    during    its

deliberations. In reaching this conclusion, we adopt the following reasoning

of the trial court opinion.




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                  The [trial c]ourt concludes that it did not err by
            sending the photos of the victim into the jury room
            for deliberations. During trial, the Commonwealth
            introduced the photos and then published them to
            the jury.       [N.T., 9/30-10/1/13, at 127-128].
            [Appellant] never objected to either the introduction
            or the publication of the photos. Id. At the end of
            the trial, the Commonwealth moved to have the
            photos admitted into evidence. Id. at 180. Again,
            [Appellant] did not object. Id. The Commonwealth
            also used these photos during its closing argument.
            After hearing argument, the [trial c]ourt decided to
            send only three photos back to the jury deliberation
            room. [Id. at 259-261]. The [trial c]ourt stated
            that these particular photos were not overly
            inflammatory, and since they were admitted as
            exhibits, the Commonwealth was entitled to have
            them go back to the jury room because the
            Commonwealth has the burden to prove its case.
            Id. [Appellant] only objected to sending the photos
            back with the jury, not to their admissibility.
            [Appellant] avers that the jury did not need these
            photos for deliberations because the parties
            stipulated to the element of serious bodily injury.

                   The [trial c]ourt finds that numerous factors
            militate against a finding of prejudice.         First,
            [Appellant] never objected when the photos were
            admitted as exhibits during trial. Second, the [trial
            c]ourt allowed them to be admitted as exhibits. Both
            of these factors show that the photos were relevant
            evidence and that their probative value outweighed
            any unfair prejudice. Third, the [trial c]ourt limited
            the number of photos that went back with the jury,
            and after viewing them, it found that these three
            photos were not overly inflammatory. Fourth, these
            exhibits could have aided the jury in their
            deliberations regarding recklessness.

Trial Court Opinion, 4/28/14, at 5-6 (internal quotation marks and case

citations omitted; formatting of citation to notes of testimony corrected).




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discretion by permitting the aforementioned photographs to accompany the

jury during its deliberations must fail.



discretion in failing to instruct the jury that, in order to find Appellant guilty

of aggravated assault, the Commonwealth was required to prove a




recklessness needed for aggravated assault requires that the offensive act

be performed under circumstances which almost assure that injury or death

will ensue[,] and must be such that life threatening injury is essentially

                   Id. at 9-

is insufficient to sustain a conviction for                           Id. at 10.

After careful review, we disagree.

      Our standard of review in addressing challenges to jury instructions is

an abuse of discretion. Commonwealth v. Leber, 802 A.2d 648, 651 (Pa.

Super. 2002).                                        iscretion in phrasing its

instructions, and may choose its own wording so long as the law is clearly,

adequately, and accurately

Commonwealth v. Williams, 959 A.2d 1272, 1286 (Pa. Super. 2008)

(citation omitted), affirmed, 9 A.3d 613 (Pa. 2010).

propriety of jury instructions, this Court will look to the instructions as a


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whole, and not simply isolated portions, to determine if the instructions were

              Id.   We will not find an a

        the instruction under review contained fundamental error, misled, or

                       or Appellant suffered prejudice.    Commonwealth v.

McRae, 5 A.3d 425, 430-431 (Pa. Super. 2010) (citation omitted), appeal

denied, 23 A.3d 1045 (Pa. 2011).

      Preliminarily, we note that the crime of aggravated assault is codified

in Section 2702 of the Pennsylvania Crimes Code, which provides, in

pertinent part, as follows.

            § 2702. Aggravated assault

            (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.A.

material element of an offense when he consciously disregards a substantial

and unjustified risk that the material element exists or will result from his

           Commonwealth v. Fabian, 60 A.3d 146, 154 (Pa. Super. 2013)

(citations omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

      In the instant matter, the record reveals that the trial court instructed

the jury at great length on the crime of aggravated assault and the element

of recklessness, mirroring Pennsylvania Standard Suggested Jury Instruction

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(PSSJI) § 15.2702B. See N.T., 9/30-10/1/13, at 247-248. Specifically, the

trial court gave the following instruction to the jury on the definition of



                    A person acts recklessly with respect to serious
              bodily injury when he or she consciously disregards a
              substantial and unjustifiable risk that serious bodily
              injury will result from his or her conduct. The risk
              must be of such a nature and degree that,
              considering the nature and
              conduct and the circumstances known to him, its
              disregard involves a gross deviation from the
              standard of conduct that a reasonable person would

              the kind of reckless conduct from which a life-
              threatening injury is almost certain to occur.

Id. at 248.

                                         mere recklessness is insufficient to



have instructed the jury that the Commonwealth was required to prove



citing Commonwealth v. Myers, 722 A.2d 1074, 1078 (Pa. Super. 1998)

                     the narrow holding of [Commonwealth v. Nichols, 692

A.2d 181 (Pa. Super. 1997),] only requires reversal when a trial court fails



                                                      appeal denied, 740 A.2d

231 (Pa. 1999). This argument is misplaced.

     Our Supreme Court has repeatedly recognized that a trial court has

broad discretion in phrasing its instructions to the jury, and a trial court

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                                                 provided the law is clearly,

adequately, and accurately presented to the jury. See Commonwealth v.

Ballard



obliged to issue the charge that appellant pro

cert. denied, Ballard v. Pennsylvania, 134 S. Ct. 2842 (2014).            As

discussed, supra                                   on aggravated assault and

recklessness in this matter mirror, nearly verbatim, Section 2702(a)(1) and

PSSJI § 15.2702B.    See N.T., 9/30-10/1/13, at 247-248.         Contrary to



conveyed to the jury that there must be a disregard for a substantial and

unjustifiable risk that serious bodily injury will occur, and that a life

threatening injury is almost certain to occur. See id. at 248. We further



                                                                     use the

                                                                          -4;

see also N.T., 9/30-10/1/13, at 196.

     Upon review, we conclude that the

aggravated assault and the element of recklessness, when viewed as a

                                              reflected the applicable law.

Williams, supra

proposed jury instructions on recklessness in order to dispel any confusion


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on the part of the jury was fully within its discretion. See Ballard, supra.



                                                          October 31, 2013

judgment of sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2014




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