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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
STEVE LEVENGOOD,                          :         No. 1365 MDA 2017
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, August 23, 2017,
              in the Court of Common Pleas of Lebanon County
              Criminal Division at No. CP-38-CR-0001566-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 03, 2018

        Steve Levengood appeals from the August 23, 2017 aggregate

judgment of sentence of 3 to 7 years’ imprisonment imposed after a jury

found him guilty of aggravated assault and simple assault.1        After careful

review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts and procedural history of

this case as follows:

                    On the night of June 27, 2016, after months of
              a strained and often hostile relationship, [appellant]
              and his next-door neighbor, Darnell Pemberton
              (hereinafter “the victim”), stood at their respective
              property lines engaged in a heated argument.
              Within minutes of the face to face encounter,
              [a]ppellant suddenly punched the victim in the jaw.
              The victim fell backward from the force of the blow
              and his head impacted against the asphalt driveway

1   18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1), respectively.
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            whereupon he sustained traumatic brain injury.
            Shortly thereafter, law enforcement and emergency
            medical personnel responded and the victim was
            transported to the hospital for treatment.

                   Appellant was charged with Aggravated Assault
            and Simple Assault in relation to the above-described
            incident. After a three day jury trial, [a]ppellant was
            found guilty on both counts and on August 23, 2017,
            th[e trial c]ourt sentenced [a]ppellant to a minimum
            of three years and a maximum of seven years in a
            state correctional facility, along with fines, restitution
            and costs of prosecution. At sentencing, counsel for
            [a]ppellant made an oral motion for bail pending
            appeal, which th[e trial c]ourt denied. Appellant did
            not file any other post-sentence motions.

Trial court opinion, 10/13/17 at 1-2 (footnotes omitted).

      On August 25, 2017, appellant filed a timely notice of appeal.     That

same day, the trial court directed appellant to file a concise statement of

errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on September 11, 2017, and

the trial court filed its Rule 1925(a) opinion on October 13, 2017. See id.

      Appellant raises the following issues for our review:

            1.    Whether there was sufficient evidence to
                  support the jury’s verdict as to aggravated
                  assault as the Commonwealth failed to prove
                  that [a]ppellant’s action in punching the victim
                  one time in the face established that
                  [a]ppellant    intentionally,   knowingly      or
                  recklessly caused serious bodily injury?

            2.    Whether the trial court erred in allowing the
                  Commonwealth to present a slow-motion video
                  of the incident that captured [a]ppellant
                  punching the victim in the face since such
                  evidence did not establish any probative value


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                   as to [a]ppellant’s specific intent and only
                   prejudiced [a]ppellant by demonstrating the
                   incident as neither [a]ppellant nor the victim
                   observed the altercation in real time?

Appellant’s brief at 6.

      We begin by addressing appellant’s claim that there is insufficient

evidence to sustain his conviction for aggravated assault. In support of this

contention, appellant avers that “the Commonwealth failed to prove that

[his] action in punching the victim one time in the face established that [he]

intentionally, knowingly, or recklessly caused serious bodily injury.” (Id. at

14.) For the following reasons, we disagree.

      Our standard of review in assessing whether there was sufficient

evidence to sustain appellant’s conviction for aggravated assault is well

settled.

                  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, is sufficient to
            prove every element of the offense beyond a
            reasonable doubt. As an appellate court, we may
            not re-weigh the evidence and substitute our
            judgment for that of the fact-finder. Any question of
            doubt is for 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. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).




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     A person will be found guilty of aggravated assault if he “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. § 2702(a)(1).      The

term “serious bodily injury” is defined by statute as “[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.A. § 2301. “When a victim actually sustains

serious bodily injury, the Commonwealth can, but does not necessarily have

to, establish specific intent to cause such harm . . . the statute’s intent

requirement can be met if the defendant acts recklessly under circumstances

manifesting an extreme indifference to human life.”           Commonwealth v.

Burton, 2 A.3d 598, 602 (Pa.Super. 2010) (en banc) (internal citation

omitted), appeal denied, 32 A.3d 1275 (Pa. 2011).

     Viewing     the   evidence   in   the     light   most   favorable   to   the

Commonwealth, the verdict winner, we find that there was sufficient

evidence from which the jury could conclude that appellant recklessly caused

serious bodily injury to the victim.         The Crimes Code defines reckless

conduct as follows:

            A person acts recklessly with respect to a material
            element of an offense when he consciously
            disregards a substantial and unjustifiable risk that
            the material element exists or will result from his
            conduct. The risk must be of such a nature and
            degree that, considering the nature and intent of the


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           actor’s conduct and the circumstances known to him,
           its disregard involves a gross deviation from the
           standard of conduct that a reasonable person would
           observe in the actor's situation.

18 Pa.C.S.A § 302(b)(3).

     In Commonwealth v. Smith, 956 A.2d 1029 (Pa.Super. 2008),

appeal denied, 989 A.2d 917 (Pa. 2010), this court recognized that a

heightened degree of recklessness, akin to malice in a murder case, is

required for aggravated assault convictions:

           To prevail on a theory of recklessness [in an
           aggravated assault prosecution], the Commonwealth
           must show an assailant’s recklessness rose to the
           level of malice, a crucial element to sustain a
           conviction for aggravated assault.

           Malice exists where there is a wickedness of
           disposition, hardness of heart, cruelty, recklessness
           of consequences, and a mind regardless of social
           duty, although a particular person may not be
           intended to be injured. Where malice is based on a
           reckless disregard of consequences, it is not
           sufficient to show mere recklessness; rather, it
           must be shown the defendant consciously
           disregarded an unjustified and extremely high
           risk that his actions might cause death or
           serious bodily injury. A defendant must display a
           conscious disregard for almost certain death or injury
           such that it is tantamount to an actual desire to
           injure or kill; at the very least, the conduct must be
           such that one could reasonably anticipate death or
           serious bodily injury would likely and logically result.

           The circumstances showing intent to cause serious
           bodily injury apply with equal force to prove
           recklessness to a degree that one would reasonably
           anticipate serious bodily injury as a likely and logical
           result.



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Id. at 1036-1037 (internal citations omitted; emphasis added).

      This court has previously addressed similar situation in Burton.     In

Burton, an en banc panel of this court was faced with determining whether

the Commonwealth presented sufficient evidence to support a conviction for

aggravated assault where defendant provoked an altercation with the

smaller, older victim and landed a single punch to the victim’s head.

Burton, 2 A.3d at 599-601.     The victim in Burton sustained serious and

permanent injuries to his brain and spine as a result of this assault. Id. The

Burton court found that there was sufficient evidence that defendant

intentionally or knowingly proceeded in a manner that manifested an

extreme indifference to the value of the victim’s life, thus supporting his

conviction for aggravated assault. Id. at 602-603. The Burton court based

this decision, in part, on the fact that defendant was much larger and

stronger than the victim; that “the victim was caught unaware” by

defendant’s single blow to his head; and defendant demonstrated an utter

lack of remorse or concern for the victim as he lay unconscious in the street

by making several “gloating remarks.” Id. at 603-604.

      Similarly, the testimonial and video evidence presented in this matter

established that during the course of a verbal argument, appellant blindsided

the victim with a punch to the jaw after shining a flashlight “in [his] eyes”

“less than an inch from [his] face[,]” ostensibly blinding him.     (Notes of

testimony, 6/12/17 at 34-35, 40-42; 6/13/17 at 221-222.)          As the trial



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court recognized in its opinion, “[t]he fact that [a]ppellant was shining a

flashlight in the victim’s face provides support for the inference that the

victim was caught unaware and unprepared for the blow to the head . . . .”

(See trial court opinion, 10/13/17 at 9 (citation omitted).)     This assault

rendered the victim unconscious and caused him to fall back and strike his

head on the asphalt driveway.      (Notes of testimony, 6/12/17 at 35-36;

6/13/17 at 221-222.)

      The Commonwealth introduced video footage at trial that was taken by

both appellant’s wife (hereinafter, “Levengood Video”) and the victim’s

security camera (hereinafter, “Pemberton Video”) depicting this assault.

(See notes of testimony, 6/12/17 at 37, 46, 48.) Appellant testified at trial

that the Levengood Video depicts him shining a light in the victim’s face,

hitting him in the face, and then immediately turning around and telling his

wife to call 911 “to get the police there.” (Notes of testimony, 6/13/17 at

221-222, 246.) Likewise, the record establishes that the Pemberton Video

depicts appellant walking toward the victim, initiating a verbal argument,

and shining a flashlight very close to the victim’s face.     (See notes of

testimony, 6/12/17 at 39-40.)    This video further demonstrates that after

the victim admittedly attempted to swat the flashlight out of his face with an

open hand, appellant shifted the flashlight to his left hand and immediately

struck the victim with his dominant right fist.   (Id. at 42, 108; notes of

testimony, 6/13/17 at 221, 247-248.)



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      Additionally, like in Burton, the evidence establishes that there was a

significant size difference between appellant and the victim in this matter.

Lebanon City Police Chief Daniel Wright testified that appellant specifically

denied feeling afraid or threatened by the victim and that according to

PennDOT information, appellant is 5 inches taller than the victim and, in

Chief Wright’s estimation, 40 to 50 pounds heavier.     (Notes of testimony,

6/13/17 at 155-156.)      Appellant, in turn, testified that he is 5-feet,

11-inches tall, weighed approximately 195 pounds at the time of the assault,

and admitted that he is significantly larger than the victim.         (Id. at

249-250.)   Appellant also acknowledged that he did not render aid to the

victim as he lay unconscious on the driveway because they “were on bad

terms” and that “he figured he would have been up by now.” (Id. at 221-

222.) The record further establishes that no ambulance was called to the

scene until after Officer Sean McCarrick arrived and determined that the

victim was bleeding from his head, was incoherent, and could not speak or

walk properly. (Id. at 85-90.)

      The evidence further establishes that the victim did, in fact, sustain

serious bodily injury as a result of this assault. The victim was hospitalized

for “almost two weeks” following this assault and had to undergo speech and

physical therapy in order to learn how to speak properly and walk again.

(Notes of testimony, 6/12/17 at 86-87.)        The victim testified that he

continues to suffer from severe migraines due to light sensitivity and that



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this condition caused him to lose his job.      (Id. at 88-93.)    Dr. Justin

Chandler, the victim’s supervising physician, testified that the victim

remained in the Intensive Care Unit at Milton S. Hershey Medical Center for

two days and suffered multiple traumatic brain injuries as a result of this

assault, including a subarachnoid hemorrhage and a smaller contusion, or

bruising of the brain.     (Id. at 126-127.)      Dr. Chandler opined that

appellant’s injuries are consistent with the victim’s receiving a blow to the

head and then falling backwards, striking his head on the asphalt. (Id. at

128-129). Dr. Chandler further noted that, in his professional opinion, the

victim’s injuries constituted a serious bodily injury in that they caused

protracted loss or impairment of bodily function.         (Id. at 136-137).

      Based on the foregoing, we find no error on the part of the trial court

in concluding that appellant recklessly caused serious bodily injury to the

victim under circumstances manifesting extreme indifference to the value of

human life.    Accordingly, appellant’s claim that there was insufficient

evidence to sustain his conviction for aggravated assault must fail.     See,

e.g., Burton, 2 A.3d at 599.

      Appellant next argues that the trial court abused its discretion in

allowing the Commonwealth to introduce a slow-motion video of the assault

to the jury. (Appellant’s brief at 35.) Appellant maintains that the probative

value of this video was outweighed by its prejudicial impact in that the video

had no bearing as to his intent and only served to distort the events of this



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incident “by demonstrating the incident as neither [a]ppellant nor the victim

observed the altercation in real time.” (Id.) We disagree.

      “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). “An abuse of discretion is not merely an error of judgment; rather

discretion is abused when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will, as shown by the evidence or the record.”

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

      This court has long recognized that,

            [t]he threshold inquiry with admission of evidence is
            whether the evidence is relevant.          Evidence is
            relevant if it logically tends to establish a material
            fact in the case, tends to make a fact at issue more
            or less probable, or supports a reasonable inference
            or presumption regarding the existence of a material
            fact. In addition, evidence is only admissible where
            the probative value of the evidence outweighs its
            prejudicial impact.

Id. at 750 (citations and internal quotation marks omitted).

      “With respect to the admissibility of slow motion video into evidence,

[our supreme court] has held that such representations are not prohibited,

and that the standard to be applied by the trial court is the same as it is for



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the admission of other evidence.”      Commonwealth v. Cash, 137 A.3d

1262, 1276 (Pa. 2016) (citation omitted), cert. denied, 137 S.Ct. 1202

(2017).   “If the judge concludes that the jury’s understanding will be

enhanced and that the slow motion or freeze frame is more probative than

prejudicial, then the judge should admit the evidence.” Commonwealth v.

Jordan, 65 A.3d 318, 329 (Pa. 2013) (citation omitted), cert. denied, 134

S.Ct. 1275 (2014).

      Upon review, we cannot conclude that the trial court abused its

discretion by admitting the slow-motion video footage in this case. We find

that the trial court’s opinion comprehensively discusses and disposes of this

claim. Accordingly, we adopt the following rationale of the trial court as our

own for purposes of appellate review of this claim:

                   When the Commonwealth was preparing to
            present portions of the Pemberton Video in slow
            motion, counsel for [a]ppellant objected to
            presentation of the slow[-]motion video on the basis
            that its probative value is outweighed by its
            prejudicial effect against [a]ppellant in the issue of
            self-defense and his reasonable state of mind.
            ([Notes of testimony, 6/13/17, at 145.])            The
            Commonwealth argued that, since [a]ppellant raised
            the issue of self-defense, allowing the jury to view
            the portion of the Pemberton Video in slow motion
            provides the opportunity for the jury to determine
            whether the victim actually took a swing at
            [a]ppellant or whether he was merely swatting the
            flashlight away, as he had testified. [(Id.)] The trial
            c]ourt overruled the objection and allowed the slow-
            motion portion of the Pemberton Video to be played
            with a cautionary instruction provided to the jury.




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                   The Pemberton Video is recorded at a slight
            distance from where the assault occurred. While
            [a]ppellant’s concerns regarding the real-time effect
            of reasonableness upon his actions are given
            consideration, it must also be of concern that the
            jury is not afforded a closer view of the events that
            occurred leading to the assault, whereas [a]ppellant
            was obviously within striking distance of the victim.
            Allowing a portion of the video to be played in
            slow[]motion gives the jury the ability to mitigate
            the effect of distance. Therefore, the probative value
            of the slow-motion portion of the Pemberton Video
            outweighed its prejudicial effect in that it allowed the
            jury to determine whether the victim did indeed
            swing at the [a]ppellant as he had alleged.

Trial court opinion, 10/13/17 at 12 (citation to notes of testimony

reformatted).

      Moreover, we emphasize that our supreme court has repeatedly

recognized that “when examining the potential for undue prejudice, a

cautionary jury instruction may ameliorate the prejudicial effect of the

proffered evidence.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.

2014) (citations omitted), cert. denied, 135 S.Ct. 164 (2014); see also

Commonwealth v. Sherwood, 982 A.2d 483, 497-498 (Pa. 2009) (finding

that cautionary instructions were sufficient to overcome the prejudicial effect

of prior bad acts evidence), cert. denied, 559 U.S. 1111 (2010). Jurors are

presumed to follow the trial court’s instructions.        Commonwealth v.

Elliott, 80 A.3d 415, 445 (Pa. 2013), cert. denied, 135 S.Ct. 50 (2014).

Thus, any potential prejudice that may have resulted from the introduction

of this slow-motion video footage at trial was cured by the trial court’s



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cautionary instruction to the jury.     (See notes of testimony, 6/13/17 at

146-147.)

     For the foregoing reasons, we affirm appellant’s August 23, 2017

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2018




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