J-S56026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: J.S.L., A             :   IN THE SUPERIOR COURT OF
 MINOR                                     :        PENNSYLVANIA
                                           :
                                           :
 APPEAL OF: J.S.L., A MINOR                :
                                           :
                                           :
                                           :
                                           :   No. 1031 MDA 2018


               Appeal from the Order Entered, April 23, 2018,
              in the Court of Common Pleas of Clinton County,
            Juvenile Division at No(s): CP-18-JV-0000076-2017.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                       FILED JANUARY 08, 2019

      Appellant J.S.L., a minor, appeals the dispositional order entered by the

juvenile court adjudicating him delinquent on one count of aggravated assault

of a school employee pursuant to 18 Pa.C.S.A. §2702(a)(5), a felony of the

second degree. After careful review, we affirm.

      This case arises from an incident on a school bus, where the entire

episode was recorded on the bus security camera and admitted into evidence.

On September 22, 2017, as children were boarding the buses at the end of

the school day, Appellant engaged in an altercation with another student.

Appellant wanted to sit next to his girlfriend in the back of the bus, but another

student occupied the seat. Appellant thought this other student was restricted

to sitting in the front seats. Taunts and insults ensued. Appellant lifted the

student by his shirt and backpack and pushed him into the aisle; Appellant
J-S56026-18



testified that at the time of the incident he was 5’10’’, 200 pounds. As the

other student was walking toward the front of the bus, he turned back to

Appellant and exchanged more words and a hand gesture. Appellant, clearly

angered, leapt out of his seat to approach the other student.

      Contemporaneously, the bus driver called for assistance.         School

resource officer David Vangorder was on an adjacent bus and quickly

responded.    Officer Vangorder boarded the bus just after Appellant was

making his way to the other student.      He intervened by physically placing

himself between Appellant and the other student.      Officer Vangorder told

Appellant he would need to leave the bus with him. The Appellant, frustrated

by the perceived injustice, replied: “I’m not fucking going with you.” Officer

Vangorder then stepped toward Appellant, who shoved Officer Vangorder in

the chest forcing him slightly backward. Appellant admitted he gave Officer

Vangorder “a good shove.” The two tussled a bit further, but not with the

same force as the intial shove. Officer Vangorder told Appellant to stop and

calm down, eventually persuading Appellant to sit down in one of the empty

seats. The whole interaction between the Appellant and Officer Vangorder

lasted between 20 and 30 seconds. Another officer and the principal got to

the bus and escorted the Appellant off.

      Officer Vangorder testified that he experienced a cramping sensation in

his arm during the tussle. Immediately after the incident, Officer Vangorder

tried shaking out his arm to rid the sensation. When he looked down, he

noticed his bicep was disfigured and bulged. He went to urgent care where

                                    -2-
J-S56026-18



the preliminary prognosis was a detached bicep. The specifics and extent of

the injury are unknown, as they were deemed inadmissible following the

defense’s objection.1 In any event, Officer Vangorder could not work for seven

weeks and had to undergo painful rehabilitation.

       The trial court determined that the prosecution could not carry the

burden of aggravated assault under 23 Pa.C.S.A. § 2702(a)(2), because,

without medical evidence, there was not enough proof to show that Officer

Vangorder suffered “serious bodily injury.” Instead, the court adjudicated the

Appellant delinquent of aggravated assault under § 2702(a)(5), which only

requires an assault victim, who is a school employee, to suffer mere “bodily

injury.” The court declined to adjudicate on the charges of disorderly conduct

and harassment. On April 23, 2018, the court imposed a term of probation

and ordered Appellant to complete 100 hours community services and to

submit to a behavioral evaluation. See Dispositional Order, 4/23/18, at 1-2.

The court declined to impose restitution. See id.

       Appellant filed this timely appeal. He presents two issues for our review:

          1. Whether the evidence was insufficient to adjudicate the
          juvenile on the charge of aggravated assault.

          2. Whether the finding of delinquency was against the
          weight of the evidence.

See Appellant’s Brief, at 6.


____________________________________________


1 The court excluded further evidence and testimony on the matter because
the Commonwealth had not complied with discovery of the medical records.

                                           -3-
J-S56026-18



      Appellant’s first claim challenges the sufficiency of evidence supporting

the aggravated assault.

      In evaluating a challenge to the sufficiency of the evidence supporting

an adjudication of delinquency, our standard of review is as follows:

          When a juvenile is charged with an act that would constitute
          a crime if committed by an adult, the Commonwealth must
          establish the elements of the crime by proof beyond a
          reasonable doubt. When considering a challenge to the
          sufficiency of the evidence following an adjudication of
          delinquency, we must review the entire record and view the
          evidence in the light most favorable to the Commonwealth.

          In determining whether the Commonwealth presented
          sufficient evidence to meet its burden of proof, the test to
          be applied is whether, viewing the evidence in the light most
          favorable to the Commonwealth, and drawing all reasonable
          inferences therefrom, there is sufficient evidence to find
          every element of the crime charged. The Commonwealth
          may sustain its burden of proving every element of the
          crime beyond a reasonable doubt by wholly circumstantial
          evidence.

          The facts and circumstances established by the
          Commonwealth need not be absolutely incompatible with a
          defendant's innocence. Questions of doubt are for the
          hearing judge, unless the evidence is so weak that, as a
          matter of law, no probability of fact can be drawn from the
          combined circumstances established by the Commonwealth.

In   re   V.C.,   66   A.3d   341,   348-349   (Pa.   Super.   2013)   (quotation

omitted)(citation omitted).

      A person is guilty of aggravated assault if he attempts to cause or

intentionally or knowingly causes bodily injury to [a school employee] while

acting in the scope of his or her employment or because of his or her




                                       -4-
J-S56026-18



employment relationship to the school. 18 Pa.C.S.A. § 2702(a)(5).2 We also

observe that a person acts intentionally with respect to a material element of

the offense when, if the element involves the nature of his conduct or the

result thereof, it is his conscious object to engage in the conduct of that nature

or to cause such result. 18 Pa.C.S.A. § 302(b)(1). A person acts knowingly

with respect to a material element of an offense when, if the element involves

the result of his conduct, he is aware that it is practically certain that his

conduct will cause such a result. 18 Pa.C.S.A. § 302(b)(2). Appellant does

not contest that Officer Vangorder suffered bodily injury. See 18 Pa.C.S.A. §

2301 (defining “bodily injury”).

       Both parties essentially rest their cases on the surveillance video.

Indeed, this video supplies more clarity than mere testimony.          The video

clearly demonstrated that Appellant intended to “engage in the conduct,” i.e.

shove, Officer Vangorder.          As Officer Vangorder placed himself between

Appellant and the other student, Appellant stated that he refused to leave with

Officer Vangorder.      Appellant said this while retracting his arm away from

Officer Vangorder’s reach. Undeterred, Officer Vangorder then took another

step forward toward Appellant.          Appellant testified that he was angry and

frustrated, which was certainly evident in Appellant’s facial expression when

he shoved Officer Vangorder backward. The act was intentional. Less than

____________________________________________


2 In his capacity as a school resource officer, Officer Vangorder met the
statutory definition of a school employee, as he was an “other employee…of
any elementary or secondary publicly funded education institution….”

                                           -5-
J-S56026-18



obvious is the proposition by the Commonwealth that Appellant tried to

wrestle the officer to the ground.         The two briefly tussled in locked arms.

Although this portion of the video is partially obstructed by another student in

the foreground, it appears to show Appellant mostly using his large size to

resist being moved, as opposed to using his size to move Officer Vangorder.3

       Unlike in many aggravated assault cases, this sufficiency challenge does

not hinge on the seriousness of the injury and whether intent can be inferred

from the surrounding circumstances.              See, e.g., Commonwealth v.

Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (“As intent is a subjective frame

of mind, it is of necessity difficult of direct proof. The intent to cause serious

bodily injury may be proven by direct or circumstantial evidence.”) Here, the

evidence is direct, and the statutory requirement for aggravated assault is

Officer Vangorder’s position as a school employee.          We need not address

whether Appellant acted knowingly. There is sufficient evidence to support a

finding that Appellant intentionally shoved Officer Vangorder, who sustained

bodily injury.

       Turning now to Appellant’s second issue,4 we observe our Supreme

Court’s standard for reviewing weight of the evidence claims:

____________________________________________


3 We cannot question the wisdom of the Commonwealth’s discretion to
prosecute Appellant for aggravated, rather than simple, assault. But we note
the Commonwealth’s position that Appellant tried to wrestle Officer Vangorder
to the ground is largely an overstatement.

4We note that Appellant preserved this issue by raising it in a post-disposition
motion.

                                           -6-
J-S56026-18


         The essence of appellate review for a weight claim appears
         to lie in ensuring that the trial court's decision has record
         support. Where the record adequately supports the trial
         court, the trial court has acted within the limits of its
         discretion.

                                     ***

         A motion for a new trial based on a claim that the verdict is
         against the weight of the evidence is addressed to the
         discretion of the trial court. A new trial should not be
         granted because of a mere conflict in the testimony or
         because the judge on the same facts would have arrived at
         a different conclusion. Rather, the role of the trial judge is
         to determine that notwithstanding all the facts, certain facts
         are so clearly of greater weight that to ignore them or to
         give them equal weight with all the facts is to deny justice.

                                     ***

         An appellate court's standard of review when presented with
         a weight of the evidence claim is distinct from the standard
         of review applied by the trial court. Appellate review of a
         weight claim is a review of the exercise of discretion, not of
         the underlying question of whether the verdict is against the
         weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (quotation

marks, quotations, and citations omitted); see also In re C.R., 113 A.3d 328,

336, n.7 (Pa. Super 2015). In order for an appellant to prevail on a challenge

to the weight of the evidence, “the evidence must be so tenuous, vague and

uncertain   that   the   verdict   shocks   the   conscience   of   the   court.”

Commonwealth v. Mucci, 143 A.3d 399, 411 (Pa. Super. 2016) (citation

omitted).

      Here, once again, the surveillance video eliminates any doubt. We note

that all parties are in agreement that Appellant shoved Officer Vangorder in



                                      -7-
J-S56026-18



the chest. We also note that the officer’s injury was to his upper arm. To the

extent any discrepancy about this exists, however, the trial court did not abuse

its discretion in attributing the injury to Appellant’s intentional contact.

       Mucci is instructive. In that case, a police officer suffered back injuries

when the appellant, seeking to flee the crime scene in a vehicle, drove into

the police officer’s cruiser. The appellant argued that the officer was injured

when the police cruiser rammed into his vehicle, not the other way around.

Mucci, 143 A.3d at 409.          We said the discrepancy did not matter.       “The

evidence plainly reveals that, whether Officer Billie was injured when he

‘rammed into’ [a]ppellant’s vehicle, or vice versa, Officer Billie was acting in

accordance with his duty in attempting to stop [a]ppellant’s fleeing vehicle.”

Id.   Consequently, we affirmed the appellant’s conviction for aggravated

assault.5

       Similarly, Officer Vangorder was acting within the scope of his

employment when: he boarded the bus at the driver’s request; he was shoved

by Appellant; and he locked arms with Appellant in the resulting tussle. To

the extent Appellant argues that the injury occurred during this phase of the

altercation, it was not against the weight of the evidence for the trial court to


____________________________________________


5 Mucci was convicted under 18 Pa.C.S.A. § 2702(a)(3), which is specific to
police officers, among others, who are assaulted while in the performance
of their duty. We conclude that this language is the functional equivalent to
the language in § 2702(a)(5), which is specific to school employees, who are
assaulted while acting in the scope of their employment or because of
their employment relationship to the school.

                                           -8-
J-S56026-18



find that Appellant’s intentional contact caused the injury. Our conscience is

not shocked by this result.

      The direct evidence reveals both that there was sufficient evidence to

support aggravated assault and that the trial court’s exercise of discretion was

not against the weight of the evidence.

      Adjudication order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/8/2019




                                     -9-
