J-S84020-16

                                   2017 PA Super 36

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRITTANY MCFADDEN

                            Appellant                  No. 635 EDA 2014


        Appeal from the Judgment of Sentence Dated January 27, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009375-2013
                                         MC-51-CR-0025869-2013


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

OPINION BY SOLANO, J.:                            FILED FEBRUARY 15, 2017

        Appellant Brittany McFadden appeals from the judgment of sentence

following a bench trial and convictions for aggravated assault, conspiracy to

commit aggravated assault, simple assault, recklessly endangering another

person, and criminal mischief. Trial Ct. Op. at 1.1 We affirm.

        At a bench trial held on December 5, 2013, the victim, Michelle

Tolbert, testified that on the afternoon of June 21, 2013, the last day of the

school year, she was working for the City of Philadelphia as a crossing

guard. N.T., 12/5/13, at 13, 28. While she was at her designated street

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2702(a)(3), 903(c), 2701(a), 2705, and 3304(a)(2),
respectively.
J-S84020-16


corner, a car pulled up and Sharday McFadden, a relative of Appellant

Brittany McFadden, exited the car. Id. at 17, 111. Ms. Tolbert did not know

Sharday McFadden. Id. at 17. After a heated discussion, Sharday McFadden

punched Ms. Tolbert in the face. Id. at 18-20.2 A fray ensued, which ended

after the two women fell to the ground. Id. Ms. Tolbert resumed helping

children cross the street. Id. at 20, 26. Ms. Tolbert’s husband, Torrey

Caldwell, who normally accompanies Ms. Tolbert on her work shift but was

running late that day, arrived and called the police. Id. at 24-25.

       Meanwhile, Sharday McFadden made a phone call. N.T. at 20. Within

two or three minutes, a group of people arrived, including Appellant, who

was also unknown to Ms. Tolbert. Id. at 21-22, 36. Sharday McFadden again

approached Ms. Tolbert, who was standing against her truck. Id. at 39. 3

Meanwhile, a group of children from a nearby daycare had stopped by to

give Ms. Tolbert a card to thank her for her help during the school year. Id.

____________________________________________


2
  The subject of the conversation and the motivation for the subsequent fight
were excluded from Ms. Tolbert’s testimony as hearsay. See N.T. at 14-16.
According to police documents, it had something to do with Ms. Tolbert’s
intervention to stop a fight among schoolchildren, including a McFadden
relative. See Ex. C-5 (Ms. Tolbert’s statement to the police); Ex. C-7 (police
incident report); N.T. at 14 (there was an incident between some children),
93 (testimony that some schoolgirls were going to fight), 110-14 (testimony
that Sharday McFadden came to the corner because some schoolgirls wanted
to fight her cousin).
3
 Ms. Tolbert refers to her vehicle as both her “truck” and her “car”; her
husband testified that she drove a Jeep to work that day. See N.T. at 38,
39, 57.



                                           -2-
J-S84020-16


at 39. Shortly after Ms. Tolbert placed the card inside her vehicle, Sharday

McFadden again began punching her. Id. at 22, 38-39. As the two fell to the

ground, Appellant approached and joined in the fray. Id. Ms. Tolbert was on

top of Sharday McFadden, and Appellant “on top of [Ms. Tolbert] from the

back.” Id. at 22. Appellant struck Ms. Tolbert on the back of her head and

scratched the sides of her face. Id. at 22-23. Mr. Caldwell then pulled

Sharday McFadden and Appellant off of his wife, and he and his wife drove

away. Id. at 24-25.4

       Mr. Caldwell testified that when he first arrived, he noticed that Ms.

Tolbert’s shirt was ripped, her vest was off, and her hat was missing. N.T. at

53-54. There was a car parked at the corner, and he saw a person later

identified as Sharday McFadden5 exit and punch Ms. Tolbert. Id. at 54. He

testified that he tried to break up the fight while Ms. Tolbert defended

herself. Id. As he was trying to end the fight, another car arrived and three

or four men surrounded him and began pulling him. Id. at 54-55, 57. Mr.
____________________________________________


4
  On cross-examination, Appellant confronted Ms. Tolbert with a statement
that she gave to the police on the day of the incident. See N.T. at 41-43. In
that statement, Ms. Tolbert said that Sharday McFadden, not Appellant, had
been the one to scratch her face, and that she was knocked to the ground
because Appellant jumped on top of her. Id. Appellant also presented the
transcript of the preliminary hearing, where Ms. Tolbert testified that
Appellant was not only hitting her, but also pulling on her and trying to get
her off of Sharday McFadden. Id. at 45-46.
5
  Mr. Caldwell did not identify the assailant as Sharday McFadden, but as a
thin, light-skinned woman who was not present in the courtroom. N.T. at 54,
57.



                                           -3-
J-S84020-16


Caldwell then called the police. Id. at 57. His wife had stopped fighting and

was leaning against her Jeep, where he saw some children give her a thank

you card. Id. at 57-58.

       Mr. Caldwell testified that, as Ms. Tolbert was facing her car and Mr.

Caldwell was distracted by the new arrivals, Appellant approached and

punched Ms. Tolbert twice in the head. N.T. at 58-59. Mr. Caldwell pushed

Appellant away, and she “might have tripped over one of the guys that were

there.” Id. at 61. He did not see Ms. Tolbert hit Appellant at any point. Id.

at 62. Sharday McFadden returned and again began to hit Ms. Tolbert. Id. at

59-60. 6 Mr. Caldwell testified that the fight ended after his wife “grabbed

[Sharday McFadden] and choke-slammed her on the ground” and when he

became fearful due to the number of people from the neighborhood who had

arrived to watch the fight. Id. at 63.

       Barbara Kener lives in the area of the incident, is Appellant’s neighbor,

and has known Appellant since birth. N.T. at 83-84. Ms. Kener testified she

was at home on the day of the incident, but went out to the street when she

noticed her granddaughter’s book bag lying on her steps. Id. at 92. She ran

to the corner at the same time as Appellant arrived. Id. at 96. When they

got there, Sharday McFadden and Ms. Tolbert were fighting. Id. at 85-86.
____________________________________________


6
  Appellant questioned Mr. Caldwell on cross-examination regarding the
statement he made to the police after the incident, in which he stated that
at the beginning of the third fight he had intercepted a punch from Sharday
McFadden. N.T. at 66-69.



                                           -4-
J-S84020-16


Ms. Kener testified that Appellant tried to stop the fight, but Mr. Caldwell

grabbed Appellant’s arm and threw her to the ground. Id. at 86-87, 94. Ms.

Kener said she never saw Appellant hit Ms. Tolbert. Id. at 87. She testified

that Appellant has a reputation for being “a very quiet person” who “doesn’t

bother anybody” and who is not the type of person to initiate conflict. Id. at

90-91.

       Sameerah Chamberlain, Ms. Kener’s ten-year-old granddaughter (and

Sharday McFadden’s cousin), testified that after walking home from school
                                                                   7
that day she saw the fight start when Ms. Tolbert “snuck”              Sharday

McFadden. N.T. 102-103. She later saw Appellant approach the corner with

Ms. Kener. Id. at 103. Miss Chamberlain said she did not observe Appellant

ever strike Ms. Tolbert. Id. at 105. Rather, according to Miss Chamberlain,

Appellant tried to separate the two fighters, until Mr. Caldwell “slammed her

on the ground.” Id. at 104.

       Appellant testified that she went to the corner that day to retrieve

Sharday McFadden’s five-year-old daughter, who was watching the fight

between her mother and Ms. Tolbert. N.T. at 121. When she arrived at the

corner, the women had already begun fighting, and none of the onlookers

were trying to stop them. Id. at 118-19, 123. Appellant testified that she

attempted to break up the fight, but was slammed on the ground by Mr.
____________________________________________


7
  Miss Chamberlain explained that she meant that “[Ms. Tolbert] hit
[Sharday McFadden] when she wasn’t looking at her.” N.T. at 115.



                                           -5-
J-S84020-16


Caldwell. Id. at 119-20, 123. Appellant testified that she tried to pull

Sharday McFadden out from underneath of Ms. Tolbert, and did not put her

hands on or strike Ms. Tolbert. Id. at 119-20.8 Appellant was pregnant at

the time of the altercation, but the trial court sustained the Commonwealth’s

objections to testimony about that fact. Id. at 70, 84, and 120.

       On January 27, 2014, after finding Appellant guilty of the crimes listed

above, the trial court sentenced Appellant to a total of six to twelve months

of incarceration followed by two years’ probation. Trial Ct. Op. at 1. On

February 26, 2014, Appellant filed a timely notice of appeal to this Court. Id.

After significant delays regarding assembly of the record, the trial court filed

a Rule 1925(a) opinion on January 21, 2016. Trial Ct. Op. at 1.9

____________________________________________


8
 The trial court did not find Appellant’s testimony to be credible. Trial Ct.
Op. at 4.
9
  In June 2014, this Court sent a notice to the trial court about its
delinquency in assembling the record. Ultimately, the record that was
assembled did not contain critical transcripts of the trial court proceedings.
On June 3, 2015, one year after our delinquency notice, we granted a
motion by Appellant to remand this case to the trial court for inclusion of the
necessary transcripts. Meanwhile, Appellant suffered a failure by her counsel
to comply with the trial court’s order to file a Rule 1925(b) statement of
errors complained of on appeal, resulting in the trial court’s issuance of an
opinion asserting that all issues had been waived. Failure to file a Rule
1925(b) statement constitutes such ineffective assistance of counsel that it
entitles the represented criminal defendant to restoration of her waived
appellate rights, Commonwealth v. Halley, 870 A.2d 795, 800-01 (Pa.
2005), a fact Appellant noted in her remand motion. Accordingly, our June 3,
2015 remand order directed Appellant’s counsel to file a Rule 1925(b)
statement and directed the trial court to issue a supplemental Rule 1925(a)
opinion 30 days thereafter. Although Appellant filed a Rule 1925(b)
(Footnote Continued Next Page)


                                           -6-
J-S84020-16



      Appellant presents the following issues for our review:

      [1.] WAS THE EVIDENCE INSUFFICIENT, AS A MATTER OF LAW,
      TO SUSTAIN APPELLANT’S CONVICTION AND [JUDGMENT] OF
      SENTENCE FOR AGGRAVATED ASSAULT, F-2 [(]18 PA. C.S.A. [§]
      2702(A)(3)[)], SINCE THERE WAS NO EVIDENCE THAT THE
      COMPLAINANT, A SCHOOL CROSSING GUARD, IS WITHIN THE
      PROTECTED CLASS OF PERSONS SPECIFIED IN 18 PA. C.S.A [§]
      2702(C)?

      [2.] DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
      SUSTAINING AS “NOT RELEVANT” TESTIMONY REGARDING
      APPELLANT’S BEING PREGNANT AT THE TIME OF THE INCIDENT?

Appellant’s Brief at 2.

                             Sufficiency of the Evidence

      Our standard of review for a sufficiency of the evidence challenge is

well established:

      A claim challenging the sufficiency of the evidence presents a
      question of law. We must determine whether the evidence is
      sufficient to prove every element of the crime beyond a
      reasonable doubt. We must view evidence in the light most
      favorable to the Commonwealth as the verdict winner, and
      accept as true all evidence and all reasonable inferences
      therefrom upon which, if believed, the fact finder properly could
      have based its verdict.

Commonwealth v. Fortune, 68 A.3d 980, 983 (Pa. Super. 2013) (en banc)

(internal quotation marks and citations omitted), appeal denied, 78 A.3d

1089 (Pa. 2013).
                       _______________________
(Footnote Continued)

statement on June 24, 2015, the trial court did not file its Rule 1925(a)
opinion until nearly seven months later. We admonish the trial court and
appellate counsel that they are required to comply with this Court’s rules,
deadlines, and orders. Their failures to do so in this case are unacceptable.



                                            -7-
J-S84020-16


        Appellant was convicted of aggravated assault pursuant to 18 Pa.C.S

§ 2702(a)(3), which states that “a person is guilty of aggravated assault if

he . . . attempts to cause or intentionally or knowingly causes bodily injury

to any of the officers, agents, employees or other persons enumerated in

subsection (c), in the performance of duty.” Subsection (c) lists 38 groups of

persons, including “police officers . . . firefighters, probation/parole officers,

sheriffs, prison authorities, judges, and numerous other public servants.”

Commonwealth v. Rahman, 75 A.3d 497, 501 n.7 (Pa. Super. 2013).10


____________________________________________


10
     Section 2702(c) reads:

        The officers, agents, employees and other persons referred to in
        subsection (a) shall be as follows:

        (1) Police officer.

        (2) Firefighter.

        (3) County adult probation or parole officer.

        (4) County juvenile probation or parole officer.

        (5) An agent of the Pennsylvania Board of Probation and Parole.

        (6) Sheriff.

        (7) Deputy sheriff.

        (8) Liquor control enforcement agent.

        (9) Officer or employee of a correctional institution, county jail or
        prison, juvenile detention center or any other facility to which
        the person has been ordered by the court pursuant to a petition
        alleging delinquency under 42 Pa.C.S. Ch. 63 (relating to
        juvenile matters).
(Footnote Continued Next Page)


                                           -8-
J-S84020-16



                       _______________________
(Footnote Continued)

      (10) Judge of any court in the unified judicial system.

      (11) The Attorney General.

      (12) A deputy attorney general.

      (13) A district attorney.

      (14) An assistant district attorney.

      (15) A public defender.

      (16) An assistant public defender.

      (17) A Federal law enforcement official.

      (18) A State law enforcement official.

      (19) A local law enforcement official.

      (20) Any person employed to assist or who assists any Federal,
      State or local law enforcement official.

      (21) Emergency medical services personnel.

      (22) Parking enforcement officer.

      (23) A magisterial district judge.

      (24) A constable.

      (25) A deputy constable.

      (26) A psychiatric aide.

      (27) A teaching staff member, a school board member or other
      employee, including a student employee, of any elementary or
      secondary   publicly   funded   educational  institution, any
      elementary or secondary private school licensed by the
      Department of Education or any elementary or secondary
      parochial school while acting in the scope of his or her
      employment or because of his or her employment relationship to
      the school.

      (28) Governor.
(Footnote Continued Next Page)


                                            -9-
J-S84020-16


      The trial court found that the victim of the assault, Ms. Tolbert, was

within the classes of persons identified under Subsections 27 and 20 of

Section 2702(c). Trial Ct. Op. at 6. Section 2702(c)(27) lists a teacher,

school board member, or “other employee . . . of any elementary or

secondary publicly funded educational institution, any elementary or

secondary private school licensed by the Department of Education or any

elementary or secondary parochial school while acting in the scope of his or
                       _______________________
(Footnote Continued)


      (29) Lieutenant Governor.

      (30) Auditor General.

      (31) State Treasurer.

      (32) Member of the General Assembly.

      (33) An employee             of   the      Department   of   Environmental
      Protection.

      (34) An individual engaged in the private detective business as
      defined in section 2(a) and (b) of the act of August 21, 1953
      (P.L.1273, No.361), known as The Private Detective Act of 1953.

      (35) An employee or agent of a county children and youth social
      service agency or of the legal representative of such agency.

      (36) A public utility employee or an employee of an electric
      cooperative.

      (37) A wildlife conservation officer or deputy wildlife
      conservation officer of the Pennsylvania Game Commission.

      (38) A waterways conservation officer or deputy waterways
      conservation officer of the Pennsylvania Fish and Boat
      Commission.

18 Pa.C.S. § 2702(c).



                                           - 10 -
J-S84020-16


her employment or because of his or her employment relationship to the

school.” 18 Pa.C.S. § 2702(c)(27). Section 2702(c)(20) includes, “[a]ny

person employed to assist or who assists any Federal, State or local law

enforcement official.” Id. § 2702(c)(20). The trial court stated:

      The circumstantial evidence clearly proves Miss Tolbert falls
      within either the “other employee” category as a crossing guard,
      due to her relationship with the school by crossing students to
      the other side of public streets, or that working in her capacity
      as a crossing guard, Miss Tolbert was doing her duty to serve the
      community to safely escort children across busy streets, similarly
      to local police officers.

Trial Ct. Op. at 6.

      Appellant argues that Ms. Tolbert did not fall under either subsection.

Appellant’s Brief at 7-9. According to Appellant, not only does the

aggravated assault statute not specifically list “crossing guards” anywhere in

Subsection (c), but Ms. Tolbert testified that she was employed by the City

of Philadelphia, not by a school, making her ineligible for inclusion under the

plain text of Subsection (c)(27). Id. at 7-9 (citing N.T., 12/5/13, at 13).

Appellant adds that because no evidence was presented regarding Ms.

Tolbert’s employment or the city department in which she worked (“[p]olice,

school district, streets, recreation, etc.”), she should also not have been

deemed included under Subsection (c)(20). Id. at 7-9 (citing N.T. at 13).

      The Commonwealth counters that “[t]he aggravated assault statute is

broadly drawn when it comes to school-related actors, and extends its

protection to anyone acting in the scope of his or her employment or


                                    - 11 -
J-S84020-16


because   of   his   or   her   employment    relationship   to   the   school.”

Commonwealth’s Brief at 6 (footnote omitted). While admitting that Ms.

Tolbert was employed by the City of Philadelphia and thus was not a school

employee, the Commonwealth claims that the broad wording of Section

2702(c)(27) is sufficient to encompass school crossing guards. Id. The

Commonwealth makes no separate argument regarding Subsection (c)(20).

      Whether assaulting a school crossing guard is encompassed within

Section 2702 is a question of first impression for a Pennsylvania appellate

court. Its resolution requires construction of Section 2702. “In evaluating a

trial court’s application of a statute, our standard of review is plenary and is

limited to determining whether the trial court committed an error of law.”

Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004)

(en banc) (citation omitted). In making this determination, we are guided by

the Statutory Construction Act, Commonwealth v. Merolla, 909 A.2d 337,

345 (Pa. Super. 2006), which dictates:

      § 1921. Legislative intent controls

      (a) The object of all interpretation and construction of statutes is
      to ascertain and effectuate the intention of the General
      Assembly. Every statute shall be construed, if possible, to give
      effect to all its provisions.

      (b) When the words of a statute are clear and free from all
      ambiguity, the letter of it is not to be disregarded under the
      pretext of pursuing its spirit.




                                     - 12 -
J-S84020-16


1 Pa.C.S. § 1921. “As a general rule, the best indication of legislative intent

is the plain language of a statute.” Commonwealth v. Bradley, 834 A.2d

1127, 1132 (Pa. 2003).

       Because the Commonwealth places primary reliance on Section

2702(c)(27), we first examine whether a crossing guard like Ms. Tolbert is

included under that provision. We conclude that she is not. The clear and

unambiguous language of this provision, which we are beholden to uphold,

see 1 Pa.C.S. § 1921(b); Bradley, 834 A.2d at 1132, states that, to be

covered, Ms. Tolbert had to be an “employee” of a publicly-funded, private,

or parochial school who was “acting in the scope of his or her employment or

because of his or her employment relationship to the school.” 18 Pa.C.S. §

2702(c)(27).11 Ms. Tolbert was not such an employee. Rather, Ms. Tolbert

testified that she was employed as a crossing guard by the City of

Philadelphia. See N.T. at 13. The Commonwealth concedes that crossing

guards in Philadelphia are employed by the City, and not by the School

District of Philadelphia, a separate legal entity. See Appellee’s Brief at 6 n.1.

Therefore, Section 2702(c)(27) does not apply to Ms. Tolbert.

       The Commonwealth observes that Section 2702(c)(27) applies both to

a person “acting in the scope of his or her employment” and to someone
____________________________________________


11
   The statute applies to “[a] teaching staff member, a school board member
or other employee, including a student employee.” Ms. Tolbert was not a
teacher, school board member, or student. Therefore, the only applicable
term is “other employee.”



                                          - 13 -
J-S84020-16


acting “because of his or her employment relationship to the school.” It

declares that Ms. Tolbert “was acting in an employment ‘relationship’ to the

school, regardless of her actual employer,” adding: “In Philadelphia, school

crossing guards are employed by the police department; nevertheless they

have an obvious ‘employment relationship’ with the school system.”

Commonwealth Brief at 6, 6 n.1. The Commonwealth continues:

      [H]ad the General Assembly sought to impose liability for
      aggravated assaults perpetrated only against school employees,
      the broader words “employment relationship” would serve no
      purpose. Giving effect to every word of the statute, it is
      presumed that the legislature intended to protect school crossing
      guards under subsection (c)(27) even if they are not direct
      employees of the school. Ms. Tolbert was clearly within the
      statutory definition because the statute includes anyone with an
      “employment relationship to the school.” 18 Pa.C.S.
      § 2702(c)(27).

Id. at 6-7. We disagree.

      While the scope of Ms. Tolbert’s employment as a school crossing

guard certainly related to a school or schools, the statute still requires that

she be a school “employee” to fall under Section 2702(c)(27). The clause

stating that the provision applies to an employee while acting within the

scope of employment or “because of his or her employment relationship with

the school” merely clarifies that whether the employee is acting within the

scope of his or her employment is not determinative of whether Section

2702(c)(27) applies. But it does not remove the requirement of employment

altogether. The Commonwealth’s declaration that Ms. Tolbert had an

“obvious ‘employment relationship’ with the school system” adds nothing to


                                    - 14 -
J-S84020-16


this analysis. She may indeed have had a “relationship” to the school system

by virtue of her work as a school crossing guard, but that did not establish

that she had an employment relationship with it.

     The clear wording of the statute compels this interpretation, but even

if the statute were not explicit, we would reach the same result. We are

supported in our interpretation by Section 2702’s legislative history. See

Statutory Construction Act, 1 Pa.C.S. § 1921(c)(7) (if words of statute are

not explicit, Legislature’s intention may be ascertained by considering

“contemporaneous legislative history”).

     Subsection (c)(27) was added to the aggravated assault statute in

December 1998. See Act No. 1998-159, § 1, P.L. 1245 (Dec. 21, 1998).

Before that amendment, Section 2702 addressed schools in its Subsection

(a)(5), which made a person guilty of aggravated assault if he —

     attempts to cause or intentionally or knowingly causes bodily
     injury to a teaching staff member, school board member, other
     employee or student of any elementary or secondary publicly-
     funded educational institution, any elementary or secondary
     private school licensed by the Department of Education or any
     elementary or secondary parochial school while acting in the
     scope of his or her employment or because of his or her
     employment relationship to the school.

Act No. 1996-75, § 1, P.L. 478 (Jul. 2, 1996). In July 1998, we interpreted

that provision in Commonwealth v. Scott, 546 A.2d 96 (Pa. Super. 1998),

appeal denied, 563 A.2d 497 (Pa. 1989), to mean that the statute applied

to an assault on any student, regardless of whether the student was an

employee of the school. We reasoned that the provision referred to an “other


                                   - 15 -
J-S84020-16


employee or student,” which suggested that the student did not have to be

an employee, and we relied on legislative history showing that the words “or

student” had been added in 1980 because of a concern with assaults on

students in schools. Scott, 546 A.2d at 98-100 (emphasis added). The

Legislature’s December 1998 amendment overturned this interpretation by

changing the phrase “other employee or student” in Section 2702(a)(5) to

“or other employee, including a student employee.” That change made it

clear that only an “employee” was intended to be covered under that clause

and that a student was covered only if he or she was a “student employee.”

At the same time, the Legislature enacted Section 2702(c)(27) and

employed identical wording in that provision to that in amended subsection

(a)(5).12 We therefore conclude that the limitation to school “employees” in

subsection (c)(27) was deliberate.

       Because we conclude that the trial court erred in holding that Ms.

Tolbert fell within the ambit of Section 2702(c)(27), we hold that Appellant

could not be convicted of aggravated assault on that basis. We therefore

turn to whether Ms. Tolbert could be convicted under Section 2702(c)(20),

which applies to assaults on “[a]ny person employed to assist or who assists

____________________________________________


12
    Coverage of some student non-employees was restored by 2013
amendments that added protection for children under 6 years of age and
children under 13 years of age. Those new subsections cover all children, not
just students. See Act No. 2014-118, § 2, P.L. 1198 (Dec. 18, 2013) (adding
Section 2702(a)(8) and (9)).



                                          - 16 -
J-S84020-16


any Federal, State or local law enforcement official.” 18 Pa.C.S. § 2702

(c)(20). We note that, unlike subsection (c)(27), this subsection does not

require an employer–employee relationship; it applies to all who assist law

enforcement and who are assaulted “in the performance of duty.” See id. §

2702(a)(3), (c)(20).

      It is undisputed that the altercation at issue here occurred while Ms.

Tolbert was acting as a crossing guard pursuant to her employment with the

City. The assault occurred during the victim’s shift while she was standing on

her assigned street corner, performing her job tasks, and wearing a uniform.

See N.T. 13-14, 20, 26. Ms. Tolbert’s assigned job was to help students to

cross the street, and she was positioned somewhere near a daycare center

as she did so. See id. 25, 39, 58. As the trial court observed: Ms. Tolbert’s

“job is to help school children cross the street. Her hours are during the

dismissal time when the children are coming and going to school. She has a

uniform pertaining [to her job].” Id. at 180.

      We conclude that there was sufficient evidence presented at trial to

include Ms. Tolbert under Section 2702(c)(20). As noted by the trial court,

while “working in her capacity as a crossing guard, Miss Tolbert was doing

her duty to serve the community to safely escort children across busy

streets, similarly to local police officers.” Trial Ct. Op. at 6. While the

Commonwealth failed to present evidence at trial that the victim’s




                                    - 17 -
J-S84020-16


employment by the City was through its police department,13 Ms. Tolbert’s

job tasks may easily be characterized as providing assistance to local law

enforcement. Indeed, for this reason, the Commonwealth Court has held

that school crossing guards in Philadelphia may be subject to the same rules

of conduct applicable to City police officers. Civil Serv. Comm’n of Phila.

v. Wiseman, 501 A.2d 350, 353 (Pa. Cmwlth. 1985), appeal denied, 538

A.2d 880 (Pa. 1987).14

       Appellant argues that several Pennsylvania statutes suggest that

school crossing guards do not qualify as law enforcement officers. See

Appellant’s Brief at 8-9 (citing Borough Code, 8 Pa.C.S. § 1127; Third Class

City Code, 11 Pa.C.S. § 12010; First Class Township Code, 53 P.S. § 56416;

and Second Class Township Code, 53 P.S. § 66915). Notably, none of these

statutes applies to crossing guards in Philadelphia, a city of the first class.

See City Classification Law § 1, 53 P.S. § 101 (classifying cities with

populations of one million or more as cities of the first class). The statutes

state that school crossing guards are ineligible for the employment benefits,

____________________________________________


13
   Although the Commonwealth states in its brief that Ms. Tolbert is
employed by the Philadelphia Police Department, Commonwealth Brief at 6
n.1, there is no support for that statement in the evidence presented at trial.
14
  Although the Commonwealth Court’s decisions are not binding on this
Court, see NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296,
308 n.7 (Pa. Super. 2012), the court’s decision in Wiseman is informative
when we consider whether a crossing guard is someone who assists local law
enforcement for purposes of Section 2702(c)(20).



                                          - 18 -
J-S84020-16


unemployment benefits, pensions, or collective bargaining rights that pertain

to policemen, but those stipulations do not show that crossing guards are

not employed to assist law enforcement — the pertinent requirement under

Section 2702(c)(20). More to the point, the statutes uniformly define

crossing guards’ duties as management of traffic and pedestrians in areas

identified by the municipal police force, and they call for training and

assistance to be provided to the crossing guards by the local police

department. See 8 Pa.C.S. § 1127(b)(2), (3); 11 Pa.C.S. § 12010(b)(1),

(c)(1); 53 P.S. §§ 56416(b), 66915(c). To the extent Appellant argues that

these statutes are relevant to assessment of crossing guards’ duties and

responsibilities, Appellant’s argument bolsters the conclusion that crossing

guards are persons who assist local law enforcement. Appellant makes no

suggestion that the duties of crossing guards in Philadelphia are different

from those in these other classes of municipalities, and, indeed, her

argument presupposes that they are similar.

     We conclude that Philadelphia school crossing guards like Ms. Tolbert

are persons who assist local law enforcement and therefore are within the

category of persons listed under 18 Pa. C.S. § 2702(c)(20). We therefore

hold that there was sufficient evidence for the trial court to find Appellant

guilty of aggravated assault pursuant to 18 Pa.C.S § 2702(a)(3).




                                   - 19 -
J-S84020-16


                           Admission of Evidence

      In her second issue, Appellant complains that the trial court erred by

sustaining the Commonwealth’s objections to testimony that Appellant was

pregnant at the time of the assault. Appellant’s Brief at 10 (citing N.T. at 70,

84, and 120). According to Appellant, the testimony was relevant “to show

the extent of her involvement in the fight.” Id. Appellant asserts that it is

the purview of the fact-finder to determine whether Appellant’s pregnant

status actually affected her involvement in the incident. Id.

      The trial court excluded this testimony as irrelevant because “[t]here

is no rational relationship between pregnancy and the propensity to engage

in an altercation. There is no reason to believe that a woman would avoid

fighting merely because she is pregnant.” Trial Ct. Op. at 7. The trial court

also found that the testimony was more prejudicial than probative: “The

admission of the defendant being pregnant would interfere with the fact-

finder being impartial, as it would likely cause the fact-finder to sympathize

with the defendant based on emotions and not facts.” Id. at 7-8.

      “The admission of evidence is committed to the sound discretion of the

trial court and an appellate court may reverse only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. Bardo, 709

A.2d 871, 877 (Pa.), cert. denied, 525 U.S. 936 (1998).

      Admissibility depends on relevance and probative value.
      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

                                     - 20 -
J-S84020-16


      regarding a material fact. Once evidence is found to be relevant,
      it will be inadmissible only if its probative value is substantially
      outweighed by the danger of unfair prejudice or confusion.

Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super. 1999)

(quotation marks and citations omitted), appeal denied, 795 A.2d 972 (Pa.

2000). “Unfair prejudice” is “a tendency to suggest a decision on an

improper basis or to divert the jury’s attention away from its duty of

weighing the evidence impartially.” Pa.R.Evid. 403 cmt.

      The trial court will be reversed only if an error in the admission of

evidence contributed to the verdict. Commonwealth v. Konias, 136 A.3d

1014, 1022 (Pa. Super.), appeal denied, 145 A.3d 724 (Pa. 2016). This

was a bench trial, and a trial court acting as the fact-finder “is presumed to

know the law, ignore prejudicial statements, and disregard inadmissible

evidence.” Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014).

      Viewed under these standards, this issue merits no relief. While a

person’s medical condition may be slightly probative as to whether and the

extent to which that person would be involved in a brawl, the trial court was

well within its discretion to find that potential prejudice from testimony

about Appellant’s pregnancy would substantially outweigh any probative

value provided by that fact. See Pa.R.Evid. 403.

      Furthermore, although some testimony directly discussing Appellant’s

pregnancy was excluded, other testimony referencing Appellant’s pregnancy

was admitted several times during the course of the trial. See N.T. at 38-39,



                                     - 21 -
J-S84020-16


62, 87, 89, 121. This included testimony elicited by the prosecutor, see id.

at 125, and language contained within a police incident report that was

introduced into evidence upon stipulation by both parties, id. at 126.

Therefore, the occasions on which the Commonwealth’s objections were

sustained by the court could not logically have contributed to the verdict.

Konias, 136 A.3d at 1022.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




                                   - 22 -
