J-A30014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VONDA KAY BROWN                            :
                                               :
                       Appellant               :   No. 615 WDA 2017

         Appeal from the Judgment of Sentence Entered March 9, 2017
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0004011-2015


BEFORE:      SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED APRIL 5, 2019

       Appellant Vonda Kay Brown appeals from the judgment of sentence

entered on March 9, 2017, following her conviction for, inter alia, aggravated

assault, 18 Pa.C.S. § 2702(a)(1).1 After careful review, we affirm.

       The trial court set forth the following factual history:

              This matter arises out of the . . . charges being filed against
       [Appellant] when her severely disabled son was found to have
       second degree burns to his right hand while under the care of
       [Appellant]. The Commonwealth established that on October 13,
       2014[,] the victim was brought by [Appellant] to the emergency
       room of Ohio Valley Hospital at 7:29 p.m. with a complaint of right
       hand swelling. The triage nurse described the victim’s right hand
       as being swollen with multiple areas of large serosanguineous-
       filled blisters. [Appellant] stated her son woke up with his hand

____________________________________________


1   Appellant also plead guilty to one count of false/fraudulent medical
assistance claim, 62 P.S. § 1407(a)(1), and one count of unentitled
reimbursement, 62 P.S. § 1407(a)(12), at a separate docket and was
sentenced for those convictions on February 7, 2017. Those convictions are
not implicated in the instant appeal.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     in that condition and that for the past few days the victim had
     been hitting himself in the mouth with his right hand and that she
     had put a sock on his hand to protect it and that when she
     removed the sock that morning his hand was swollen. The triage
     nurse believed that based on the appearance of his hand that it
     had been burned. She testified that after she conducted her
     examination she notified the [hospital physician that] victim’s
     hand was burned.

            The Commonwealth offered photographs of the victim’s
     hand taken at the time of his presentation to the hospital which
     showed the swelling and blistering of the hand as well as a clear
     straight line of demarcation of the injury in the area of the wrist.
     As a result of his disability, the victim was described as being non-
     verbal with his arms, wrists and legs being severely contracted.
     Although [Appellant] informed the nursing personnel that the
     victim had been hitting his hand on his face, there was no bruising
     or injuries to his face.
           The Commonwealth called Officer Greg Boss of the City of
     Pittsburgh Police Sex Assault and Family Crisis Unit who testified
     that during his investigation he interviewed [Appellant] and that:
           She told me that sometime between the 10th and
           13th her son [hit] himself in the mouth with his right
           hand, which caused a cut to his hand. At that time
           she covered it to protect [it] with a sock, and a few
           days later she noticed after she took the sock off that
           it was badly infected at the time.
            Boss also testified that [Appellant] was “very clear” during
     their interview “that she was the sole provider and caretaker for
     her son, nobody else cared for him but her.”
           On cross examination Boss acknowledged he initially
     interviewed the victim’s primary care physician who wasn’t able
     to conclusively say how the injury happened and, therefore,
     determined that the charges were “unfounded.” He also testified,
     however, that at that time he had not yet reviewed the
     photographs of the victim’s hand or obtained the medical records.
     He further testified that: “So when I got the pictures and I saw
     how severe they were, I felt that it needed to be investigated more
     thoroughly.” He also spoke with physicians, including Dr. Stacy
     Lane, who informed him that the injury to the victim’s hand was
     a submersion burn.

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            The Commonwealth also called Dr. Stacy Lane, an infectious
     disease specialist. Dr. Lane testified that she examined the victim
     on October 14, 2014 to determine if his injury was the result of
     an infection. She indicated that her examination showed that the
     victim had “marked bulbous lesions of his hand with splitting.”
     She testified on her examinations he did not have any of the signs
     of a primary infection, including white blood cell count elevation,
     fever, elevated C-reactive protein or elevated sedimentation rate
     and his blood cultures were normal. She testified that there were
     no bite marks or cuts on the hand and that there was no
     purulence, puss or induration which would be consistent with an
     infection from a bite or infectious injury to the hand. She indicated
     that if the injury was the result of a bite which is then covered
     with a sock for an extended period there would be significant
     purulence, a foul smell, necrosis and disfigurement. It was her
     opinion the injury was a burn with resulting cellulitis. She testified
     on cross-examination that she believed the injuries were caused
     when the hand was “dunked in something hot,” but acknowledged
     that she could not determine whether it was something hot or
     something chemical.
            The Commonwealth also called Dr. Michael Lally, a general
     and vascular surgeon, who testified that he examined the victim
     on October 14, 2014 and found that his hand was covered with
     water blisters which he believed were from a burn from
     immersion. Due to the appearance of the injury he ordered that
     photographs be taken. He testified that all the melanin in the skin
     was burn[ed] and lifted off and water blisters were uniformly
     distributed across the entire hand all the way up from the nails to
     the transition area of the wrist leaving [a] pink area of underlying
     dermis. Dr. Lally testified that in a thermal or scald injury the first
     thing that happens is that water blisters occur over the first 5 to
     7 days after a burn. The blisters then drain and over the course
     of the next weeks the area is repopulated with epidermal cells and
     new skin. Dr. Lally testified that he was informed that the alleged
     cause of the injury was a sock or glove being placed over a bite
     or other injury to the hand, however, the wound or injury to the
     victim’s hand was not consistent with that mechanism of injury.
     Dr. Lally testified that if there was infection there would be a
     central area of death of the skin and the subcutaneous tissue
     would be liquefied and it would spread out in a starburst pattern
     and work its way up the limb. He testified that the victim’s hand
     did not have any of the characteristics of an infection. He testified
     the injury was equally distributed over the entire hand both on the


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     palmer and dorsal sides and even in the webs between the fingers
     with a sharp demarcation line of the injury at the level of the
     [wrist]. Dr. Lally further testified that the victim did not have any
     of the signs of infection which would have included redness
     spreading up his entire arm, swollen lymph nodes in the armpit,
     elevated white count, fever, or other signs of toxicity. Dr. Lally
     testified that the victim proceeded through the expected stages of
     recovery of a scald burn. Dr. Lally testified that it was his opinion
     that the injury was either a thermal or chemical burn.
            The Commonwealth also called Dr. Ariel Aballay, a board-
     certified general surgeon who practiced burn surgery for 10 years
     and was director of the West Penn burn unit for three years.
     Dr. Aballay testified that he reviewed the medical records and the
     pictures of the victim’s hand and interviewed the individuals
     involved in his care. He testified that based on his review of
     materials the victim’s injuries were consistent with a second
     degree burn. The characteristics of the injuries were the presence
     of blisters on the entire hand and a clear line of demarcation
     between burned and normal skin which was consistent with an
     injury caused by the submersion of the hand into a hot liquid.
           Dr. Aballay also testified there [were] no splattering burns
     above the demarcation line which would be consistent with
     someone accidently placing their hand in a hot liquid and then
     attempting to remove it quickly. In addition, based on the victim
     having severe contraction of the hips, knees, elbows and wrists it
     was unlikely that the victim would extend the hand and put it [in]
     a container with water by himself. He also testified that the
     appearance of the blisters from a burn would be within 24 to 72
     hours depending on the temperature of the water and the time of
     exposure.
            Dr. Aballay testified that the description of the injury
     occurring from either a bite or blow to the hand which was then
     covered by a sock, which then resulted in infection, was
     inconsistent with the demarcation line of the injury at the wrist
     and the involvement of the palmer aspect of the hand. On cross
     examination Dr. Aballay testified that the injury was not consistent
     with a chemical burn due to the uniformity of the injury between
     the fingers, which was consistent with hot water. He testified that
     in order to have a second degree burn of the nature shown by the
     victim the hand would have to be submerged in hot water at 120°F
     for several minutes but as the temperature increases the length
     of time necessary to cause the burn decreases.


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           The Commonwealth called Jennifer Sneer, an agent for the
     Medicaid Fraud Control Section of the office of the Attorney
     General who testified that she interviewed [Appellant] concerning
     the victim’s hospitalization and that [Appellant] informed her that
     in June 2014 the victim had become increasingly combative and
     that he had been hitting himself in the face with his right hand to
     the point that he made a cut on his knuckles. [Appellant] further
     stated that shortly after she had taken the victim to his primary
     care physician and when she came home she put Neosporin on
     the cut and put a sock on his hand. [Appellant] also stated that
     very shortly after the sock became wet with saliva and she
     replaced the sock in June 2014 and that it stayed on his hand until
     October 13, 2014 when she removed it.
            [Appellant] testified that her son, who was born on June 20,
     1990, suffered from cerebral palsy, muscular dystrophy, scoliosis
     and a seizure disorder. As a result of these conditions he was
     unable to speak, walk, feed or clothe himself or take care of his
     personal needs and his arms, legs and hands were severely
     contracted. She testified that when he would become agitated or
     would be in pain he would hit himself in the mouth with his fist or
     put his fist in his mouth and bite it causing cuts or bruises to his
     hand. She testified that he has been biting his hands since he has
     been about five years old. [Appellant] testified that in May of
     2014 her son was becoming more combative and agitated and in
     order to protect her son’s hand and his teeth she put a sock on
     his right hand to keep him from biting it and to keep him from
     knocking his teeth out.          She denied that she ever told
     investigators that she did not remove the sock for an extended
     period but instead that she changed [it] regularly.
            She testified that on October 13, 2014[,] when she removed
     the sock, which she stated had been on overnight, she noted that
     his right hand was swollen and had blisters. She testified she
     called Dr. McKnight’s office and talked to her secretary on four
     occasions and was told to put an ice pack on his hand. She
     testified that she followed those instructions but wasn’t satisfied
     so she took him to [the] hospital. She testified that she was never
     told that her son was being treated for a burn but that she saw on
     one of the reports that he had cellulites. [Appellant] testified she
     cared for her son throughout his life and denied submerging his
     hand in water or otherwise burning his hand.
           On cross examination she acknowledged that when she
     arrived at the hospital she told the staff he had been biting


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       himself, that she had placed a sock on his hand and when she
       removed the sock that morning his hand was swollen and covered
       with blisters as shown in the photographs. She denied giving
       inconsistent statements about the period of time that the sock was
       on his hand, indicating [that] she had always denied that the sock
       was on his hand continuously from July to October.             She
       contended that he had an open wound that had become infected
       which resulted in the appearance of his hand.
             [Appellant’s] daughter, Breanna McGee, also testified that
       while she lived with her mother and her brother, [she had never
       witnessed Appellant act aggressively towards the victim] and that
       she had a reputation as a good and caring person. Upon
       consideration of all testimony [Appellant] was found guilty of
       aggravated assault.
Trial Court Opinion, 6/25/18, at 2–8 (citations omitted).

       Appellant was initially sentenced to thirty-six to seventy-two months of

incarceration for the aggravated assault conviction under 18 Pa.C.S.

§ 2702(a)(1).2     Order, 2/7/17.       Appellant filed a post-sentence motion on

February 13, 2017. Following a March 9, 2017 hearing on the post-sentence

motion, the trial court re-sentenced Appellant to twenty-six to fifty-two

months of incarceration.          Order, 3/9/17.    The trial court re-sentenced

Appellant because it found that she was subject to a lower offense gravity

score on the grounds that the evidence was not sufficient to establish that the

____________________________________________


2   Pursuant to 18 Pa.C.S. § 2702(a)(1),

    (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;


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J-A30014-18


victim suffered serious bodily injury due to the lack of testimony about the

victim’s current condition, including whether he suffered any permanent

scarring from the burns. N.T. (Post-Sentence Motion Hearing), 3/9/17, at 7.

Appellant filed a second post-sentence motion, which the trial court denied.

This appeal followed. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

      Appellant presents the following question for our review:

           1. Was the evidence insufficient to convict [Appellant] of
              aggravated assault (18 Pa.C.S. § 2702(a)(1)) as the
              evidence failed to establish that the victim suffered serious
              bodily injury or that she acted with the requisite mens rea?

Appellant’s Brief at unnumbered 5.

      Our standard for review of a sufficiency of the evidence claim is as

follows:

      When presented with a claim that the evidence was insufficient to
      sustain a conviction, an appellate court, viewing all of the evidence
      and reasonable inferences therefrom in the light most favorable
      to the Commonwealth as the verdict winner, must determine
      whether the evidence was sufficient to enable the fact-finder to
      find that all elements of the offense were established beyond a
      reasonable doubt.

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation

omitted).    “Furthermore, ‘[t]he Commonwealth may sustain its burden by

proving the crime’s elements with evidence which is entirely circumstantial

and the trier of fact, who determines credibility of witnesses and the weight

to give the evidence produced, is free to believe all, part, or none of the

evidence.’” Id. at 361–362 (quoting Commonwealth v. Brown, 701 A.2d

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252, 254 (Pa. Super. 1997)). “As an appellate court, we do not assess

credibility nor do we assign weight to any of the testimony of record.”

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).

Further, “circumstantial evidence is reviewed by the same standard as direct

evidence—a decision by the trial court will be affirmed so long as the

combination of the evidence links the accused to the crime beyond a

reasonable doubt.” Commonwealth v. Bricker, 1014 (Pa. Super. 2005)

(quotation omitted).   “Additionally[,] we may not reweigh the evidence or

substitute our own judgment for that of the factfinder.” Commonwealth v.

Walker, 139 A.3d 225, 229 (Pa. Super. 2016).

      Under 18 Pa.C.S. § 2702 (a)(1), “[a] person is 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 an extreme indifference to the value of human life.” 18 Pa.C.S.

§ 2702(a)(1).    As noted by Appellant, the term “serious bodily injury” is

defined by statute as “bodily 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.” Appellant’s Brief

at unnumbered 14 (quoting 18 Pa.C.S. § 2301).

      Appellant asserts that intent is a fact-specific inquiry. Appellant’s Brief

at unnumbered 19. She argues that the Commonwealth failed to produce any

witnesses who observed Appellant abuse the victim, and relied instead upon


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“medical witnesses,” who testified that the victim’s injuries could not have

occurred as Appellant claimed they did. Id. Specifically, Appellant avers that

there was “no evidence as to how [the victim’s] injuries occurred,” and that

“there is a complete lack of evidence as to [Appellant’s] actual conduct, which

would support a finding of recklessness.” Id. at 22. Ultimately, Appellant

argues that the Commonwealth failed to prove that she “attempted to cause

serious bodily injury to her son, intentionally, knowingly, or recklessly.” Id.

at 21.

         In its Pa.R.A.P. (a) 1925 opinion, the trial court reviewed the evidence

presented at trial and held that the following established that Appellant did

have the specific intent to cause bodily injury:

                Based on the totality of the evidence, it is clear that the
         Commonwealth established that [Appellant], who was the sole
         person in custody and control of the victim, submerged the
         victim’s hand into hot water or other liquid for a sufficient period
         of time to cause second degree burns to his hand. Based on the
         victim’s physical conditions and abilities, the Commonwealth
         established that the victim did not accidently or inadvertently
         place his own hand into the water. The evidence established that
         a third person would have been required to place his hand into the
         hot water and submerge it to his wrist for a period of time
         necessary to cause the burns. It is clear that specific intent to
         cause serious bodily injury can be inferred from the evidence. The
         evidence establishes that this was not an inadvertent act in which
         his hand fell or was placed into hot water and then was quickly
         pulled away but instead that it was done purposefully and with the
         intent to cause a serious injury to the hand.             Therefore,
         [Appellant] was appropriately found guilty of aggravated assault.

Trial Court Opinion, 6/25/18, at 10–11.




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      “For aggravated assault purposes, an ‘attempt’ is found where the

accused, with the required specific intent, acts in a manner which constitutes

a substantial step toward perpetrating a serious bodily injury upon another.”

Commonwealth v. Alford, 880 A.2d 666, 670 (Pa. Super. 2005). In order

to determine whether an appellant possessed the requisite intent, this Court

will look at both direct and circumstantial evidence.   Id. at 670–671.     “In

determining whether intent was proven from such circumstances, the fact

finder is free to conclude the accused intended the natural and probable

consequences of his actions to result therefrom.”        Commonwealth v.

Bradley, 69 A.3d 253, 257 (Pa. Super. 2013) (quoting trial court’s 1925(a)

opinion, 6/21/12, at 4–6) (finding the requisite intent where defendant, an

adult male, twisted the arm of small child and fractured child’s arm because

the “natural consequence of an adult twisting the arm of a small child this

hard was a fractured bone.”)).

      Because direct evidence of intent is often unavailable, intent to
      cause serious bodily injury may be shown by the circumstances
      surrounding the attack. In determining whether intent was
      proven from such circumstances, the fact finder is free to conclude
      the accused intended the natural and probable consequences of
      his actions to result therefrom.

Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citations

and quotations omitted).

      As the trial court noted in its Rule 1925(a) opinion, Appellant was the

only person who provided care for the victim, who is disabled and dependent

upon Appellant for all of his needs.    Trial Court Opinion, 6/25/18, at 10.

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Moreover, the victim’s upper extremities were contracted such that he would

have been unable to voluntarily or accidentally extend his hands to place them

in hot water. Id. Additionally, three doctors, an infectious disease specialist,

a general/vascular surgeon, and a burn specialist, testified that the injuries to

the victim were not due to an infection but were the result of the victim’s hand

being submerged in a hot liquid. Id. This finding was based upon the fact

that the victim showed no clinical signs of having an infection; there was a

demarcation line between burned and normal skin; and the victim’s entire

hand was involved. Id. Finally, Dr. Aballay, the burn specialist, testified that

the “lack of any splatter burns above the line of demarcation was inconsistent

with the hand being inadvertently placed in hot water and being immediately

pulled out.” Id. Given our standard of review and the evidence put forth by

the Commonwealth and accepted by the trier of fact, we are constrained to

find that the evidence is sufficient to support Appellant’s conviction for

aggravated assault pursuant to 18 Pa.C.S. § 2702 (a)(1).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2019



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