J-S09024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    SCOTT JAMES LAUDERBAUGH                      :
                                                 :
                       Appellant                 :   No. 1000 WDA 2018

         Appeal from the Judgment of Sentence Entered June 13, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0003193-2017


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MARCH 15, 2019

        Scott James Lauderbaugh appeals from his judgment of sentence,

entered in the Court of Common Pleas of Erie County, after a jury convicted

him of aggravated assault,1 recklessly endangering another person (“REAP”),2

resisting arrest,3 fleeing or attempting to elude police officer,4 and driving

while operating privilege was suspended.5 Upon careful review, we affirm.


____________________________________________


1   18 Pa.C.S.A. § 2702(a)(3).

2   18 Pa.C.S.A. § 2705.

3   18 Pa.C.S.A. § 5104.

4   75 Pa.C.S.A. § 3733(a).

5   75 Pa.C.S.A. § 1543(b)(1).

*    Retired Senior Judge assigned to the Superior Court


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     The trial court set forth the facts of this matter as follows:

     In the early morning hours of September 3, 2017, [Lauderbaugh]
     and one passenger were driving on PA Route 20 in North East
     Township, Erie County, when they were observed driving
     erratically by on-duty Pennsylvania State Police Trooper Adam
     Gadsby, and his partner, Trooper James Webber, who were
     following behind the vehicle. The troopers pulled the vehicle over
     to investigate.     Initially, [Lauderbaugh] was cooperative,
     however, as it became apparent Lauderbaugh had given Trooper
     Webber false identification and was driving with a suspended
     license, [Lauderbaugh] and his passenger fled the scene by
     vehicle and a high-speed chase ensued.

     After a mile or two, [Lauderbaugh] pulled over and fled from the
     vehicle. Trooper Webber secured the passenger while Trooper
     Gadsby chased after [Lauderbaugh]. As they ran through a poorly
     lit yard, [Lauderbaugh] tripped over a low fence and fell to the
     ground. Trooper Gadsby observed the fall, but not the fence. As
     he closed in on [Lauderbaugh], he too tripped over the fence and
     landed near [Lauderbaugh]. The two struggled for three or four
     minutes before Trooper Webber arrived to help subdue
     [Lauderbaugh].

     In the police recording of the incident, Trooper Gadsby can be
     heard shouting in desperate tones for Trooper Webber’s help. As
     Trooper Webber arrived at the scene of the struggle, he observed
     Trooper Gadsby and [Lauderbaugh] wrestling on the ground
     “pretty intensely.” Trooper Webber engaged in the struggle, and
     it took two or three more minutes to overpower [Lauderbaugh].
     During this time, the troopers testified that [Lauderbaugh] was
     thrashing, flailing, kicking, and striking about with his hands. Both
     troopers’ Tasers and radios were knocked away. Ultimately, it
     took hand-to-hand combat and pepper spray to bring
     [Lauderbaugh] under control.

     Trooper Gadsby testified that when he tripped over the fence, his
     neck struck a tree stump just above the collarbone. He said the
     wind was knocked out of him, and his vision blurred, but he
     continued to apprehend [Lauderbaugh]. At one point during the
     struggle, [Lauderbaugh] wrapped his legs around Trooper
     Gadsby’s neck as “with a wrestling move.” After the incident, the
     troopers were examined at a local hospital. They took an x-ray of
     Trooper Gadsby’s left wrist, and a CT scan of his neck.

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        Trooper Gadsby testified that immediately after the incident he
        was short of breath, had pain in his neck, observed scratches and
        cuts to his arm, his uniform shirt was torn and bloody, and he had
        sharp pain and swelling in his left wrist and forearm. He was
        prescribed steroid medication for pain and numbness in his arm
        an[d] fingers for approximately three weeks after the incident and
        was unable to work.

Trial Court Opinion, 8/28/18, at 2-3 (internal citations omitted).

        On April 12, 2018, a jury found Lauderbaugh guilty of the above

offenses.    On June 13, 2018, the trial court sentenced Lauderbaugh to an

aggregate term of 58 to 116 months’ confinement, followed by eight and one-

half years’ probation. On July 10, 2018, Lauderbaugh filed a timely notice of

appeal.     On July 13, 2018, the trial court ordered Lauderbaugh to file a

Pa.R.A.P. 1925(b) concise statement of errors complained on appeal and

Lauderbaugh timely complied.

        On appeal, Lauderbaugh raises the following issue on appeal: “Whether

the Commonwealth failed to present sufficient evidence to find [] Lauderbaugh

guilty beyond a reasonable doubt of aggravated assault?” Brief of Appellant,

at 3.

        Lauderbaugh contends the evidence was insufficient to sustain his

conviction for aggravated assault, arguing the Commonwealth failed to prove

the necessary criminal intent beyond a reasonable doubt.

        In reviewing the sufficiency of the evidence, this Court applies the

following standard:




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      [W]e must view all evidence admitted at trial in the light most
      favorable to the Commonwealth, as verdict winner, to see whether
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. This standard
      is equally applicable to cases where the evidence is circumstantial
      rather than direct so long as the combination of the evidence links
      the accused to a crime beyond a reasonable doubt. Although a
      conviction must be based on more than mere suspicion or
      conjecture, the Commonwealth need not establish guilt to a
      mathematical certainty.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal

quotation marks and brackets omitted).        Moreover, when “reviewing the

sufficiency of the evidence, the Court may not substitute its judgment for that

of the fact-finder; if the record contains support for the convictions, they may

not be disturbed.” Id.

       The Crimes Code defines aggravated assault, in relevant part, as

follows:

            § 2702. Aggravated Assault

      (a)   Offense defined.-- A person is guilty of aggravated assault
            if he:
                               .   .   .

                  (3) 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.

18 Pa.C.S.A. § 2702(a)(3). The term “officer” as referenced in section

2702(a)(3) includes police officers. 18 Pa.C.S.A. § 2702(c)(1).

      Lauderbaugh avers the evidence introduced by the Commonwealth

failed to establish that he acted “intentionally, knowingly, or recklessly in

causing the injuries to Trooper Gadsby.”6 Brief of Appellant, at 7.


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       Specifically, our Crimes Code states that a person acts intentionally with

respect to a material element of an offense when:

       (i) if the element involves the nature of his conduct or a result
       thereof, it is his conscious object to engage in conduct of that
       nature or to cause such a result; and

       (ii) if the element involves the attendant circumstance, he is
       aware of the existence of such circumstances or he believes or
       hopes that they exist.

18 Pa.C.S.A. § 302(b)(1). To prove aggravated assault against a police officer

“[t]he Commonwealth need not establish that the [officer] actually suffered

bodily injury; rather, it is sufficient to support a conviction if the

Commonwealth established            an     attempt   to   inflict   serious   bodily

injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.

1994). This intent “may be shown by circumstances which reasonably suggest

that a defendant intended to cause injury.” Commonwealth v. Brown, 23

A.3d 544, 560 (Pa. Super. 2011). For an aggravated assault, an attempt is

properly found when an “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. Gray, 867 A.2d 560, 567

(Pa. Super. 2005).

       Additionally, we have previously held that:


____________________________________________


6 The subsection under which Lauderbaugh was convicted does not criminalize
reckless conduct and, instead, only proscribes acts under section 2702(a)(3)
that are “knowing” or “intentional.”


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      [T]he fact-finder is free to conclude the accused intended the
      natural and probable consequences of his actions to result
      therefrom. A determination of whether an appellant acted with
      an intent to cause seriously bodily injury must be determined on
      a case-by-case basis.

      An intent is a subjective frame of mind, it is of necessity difficult
      of direct proof[.] We must look to all the evidence to establish
      intent, including, but not limited to, appellant’s conduct as it
      appeared in his eyes[.] Intent can be proven by direct or
      circumstantial evidence; it may be inferred from acts or conduct
      or from the attendant circumstances.

Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006) (internal

citations and quotations omitted).

      Viewing the evidence in the light most favorable to the Commonwealth,

as the verdict winner, we conclude the evidence supports Lauderbaugh’s

conviction for aggravated assault. Lauderbaugh fled in his vehicle after a high-

speed pursuit by police officers, and, after one unsuccessful attempt to subdue

Lauderbaugh with a Taser, the pursuing Trooper Gadsby fired a second Taser

cartridge at the still-fleeing Lauderbaugh in a dimly-lit backyard. N.T. Jury

Trial, 4/12/18, at 72-73. Trooper Gadsby observed Lauderbaugh “flinch” as

though the Taser struck Lauderbaugh and immediately drop to the ground.

Id. As Trooper Gadsby approached Lauderbaugh, he tripped over a fence - -

approximately one or two feet high - - and struck his neck on a tree stump as

he landed. Id. at 77. Despite blurred vision and difficulty breathing, Trooper

Gadsby issued verbal commands to Lauderbaugh, who remained on the

ground next to the trooper. Lauderbaugh failed to comply with the trooper’s




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commands and, instead, Lauderbaugh closed his legs around Trooper

Gadsby’s neck “as if in a wrestling move.” Id. at 78.

     The trooper extricated himself from Lauderbaugh’s grip, at which time

Lauderbaugh “kick[ed] with his feet trying to push away” and grabbed at

Trooper Gadsby’s uniform. Id. at 79. Trooper Gadsby struggled alone with

the still “kicking and flailing” Lauderbaugh for several minutes, since

Lauderbaugh knocked loose Trooper Gadsby’s microphone, making him

unable to call for assistance. Id. at 78. Trooper Webber was able to hear

Trooper Gadsby’s screams for assistance and entered the backyard to assist

him. Trooper Webber observed Lauderbaugh “wrestling” or “in a fight” with

Appellant “pretty intensely.” Id. at 37, 40. Trooper Webber attempted to

Tase Lauderbaugh four times before Lauderbaugh’s “kicking and swinging”

knocked the Taser from his control. Id. at 38-39. It took Troopers Webber

and Gadsby several minutes of struggling with Lauderbaugh before the two

could place him under arrest and take him into custody.

     In Lauderbaugh’s struggle with Trooper Gadsby, he knocked away the

trooper’s Taser, tore open the trooper’s uniform shirt and, while grabbing at

the trooper’s duty belt, dislodged magazines for his service weapon. Id. at

78, 81, 82.    Trooper Gadsby broke several vertebrae from falling while

pursuing Lauderbaugh.    Id. at 87.    Further, Trooper Gadsby had to take

steroid medication for numbing in his arms and tingling in his fingers. Id. at

92. The injuries Trooper Gadsby suffered from his violent struggle with

Appellant forced him to miss two months of work. Id.

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      In light of the evidence before the trial court, a jury could have

reasonably    found   Lauderbaugh    guilty   beyond    a   reasonable   doubt.

Lauderbaugh mischaracterizes the intent requirements to be convicted under

section 2702(a)(3). The Commonwealth was not required to demonstrate

actual serious bodily injury (or whether the injuries were foreseeable), and

instead only had to prove Lauderbaugh acted with intent to cause serious

bodily injury to Trooper Gadsby. The minutes-long, violent struggle between

Lauderbaugh and the two troopers demonstrate his intent to inflict serious

bodily injury. Further, the circumstances of this offense reasonably suggest

Lauderbaugh intended to cause serious bodily injury to a law enforcement

officer. Therefore, Lauderbaugh is entitled to no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2019




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