J-S04008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LYNNETTE JANE ACKLEY                       :
                                               :
                      Appellant                :   No. 887 MDA 2017

               Appeal from the Judgment of Sentence April 3, 2017
    In the Court of Common Pleas of Northumberland County Criminal Division
                       at No(s): CP-49-CR-0000639-2016


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 23, 2018

        Appellant, Lynnette Jane Ackley, appeals from the judgment of

sentence entered following her conviction of simple assault.1 We affirm.

        We summarize the history of this case as follows. During the course of

an argument on March 14, 2016, Appellant swung a bag of unknown hard

items at her nineteen-year-old, mentally disabled son (“the victim”).      The

bag struck the victim in the area of his right eye, causing a laceration down

his forehead and into his eyebrow. In an information filed June 10, 2016,

Appellant was charged with one count each of simple assault and the




____________________________________________


1   18 Pa.C.S. § 2701(a)(1).
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summary offense of harassment.2 On January 19, 2017, at the conclusion of

trial, the jury convicted Appellant of the crime of simple assault.     Also on

that date, the trial court found that Appellant was not guilty of the summary

offense of harassment. On April 3, 2017, the trial court sentenced Appellant

to serve a term of probation of eighteen months.          Appellant was further

sentenced to pay a fine of $100.00, as well as costs and supervision fees.

Appellant filed a timely post-sentence motion for reconsideration, requesting

a reduction of the fines and costs due to financial strain. The trial court held

a hearing on May 1, 2017, and thereafter reduced Appellant’s supervision

fee to $15.00 per month. This timely appeal followed.

        Appellant presents the following issue for our review:

        1. Was Appellant’s conviction in error where the evidence was
        insufficient to establish simple assault, as Appellant’s actions
        were not intentional, knowing or reckless?

Appellant’s Brief at 4.

        In her sole issue, Appellant argues that the Commonwealth did not

present sufficient evidence to support her conviction of simple assault.

Appellant’s Brief at 7-9.      Specifically, Appellant contends that her conduct

was neither intentional nor malicious, and was not sufficiently proven to be

reckless.    Id. at 8-9.       She further asserts that there was insufficient

evidence that the victim suffered physical pain. Id. at 7-8.

____________________________________________


2   18 Pa.C.S. § 2709(a)(1).



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      Our standard of review is well established:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder[’s]. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      The crime of simple assault is defined at 18 Pa.C.S. § 2701, which

provides, in pertinent part, as follows:

      § 2701. Simple assault

      (a) Offense defined.—Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if
      he:

            (1)   attempts to cause or intentionally, knowingly
                  or recklessly causes bodily injury to another;

18 Pa.C.S. § 2701(a)(1). “Recklessly” is defined 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

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      that, considering the nature and intent of the 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. § 302(b)(3).     “Bodily injury” is defined as “[i]mpairment of

physical condition or substantial pain.” 18 Pa.C.S. § 2301. Substantial pain

may be inferred from the circumstances surrounding the physical force used.

Commonwealth v. Smith, 848 A.2d 973, 976 (Pa. Super. 2004).

      In addressing Appellant’s issue, the trial court provided the following

analysis:

             At trial, Officer Zettelmoyer of the Milton Police
      Department testified that on March 14, 2016, he went to
      [Appellant’s] residence with Detective Engelman in response to a
      report of abuse made by the Milton School District regarding
      [Appellant’s] 19 year old son, Brandon Ackley, who is mentally
      disabled.    While at the residence, [Appellant] told Officer
      [Zettelmoyer] that she swung a bag containing unknown objects
      out of anger and it hit Brandon Ackley above the right eye.
      Officer [Zettelmoyer] observed a half inch gash above Brandon’s
      right eye. Detective Engelman spoke with the victim, Brandon
      Ackley. The victim told him that he and his mother got into a
      verbal argument. [Appellant] pushed him a couple of times and
      then grabbed a bag and struck him. Detective Engelman further
      testified that upon viewing the injury to Brandon’s eye he
      believed it needed medical attention.

            [Appellant] in her own defense at trial admitted she was
      frustrated and swung the bag containing unknown items.
      Additionally, she admitted that she did not seek medical
      attention for her son. However, she contended that she was not
      aiming at Brandon; in other words, this was accidental. The jury
      ultimately rejected her version.

            It is clear that, in viewing the evidence in the light most
      favorable to the verdict winner, there was sufficient evidence to
      support the jury’s determination.



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Trial Court Opinion, 8/1/17, at 2.

      The trial court’s opinion is amply supported by the evidence of record.

At trial, Appellant explained that she became frustrated with the victim when

she endeavored to clean his bedroom and “he threw a fit.” N.T., 1/19/17, at

46-47.    Appellant’s husband attempted to intervene and tried to get

Appellant out of the room. Id. However, as Appellant stated, “[O]ne thing

led to another. And I just picked up a bag and started swinging because I

was frustrated.”      Id. at 47.   Appellant admitted that the bag struck the

victim causing a laceration. Id. at 48. Appellant further testified that she

did not seek medical attention, but rather treated the victim’s cut at home.

Id.   In addition, Officer Jason Engelman of the Milton Police Department

testified that he responded to the victim’s home on March 14, 2016, and

observed the victim’s injury, which he described as deep and requiring

medical attention. Id. at 30.

      Based on the foregoing, we conclude that Appellant’s behavior, in an

act of frustration toward her disable child, amounts to “a gross deviation

from the standard of conduct that a reasonable person would observe in the

actor’s situation.”   18 Pa.C.S. § 302(b)(3). Consequently, Appellant acted

recklessly in swinging the bag of hard objects, consciously disregarding the

bodily injury that the victim would suffer, and subsequently failing to secure

medical attention.




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      Furthermore, the photographs of the victim’s injuries presented at trial

reflect a significant laceration to the victim’s forehead, which extended

downward into his eyebrow, as well as bruising and swelling. N.T., 1/19/17,

at 67-68, Commonwealth Exhibits 1 and 2.            In addition, Officer Dan

Zettelmoyer of the Milton Police Department testified that he received a

referral of suspected child abuse from the Milton School District and

responded to Appellant’s home.    Id. at 17.   Officer Zettelmoyer described

the victim’s wound as starting above the eyebrow and continuing down into

the eyebrow. Id. at 18. He explained that the laceration was open about

one-quarter inch. Id. Officer Zettelmoyer further concluded that the injury

was in need of medical treatment.      Id. at 19.   Substantial pain may be

inferred from this evidence. Smith, 848 A.2d at 976. Thus, the element of

bodily injury has been established.       18 Pa.C.S. § 2301.       Therefore,

Appellant’s claim that there was insufficient evidence to support her

conviction lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/18




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