J-S84012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    SEZAN PRUDENCE HESSOU        :
                                 :
                  Appellant      :             No. 545 MDA 2017

            Appeal from the Judgment of Sentence February 28, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0000023-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                             FILED MARCH 21, 2018

       Appellant, Sezan Prudence Hessou, appeals from the judgment of

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

       The trial court summarized the facts of this case as follows:

              The concise statement of facts is that [Appellant’s] child
       suffers from enuresis [involuntary urination], which child victim
       testified to and [Appellant] admitted he treated by slapping the
       child forcefully about the head to awaken him, in an effort to force
       him to urinate in the middle of the night. This “treatment”
       resulted in visible injuries to the child, so that when he reported
       to school the next day the mandatory reporters at the school
       reported the child abuse to child line. . . .

       The more detailed facts supported by the record are as follows:

       1.    In December 2015, [Appellant] had a shared custody
       arrangement with Mother for week on-week off custody of their 8-
       year-old son, hereinafter Child.

____________________________________________


1   18 Pa.C.S. § 2701(a)(1).
J-S84012-17


      2.    Child suffers from enuresis, involuntary urination, especially
      by children at night.

      3.   Over the second weekend of December 2015, Child was at
      [Appellant’s] residence in Wormleysburg, Cumberland County.

      4.    Child reported that over that weekend period [Appellant]
      would routinely wake him up during the night in an attempt to
      force him to urinate.

      5.    Child described that [Appellant] would slap his face to
      awaken him and further slap his face when he reported he could
      not urinate on [Appellant’s] command.

      6.    [Appellant] acknowledged and demonstrated from the
      witness stand how he would be caused to slap his Child in the face
      in order to awaken him, as no lesser prompts would rouse the
      sleeping child, who once awoke would be directed to urinate in the
      bathroom.

      7.   [Appellant] reports these wake up calls happened
      repeatedly over the weekend period into Monday morning.

      8.    On Monday December 14, 2015, the police responded to a
      Children and Youth call of suspected child abuse that had been
      reported from Hoover Elementary School in the Camp Hill,
      Cumberland County, School District.

      9.   The report was that a student had arrived at school with
      marks on both sides of his face.

      10. An officer took photos that documented the injuries shown
      on both sides of the Child’s face, to which the officer indicated
      they resembled a handprint.

Trial Court Opinion, 6/13/17, at 2-3.

      The trial court summarized the procedural history of this matter as

follows:

            In a two-count Criminal Information filed on February 17,
      2016, the Commonwealth charged [Appellant] with violations of
      the Crimes Code, specifically Simple Assault, section 2701(a)(1),

                                     -2-
J-S84012-17


      and Endangering Welfare of Children - Parent or Guardian, section
      4304(a)(1). At the conclusion of a jury trial, [Appellant] was
      convicted of Simple Assault on January 24, 2017. [Appellant],
      who has a prior record score of 3, was sentenced on February 28,
      2017, to not less than six months nor more than twelve months
      in the county prison together with a consecutive supervised term
      of probation for twelve months. Notice of Appeal was filed on
      March 28, 2017. This Opinion is in support of the jury’s conviction
      of [Appellant] on the charge of Simple Assault, as [Appellant]
      avers the evidence is insufficient to show reckless culpability.

Id. at 1. The trial court and Appellant complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review: “Was the evidence

presented at trial sufficient to convict Appellant of simple assault?” Appellant’s

Brief at 6 (full capitalization omitted). Appellant asserts that he was convicted

for a mistake in judgment that occurred while he was attempting “to assist

[Child] in overcoming his bedwetting under what [Appellant] believed were

dire circumstances.” Id. at 17. Appellant claims that the resultant harm of

slapping child “consisted of temporary stinging pain like a bee sting and marks

on [Child’s] face from a series of slaps.” Id. Appellant maintains that the

actions were neither intentional nor malicious, and were not sufficiently

proven to be reckless.       Id.   Thus, Appellant contends the evidence is

insufficient to establish the requisite intent or mens rea for a conviction of

simple assault. Id. at 21.

      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

                                      -3-
J-S84012-17


      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
      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


                                      -4-
J-S84012-17


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:

      The jury’s decision is right on point. The open hand slap with such
      force and repetition so as to cause readily identifiable hand imprint
      bruises to the face of an eight year old child, who has enuresis, is
      an assault and there is no medical or legal justification that would
      bar such a conviction. This is a case about medical treatment and
      nowhere in the presented facts or in ordinary common sense is it
      found that you treat enuresis by facial slaps to coerce a child into
      middle of the night urination.          The jury properly found
      [Appellant’s] deliberate infliction of pain and injury inconsistent
      with contemporary standards of decency, which is to say a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the actor’s situation.

             [Appellant’s] inexplicably bizarre and torturous home-
      remedy is ill-conceived and irresponsible. He is an educated man
      but [Appellant] lacks common sense. Son clearly loves his father
      and father loves his son; however, as this appeal reinforces to this
      jurist, [Appellant] does not accept responsibility for the cruelty of
      his actions.

Trial Court Opinion, 6/13/17, at 4.

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

Appellant admitted to slapping Child in the face. N.T., 5/19/17, at 100. Child

testified that Appellant slapped him multiple times and was angry while doing

so. Id. at 50-51. Appellant asserted that he hit Child in the face because

Child was unresponsive and in what Appellant described as a sleepwalking

state, when Appellant was attempting to get him to the bathroom to urinate.

Id. at 99-100. Appellant’s behavior, in an attempt to address Child’s medical


                                      -5-
J-S84012-17


issue, however, 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). Thus, Appellant acted recklessly in slapping Child, consciously

disregarding the bodily injury that Child would suffer.

      Indeed, the exhibits reflect significant bruising on Child’s face. N.T.,

5/19/17, at 60, Commonwealth Exhibits, 1, 2, and 3.       Furthermore, Child

testified that the slapping “hurt” and reported to the investigating Children

and Youth Services representative “that it hurt really bad when it happened.”

N.T., 5/19/17, at 50, 65-66. Thus, the element of “bodily injury” has been

established. 18 Pa.C.S. § 2301. Accordingly, we agree with the trial court’s

conclusion that there was sufficient evidence to convict Appellant of simple

assault.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




                                     -6-
