J-S44036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ERRIK WADE PARKS

                            Appellant                    No. 262 WDA 2015


            Appeal from the Judgment of Sentence January 28, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000725-2013


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 28, 2015

        Errik Wade Parks appeals from the judgment of sentence imposed in

the Court of Common Pleas of Fayette County after he was convicted of one

count each of simple assault,1 recklessly endangering another person,2 and

harassment – subjecting other person to physical contact.3           Upon careful

review, we affirm.

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

        The crimes occurred on April 9, 2013, when [C.W.], a child born
        on December 9, 2003, and her brother were present at their
        home on Lawton Avenue, Uniontown, Fayette County,
        Pennsylvania. [Parks] was the live-in boyfriend of [C.W.’s]
____________________________________________


1
    18 Pa.C.S. § 2701(a)(1).
2
    18 Pa.C.S. § 2705.
3
    18 Pa.C.S. § 2709(a)(1).
J-S44036-15


     mother. [C.W.] was in the yard playing with her brother and
     their friends, and [Parks] had previously told the children that if
     they came inside, he would beat them with a belt. Nevertheless,
     [C.W.] went inside her residence to get a drink. When she tried
     to go back outside, [Parks] hit her on her leg, her arm, and on
     her back, above her derriere, with a belt he took off of his pants.
     The blows from the belt hurt the child “a lot.”

     At the time [Parks] began to hit the child with his belt, [C.W.’s
     mother] was lying on the floor, sleeping. Ms. Price awoke when
     the child’s Aunt Danielle [Marie Kulenovic] walked into the house
     and started screaming as she observed [Parks] hitting the child.
     Danielle Kulenovic then took [C.W.] with her to the child’s
     grandmother’s house, and from there to the police station. After
     leaving the police station where photographs of the child’s
     bruises were taken, the grandmother took [C.W.] to the hospital.
     The photographs, specifically Commonwealth’s Exhibits 4, 5, and
     6, show red marks and black and blue marks on the child’s hand,
     arm, and leg.

     Ms. Kulenovic testified that she went to the child’s home at 50
     Lawton Avenue, Uniontown, on the date of the incident because
     [C.W.] and Christopher repeatedly called their grandmother to
     report that they were getting beaten and were not allowed in the
     house. Before entering the house, Ms. Kulenovic looked through
     the window and saw [Parks] beating [C.W.] with a belt. The
     child was holding onto the back of the couch and crying, while
     the child’s mother was across the room. Ms. Kulenovic observed
     three blows to the child before she entered the house and told
     [Parks] to stop. Ms. Kulenovic observed bruises and welts at
     various places on the child’s body.

     Lieutenant Thomas Kolencik, a police officer with the City of
     Uniontown, Fayette County, police department, told the Court
     that he took the photographs admitted as Commonwealth[’s]
     exhibits and personally observed injuries on the child’s upper
     thigh buttocks area, her hand, and her arm. He opined that one
     of the bruises on the child’s thigh shown in Commonwealth’s
     Exhibit 6, measured about two inches and was inflicted by the
     buckle on [Park’s] belt.

     [C.W.’s] mother testified on [Parks’] behalf that he had never
     before physically punished the child and his use of his belt to hit
     her was the first time he had done so. The court found the
     mother’s testimony to be less than credible, as was her claim


                                    -2-
J-S44036-15


       that [Parks] held the buckle of the belt in his hand while he was
       hitting the child, especially in light of Commonwealth’s Exhibit 6
       which demonstrates otherwise.           Aside from her confirming
       testimony that [Parks] did hit [C.W.] with his belt, the court
       gave no weight to the mother’s testimony.

Trial Court Opinion, 3/24/15, at 1-3 (citations omitted).

       On December 11, 2014, following a non-jury trial, Parks was found

guilty of the aforementioned offenses.         The court sentenced Parks on

January 28, 2015, to six to twelve months’ imprisonment and various fines.

Parks then filed a timely notice of appeal to this Court, as well as a court-

ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

       On appeal, Parks raises the following issues, verbatim, for our review:

           1. Did the Commonwealth present insufficient evidence to
              establish beyond a reasonable doubt the charge of simple
              assault, in that the Commonwealth failed to establish the
              level of injury or that the injuries occurred on the date
              [Parks] spanked the child?

           2. Did the trial court err in failing to consider [Parks’]
              justification defense, in that, [Parks] administered corporal
              punishment in the presence of the child’s mother to
              consequence the child for her misbehavior?

Appellant’s Brief, at 8.

       Parks first challenges the sufficiency of the evidence to establish his

conviction for simple assault. Parks argues that the Commonwealth failed to

prove that the injuries sustained by C.W. satisfied the level of injury

required for simple assault. Parks also claims that the Commonwealth failed

to prove that the injuries to C.W. occurred on the date that Parks spanked

C.W.

                                       -3-
J-S44036-15



      We review a sufficiency of the evidence claim under the following

standard:

      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
      that of the fact-finder. 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
      trier 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. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(brackets omitted).

      Pennsylvania’s simple assault statute provides, in relevant part:

      § 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. Bodily injury is defined as “impairment of physical condition

or substantial pain.” 18 Pa.C.S. § 2301. Thus, one is guilty of simple assault

where he intentionally, knowingly, or recklessly causes one to suffer

                                     -4-
J-S44036-15



substantial pain.   Commonwealth v. Douglass, 588 A.2d 53, 55 (Pa.

Super. 1991).

      Here, the bruises in the pictures, admitted as Exhibits 1 through 6, are

clearly evidence of bodily injury, which Parks intentionally, knowingly, or

recklessly caused by hitting C.W. with his belt buckle. C.W. testified that the

injuries “at first hurt a lot, the first few days.” N.T. Trial, 9/18/14, at 25.

This is indicative of “substantial pain” under section 2301.

      Parks argues that Jayme Shaffer, the supervisor at Fayette County

Children and Youth Services, concluded that the injuries sustained did not

rise to the level indicating physical abuse.     However, Shaffer based her

conclusion on the improper standard, “serious bodily injury,” while mere

“bodily injury” is the required for simple assault. Id. at 51.

      Parks also argues that the bruises and injuries to C.W. were not

proven to be the result of the spanking on the date in question and that the

injuries were the result of C.W.’s brother hitting her with a bungee cord.

However, Officer Thomas Kolencik testified that the              injuries in the

photographs, especially in exhibit 6, were indicative of a belt buckle. Id. at

46. Judge Wagner also took judicial notice of the shape and appearance of a

bungee cord for purposes of contrasting its shape with the “L” shape of

C.W.’s bruise. N.T. Trial, 11/14/14, at 17. C.W.’s aunt also testified that

she saw “[Parks] beating [C.W.] with a belt” through the window on the day

of the alleged beating. N.T. Trial, 9/18/14, at 32. A reasonable inference

could be drawn by a fact finder that the bruises in question resulted from the

                                     -5-
J-S44036-15



beating witnessed by C.W.’s aunt. Accordingly, viewing the evidence in the

light most favorable to the Commonwealth as verdict winner, we agree with

the trial court that there was sufficient evidence to demonstrate that Parks

intentionally, knowingly, or recklessly caused bodily harm to C.W. by hitting

her with the belt buckle and that the use of the belt caused C.W.’s injuries.

      Next, Parks claims that the trial court erred in failing to consider Parks’

justification defense.   Parks argues that he was merely administering

corporal punishment in the presence of the child’s mother as a consequence

to the child for her misbehavior.

      Pennsylvania’s statute for the use of force by persons with special

responsibility for care, discipline, or safety of others provides, in relevant

part, as follows:

      § 509. Use of force by persons with special responsibility
      for care, discipline or safety of others

      The use of force upon or toward the person of another is
      justifiable if:

      (1) The actor is the parent or guardian or other person similarly
      responsible for the general care and supervision of a minor or a
      person acting at the request of such parent, guardian or other
      responsible person and:

          (i) the force is used for the purpose of safeguarding or
          promoting the welfare of the minor, including the preventing
          or punishment of his misconduct; and

          (ii) the force used is not designed to cause or known to
          create a substantial risk of causing death, serious bodily
          injury, disfigurement, extreme pain or mental distress or
          gross degradation.

18 Pa.C.S.A. § 509.


                                      -6-
J-S44036-15



      Parks claims that he was administering corporal punishment to C.W. as

a form of discipline for truancy and for being disrespectful to her mother.

According to Parks, C.W.’s mother gave him permission to discipline C.W.

and, indeed, he was acting at her request. C.W.’s mother also testified that

she watched Parks hitting C.W. with the belt and that, because she was

pregnant, she could not discipline C.W. herself.

      In Commonwealth v. Ogin, 540 A.2d 549 (Pa. Super. 1988), this

Court held that, by hitting their two-year-old daughter hard enough to fall

backward into a wall, the defendants’ conduct exceeded their privilege to

administer corporal punishment under section 509 of the Crimes Code. This

Court held that a factfinder could have fairly concluded beyond a reasonable

doubt that the defendants used force which was known to create at least a

substantial risk of extreme pain or mental distress within the meaning of

section 509(1)(ii).     Therefore, appellants’ defense of justification was

properly rejected.

      The    term    “extreme”   in    section   509(1)(ii)   is   synonymous   with

excessive.   Commonwealth v. Douglass, 588 A.2d 53, 56 (Pa. Super.

1991). “The statute simply says pain inflicted as a result of discipline must

not be excessive.        The punishment must be justifiable and fit the

misconduct. Excessive discipline is contrary to the welfare of the child, even

when discipline is justifiable.” Id.

      Here, there is no credible evidence that Parks was responsible for the

general care and supervision of C.W. or that Parks was acting at the request

                                         -7-
J-S44036-15



of C.W.’s mother, as C.W. testified that her mother was sleeping on the floor

while the beating took place. N.T. Trial, 9/18/14, at 16. Although Parks and

C.W.’s mother testified that the beating occurred with the mother’s

permission, the trier of fact is free to believe all, part or none of the

witnesses’ testimony. Vargas, 108 A.3d at 868. The trial court found the

testimony of Parks and C.W.’s mother to be less than credible and gave

more weight to C.W.’s testimony. See Trial Court Opinion, 3/24/15, at 3.

      Moreover, the punishment was not conducted for the purpose of

safeguarding or promoting the welfare of the child as required by the

statute. C.W. testified that Parks beat her with the belt for coming inside

the house to get a drink after he told C.W. and the other children not to

come inside the house.       N.T. Trial, 9/18/14, at 16.   C.W.’s testimony is

supported by that of Officer Kolencik who stated that Parks told him, “I don’t

want those fucking kids in my house anyway.” Id. at 42.

      Even if Parks was acting at the request of C.W.’s mother, hitting a

child with a belt buckle is an excessive punishment, which creates at least a

substantial risk of extreme pain or mental distress within the meaning of

section 509(1)(ii).    The punishment was not justifiable, did not fit the

alleged misconduct, and exceeded the force authorized under section 509 for

purposes of discipline.    Accordingly, the trial court appropriately rejected

Parks’ claim of justification.

      Judgment of sentence affirmed.




                                      -8-
J-S44036-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




                          -9-
