J. A18024/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :         No. 1750 MDA 2015
                                        :
JO ANNE BROWNE                          :


           Appeal from the Judgment of Sentence, May 29, 2015,
             in the Court of Common Pleas Dauphin of County
             Criminal Division at No. CP-22-CR-0001587-2014



COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JO ANNE BROWNE,                         :         No. 1876 MDA 2015
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, May 29, 2015,
             in the Court of Common Pleas Dauphin of County
             Criminal Division at No. CP-22-CR-0001587-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 29, 2016

     Before us for review are consolidated cross appeals. At No. 1750 MDA

2015, the Commonwealth of Pennsylvania (“Commonwealth”) appeals from

that portion of the Order arresting judgment on cross-appellant’s jury



* Former Justice specially assigned to the Superior Court.
J. A18024/16


conviction   of   aggravated   assault.     Cross-appellant      Jo   Anne   Browne

(“Browne”) appeals at No. 1987 MDA 2015 from the judgment of sentence

following her conviction by a jury of simple assault. We affirm that part of

the order arresting Browne’s judgment of sentence on the charge of

aggravated assault. We also affirm the judgment of sentence on the charge

of simple assault.

      The trial court set forth the following factual history:

                   The trial testimony revealed that Kyle Browne,
             son of Defendant Jo Anne Browne, dated Rashanda
             Gaston for approximately four to five years.
             Ms. Gaston testified she and Mr. Browne began
             dating when she was in tenth grade. Ms. Gaston
             also stated that her relationship with Defendant,
             Mr. Browne’s mother, was good in the beginning but
             went downhill over time.          Ms. Gaston and
             Mr. Browne had been apart for some time and had
             reconciled, unbeknownst to Defendant.

                   On the morning of February 7, 2014,
             Ms. Gaston and Mr. Browne went apartment hunting
             in Hummelstown. The car driven by Mr. Browne did
             not have a registration sticker on it. Consequently,
             he was pulled over by Corporal Justin Hess of the
             Hummelstown        Borough      Police   Department.
             Ms. Gaston testified that after they were pulled over,
             the officer smelled marijuana.       A search of the
             vehicle ensued, and the car was impounded. At that
             point, Mr. Browne called Defendant, who showed up
             driving her orange Honda Element, a box-shaped
             SUV. Ms. Gaston testified that Defendant was angry
             and told her that she was not supposed to be with
             Mr. Browne and had been told to stay away from
             him. After Mr. Browne and Ms. Gaston were free to
             go, they proceeded to leave the scene on foot.
             Defendant pulled up in her vehicle and Mr. Browne
             and Ms. Gaston got into her car. Mr. Browne in the
             front seat and Ms. Gaston in the back. An argument


                                      -2-
J. A18024/16


          ensued, and Ms. Gaston stated that Defendant
          stopped the car in the middle of the street for them
          to get out.     Kyle got out first, and Ms. Gaston
          claimed she could not get out of the car because the
          door would not open, so Defendant drove off with
          Ms. Gaston still in the back seat.

                 Ms. Gaston testified that the back door was not
          opening, and she started kicking it, attempting to get
          out. Ms. Gaston stated that she reached into the
          front seat to try to open the front door and, at that
          point, Defendant pulled Ms. Gaston down by her
          hoody while driving and punched her in the face.
          Ms. Gaston said she started kicking the back door
          again very hard, and saw a stop sign and cars in
          front of them slow down. She thought that when
          Defendant got down to 10 or 15 miles per hour, that
          she could jump out of the vehicle and into the snow.
          She was seated on top of Defendant’s grandson’s car
          seat at the time. The back door did eventually open
          and Ms. Gaston noted that Defendant was traveling
          at around 30 or 35 miles per hour. Ms. Gaston
          testified that Defendant then reached over and
          pushed her out of the vehicle. Witnesses came to
          Ms. Gaston’s assistance until police officers and [an]
          ambulance arrived. Ms. Gaston was transported to
          Hershey Medical Center, where she was treated for a
          broken tibia. Specifically, she had two surgeries
          requiring a plate and screws.

                 One of the witnesses, Laurie Kawalski, was
          driving on the opposite side of Defendant’s vehicle
          on the day in question. Ms. Kawalski was almost
          directly face-to-face with them on the other side of
          the road and testified that she saw someone in the
          driver’s seat push someone out of the car.

                Following several witnesses for the defense
          who testified as to Defendant’s reputation as a
          peaceful, law-abiding person, Defendant testified on
          her own behalf. Immediately before her testimony,
          the jury was taken outside of the courthouse to view
          Defendant’s Honda Element. Defendant confirmed
          that she did not want Ms. Gaston to date her son.


                                  -3-
J. A18024/16


             She did not believe Ms. Gaston was a good influence,
             and she would send nasty texts to Defendant.
             Defendant testified that Ms. Gaston did not get out
             of the car when her son did, and instead just sat
             there. Defendant was late for work at this point and
             told her that she would drop Ms. Gaston off at
             Wal-Mart on her way to work. Defendant said she
             began lecturing Ms. Gaston, and Ms. Gaston started
             cursing at her in response, and told her to let her
             “the f**k out of the car,” and started kicking the
             door. Defendant told her she would let her out but
             had to slow down first. Defendant testified that
             Ms. Gaston came up front between the two seats,
             opened the front passenger door, then returned to
             the back and popped the rear door open. Defendant
             started to slow the car and, by the time Defendant
             turned around, Ms. Gaston had jumped from the
             vehicle.   Defendant stated that she at no time
             pushed her, threatened to push her, or wanted to
             push her. She also testified that even if she wanted
             to, she could not push someone out of her car.

Trial court opinion, 2/17/16 at 4-6 (citations omitted).

        The record further reflects that Browne’s jury trial commenced on

March 9, 2015.      On March 10, 2015, the evidentiary portion of the trial

concluded and the jury began deliberations late in the afternoon. The jury

returned its verdict on March 11, 2015. With respect to aggravated assault,1

the jury found Browne guilty of “aggravated assault, 1-A causing serious

bodily injury” and not guilty of “aggravated assault Subsection B, Count 1,

attempted.”     (Notes of testimony, 3/11/16 at 13.).      The jury also found




1
    18 Pa.C.S.A. § 2702(a)(1).


                                     -4-
J. A18024/16


Browne guilty of simple assault and recklessly endangering another person

(“REAP”).2

       During Browne’s sentencing hearing on May 29, 2015, the trial court

stated:

             [THE COURT:] We have a number of things that
             have occurred in this case. When a jury gets a case
             with numerous witnesses and facts to consider, and
             in this one we even had the view where the vehicle
             was brought for them to see the vehicle, for them to
             see the dynamics and the dimensions of the vehicle
             in considering their verdict. As I had referenced
             before in my comments, a jury must try to fit
             together, if they can, all the pieces that they find to
             be true and correct and come up with a fair and just
             verdict.

                    Over the years I’ve been here, which have
             been quite a few on this bench starting in 1994,
             there are only two cases I would say that I would
             have -- that would have caused me to, if you will, fall
             off my chair at the verdict. Only two. . . . The
             second one is this one with the aggravated assault
             causing serious bodily injury, and I’ve struggled and
             struggled and struggled with it, and I think I figured
             it out. And I may be wrong.

                   It wasn’t until it hit me of what they found to
             be not there, what the jury found to be not guilty,
             that the light bulb went on. And part of the problem
             or part of the concern I have is the very standard
             charge I gave to the jury, because what they
             convicted of was that serious bodily injury under
             aggravated assault causing serious bodily injury,
             they must first find that there was serious bodily
             injury to [the victim]. And there’s no doubt she
             suffered serious bodily injury. No doubt about it.
             But we said that the Defendant caused it. But how?
             How was it caused?

2
    18 Pa.C.S.A. §§ 3701(a) and 2705, respectively.


                                      -5-
J. A18024/16



                  The Commonwealth’s fact pattern was that it
           was done intentionally and knowingly. They had also
           the catch of recklessly as well which came into play,
           but the Commonwealth’s position factually was that
           she physically pushed the victim out of the car. I’m
           not sure that the jury bought that, because I know I
           didn’t. I thought that was impossible to occur. No
           offense, she’s not very tall. I know what it’s like to
           not be very tall. You don’t have a long arm span. I
           couldn’t imagine how you could sit in the driver’s
           seat with your feet under the pedals and a left hand
           to somehow hold the wheel, because you’re not
           going to let go of it while the vehicle is going, even if
           it’s only a small degree of speed . . . .

Notes of testimony, 5/29/15 at 19-21.

     Thereafter, the trial court sentenced Browne to 12 months of probation

for REAP, found that simple assault merged with aggravated assault, and

imposed no further penalty for aggravated assault. (Id. at 28.)

     On June 8, 2015, the Commonwealth filed a motion for modification of

sentence contending that the sentence did not reflect the verdict.     On the

same day, Browne filed a post-sentence motion, followed by a supplemental

post-sentence motion following receipt of the trial transcript, raising weight

and sufficiency claims and moving for a judgment of acquittal on the

aggravated assault and simple assault convictions.

     On September 28, 2015, the trial court granted, in part, the

Commonwealth’s motion for modification of sentence and sentenced Browne

to 12 months of probation on the simple assault count, to run consecutive to

the 12 months of probation imposed on the REAP count.           The court also



                                     -6-
J. A18024/16


granted, in part, Browne’s post-sentence motion and arrested judgment on

the aggravated assault count because “the verdict was against the weight of

the evidence.”   (Order of court, 9/28/15; Docket #20-10.)         These timely

cross-appeals followed. Both parties complied with the court’s order to file a

Pa.R.A.P.   1925(b)   statement.     Thereafter,   the   trial   court   filed   its

Pa.R.A.P. 1925(a) opinion wherein the court acknowledged:

                  This Court’s order granting in part both the
            Commonwealth’s and [Browne’s] post-sentence
            motions should have stated that there was
            insufficient evidence of aggravated assault to
            sustain the verdict (as opposed to the verdict being
            against the weight of the evidence), as the
            intended result was to arrest judgment (and not to
            direct a new trial).

Trial court opinion, 2/17/16 at 3 (emphasis in original).        The court then

addressed the Commonwealth’s challenge to the arrest of judgment on the

aggravated assault conviction under the proper sufficiency of the evidence

standard.

      We will address the Commonwealth’s claims first. The Commonwealth

raises the following issues:

            A.    WHETHER THE TRIAL COURT ERRED IN
                  GRANTING AN ARREST OF JUDGMENT ON
                  COUNT ONE, AGGRAVATED ASSAULT, BASED
                  ON A CLAIM THAT THE JURY’S VERDICT WAS
                  AGAINST THE WEIGHT OF THE EVIDENCE?

            B.    WHETHER THE TRIAL COURT ABUSED ITS
                  DISCRETION IN DETERMINING THAT THE
                  JURY’S VERDICT WAS AGAINST THE WEIGHT
                  OF THE EVIDENCE AS TO COUNT ONE,
                  AGGRAVATED     ASSAULT,  WHERE    THE


                                    -7-
J. A18024/16


                  EVIDENCE   ALLOWED     THE    JURY   TO
                  REASONABLY INFER THAT [BROWNE] ACTED
                  RECKLESSLY AND WITH MALICE IN CAUSING
                  SERIOUS BODILY INJURY TO THE VICTIM?

Commonwealth’s brief at 5.

      At the outset, we note that the Commonwealth takes issue with the

trial court stating in its September 28, 2015 order that it arrested judgment

on Browne’s aggravated assault conviction “because the verdict was against

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

corrected that error and set forth its reasoning for arresting judgment under

the proper sufficiency of the evidence standard. Courts have inherent power

to correct patent and obvious mistakes. See Commonwealth v. Holmes,

933 A.2d 57 (Pa. 2007).      We will, therefore, determine whether the trial

court properly arrested judgment on Browne’s aggravated assault conviction

on insufficient evidence grounds.

      Our standard of review of this claim is as follows:

                   When ruling on a motion in arrest of judgment,
            a trial court is limited to ascertaining the absence or
            presence of that quantum of evidence necessary to
            establish the elements of the crime. At this stage in
            the proceedings, the trial court is limited to rectifying
            trial errors, and cannot make a redetermination of
            credibility and weight of the evidence. . . .

                  For purposes of appellate review,

                  In passing upon such a motion [in arrest
                  of judgment], the sufficiency of the
                  evidence must be evaluated upon the
                  entire trial record. All of the evidence
                  must be read in the light most favorable


                                      -8-
J. A18024/16


                 to the Commonwealth and it is entitled to
                 all   reasonable    inferences    arising
                 therefrom. The effect of such a motion is
                 to admit all the facts which the
                 Commonwealth’s evidence tends to
                 prove.

           In order for a trial court to properly grant a criminal
           defendant’s motion in arrest of judgment on the
           ground of insufficient evidence, it must be
           determined that accepting all of the evidence and all
           reasonable inferences therefrom, upon which, if
           believed the verdict could properly have been based,
           it would be nonetheless insufficient in law to find
           beyond a reasonable doubt that the defendant is
           guilty of the crime charged.

Commonwealth v. Melechio, 658 A.2d 1385, 1387 (Pa.Super. 1995)

(citations, quotation marks, brackets, and emphasis omitted).

           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. 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 proof 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 the evidence
           actually received must be considered. Finally, the
           trier of fact while passing upon the credibility of



                                    -9-
J. A18024/16


            witnesses and the weight of the evidence produced,
            is free to believe all, part or none of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      Under the Crimes Code, a person may be convicted of aggravated

assault, a first-degree felony, if he “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.” 18 Pa.C.S.A. § 2702(a)(1); see also Commonwealth v. McClendon,

874 A.2d 1223, 1229 (Pa.Super. 2005).

      Here, the jury convicted Browne of aggravated assault after finding

that she caused the victim to sustain serious bodily injury. The trial court

arrested judgment because it determined that it was physically impossible

for Browne to have pushed the victim out of the Honda Element sport utility

vehicle (“SUV”).      Where the evidence offered to support the verdict

contradicts physical facts, in contravention of human experience and the

laws of nature, then the evidence is insufficient as a matter of law.    See

Commonwealth v. Santana, 333 A.2d 876, 878 (Pa. 1975).

      The record reflects that 49-year-old Browne is 4 feet 11 inches tall.

(Notes of testimony, 3/10/15 at 91.)    At the time of the incident, Browne

was driving the Honda Element SUV.       The record further reflects that the

24-year-old victim stands 5 feet 4 inches tall and weighs 120 pounds.

(Notes of testimony, 3/9/15 at 17, 49.) The victim was sitting on the edge


                                    - 10 -
J. A18024/16


of an infant car seat that was located in the SUV’s right rear passenger seat.

(Id. at 46, 64-66.)     As the victim prepared to jump out of the rear

passenger door, which was open, she held onto the front passenger head

rest with her left hand and pressed her right hand against the rear

passenger seat.   (Id. at 34; 3/10/15 at 133, 134.)     During this time, the

victim’s back faced Browne. (Notes of testimony, 3/10/15 at 133.)

      The record further reflects that while Browne steered the vehicle with

her left hand and drove approximately 30 to 35 miles per hour, the victim

claimed that Browne reached behind the front passenger’s seat with her

right hand and pushed the victim “beside [her] left shoulder” and out of the

vehicle. (Notes of testimony, 3/9/15 at 34, 46.)

      The trial court concluded that it was physically impossible for 4 foot

11 inch Browne to have reached behind the passenger’s seat of the SUV

while driving and push the victim out of the vehicle. In so doing, the trial

court specifically found that the verdict was contradicted by physical facts

and was, therefore, insufficient as a matter of law. On this basis, we cannot

find that the court abused its discretion, and we affirm the arrest of

judgment on Browne’s aggravated assault conviction.

      We now turn to the issue on appeal raised by Browne:

            Whether the trial court committed an error of law in
            failing to arrest judgment as [to] simple assault
            because there was insufficient evidence to sustain
            the verdict[?]

Brown’s brief at 5.


                                    - 11 -
J. A18024/16


      A person is guilty of simple assault if she “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another.”

18 Pa.C.S.A. § 2701(a)(1).

      Here, the record reflects that during the altercation in the SUV, the

victim leaned up into the front seat area of the vehicle. As she did so, the

victim testified that Browne “pulled [her] down by [her] hoody” and punched

her in the face.   (Notes of testimony, 3/9/15 at 32.)      That evidence was

sufficient to sustain Browne’s conviction for simple assault.

      Arrest of judgment on the aggravated assault conviction affirmed.

Judgment of sentence on the simple assault conviction affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016




                                     - 12 -
