J-S04007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: C.C.M., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.C.M.                          :
                                               :
                                               :
                                               :
                                               :   No. 1449 MDA 2017

           Appeal from the Dispositional Order Entered August 17, 2017
    In the Court of Common Pleas of Clinton County Juvenile Division at No(s):
                            CP-18-JV-0000073-2016


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

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 01, 2018

        Appellant, C.C.M., a minor, appeals from the dispositional order

entered after he was adjudicated delinquent on charges of aggravated

assault and resisting arrest.1 We affirm.

        The juvenile court summarized the factual history of this case as

follows:

              Trooper [Andrew] Mincer[, of the Pennsylvania State Police
        Department,] testified that on November 26, 2016 at 12:00
        Noon he was requested by Chief David Winkleman of the Pine
        Creek Police Department to act as Drug Recognition Expert
        concerning the arrest of [Appellant] for Driving Under the
        Influence of a Controlled Substance. Trooper Mincer testified
        that Chief Winkleman transported [Appellant] to the
        Pennsylvania State Police Barracks and arrived at approximately
        12:15 P.M. Trooper Mincer testified that [Appellant] threatened

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1   18 Pa.C.S. §§ 2702(a)(3) and 5104, respectively.
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      to kill Chief Winkleman and referred to him as “Winklenuts.”
      Trooper Mincer indicated that Trooper Mincer determined that
      [Appellant] was under the influence of a controlled substance
      and informed Chief Winkleman of that after doing a drug
      influence evaluation. Trooper Mincer indicated that the next step
      was to take [Appellant] for a blood draw. At this point and time
      [Appellant] pushed Trooper Mincer, pulled away and attempted
      to strike Trooper Mincer by pulling back his arm with a closed fist
      and moving his arm forward. Trooper Mincer took [Appellant] to
      the ground. [Appellant] told Trooper Mincer “fuck you and leave
      me alone.” [Appellant] was placed in handcuffs and Trooper
      Mincer was assisted by another Trooper who happened to be in
      the Barracks. [Appellant] then spit blood and [saliva] into
      Trooper Mincer’s face and eyes and indicated to Trooper Mincer
      that [Appellant] hoped that Trooper Mincer liked herpes and
      referred to Trooper Mincer as a fat fuck.         Once placed in
      handcuffs, [Appellant] was taken to the Lock Haven Hospital for
      a blood draw. Trooper Mincer did not receive any injury, but
      indicated that [Appellant] had pulled back with a fist and was
      attempting to strike Trooper Mincer, but Trooper Mincer prior to
      being struck by [Appellant] took [Appellant] to the floor of the
      State Police Barracks.         Trooper Mincer indicated that
      [Appellant’s] shoulder and head area struck the floor and that
      when [Appellant] was brought to [his] feet that [Appellant] had
      a bloody lip and then spit on Trooper Mincer’s face at which point
      the blood and [saliva] entered Trooper Mincer’s eyes.

Juvenile Court Opinion, 10/4/17, at 2-3.

      In connection with the incident that occurred on November 26, 2016,

written allegations were filed alleging that Appellant had committed the

crimes of aggravated assault and resisting arrest.      Adjudication hearings

were held on April 3, 2017, and June 28, 2017.       At the conclusion of the

June 28, 2017 hearing, Appellant was adjudicated delinquent on all

allegations.   The juvenile court conducted a disposition hearing on August

17, 2017. After receiving a Juvenile Social History, the juvenile court placed

Appellant on supervision with the Clinton County Juvenile Probation Office

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and directed Appellant to complete 150 hours of community service.          This

appeal followed. Both Appellant and the juvenile court have complied with

Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       1. Whether the evidence was sufficient to prove beyond a
       reasonable doubt that Appellant committed the offense of
       Aggravated Assault upon Trooper Mincer? Specifically, whether
       there was sufficient evidence to establish beyond a reasonable
       doubt that Trooper Mincer suffered bodily injury as defined in the
       crimes code?

       2 Whether the evidence was sufficient to prove beyond a
       reasonable doubt that Appellant committed the offense of
       Aggravated Assault upon Trooper Mincer? Specifically, whether
       there was sufficient evidence to establish beyond a reasonable
       doubt that Appellant attempted to cause bodily injury to Trooper
       Mincer as that term is defined by the Crimes Code?

              a. Whether there was sufficient evidence to establish
              beyond a reasonable doubt that it was Appellant’s
              specific intent to cause bodily injury to Trooper
              Mincer?

              b. Whether the evidence was sufficient to establish
              beyond a reasonable doubt that Appellant took a
              substantial step to cause bodily injury to Trooper
              Mincer?

Appellant’s Brief at 8-9.2

       Appellant argues that the evidence was insufficient to support an

adjudication of delinquency on the charge of aggravated assault. Appellant’s

Brief at 16-21.      Specifically, Appellant contends that the Commonwealth
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2 In his appellate brief, Appellant presents both of his issues in a single
argument. Accordingly, we will address his argument with a single analysis.



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failed to prove that Trooper Mincer actually suffered a bodily injury, and the

Commonwealth failed to prove that Appellant attempted to cause bodily

injury to the officer.

      We begin our review with the following standard in mind:

             In evaluating a challenge to the sufficiency of the
      evidence, we must determine whether, viewing the evidence in
      the light most favorable to the Commonwealth as verdict winner,
      together with all reasonable inferences therefrom, the trier of
      fact could have found that each and every element of the crimes
      charged was established beyond a reasonable doubt. In making
      this determination, we must evaluate the entire trial record and
      consider all the evidence actually received. It is within the
      province of the fact finder to determine the weight to be
      accorded each witness’s testimony and to believe all, part, or
      none of the evidence introduced at trial.

In the Interest of J.C., 751 A.2d 1178, 1180 (Pa. Super. 2000).

Moreover, the Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by wholly circumstantial

evidence. In the Interest of J.D., 798 A.2d 210, 212 (Pa. Super. 2002).

      Aggravated assault of a police officer is defined as “attempt[ing] to

cause or intentionally or knowingly caus[ing] 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. § 2702(a)(3). Under subsection (c)

of section 2702, police officers are enumerated. 18 Pa.C.S. § 2702(c)(1).

      To establish that a perpetrator committed aggravated assault under

section 2702(a)(3), the Commonwealth has no obligation to establish that

the officer actually suffered a bodily injury; rather, the Commonwealth must


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establish only an attempt to inflict bodily injury. Commonwealth v. Marti,

779 A.2d 1177 (Pa. Super. 2001) (emphasis omitted). This intent may be

shown by circumstances which reasonably suggest that a defendant

intended to cause injury. Id.; see also Commonwealth v. Galindes, 786

A.2d 1004, 1012 (Pa. Super. 2001) (“An attempt exists when the accused

intentionally acts in a manner which constitutes a substantial or significant

step toward perpetrating . . . bodily injury upon another.”).

      The juvenile court addressed Appellant’s challenge to the sufficiency of

the evidence as follows:

            [Appellant] simply argues that there was insufficient
      evidence to establish beyond a reasonable doubt that [Appellant]
      committed the offense of Aggravated Assault upon Trooper
      Mincer. [Appellant] was charged with committing Aggravated
      Assault by an attempt to cause bodily injury on a police officer
      by resisting arrest, attempting to strike and spitting blood and
      [saliva] into the face of Trooper Mincer. The Commonwealth
      does not allege that Trooper Mincer suffered bodily injury, only
      that there was an attempt made by [Appellant].

            In Commonwealth vs. Fortune, 68 A.3d 980 (Pa. Super.
      2013) appeal denied, 621 Pa. 701, 78 A.3d 1089, the Superior
      Court found that where an accused possessed the required
      specific intent, acts in a manner which constitutes a substantial
      step towards perpetrating a serious bodily injury upon another
      that this was sufficient to find that an attempt to commit
      aggravated assault has occurred. The Superior Court further
      indicated that an intent ordinarily must be proven through
      circumstantial evidence and inferred acts, conduct or attendant
      circumstances. In this case, [Appellant] had threatened to harm
      Chief Winkleman, another Law Enforcement Officer who had
      arrested [Appellant] for Driving Under the Influence of a
      Controlled Substance and after pushing Trooper Mincer, pulled
      his arm back with a closed fist and attempted to strike the
      Trooper, who then took evasive actions to halt such injury to the
      Trooper. As noted, [Appellant] has only been charged with

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      Attempting to Cause Bodily Injury to the Trooper. Bodily injury is
      defined as impairment of physical condition or substantial pain.
      See 18 Pa.C.S.A. § 2301.         Clearly, [Appellant] who had
      threatened to kill a Law Enforcement Officer in the presence of
      Trooper Mincer, attempted to strike Trooper Mincer with a closed
      fist to his face, spit in Trooper Mincer’s face with blood and
      [saliva] hoping that Trooper Mincer contracted an infectious
      disease, all indicate that [Appellant] had a specific intent to
      cause impairment of physical condition or substantial pain to
      Trooper Mincer.

Juvenile Court Opinion, 10/4/17, at 3-4.

      It was within the hearing judge’s province to find that Appellant, by

pulling his fist back and then spitting blood and saliva into the state

trooper’s face and eyes, intended to cause injury to Trooper Mincer. Trooper

Mincer testified that Appellant pulled his fist back, which the trooper believed

was an attempt by Appellant to strike him. N.T., 4/3/17, at 49-50. Trooper

Mincer further stated that Appellant had assumed a threatening posture. Id.

at 51. After Trooper Mincer handcuffed Appellant, Appellant responded by

spitting blood and saliva into the trooper’s face and eyes. Trooper Mincer

testified that when Appellant spit at him, “the saliva and blood went all

through my face and into my eyes.” Id. at 40. He further explained that

Appellant’s “comment at that point was something to the effect of, I hope

you like herpes you fat fuck.” Id. This statement made by Appellant at the

time of his actions further establishes that Appellant was attempting to inflict

bodily injury.

      Based on the foregoing evidence, we are satisfied that the hearing

judge properly determined the Commonwealth established beyond a

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reasonable doubt the element of attempt to cause bodily injury, which was

necessary for the adjudication of delinquency for the offense of aggravated

assault. Accordingly, we conclude that the evidence was sufficient to sustain

Appellant’s adjudication of delinquency and that Appellant’s contrary claim

lacks merit.

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/01/2018




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