J-S62037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER LEE SIRMONS

                            Appellant                        No. 261 MDA 2016


          Appeal from the Judgment of Sentence December 17, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001770-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED SEPTEMBER 09, 2016

        Appellant Christopher Lee Sirmons, appeals from the judgment of

sentence entered in the Centre County Court of Common Pleas, following his

jury trial convictions for two counts each of aggravated assault and simple

assault.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On July 11, 2014, Appellant was incarcerated at SCI-Rockview.                       At

approximately 7:45 p.m., the inmates were in a “blackout” period, which is a

recess-like    time   when     inmates     can   play    cards,   board   games,   etc.

Corrections Officer (“CO”) Garrett Dixon was on duty performing security

rounds and his normal responsibilities with respect to the care, custody, and
____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), respectively.
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control   of   inmates.      CO    Dixon    observed   Appellant   standing    in   an

unauthorized area, near a divider gate that separates the Restricted Housing

Unit (“RHU”). Inmates are not permitted to stand near the divider because

contraband is often passed into the RHU. CO Dixon asked Appellant what he

was doing by the gate; Appellant did not respond. CO Dixon then ordered

Appellant to remove the gloves he was wearing and informed Appellant that

CO Dixon was going to perform a pat-down due to Appellant’s suspicious

behavior.      Appellant initially argued about removing his gloves, but he

eventually     complied.          During    the   pat-down,   Appellant       became

argumentative. CO Dixon completed the pat-down and found no contraband

on Appellant’s person.

      CO Dixon directed Appellant to return to his cell.           Appellant did not

comply. Instead, Appellant began walking in a different direction. CO Dixon

again ordered Appellant to return to his cell. Appellant failed to comply and

laughed at the officer.      At that point, CO Dixon commanded Appellant to

“cuff up,” meaning Appellant must put his hands behind his back so CO

Dixon could handcuff him.          Appellant put his hands behind his back and

while CO Dixon was reaching for handcuffs, Appellant turned around and

punched CO Dixon in the face with a closed fist.           Appellant hit CO Dixon

again in the jaw.         Appellant continued swinging punches as CO Dixon

attempted to regain control of Appellant.

      CO Daniel Sayers was on duty during the incident and observed the


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assault and the events leading up to it.    Specifically, CO Sayers heard CO

Dixon command Appellant to go to his cell.          When CO Dixon ordered

Appellant to “cuff up,” CO Sayers saw Appellant stand with his back toward

CO Dixon and then shift as if he was ready to strike.         CO Sayers then

watched Appellant strike CO Dixon. CO Sayers responded to the scene to

aid CO Dixon in controlling Appellant.     When CO Sayers tried to restrain

Appellant, Appellant struck CO Sayers in the face with a closed fist.

Appellant got on top of CO Sayers and continued to fight with him.

      Lieutenant Lynn Smith was on duty during the incident and received a

transmission over the radio regarding a fight, so he responded to the scene.

Lieutenant Smith observed Appellant on top of CO Sayers.             Appellant

disobeyed multiple orders to put his hands behind his back. CO Kevin Falls

also heard a fight occurring and saw an officer and an inmate rolling around

on the ground.     CO Falls responded to the scene and Lieutenant Smith

directed him to secure Appellant, along with another officer.     The officers

eventually restrained Appellant.   Shortly thereafter, Appellant said to CO

Falls: “Falls, man, they got me. It was a fair fight. I deserved it, but they

fucking got me.”    (N.T. Jury Trial, 11/6/15, at 16-17).      CO Dixon was

swollen and sore for a few days following the assault, had difficulty chewing

and opening his mouth, and took Motrin for pain. CO Dixon also described

the pain felt from Appellant’s initial blow as a seven or eight on a scale from

one to ten. CO Sayers was in pain for about a week following the assault.


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        The Commonwealth charged Appellant with aggravated assault and

simple assault. Appellant’s jury trial began on November 6, 2015.2 At the

conclusion of evidence, defense counsel asked the court to accept her

proposed point for charge No. 16, supplying an expansive definition of

“bodily injury.”      The Commonwealth requested the court use only the

standard jury instruction regarding “bodily injury.”           The court rejected

defense counsel’s proposed point for charge and used the standard jury

instruction for that definition. Defense counsel objected to the court’s ruling.

Following deliberations, the jury convicted Appellant of two counts each of

aggravated assault and simple assault.

        On December 17, 2015, the court sentenced Appellant to consecutive

terms of two to four years’ imprisonment for each aggravated assault

conviction, consecutive to the sentence Appellant was already serving. The

simple assault convictions merged for sentencing purposes. Appellant timely

filed a post-sentence motion on December 18, 2015, challenging the court’s

refusal to issue his proposed point for charge regarding the definition of

“bodily injury.” Following a hearing on February 8, 2016, the court denied

the post-sentence motion.          Appellant timely filed a notice of appeal on

February 10, 2016.        The next day, the court ordered Appellant to file a

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

____________________________________________


2
    Appellant waived his right to attend or participate in his trial.



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1925(b). Appellant timely complied on February 26, 2016.

      Appellant raises one issue for our review:

         DID THE TRIAL COURT ERRONEOUSLY REFUSE TO GIVE
         APPELLANT’S REQUESTED POINT FOR CHARGE NUMBER
         16, AN EXPANDED DEFINITION OF “IMPAIRMENT OF
         PHYSICAL CONDITION OR SUBSTANTIAL PAIN?”

(Appellant’s Brief at 10).

      Appellant   asserts    the   Crimes   Code   defines   “bodily   injury”   as

“impairment of physical condition or substantial pain.”        Appellant argues

Pennsylvania case law has expanded on this definition to define “bodily

injury” as “a physical event unlike those commonly occurring in normal life

which, although unpleasant and somewhat painful, do not seriously interrupt

one’s daily life.” Appellant contends this expansive definition demonstrates

the legislature’s intent to protect and preserve one’s physical wellbeing but

not to prevent temporary pain resulting from trivial contacts which are part

of modern day living. Appellant claims his proposed point for charge recited

language from case law concerning the definition for “bodily injury.” Under

Appellant’s proffered definition, Appellant maintains he did not cause “bodily

injury” to CO Dixon or CO Sayers because they sustained only minor

abrasions.    Appellant avers the court failed to give the jury sufficient

guidance about the level of impairment or pain necessary to cause “bodily

injury” for purposes of simple assault and aggravated assault.          Appellant

insists his was a “close case,” so any ambiguity regarding the definition of

“bodily injury” would not amount to harmless error. Appellant concludes the

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court erred by refusing to give his proposed point for charge on “bodily

injury,” and this Court must grant Appellant a new trial. We disagree.

      The   Crimes   Code   defines   the   offenses     of    simple    assault   and

aggravated assault, 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[.]

                                  *    *    *

         § 2702. Aggravated assault

           (a) Offense defined.—A               person    is    guilty    of
         aggravated assault if he:

                                  *    *    *

             (3) attempts to cause or intentionally or knowingly
         causes bodily injury to any of the officers, agents,
         employees or other persons enumerated in subsection (c),
         in the performance of duty[.]

                                  *    *    *

             (c) Officers, employees, etc., enumerated.—The
         officers, agents, employees and other persons referred to
         in subsection (a) shall be as follows:

                                  *    *    *

            (9) Officer or employee of a correctional institution,
         county jail or prison, juvenile detention center or any other
         facility to which the person has been ordered by the court
         pursuant to a petition alleging delinquency under 42
         Pa.C.S. Ch. 63 (relating to juvenile matters).

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                                   *     *   *

18 Pa.C.S.A. §§ 2701(a)(1), 2702(a)(3), (c)(9).      The Crimes Code defines

“bodily injury” as “[i]mpairment of physical condition or substantial pain.”

18 Pa.C.S.A. § 2301 (definitions).      Likewise, the Pennsylvania Suggested

Standard Criminal Jury Instructions for “Simple Assault—Bodily Injury

Attempted,” “Simple Assault—Bodily Injury Caused,” “Aggravated Assault—

Attempt to Cause Bodily Injury to an Enumerated Person,” and “Aggravated

Assault—Causing Bodily Injury to an Enumerated Person” define “bodily

injury” as “impairment of physical condition or substantial pain.”          See

Pa.SSJI (Crim), § 15.2701A (2016); Pa.SSJI (Crim), § 15.2701B (2016);

Pa.SSJI (Crim), § 15.2702C.1 (2016); Pa.SSJI (Crim), § 15.2702D.1 (2016).

        “Our    standard of   review   when considering   the   denial of   jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when [the court] abused its discretion or committed an error of

law.”    Commonwealth v. Janda, 14 A.3d 147, 163 (Pa.Super. 2011).

Additionally:

          [W]e must review the jury charge as a whole to determine
          if it is fair and complete. A trial court has wide discretion
          in phrasing its jury instructions, and can choose its own
          words as long as the law is clearly, adequately, and
          accurately presented to the jury for its consideration. The
          trial court commits an abuse of discretion only when there
          is an inaccurate statement of the law.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal

denied, 606 Pa. 644, 992 A.2d 885 (2010) (quoting Commonwealth v.

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Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal denied, 599 Pa. 708,

962 A.2d 1196 (2008)). Further:

         A jury charge will be deemed erroneous only if the charge
         as a whole is inadequate, not clear or has a tendency to
         mislead or confuse, rather than clarify, a material issue. A
         charge is considered adequate unless the jury was
         palpably misled by what the trial judge said or there is an
         omission which is tantamount to fundamental error.
         Consequently, the trial court has wide discretion in
         fashioning jury instructions. The trial court is not required
         to give every charge that is requested by the parties and
         its refusal to give a requested charge does not require
         reversal unless the appellant was prejudiced by that
         refusal.

Baker, supra at 507 (quoting Commonwealth v. Brown, 911 A.2d 576,

582-83 (Pa.Super. 2006), appeal denied, 591 Pa. 722, 920 A.2d 830

(2007)). See also Commonwealth v. Towles, ___ Pa. ___, 106 A.3d 591

(2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1494, 191 L.Ed.2d 435 (2015)

(holding jury instruction on “premeditation” thoroughly and accurately

represented law on first-degree murder; trial court’s instructions were

largely based on standard jury instructions; trial court was free to reject

appellant’s expansive definitions of “premeditation” and “deliberation” based

on descriptions found in case law, legal treatises, and dictionaries; appellant

does   not   assert   that   standard   jury    instructions   impinge   upon   his

constitutional or other legal rights; insofar as appellant asks this Court to

critique subtleties of language in Pennsylvania Suggested Standard Jury

Instructions, Court declines his invitation).

       Instantly, Appellant submitted the following proposed point for charge

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regarding the definition of “bodily injury”:

         16.    Impairment of Physical              Condition    and
         Substantial Pain Defined:

         As I have already indicated, in order for [Appellant] to be
         guilty of Aggravated Assault or Simple Assault, you must
         find that he caused or intended to cause bodily injury to
         Garrett Dixon and/or Daniel Sayers. The term “bodily
         injury” means a physical event unlike those commonly
         occurring in normal life which, although unpleasant and
         somewhat painful, do not seriously interrupt one’s daily
         life. For example, if one cuts oneself shaving the average
         person does not think that he has suffered an injury even
         though such an event could be accompanied by some pain
         and bloodshed. Similarly, if one stubbed a toe or dropped
         something on it, even though it could elicit a fair amount
         of pain and might even result in some limping and the
         ultimate loss of a toenail, one would not think of himself as
         injured. The same could be said if one bumped an elbow
         against the wall or one’s head on a low ceiling beam.

         Accordingly, it is not enough for the Commonwealth to
         demonstrate temporary hurts resulting from trivial
         contacts. Rather, in order to prove that the defendant
         caused “bodily injury,” the Commonwealth must prove that
         Garrett Dixon and/or Daniel Sayers suffered either
         “physical impairment” or “substantial pain.” In order to
         demonstrate, beyond a reasonable doubt, that Garrett
         Dixon    and/or    Daniel     Sayers  suffered  “physical
         impairment,” the Commonwealth must demonstrate more
         than minor redness, bruises, or slight cuts. Similarly, in
         order to demonstrate that Garrett Dixon and/or Daniel
         Sayers suffered “substantial pain,” the Commonwealth
         must demonstrate that they experienced more pain than
         mere temporary aches or soreness. In deciding whether
         they actually suffered “bodily injury,” you can consider
         such relevant factors as whether they missed work or saw
         a physician due to bodily injury.

         With respect to the Commonwealth’s alternative theory
         that [Appellant] attempted to cause bodily injury by his
         actions, you must be convinced beyond a reasonable doubt
         that it was [Appellant’s] conscious objective to cause this

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          amount of pain or physical impairment.

(Appellant’s Proposed Points for Charge, 11/5/15, at 4-5).            The court

rejected Appellant’s proposed point for charge No. 16, in favor of the

standard jury instruction defining “bodily injury” as “the impairment of

physical condition or substantial pain.” (N.T., 11/6/15, at 200-01).

       At the conclusion of the hearing on Appellant’s post-sentence motion,

the court explained its rationale for rejecting Appellant’s proposed point for

charge:

          Thank you. Well, the [c]ourt has on occasion found that
          some of the standard instructions are maybe way too
          complicated or maybe way too detailed, and has
          attempted to try to simplify them. I believe that the
          standard instruction as it relates to the definition of bodily
          injury and the definition for serious bodily injury[3] are
          succinct; they’re clear; they’re understandable.          The
          [c]ourt declined to read the instruction that [defense
          counsel gave], that although it supplements in some
          fashion or another, the [c]ourt is always mindful of not
          extending the instructions to the jury longer than need be,
          not diluting the instructions with countless other
          amplifications, and so the [c]ourt believes that it was
          proper to give the standard instruction, but does not
          believe that it erred in failing to give the supplemental
          instruction requested by [defense counsel]. As such, the
          post-sentence motion is denied.

(N.T. Post-Sentence Motion Hearing, 2/8/16, at 7).

       In its Rule 1925(a) opinion, the court added:

____________________________________________


3
  The court did not issue a jury instruction on “serious bodily injury” in this
case, as the crimes at issue do not require serious bodily injury. See 18
Pa.C.S.A. §§ 2701(a)(1), 2702(a)(3).



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        In the instant case, the [c]ourt used the standard jury
        instructions, and found that the definitions contained
        therein were sufficient to explain the charges of
        Aggravated Assault and Simple Assault.         This [c]ourt
        respectfully submits that it did not abuse its discretion in
        denying [Appellant’s] request to give a specific case law
        based instruction, and that our Orders of December 17,
        [2015] and February 8, 2016 should remain undisturbed.

(Trial Court Opinion, filed March 1, 2016, at 1-2).   We see no reason to

disrupt the court’s decision to deny Appellant’s proposed point for charge on

“bodily injury.” See Janda, supra; Baker, supra.

     The standard jury instruction on “bodily injury” mirrors the definition

supplied in the Crimes Code. Compare 18 Pa.C.S.A. § 2301 with Pa.SSJI

(Crim), § 15.2701A (2016); Pa.SSJI (Crim), § 15.2701B (2016); Pa.SSJI

(Crim), § 15.2702C.1 (2016); Pa.SSJI (Crim), § 15.2702D.1 (2016).

Consequently, the court’s instruction on “bodily injury” accurately reflects

the law. See Towles, supra; Baker, supra. Appellant does not claim that

the Pennsylvania Suggested Standard Jury Instructions impinge upon his

constitutional or other legal rights. See Towles, supra.

     Additionally, the cases on which Appellant relies do not involve a

court’s failure to issue a requested jury instruction and are factually

distinguishable from this case.   See, e.g., Commonwealth v. Wertelet,

696 A.2d 206, 210-13 (Pa.Super. 1997) (holding evidence was insufficient to

support appellant’s conviction for aggravated assault where appellant kicked

trooper twice in left shin during unlawful arrest; stating: “Although not

necessarily controlling, the connotation of bodily injury, a sort of common

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person understanding of the term, suggests a physical event unlike those

commonly    occurring   in   normal   life   which,   although   unpleasant   and

somewhat painful, do not seriously interrupt one’s daily life”; evidence

showed appellant did not kick trooper as hard as she could but merely

kicked trooper with back of her heel as she was flailing about and squirming

while police attempted to handcuff her; trooper testified pain he experienced

was “similar to bumping your shin on a coffee table in the dark when you’re

walking through the house”; trooper’s description of pain did not fall within

general connotation of term “injury”; thus, evidence was insufficient to

prove trooper experienced “bodily injury” necessary for aggravated assault

conviction) (emphasis added); Commonwealth v. Kirkwood, 520 A.2d

451 (Pa.Super. 1987) (holding evidence            was insufficient to    support

appellant’s conviction for simple assault where appellant swung his dance

partner violently about dance floor, as result of which dance partner

sustained bruises and fingernail marks on her arms; temporary aches and

pains brought about by strenuous, even violent, dancing are inadequate

basis for imposing criminal liability upon appellant for assault).

      Further, we disagree with Appellant’s position that his was a “close

case.”   See, e.g., Commonwealth v. Brown, 23 A.3d 544 (Pa.Super.

2011) (en banc) (affirming appellant’s conviction for aggravated assault

where appellant threw officer to ground when officer attempted to handcuff

appellant; during struggle, appellant struck officer repeatedly on arm,


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shoulder and mouth, causing officer to sustain swollen lip; rejecting

appellant’s reliance on Wertelet as distinguishable); Commonwealth v.

Marti, 779 A.2d 1177, 1181 (Pa.Super. 2001) (reversing dismissal of

aggravated assault charge for failure to set forth prima facie evidence of

“bodily injury,” and remanding for trial, where appellee struck sergeant in

jaw with closed fist resulting in “slight swelling and pain”; we refuse to

equate deliberate punch in face causing swelling and pain with facts in

Wertelet, where appellant had delivered mild kick to trooper’s shins while

resisting arrest, which trooper described as similar to bumping into coffee

table); Commonwealth v. Richardson, 636 A.2d 1195 (Pa.Super. 1994)

(affirming appellant’s assault conviction where appellant punched officer in

face with fist; appellant’s punch broke officer’s eyeglasses, caused officer to

stumble backwards, and caused pain for next few days; appellant’s

argument that officer did not suffer bodily injury because he did not receive

medical treatment or miss work as result of blow to face is frivolous;

appellant’s conduct in striking officer cannot be equated to violent dancing

as in facts of Kirkwood). Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016

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