J-A23013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY A. HANNA                           :
                                               :
                       Appellant               :   No. 1188 WDA 2018


         Appeal from the Judgment of Sentence Entered, May 30, 2018,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0006686-2017.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED DECEMBER 06, 2019

        Timothy A. Hanna appeals from the judgment of sentence imposed after

he was convicted of aggravated assault, simple assault, harassment and

disorderly conduct following a non-jury trial.1 After review, we affirm.

        The trial court set forth a very detailed summary of the testimony in this

case. Essentially, Hanna went to the hockey rink in Bethel Park on March 11,

2017, after he received a phone call from his wife.      According to Hanna, the

hockey coach, Dave Kelly, made disparaging remarks to Ms. Hanna about their

son. As Hanna waited outside the players’ dressing room to talk to the coach

after the game, the coach’s wife, Christie Kelly, approached him and asked

him not to speak with the coach for 24-hours as required by the coach’s rule.

Hanna started screaming at Ms. Kelly and threatening to harm her husband.
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1   18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2709(a)(1), and 5503(a)(3).
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He was bent over Ms. Kelly, poking her in the head with his nose and spitting

on her. Ms. Kelly raised her hand and pushed Hanna’s head away from her

face. Hanna then hit Ms. Kelly in the head and knocked her to the ground.

Hanna claimed he accidentally bumped Ms. Kelly in self-defense, after she

struck him with her jewelry-cladded hand.

      Later that evening, Ms. Kelly could not understand what her daughter

was saying to her; she was dizzy and nauseated. She also had a "pounding

headache." Mr. Kelly took Ms. Kelly to the hospital. While there, Ms. Kelly

was so sensitive to the bright lights that they had to be turned off while she

was examined.     After several tests, including a CT scan, Ms. Kelly was

diagnosed with a concussion and neck and back injuries.

      Following the incident, Ms. Kelly was unable to work for three and one-

half months and, during that time, she was deemed disabled by her

employer's insurance company. Eventually, she returned to work on light duty

and was restricted to working two to three days per week. As of the date of

trial, Ms. Kelly was still being treated by a concussion specialist. She required

physical therapy. Ms. Kelly continues to be sensitive to light and must work

in dimly lit rooms. She still suffers from headaches as a result of the assault.

      Following a non-jury trial, the court convicted Hanna of all charges. The

trial court sentenced Hanna to 11 1/2 to 23 months of incarceration plus 3

years of probation. However, following post-sentence motions, the trial court

reduced Hanna’s sentence to 18 months of house arrest with electronic

monitoring plus 3 years of probation.

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      Hanna filed this timely appeal. Both the trial court and Hanna complied

with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Hanna raises five issues:

      1. Did the trial court commit a legal error by concluding that the
      Commonwealth proved the mens rea, serious bodily injury, and
      causation elements of Aggravated Assault beyond a reasonable
      doubt?

      2. Was the evidence insufficient to support a conviction for
      Aggravated Assault?

      3. Should Mr. Hanna have been acquitted on the basis of the self-
      defense justification that was offered at trial?

      4. Were Mr. Hanna's convictions against the weight of the
      evidence?

      5. Should the case be remanded for further proceedings in light of
      new evidence?

Hanna’s Brief at 7.

      Initially we note that Hanna’s first two issues relate to the sufficiency of

the evidence to convict him of aggravated assault. Therefore, we address

them together.

      When analyzing whether the evidence was sufficient to support a

conviction, this Court must “view the evidence in the light most favorable to

the Commonwealth as the verdict winner in order to determine whether the

jury could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence

established at trial need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”



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Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012).                  “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.” Commonwealth

v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc). Additionally, this

Court cannot “re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id. A challenge to the sufficiency of the evidence presents

a pure question of law and, as such, our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065,

1076 (Pa. 2017).

       Hanna first argues that the evidence was insufficient to sustain his

conviction for aggravated assault.             Specifically, he contends that the

Commonwealth failed to show that Hanna exhibited the requisite level of

recklessness contemplated under the Crimes Code and thus failed to establish

the requisite mens rea.2 Hanna’s Brief at 13. Therefore, according to Hanna,

his sentence should be vacated. Id. at 13. We disagree.

       A person is guilty of aggravated assault “if he: (1) attempts to cause

serious bodily injury to another, or causes such injury intentionally, knowingly

____________________________________________


2 The trial court specifically convicted Hanna on the basis that he recklessly
caused serious bodily injury to Ms. Kelly under circumstances manifesting
extreme indifference to the value of human life.        Trial Court Opinion,
11/30/18, at 15.




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or recklessly under circumstances manifesting extreme indifferent to the value

of human life.” 18 Pa.C.S.A. 2702(a)(1). Where the victim suffers serious

bodily injury, the Commonwealth is not required to prove specific intent.

Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997) (citing

Commonwealth v. Hlatky, 626 A.2d 575 (Pa. Super. 1993), appeal denied,

644 A.2d 1200 (Pa. 1994)). “Serious bodily injury” is injury creating a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.      18    Pa.C.S.A.     §   2301.      Under   those   circumstances,   “[t]he

Commonwealth need only prove that [the defendant] acted recklessly under

circumstances manifesting an extreme indifference to the value of human life.”

Id. To establish the degree of recklessness contemplated by the aggravated

assault statute, “the offensive act must be performed under circumstances

which almost assure that injury or death will ensue.” Commonwealth v.

O'Hanlon, 653 A.2d 616, 618 (Pa. Super. 1995); Commonwealth v.

Hickson, 586 A.2d 393 (Pa. Super. 1990), alloc. denied, 593 A.2d 838

(1991).

       Here, Hanna does not dispute that there was sufficient evidence to

establish that Ms. Kelly suffered serious bodily injury.3 Nonetheless, we note

____________________________________________


3 Although Hanna references serious bodily injury in his sufficiency issue, he
does not address it in the argument portion of his brief relating to sufficiency.
Rather, he focuses on the mens rea and recklessness elements. Because he
did not develop this issue, it is waived. See Commonwealth v. Walter, 966
A.2d 560 (Pa. 2009).

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that the evidence established that Ms. Kelly sustained serious bodily injury

stemming from Hanna’s attack. Ms. Kelly sustained a concussion. As a result,

she was deemed disabled and unable to work for a period of time; she also

required specialized medical treatment. Ms. Kelly continues to suffer from

light sensitivity and headaches. Thus, contrary to Hanna’s argument, because

Ms. Kelly suffered serious bodily injury as a result of the assault, the

Commonwealth was not required to prove specific intent.               Thus, the

Commonwealth only needed to prove that Hanna acted recklessly.

      Based upon our review of the record, we conclude that the

Commonwealth presented sufficient evidence to demonstrate that Hanna’s

conduct was reckless and therefore proved mens rea beyond a reasonable

doubt. The trial court aptly summarized this evidence as follows:

      [Hanna] was substantially larger than Ms. Kelly, approximately a
      foot taller. The evidence established that [Hanna] was enraged
      and angry with the victim's husband. [Hanna] angrily directed
      threats to Ms. Kelly. He threatened to kill her husband. He was
      so close to her that he spit on her. When she tried to remove
      herself from the situation and after she asked [Hanna] to cease
      his conduct in front of the players, the defendant violently struck
      her in the head. [Hanna’s] act of brutally punching Ms. Kelly in
      the face under these circumstances was sufficient to prove that
      he ignored a substantial and unjustifiable risk that Ms. Kelly would
      suffer serious bodily injury from his conduct.

Trial Court Opinion, 11/30/18, at 15-16. Moreover, we have previously held

that a single punch to the head is sufficient to establish the requisite level of

recklessness to prove aggravated assault when the victim suffers serious

bodily injury.   Commonwealth v. Burton, 2 A.3d 598, 605 (Pa. Super.


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2010); see also Commonwealth v. Patrick, 993 A.2d 1043 (Pa. Super.

2007).   We, therefore, conclude that the evidence was sufficient to

demonstrate that Hanna acted recklessly.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to sustain Hanna’s conviction for aggravated assault.

Accordingly, Hanna’s first and second issues entitle him to no relief.

      In his third issue, Hanna argues that the trial court erred in finding that

he did not act in self-defense.     Specifically, Hanna claims the trial court

improperly concluded that Hanna had a duty to retreat; such obligation only

applies to a claim of self-defense when deadly force is used. Hanna’s Brief at

17. Therefore, according to Hanna, his sentence should be vacated. Id. at

18. We disagree.

      As a general rule, an individual is justified in using force upon another

person “when the actor believes that such force is immediately necessary for

the purpose of protecting himself against the use of unlawful force by such

other person on the present occasion.”        18 Pa.C.S.A. 505 (a).      “If the

defendant properly raises self-defense under Section 505 of the Pennsylvania

Crimes Code, the burden is on the Commonwealth to prove beyond a

reasonable doubt that the defendant's act was not justifiable self-defense.”

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (internal

quotations and citations omitted). The justified use of deadly force requires,

inter alia, proof “that the actor did not violate any duty to retreat or to avoid

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the danger.” Commonwealth v. Harris, 665 A.2d 1172, 1174 (Pa. 1995).

However, in cases not involving deadly force, there is no legal duty to retreat.

Commonwealth v. Pollino, 467 A.2d 1298, 1300 (1983).               Where only

battery is involved, “force may be met with force so long as it is only force

enough to repel the attack.” Id. at 1301.

      At trial, Hanna claimed that he acted in self-defense by hitting Ms. Kelly

when she tried to push him away. In considering his claim of self-defense,

the trial court stated:

      You know, in the public arena when somebody is confronted with
      force being used, doesn't he have a duty to retreat if he can fairly
      do so, Mr. Horowitz? Isn't that the law? Is that not the law? When
      somebody is being confronted with an assault or some type of risk
      or threat of force being used against him, does he not have the
      duty to retreat?

N.T., 2/23/18, at 228. We agree that, under our cited precedent, Hanna had

no duty to retreat in this matter.    However, as the trial court explained,

Hanna’s claim of self-defense was not credible. The trial court observed: “The

principal evidence that Hanna acted in self-defense was the self-serving

statement of [Hanna] himself. Trial Court Opinion, 11/30/18, at 16. The trial

court further determined that “[Hanna’s] testimony was patently false in

almost all respects beyond [Hanna’s] admission that he was involved in the

contentious event with Ms. Kelly.” Id. at 17. The trial court explained:

      [T]his Court accepted the Commonwealth's evidence to establish
      that the defendant committed aggravated assault and simple
      assault against Ms. Kelly. The credible evidence demonstrated
      that the only contact initiated by Ms. Kelly was her attempt to
      push the defendant away from her as he was screaming

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       vulgarities, threatening her husband and spitting on her while his
       face was inches from hers. Moreover, discounting the defendant's
       version that he was attempting to defend himself at the time he
       struck Ms. Kelly, the only other remaining evidence supporting
       self-defense was the testimony of the defendant's son and two of
       the son's friends. Their testimony was inconsistent and also not
       credible. A few of the witnesses claimed Ms. Kelly slapped the
       defendant, not a punch as the defendant claimed. One witness
       claimed the defendant never entered onto the ice. This Court
       believes that the credible evidence established proof beyond a
       reasonable doubt that the defendant did not act in self-defense.

Trial Court Opinion, 11/30/18, at 17. From this statement, it is evident that

the trial court did not find Hanna had a duty to retreat from the confrontation.

Instead, the trial found Hanna’s claim of self-defense was not credible.

“Although the Commonwealth is required to disprove a claim of self-defense

arising from any source beyond a reasonable doubt, a [trier of fact] is not

required to believe the testimony of the defendant who raises the claim.”

Commonwealth v. Bullock, 948 A.2d 818, 825 (Pa. Super. 2008). The trial

court was free to reject Hanna’s testimony as incredible. As such, the trial

court did not error in rejecting Hanna’s claim of self-defense. Hanna’s third

issue entitles him to no relief.

       In his fourth issue, Hanna claims that his conviction for aggravated

assault was against the weight of the evidence.4 Specifically, Hanna argues

that the Commonwealth failed to prove that Ms. Kelly sustained serious bodily
____________________________________________


4 We note that, in his statement of issues, Hanna references “verdicts” (plural)
as being against the weight of the evidence. However, in his brief, he only
addresses whether the Commonwealth established serious bodily injury which
relates to the aggravated assault conviction. We further note that our
interpretation that his weight claim only relates to the aggravated assault
conviction is consistent with his post-trial motion.

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injury or that the assault caused her injury. According to Hanna, at trial, the

Commonwealth did not call an expert witness to testify regarding Ms. Kelly’s

concussion, but merely relied on her medical records.       He claims that his

conviction for aggravated assault was against the weight of the evidence.

Hanna’s Brief at 19, 20.

      Initially, we note that the trial court concluded that Hanna waived this

issue, finding that it was too vague for the court to determine the basis of his

claim. Trial Court Opinion, 11/30/18, at 18. Based upon our review of the

record, we agree.

      An appellant must preserve a claim that the conviction is against the

weight of the evidence with the trial court by making a motion for a new trial.

Pennsylvania Rule of Criminal Procedure 607(A) provides an appellant three

ways to preserve the issue:     1) orally, on the record, at any time before

sentencing; 2) by written motion at any time before sentencing; or 3) in a

post-sentence motion. Pa.R.Crim.P. 607(A)(1)-(3). “An appellant's failure to

avail himself of any of the prescribed methods for presenting a weight of the

evidence issue to the trial court constitutes waiver of that claim.”

Commonwealth v. Weir, 201 A.3d 163, 167 (Pa. Super. 2018), appeal

granted, 215 A.3d 966 (2019); see also Comment to Pa.R.Crim.P. 607. A

claim challenging the weight of the evidence generally cannot be raised for

the first time in a Rule 1925(b) statement. Commonwealth v. Sherwood,

982 A.2d 483, 494 (Pa. 2009).




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      Additionally, an appellant must comply with Pa.R.A.P. 1925 which

requires an appellant to “concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the

Statement and/or not raised in accordance with the provisions of this [Rule]

are waived.” Pa.R.A.P. 1925(b)(4)(vii). “[T]he Rule 1925(b) statement must

be specific enough for the trial court to identify and address the issue an

appellant wishes to raise on appeal.” Id. (brackets, internal quotation marks,

and citation omitted).    Moreover, “[a] theory of error different from that

presented to the trial jurist is waived on appeal, even if both theories support

the same basic allegation of error which gives rise to the claim for relief.”

Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (citation

omitted), appeal denied, 951 A.2d 1163 (2008); Tong-Summerford v.

Abington Mem'l Hosp., 190 A.3d 631, 649 (Pa. Super. 2018).

      Our review of the record reveals that, although Hanna raised a weight

claim in his post-sentence motion, the theory set forth therein is different than

that raised in his 1925(b) statement or on appeal.        In his post-sentence

motion, Hanna focused on the recklessness element of aggravated assault and

claimed that:

      The evidence offered by the Commonwealth to demonstrate that
      Mr. Hanna's actions exhibited extreme indifference to the value of
      human life is such that sustaining a conviction for Aggravated
      Assault shocks the conscience.




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In his 1925(b) statement, Hanna only set forth a general weight claim without

specifying any particular basis for it. Additionally, in his appellate brief, Hanna

focuses his weight claim on the serious bodily injury component of this

offense. Because Hanna has presented different theories to the trial court and

this Court as to why the verdict for aggravated assault is against the weight

of the evidence, we conclude that Hanna has failed to comply with both

Pa.R.Crim.P. 607 and Pa.R.A.P. 1925. Consequently, Hanna waived his weight

claim, and we cannot address the merits.

         In his fifth issue, Hanna argues that he has discovered new evidence.

Specifically, he contends that Ms. Kelly and her husband filed a civil suit

against him, where they claim he negligently, rather than intentionally, caused

her injury. Because the victim now claims Hanna did not act intentionally, he

claims this matter should be remanded for further proceedings. Hanna’s Brief

at 21.

         Based upon our review of the record, we observe that Hanna did not

raise this issue in his Pa.R.A.P. 1925(b) statement.         As discussed above,

“[i]ssues not included in the statement and/or not raised in accordance with

the provisions of the [Rule] are waived.”          Pa.R.A.P. 1925(b)(4)(vii).    We

conclude that Hanna also waived this issue, and we cannot address the

merits.5
____________________________________________


5 We note that even if we were to address the merits, the Commonwealth
points out that Ms. Kelly testified at the criminal trial that she might file a civil
lawsuit. Therefore, contrary to Hanna’s argument, the fact that Ms. Kelly filed
a civil suit against Hanna is not new evidence.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2019




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