Opinion
1426 MDA 2021 J-S13006-22
06-16-2022
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA TYLER BOOHER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 21, 2021 In the Court of Common Pleas of Lebanon County Criminal Division at No: CP-38-CR-0000970-2018
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STABILE, J.
Appellant, Joshua Tyler Booher, appeals from the judgment of sentence imposed on May 21, 2021 in the Court of Common Pleas of Lebanon County after a jury convicted him of, inter alia, aggravated assault relating to burn injuries sustained by two-and-a-half-year-old L.B. on April 21, 2018. Appellant contends that the evidence was insufficient to convict him of aggravated assault, that the verdict was against the weight of the evidence, and that the trial court erred by imposing a sentence in the aggravated range for his aggravated assault conviction. Following review, we affirm.
The trial court provided a detailed recitation of the facts elicited at Appellant's trial, complete with citations to the notes of testimony. See Trial Court Opinion, 9/23/21, at 2-13. We hereby incorporate the trial court's factual summary as if fully set forth herein. For purposes of this Memorandum, we provide the following abridged version, focusing on trial testimony from L.B.'s father, from Appellant, and from the Commonwealth's medical expert.
As of April 21, 2018, Appellant was residing with L.B.'s father, Seth Buck ("Buck"). The two had been in a romantic relationship since November 2017 and had been residing together since January 2018. Buck and L.B.'s mother, Katrina Tulos, had a week-on/week-off custody arrangement for their son, L.B. On the date L.B. sustained burns, Buck had custody of the child.
On the night of April 21, 2018, Buck gave his son a bath and put him to bed wearing a clean diaper, t-shirt, and pants. As Buck dried L.B. off, he did not notice any marks, bruises, or other injuries on L.B.
Buck left the apartment to buy some hair products at Walmart, an errand that took approximately 30 to 40 minutes, including travel time. L.B. was asleep when Buck left. Video from the store, along with receipts for his purchases, confirmed the time and purchases Buck made.
When Buck returned from Walmart, he saw Appellant running toward the laundry facility across the street from the apartment. When Appellant returned to the apartment, the two were talking when they heard L.B. "fussing." Buck believed L.B. simply woke up and would go back to sleep. Shortly thereafter, however, L.B. began to make louder noises, prompting Buck to check on him. When Buck entered L.B.'s room, L.B. was holding his hands out to Buck while saying, "Dada, look." Notes of Testimony, Trial, 2/23/21, at 71-72. Buck "just remember[ed] his skin - his skin being really red and loose. It was just dripping off his arms, his hands. He was just shaking." Id. at 72.
Buck said that he panicked, tearing through things in L.B.'s room, trying to figure out what L.B. got into. He checked the burners on the stove in the kitchen and checked the radiators, but they were cold. He got frozen vegetables from the freezer to put on L.B.'s arms and called his own mother. Meanwhile, he kept asking Appellant what happened. Appellant kept saying he did not know, but he also told Buck to calm down and said, "[W]e just need to get our stories straight[, ]" a comment Buck acknowledged went "way over my head" at the time. Id. at 72-73.
L.B. was taken to a nearby hospital but was subsequently transferred to Lehigh Valley Reilly Children's Hospital ("Lehigh Valley") for treatment of second- and third- degree burns to his hands and forearms. The medical records also documented bruising on his right shoulder, on his mid-back on the left and right sides, above his left eyebrow, above his left and right eyelids, on both cheeks, on his earlobe, and on his left leg. Buck's mother explained that the bruises began to appear when they were at the hospital and had not been visible when they were still at the apartment. It also was noted that dirt and pine needles were found in L.B.'s diaper.
L.B. remained hospitalized at Lehigh Valley for three weeks. His medical treatment was extensive and involved several surgeries and multiple therapy sessions. The treatment was ongoing at the time of trial and was anticipated to continue for years to come.
Appellant eventually was arrested and charged with, inter alia, aggravated assault, endangering the welfare of children, simple assault, and recklessly endangering another person ("REAP"). At his February 2021 trial, the Commonwealth presented the expert testimony of Debra Esernio-Jenssen, M.D., Chief of Child Protection Medicine at Lehigh Valley, who is board certified in both general pediatrics and child abuse pediatrics. Dr. Esernio-Jenssen explained that the burns sustained by L.B. were bilateral immersion burns, which involve "a child being forcibly held in scalding water. So their hands- and in this case, up to the forearms-is immersed and we see what we call splash marks because they're being held, so they're not moving." Id. at 153. It was her "opinion that these were inflicted burns." Id. at 169. Dr. Esernio-Jenssen also testified about L.B.'s bruises and explained that several of L.B.'s bruises had "high specificity for child abuse." Id. at 156-57. "Other than [the] bruise on the leg . . . which I think is a typical location that we see accidental bruises, all the other bruises and the locations are highly suspicious of physical abuse and something [she] would consider abusive bruising." Id. at 162. It was her "medical opinion that [L.B.] suffered physical abuse through bruising and an immersion burn." Id. at 177.
18 Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), and 2705, respectively.
After the Commonwealth rested, Appellant presented expert testimony from a plumber who explained that Buck and Appellant's landlord was using a furnace to heat the hot water for the apartments in their building. When heat is generated from a furnace, water temperature can change suddenly and can easily reach a temperature of 160 degrees with steam visible. By the time the expert first visited the building in the fall of 2019, the water heater had been replaced with one installed sometime in 2019, the year after L.B. was burned. Although the furnace had not been replaced, it was no longer being used to feed the hot water, as it was when L.B. was burned, as evidenced by State Police photos taken shortly after the incident. Id. at 199-204, 209.
Appellant testified on his own behalf. Although he pleaded ignorance in his statements to police on the night of the incident, at trial he testified that he went into L.B.'s room while Buck was at Walmart and discovered that L.B. had gotten into chocolate from his Easter basket. Appellant stated that he was holding L.B. up at the kitchen sink to wash chocolate from his hands and mouth when "before I knew it, it was just a-there was steam and I-I freaked out. I jumped back and he took a pretty good fall to the counter ledge and fell down onto the floor." Id. at 221. Appellant explained that he was more concerned about the fall. He noticed L.B.'s hands were red but did not believe L.B. required medical attention. He picked L.B. up, walked him back to his room, and put him in bed with a stuffed animal. He then left the apartment for the laundry facility.
When Buck returned and discovered L.B.'s condition, Appellant agreed it was obvious L.B. required medical care. When Buck's mother arrived at the apartment, she asked what happened and Appellant "just kept backing myself into a corner. I-I didn't want to say what happened. I didn't think anybody would believe that my ultimate goal in being with L.B. was I always wanted to make [Buck] proud and make him happy." Id. at 224-25. He stated that he wanted to tell Buck, and tell everybody, what happened but he was scared. Id. at 225, 228. He claimed his attorney for an unrelated matter told him not to say anything to anybody. Id. at 227. Appellant testified that when the investigating officer, Pennsylvania State Police Corporal Miller, left a voice mail message saying she wanted to meet to talk more about what happened, "I had ran that by with my prior counsel at that time and counsel told me, no, we're not-you know, we're not doing that." Id. at 228.
Following Appellant's testimony, the Commonwealth recalled Dr. Esernio-Jenssen to the stand and asked if her opinion had been altered, having seen the layout of the kitchen sink and having heard Appellant's testimony. She detailed why it did not change her "medical opinion that this was a forced immersion burn and that the bruising pattern is not consistent with, you know, hitting or face planting onto this counter." Id. at 244.
The jury returned a verdict of guilty on the charges noted above. On May 19, 2021, the court sentenced Appellant to a term of 66 months to 12 years in prison for aggravated assault and a concurrent term of 18 months to five years for endangering the welfare of children. The simple assault and REAP charges merged for sentencing.
Appellant filed a post-sentence motion, which the court denied. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
We remind Appellant that a copy of the Rule 1925(b) statement is to be appended to an appellant's brief. See Pa.R.A.P 2111(a)(11) and (d).
Appellant asks us to consider three issues in this appeal:
1. Whether the evidence presented by the Commonwealth at trial was not sufficient to prove the charge of Aggravated Assault beyond a reasonable doubt?
2. Whether the trial court abused its discretion when it denied Appellant's Motion for a New Trial based on the weight of the evidence?
3. Whether [the] trial court abused its discretion when sentencing [Appellant] to an aggravated range because the trial court stated that it believed [Appellant] did not act with the required mental state to cause said injury failing to establish a material element of the crime and the stated factors relied upon to aggravate the sentence were elements of the crime itself?Appellant's Brief at 7.
In his first issue, Appellant challenges the sufficiency of the evidence supporting his conviction of aggravated assault. As this Court reiterated in Commonwealth v. Miller, 172 A.3d 632 (Pa. Super. 2017):
We review claims regarding the sufficiency of the evidence by considering 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." Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact- while passing on the credibility of the witnesses and the weight of the evidence-is free to believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.Id. at 640. Further:
"A person is guilty of aggravated assault 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. § 2702(a)(1). The Crimes Code defines "serious bodily injury" as "bodily injury which creates 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. § 2301.Id. at 640-41 (cleaned up).
It is undisputed that L.B. suffered serious bodily injury. Importantly, "[w]here the victim suffers serious bodily injury, the Commonwealth is not required to prove specific intent." Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (citing Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997) and Commonwealth v. Hlatky, 626 A.2d 575 (Pa. Super. 1993)). Rather,
[t]he Commonwealth need only prove the defendant acted recklessly under circumstances manifesting an extreme indifference to the value of human life. For the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue.Id. (cleaned up) (citations omitted) (emphasis in original).
Here, the trial court considered Appellant's contention that the Commonwealth failed to prove that Appellant had the requisite mental state to commit aggravated assault, noting Appellant's assertion that there was no evidence he intended to cause L.B.'s injuries. However, as this Court announced in Patrick, proof of specific intent is not required if the victim suffers serious bodily injury. Id.
Because the fact that L.B. sustained serious injury is not contested, "the Commonwealth had the burden of proving that [Appellant] acted recklessly under circumstances manifesting an extreme indifference to the value of human life." Hlatky, 626 A.2d at 581. As defined in Section 302(b)(3):
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.18 Pa.C.S.A. § 302(b)(3).
As the trial court recognized, in cases involving abuse of a child, "it is sufficient if the defendant acts 'with conscious disregard of a substantial and unjustifiable risk to a child and that his actions deviated from the standard of conduct that a reasonable person would observe in that situation.'" Trial Court Opinion, 9/23/21, at 18 (quoting Hlatky, 626 A.2d at 581). As reflected above, Dr. Esernio-Janssen testified that the burns suffered by L.B. were immersion burns, not accidental burns, meaning L.B.'s hands were being forcibly held in scalding water. Notes of Testimony, Trial, 2/23/21, at 153, 169. Further, as Dr. Esernio-Jenssen explained, several of L.B.'s bruises had "high specificity for child abuse." Id. at 156-57.
Viewing the evidence and all reasonable inferences therefrom in favor of the Commonwealth, we conclude the record provides ample support for the jury to find that Appellant acted at least recklessly, under circumstances manifesting extreme indifference, causing serious injury to L..B. Therefore, Appellant's sufficiency challenge to his aggravated assault conviction fails.
In his second issue, Appellant contends the aggravated assault verdict was against the weight of the evidence. As our Supreme Court explained in Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013):
Appellant properly preserved his weight of the evidence claim by raising it in his post-sentence motion. See Pa.R.Crim.P. 607(A)(3) ("a claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial . . . in a post-sentence motion.").
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.Id. at 1054-55 (internal quotations and citations omitted). Further:
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Id. at 1055 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (emphasis added) (internal citations omitted)).
"A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner." Widmer, 744 A.2d at 751 (citations omitted).
Appellant contends that "[t]he jury gave too much weight to Appellant causing the injury" and "was blinded by the nature and extent of the injury[.]" Appellant's Brief at 19. As the trial court observed:
Undoubtedly, L.B. suffered horrific burns. It was impossible to hide the severity of those injuries from the jury. Such evidence was necessary to establish that L.B. suffered serious bodily injury. It was uncontroverted that [Appellant] caused these burns to occur. The Commonwealth provided ample evidence of the cause of L.B.'s burns by Dr. Esernio-Jenssen's testimony. It is obvious that the jury accepted the Commonwealth's evidence and did not believe [Appellant's] version of the incident. We find nothing to shock our sense of justice in the jury's determination of the credibility of these witnesses and we find no reason to disturb its verdict.Trial Court Opinion, 9/23/21, at 20.
We find no abuse of discretion on the part of the trial court. Appellant's weight of the evidence claim lacks merit.
In his final issue, Appellant argues the trial court abused its discretion by sentencing Appellant in the aggravated range for his aggravated assault conviction. As such, Appellant presents a challenge to the discretionary aspects of sentence.
As this Court has recognized:
"[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence." Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010). Rather, an "[a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code." Id. A defendant presents a substantial question when he "sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." Id. In order to properly present a discretionary sentencing claim, a defendant is required to preserve the issue in either a post-sentence motion or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise statement. Further, on appeal, a defendant "must provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the
sentence violates, and the manner in which it violates the norm." Id.Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012).
In order to challenge the discretionary aspects of his sentence, Appellant must invoke this Court's jurisdiction by satisfying a four-part test. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). In Moury, we explained:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Id. at 170 (citation omitted).
Here, Appellant raised a sentencing claim in his post-sentence motion and repeated that claim in his Rule 1925(b) statement. However, he did not include a Rule 2119(f) statement in his brief. Pennsylvania Rule of Appellate Procedure 2119(f) directs that
[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence.Pa.R.A.P. 2119(f).
"[C]laims relating to the discretionary aspects of a sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement's absence." Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (citation omitted). However, the Commonwealth did not object to the absence of the statement. Therefore, we will not find it waived. See id.
We next consider the fourth prong of the test: whether Appellant has raised a substantial question that the sentence is not appropriate under the Sentencing Code.
In Moury, this Court stated:
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the sentencing code. Id.Moury, 992 A.2d at 170 (internal quotations and some citations omitted).
Appellant has not articulated any reasons for his assertion that the sentencing court violated the sentencing code. In essence, he bases his claim on an assertion that "the trial court stated on the record that he didn't believe that Appellant was guilty of the crime of aggravated assault" yet "proceeded to sentence the Appellant to an aggravated range to a crime the court believed he didn't commit which is an unreasonable decision." Appellant's Brief at 22-23.
Trial court rejected Appellant's assertion, explaining:
[Appellant] claims that [the c]ourt stated at sentencing that it did not believe that [Appellant] was guilty of the crime of aggravated assault; however [Appellant] misconstrues the statements made by the court at sentencing.
The court did not question [Appellant's] guilt on the charge of aggravated assault. We merely stressed that we viewed [Appellant's] level of culpability as recklessness within the language of the statute, and our belief that, although [Appellant] did not necessarily intend to cause such severe injuries, he did intend to immerse L.B.'s hands and arms.
. . . [W]e agree with the jury's determination that [Appellant's] culpability rose to the level required by the aggravated assault statute-that [Appellant] had intentionally held L.B.'s hands and arms in scalding water, thereby acting "recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S.A.. § 2702(a)(1). This goes beyond the level of mere recklessness and is the level necessary to sustain this conviction on this charge.
. . .
In this case, we fully discussed the reasons for the sentence imposed at the sentencing proceeding. Given the severity of L.B.'s injuries and how they occurred, we determined that [Appellant] deserved total confinement. In determining the length of that confinement, we considered the ranges suggested by the sentencing code and discussed the factors which led us to deviate to the aggravated range on the charge of aggravated assault. We also considered the factors relevant to a potential mitigated range and determined that those did not warrant any lesser sentence.Trial Court Opinion, 9/23/21, at 21-22 (some capitalization omitted).
To the extent Appellant has raised a substantial question under Section 9721(c)(2), i.e., that the court sentenced him within the guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable, we find no abuse of discretion in the trial court's imposition of a sentence in the aggravated range. Therefore, we shall not disturb the sentence.
Judgment of sentence affirmed. In the event of further proceedings, the parties shall attach a copy of the 9/23/21 trial court opinion to their filing.
Judgment Entered.
(Image Omitted)
[*] Former Justice specially assigned to the Superior Court.