Opinion
J-S18026-17 No. 2460 EDA 2016
05-25-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY J. GAGLIARD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated May 24, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001127-2016 BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J. MEMORANDUM BY SOLANO, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Anthony J. Gagliard, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following his bench trial conviction for simple assault. We affirm.
18 Pa.C.S. § 2701(a). Although Appellant was generally charged under 18 Pa.C.S. § 2701(a), Appellant acknowledges that "Sections (a)(2) and (a)(4) of the simple assault statute are not applicable to the instant case," and both the Commonwealth and the trial court agree that his conviction is sustainable only under Subsection (a)(1). See Appellant's Brief at 8 n.2; Commonwealth's Brief at 5; Trial Ct. Op., 9/13/16, at 3.
On January 11, 2016, at about 5:00 P.M., the loss prevention officer ("LPO") at the Burlington Coat Factory located at the corner of Castor Avenue and Cottman Avenue in Philadelphia observed, through a live closed circuit television feed, Appellant enter the store, proceed to the women's shoe department, and put a pair of women's shoes in a plastic bag. Trial Ct. Op., 9/13/16, at 1-2 (unpaginated) (citing N.T., 5/24/16, at 36-40, 43-44, 47). Appellant then walked to the men's department, selected a pair of men's pants, and put them over his shoulder. Appellant approached the cash register with the items and attempted to return the women's shoes in exchange for the pants. Id. at 2 (citing N.T., 5/24/16, at 43). The LPO, "who had been observing [Appellant], radioed the employee at the cash register to let the exchange go through due to his observations." Id. (citing N.T., 5/24/16, at 49).
After the exchange, the LPO confronted Appellant and started to escort him to the store's loss prevention office. Trial Ct. Op., 9/13/16, at 2. Appellant pushed the LPO, giving the LPO a bruise above his chest, and "began to punch and flail his arms, attempting to resist apprehension." Id. (citing N.T., 5/24/16, at 54, 56, 88). Appellant and the LPO "scuffle[d]," and Appellant "hit" the LPO "in the mouth with an elbow causing a bloody lip." Id. (citing N.T., 5/24/16, at 57).
Appellant presents one issue for our review:
Was not the evidence insufficient to support the verdict of guilty of simple assault in as much as the [A]ppellant's conduct did not establish the attempt to cause or the actual infliction of bodily injury, or the attempt by physical menace to inflict imminent serious bodily injury as required by the simple assault statute?Appellant's Brief at 4.
Because the Commonwealth and the trial court concede that 18 Pa.C.S. § 2701(a)(3) — "attempts by physical menace to put another in fear of imminent serious bodily injury" — does not apply to Appellant, we will not address the "attempts by physical menace" aspect of Appellant's issue. See Commonwealth's Brief at 5; Trial Ct. Op., 9/13/16, at 3. --------
Our standard of review is:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. . . . When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Chambers , ___ A.3d ___, 2017 WL 900006, at *2-*3 (Pa. Super. 2017).
Commonwealth v. Sullivan , 820 A.2d 795, 805 (Pa. Super. 2003) (citation omitted), appeal denied , 574 Pa. 773, 833 A.2d 143 (2003). As a reviewing court, we many not weigh the evidence or substitute our judgment for that of the fact-finder, who is free to believe all, part, or none of the evidence. Commonwealth v. Haughwout , 837 A.2d 480, 484 (Pa. Super. 2003).
Appellant claims that the Commonwealth failed to prove the elements of simple assault. Specifically, Appellant contends: "[It] is impossible to conclude intent to cause injury or substantial pain where there was an incidental bloody lip. Here, there is no evidence of substantial pain or physical impairment, the predicate injury for simple assault." Appellant's Brief at 11. Appellant similarly asserts that "swinging his arms and elbows" alone cannot demonstrate an attempt to cause bodily injury. Id. at 12.
The relevant assault statute states: "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[.]" 18 Pa.C.S. § 2701(a)(1) (emphasis added). "Bodily injury" is defined as "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S. § 2301. Both aggravated assault, see 18 Pa.C.S. § 2702, and simple assault share this definition of "bodily injury," and, hence, cases involving aggravated assault are equally instructive in clarifying this term. As the trial court concluded that Appellant gave the LPO actual bodily injuries (a bruise and a bloody lip), we need not address the "attempts to cause" portion of 18 Pa.C.S. § 2701(a)(1). Trial Ct. Op., 9/13/16, at 2, 5 (citing N.T., 5/24/16, at 54, 56-57, 88).
We extensively discussed the bodily injury requirement in Commonwealth v. Marti , 779 A.2d 1177, 1181-82 (Pa. Super. 2001), as follows:
In [ Commonwealth v.] Wertelet , [696 A.2d 206 (Pa. Super. 1997),] we noted that the Crimes Code definition of bodily injury as "impairment of physical condition or substantial pain," 18 Pa.C.S.A. § 2301, "is worded rather generally and does not provide a great deal of guidance." Wertelet , 696 A.2d at 210. We further recognized the lack of cases attempting to define the term. Id. In attempting to define the term, the panel compared Wertelet's actions with those of the defendants in the cases of Commonwealth v. Kirkwood , 360 Pa. Super. 270, 520 A.2d 451 (1987) and Interest of J.L., 327 Pa. Super. 175, 475 A.2d
156 (1984). In Kirkwood , the defendant was charged with simple assault for aggressively fast dancing with a woman. The victim testified that she had pleaded with Kirkwood to stop because he was hurting her, but that he had continued to swing her until her husband intervened. She said the incident lasted approximately forty seconds and left her with bruises and cut marks on her arms. As a result, she testified she suffered pain in her arms and her right knee for a short period of time thereafter. We concluded these facts did not constitute sufficient bodily injury to sustain a conviction of a simple assault, in that "temporary aches and pains brought about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability upon a dance partner for assault." Kirkwood , 520 A.2d at 454. We also opined[,] "the assault section of the Crimes Code was intended to protect and preserve one's physical well-being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living." Id. In Interest of J.L., supra , we reversed the adjudication of delinquency of a sixteen-year-old for simple assault where she elbowed her nephew to push him away. We noted[,] "it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking, that frequently occur between siblings or other members of the same family." Id. at 157.
Consequently, the Wertelet panel found the actions in Kirkwood and J.L. were "on par with the nature of the affront committed here by [Wertelet]." The panel reasoned as follows:
There is no evidence that appellant reared back and kicked Trooper Funk as hard as she could. Indeed, she kicked him with the back of her heel as she was flailing about and squirming while the troopers attempted to handcuff her. Trooper Funk was not seriously impaired by the kicks, he was able to continue working, and he did not report even any bruising or swelling. Trooper Funk's characterization of the pain as similar to 'bumping your shin on a coffee table' aligns the encounter with those described above and does not fall within the general connotation of the term 'injury.'
Wertelet , 696 A.2d at 212, 213 (footnote omitted). . . .
We find further support for our conclusion by examination of the cases defining bodily injury in the context of a simple assault. In the Interest of M.H., 758 A.2d 1249 (Pa. Super. 2000), appeal denied , 564 Pa. 735, 766 A.2d 1250 (2001), we affirmed an adjudication of delinquency for simple assault involving the reckless infliction of bodily injury to a high school teacher's aide. The evidence therein demonstrated M.H. aggressively grabbed the victim's arm and pushed her up against a wall causing bruises on her arm that lasted several days. The injury did not require medical treatment or cause the victim to miss any work. On appeal, M.H. argued the evidence was insufficient to prove simple assault because the victim's injury did not constitute "bodily injury" under 18 Pa.C.S.A. § 2701(a)(1). After analyzing the rationale of Wertelet , we rejected this argument noting:
We are not willing to view this incident as a 'temporary hurt' resulting from a 'trivial contact.' It cannot be viewed as contact incident to a struggle as in Wertelet , which the officer there described as akin to bumping his shin. It cannot be viewed in any sense as social contact as was the, albeit aggressive, dancing in Kirkwood. Nor can we view this incident as the type of noncriminal contact resulting from family stress and rivalries as in Interest of J.L. In short, we do not consider M.H.'s conduct in any way a 'customary part of modern day living.' Kirkwood , 520 A.2d at 454.
In the Interest of M.H., 758 A.2d at 1252. See , e.g., Commonwealth v. Jorgenson , 341 Pa. Super. 550, 492 A.2d 2 (1985) rev. on other grounds , 512 Pa. 601, 517 A.2d 1287 (1986) (stating "[a] jury may infer that striking a person across the face causes pain;" even if there is no testimony of pain); Commonwealth v. Adams , 333 Pa. Super. 312, 482 A.2d 583 (1984) (affirming conviction for simple assault where victim was struck in the head with an object hard enough to almost knock her unconscious); Commonwealth v. Richardson , 431 Pa. Super. 496, 636 A.2d 1195, 1196 (1994) (holding testimony that appellant's punch broke officer's glasses and caused pain for a few days was sufficient to sustain finding of actual bodily injury); Commonwealth v. Ogin , 373 Pa. Super. 116, 540 A.2d 549 (1988) (en banc), appeal denied , 521 Pa. 611, 557 A.2d 343 (1989) (finding substantial pain may be inferred from the
circumstances surrounding the physical force used, even in the absence of significant injury).
After a thorough review of the record, the briefs of the parties, the above applicable law, and the well-reasoned opinion of the Honorable Stephanie M. Sawyer, we conclude that Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. See Trial Ct. Op., 9/13/16, at 3-5 (finding (1) pushing and flailing arms can be reasonably inferred to show the specific intent to cause bodily injury (citing M.H., 758 A.2d at 1252)); (2) LPO's bloody lip and bruising are enough to find that bodily injury occurred; and (3) the physical contact by Appellant against the LPO was neither a social contact, as in Kirkwood , 520 A.2d at 454, nor does it fit within this Court's definition of temporary aches and pains, as described in Wertelet , 696 A.2d at 212-13). Thus, we affirm on the basis of the trial court's opinion, and the parties are instructed to attach a copy of the trial court's opinion of September 13, 2016, to any future filing that references this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/25/2017
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