Commonwealth v. Smith

206 A.3d 551

COMMONWEALTH of Pennsylvania

v.John SMITH, Appellant

No. 554 MDA 2018

Superior Court of Pennsylvania.

Submitted December 17, 2018

Filed March 20, 2019

Robert M. Buttner, Scranton, for appellant.

Mark J. Powell, Assistant District Attorney, and Lisa A. Swift, Assistant District Attorney, for Commonwealth, appellee.

BEFORE: STABILE, J., DUBOW, J., and STEVENS,^* P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant John Smith appeals the judgment of sentence entered by the Court of Common Pleas of Lackawanna County after a jury convicted Appellant of indecent assault of a minor less than 13 years of age, corruption of minors, simple assault, and endangering the welfare of a child (EWOC).¹ After careful review, we affirm.

The lower court summarized the factual background of this case as follows:

The charges in this case arose between September 1, 2016 and January 2017. The victim in this case began taking karate lessons at [Appellant's] karate studio when he was four or five years old. In September of 2016, the victim, who was then nine years old, began taking private archery lessons from [Appellant] as well. During these lessons, [Appellant] played truth or dare with the child. On some occasions when the child chose dare, [Appellant] had him remove all of his clothing and when the victim was naked, [Appellant] spanked his bare buttocks while he climbed a metal pole. When [Appellant] spanked the child, he gave the child the option of choosing 10 hard or 50 soft spankings, but told him that if he chose hard, it would make him tougher. This occurred numerous times. [Appellant] told the victim not to tell his parents because they were not a part of the karate brotherhood.

Trial Court Opinion, 6/6/18, at 1-2.

On November 14, 2017, a jury convicted Appellant of the aforementioned charges. On February 20, 2018, the trial court sentenced Appellant to one to three years' imprisonment for the indecent assault charge, 1½ to 4 years' imprisonment for the corruption of minors charge, 6 months to 2 years' imprisonment for the simple assault charge, and 3½ to 7 years' imprisonment for the EWOC charge. As all sentences were consecutive, Appellant received an aggregate sentence of 6½ to 16 years' imprisonment.

On February 27, 2018, Appellant filed a post-sentence motion, which the lower court subsequently denied. Appellant filed a timely appeal and complied with the lower court's direction to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues on appeal:

1. Did the Commonwealth fail to present sufficient evidence to establish, beyond a reasonable doubt, that Appellant caused bodily injury, as defined in 18 Pa.C.S.A. § 2301, or possessed the mens rea on the charge of simple assault?

2. Did the trial court err or abuse its discretion in admitting the testimony of Ms. Fortney in finding her qualified to testify as an expert in the dynamics of and a victim's response to sexual abuse, over the objection of counsel on her qualifications and to testify in a manner which included an opinion or bolstered the credibility of the complainant, in violation [of] 42 Pa.C.S.A. § 5920(b)(3) ?

3. Did the trial court err or abuse its discretion in striking juror # 1, after the jury had been sworn and impaneled and testimony had commenced, based upon an equivocal and non-disqualifying juvenile adjudication?

4. Did the trial court err or abuse its discretion in restricting the direct examination of a witness, Lisa Kiernan, on whether, as a parent, she observed anything regarding the karate classes or conduct of Appellant which caused her to be suspicious?

5. Did the trial court impose an illegal sentence on the charge of corruption of minors, graded as a felony of the third degree, where the jury was not instructed on the element of "course of conduct" and could not find all elements of the offense to be proven beyond a reasonable doubt?

6. Did the trial court abuse its discretion by imposing manifestly excessive sentences within and, also, beyond the aggravated range of the Pennsylvania Sentencing Guidelines, by failing to consider the relevant sentencing criteria, considering factors already accounted for in the charged crimes and the Pennsylvania Sentencing Code and Guidelines, considering inaccurate information, failing to consider mitigating circumstances and, as a result, failing to place sufficient reasons on the record to justify the sentences imposed?

Appellant's Brief, at 3.

We first review Appellant's challenges to the sufficiency of the evidence supporting his simple assault conviction. Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence is 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. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact [,] while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.

Commonwealth v. Davison , 177 A.3d 955, 957 (Pa.Super. 2018) (quoting Commonwealth v. Talbert , 129 A.3d 536, 542–43 (Pa.Super. 2015) ).

Appellant was charged under Section 2701(a)(1) of the Crimes Code, which provides that a person may be convicted of simple assault if he "attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another." 18 Pa.C.S.A. § 2701(a)(1). Specifically, Appellant claims there was insufficient evidence to show he caused the victim bodily injury.²

This Court set forth a thorough discussion of the definition of "bodily injury" in Commonwealth v. Marti , 779 A.2d 1177 (Pa.Super. 2001) :

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

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