Lead Opinion
OPINION BY
Darryl Burton appeals from the judgment of sentence of three to six years imprisonment followed by four years probation that was imposed after he was found guilty of aggravated assault, simple assault, and reckless endangerment at a nonjury trial. Appellant assails the sufficiency of the evidence supporting his conviction of aggravated assault. We affirm.
On June 1, 2007, Appellant, Darryl Burton, delivered a single blow to William Price, Jr., resulting in significant permanent injuries to the fifty-one-year-old victim. The parties stipulated to the following. Mr. Price was admitted to the Hospital of the University of Pennsylvania after being struck by Appellant. A June 13, 2007 examination by an attending neurosurgeon, Dr. Joshua Levine, revealed that the victim had incurred a traumatic brain injury, brain swelling, in-tracranial hypertension, was ventilator-dependent due to respiratory failure, suffered from renal failure, had an occipital bone fracture, and possibly sustained a spinal joint dislocation. At that time, Dr. Levine concluded that Mr. Price was “critically-ill and at high risk for sudden, fatal deterioration due to one or more of the listed medical conditions.” Commonwealth’s Exhibit 5 at 1.
Six days later, Dr. Eric Zager, another attending neurosurgeon at the hospital,
On April 10, 2008, following a nonjury trial, Appellant was convicted of aggravated assault. In addition to the above-described stipulation, the Commonwealth presented three witnesses, the first of whom was the victim. Mr. Price was five feet five inches tall and weighed 162 pounds when the June 1, 2007 assault occurred. The victim remembered nothing about the day in question, and only recalled awakening at the Moss Rehab Hospital. Due to the incident, he lost his senses of taste and smell.
The Commonwealth’s next witness, Alfonzo Moody, testified as follows. On the day in question, Mr. Moody and the victim were on Ella Street in Philadelphia when ■ Appellant saw Mr. Price and started “hollering and screaming” the following, “[Yjou’re going to give me my money, you’re going to give me my money.” N.T. Trial (Waiver), Vol. 1, 4/10/08, at 17. Mr. Price responded that he made a payment on the amount thаt he owed Appellant every time that they encountered each other. Appellant retorted that he wanted all of his money immediately, to which Mr. Price replied that he did not have the required cash.
At that point, Appellant came “running over” to the victim and Mr. Moody, and “acted like he was getting ready to hit” the victim. Id. at 18. Since Mr. Moody “was in between them,” Appellant did not attempt to land a blow. Id. Mr. Price told Appellant that he was not afraid of him, and Appellant stated, “[A]ll right, wait until we get at the end of the block.” Id. at 18. Mr. Price, Mr. Moody, and Appellant proceeded to walk toward the end of the block.
When they reached that destination, the victim gave Mr. Moody the contents of his pocket, and “they ... told” Mr. Moody to “move out of the way.” Id. at 20. Mr. Moody testified, “[W]hen I went to move out of the way to turn around ... that’s when I heard Mr. [Price] hit the ground.” Id. at 20. Mr. Moody explained that he heard a “grunt” as the victim was punched and struck the ground. Id. at 21.
The Commonwealth’s final witness was the victim’s son, William Price, III, who had observed his father, Mr. Moody, and Appellant walking down the street. Five minutes later, one of his neighbors told him that his father was badly hurt. William ran down the street and encountered Appellant “sitting in the middle of the street saying I got you, I got you, I told you I was going to get you.” Id. at 41. William reported that as he made these remarks, Appellant was “smiling and laughing.” Id. at 46.
When Appellant was making these comments in a celebratory manner, the victim’s appearance was as follows. Mr. Price was rendered unconscious, and his
At trial, Appellant “was asked to stand,” and the trial court “assessed the defendant’s stature relative to the victim, taking into account the decrease in the victim’s weight since the date of the incident.” Trial Court Opinion, 7/25/08, at 5 n. 1; N.T. Trial, 4/10/08, at 75. The trial court stated that Appellant “was significantly larger and stronger than the victim.” Id. at 5.
The trial court adjudicated Appellant guilty of aggravated assault, simple assault, and reckless endangerment. This appeal followed imposition of the above-described judgment of sentence. A panel of this Court, with one Judge dissenting and one Judge concurring in the result, concluded that the evidence was insufficient to sustain Appellant’s conviction of aggravated assault. The Court granted en banc review, and this matter is now ready for resolution. As noted, Appellant raises the single allegation that the evidence was insufficient to sustain his conviction.
In reviewing a claim regarding the sufficiency of the evidence, an appellate court must determine whether the evidence was sufficient to allow the fact finder to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. LaCava,542 Pa. 160 , 171,666 A.2d 221 , 226 (1995). In doing so, a reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. Id. Furthermore, in applying this standard, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Cousar,593 Pa. 204 , 217,928 A.2d 1025 , 1082 (2007). When performing its review, an appellate court should evaluate the entire record and all evidence received is to be considered, whether or not the trial court’s rulings thereon were correct. Additionally, we note that the trier of fact, while passing on the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence. Id. at 217,928 A.2d at 1032-33 .
Commonwealth v. Galvin,
Appellant was convicted under 18 Pa. C.S. § 2702(a)(1), which provides, “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.” Serious bodily injury is defined 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.
The question of whether the delivery of a single punch is suffiсient to sustain a conviction for aggravated assault was addressed by our Supreme Court in Commonwealth v. Alexander,
The Commonwealth therein maintained that even though the victim had not sustained serious bodily injury, the defendant’s action of punching the victim’s head with his fist was sufficient to demonstrate that the defendant had intended to inflict such harm. Our Supreme Court disagreed. It acknowledged that the head is a vital body part, but stated that “where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that a punch was delivered to that portion of the body is sufficient, without more, to support a finding that [a defendant] intended to inflict serious bodily injury.” Id. at 889.
The Alexander Court continued that where the victim of an assault consisting of a single punch does not sustain serious bodily injury, “the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.” Id. The Court stated that “any evidence” of a defendant’s “intent to inflict serious bodily injury” can “be gleaned from the other circumstances surrounding” the defendant’s attack on the victim. Id. It then analyzed the case before it. The Court announced that the following factors can be utilized in ascertaining whether the defendant intended to inflict serious bоdily injury by one blow: 1) if the defendant “was disproportionately larger or stronger than the victim;” 2) whether the defendant would have escalated his attack but was restrained from doing so; 3) whether the defendant was in possession of a weapon; and 4) “statements before, during, or after the attack which might indicate [defendant’s] intent to inflict further injury upon the victim.” Id. at 889. In Alexander, none of those circumstances was present; instead, the defendant “delivered one punch and walked away.” Id. The Court therefore concluded that the evidence was not sufficient to support the defendant’s conviction of aggravated assault.
More recently, this Court, sitting en banc, reviewed the propriety of a trial court’s ruling wherein the defendant’s ha-beas corpus request to dismiss a charge of aggravated assault had been granted. Commonwealth v. Patrick,
When a victim actually sustains serious bodily injury, the Commonwealth can, but does not necessarily have to, establish specific intent to cause such harm. As we noted in Patrick, the statute’s intent requirement can be met if the defendant acts recklessly under circumstances manifesting an extreme indifference to human life. Id. at 1046. This Court concluded that a sufficient prima facie case of such intent had beеn produced in that case to permit the crime of aggravated assault to be submitted to the jury. We ruled that defendant’s reckless indifference was substantiated by the “surprise attack” on an “unsuspecting victim” since the punch to the head, which is a vital body part, caused the man to fall “without reflexive protec
In this case, the evidence unequivocally establishes that the victim sustained serious bodily injury; his injuries placed him at a substantial risk of dying. Indeed, Appellant concedes the existence of such harm. Appellant’s brief at 13; rather, he maintains that a lack of intent to inflict the horrific harm suffered by Mr. Price. Thus, we need to determine whether the circumstances surrounding the attack support the conclusion that Appellant intentionally or knowingly caused such injuries or if he proceeded in such a manner that manifested an extreme indifference to the value of Mr. Price’s life.
The following factors herein establish Appellant’s intended to cause serious bodily injury. First, Appellant was significantly stronger and larger than Mr. Price. Additionally, Appellant was ten years younger than the fifty-one-year-old victim. See N.T. Trial, 4/10/08, at 71. Appellant’s actions and statements before and after the assault confirm that he intended to inflict the victim’s injuries. Appellant aggressively initiated a confrontation with Mr. Price, whose response was limited to stating that he was not afraid of him. After the attack, Appellant was viewed “sitting in the middle of the street saying I got you, I got you, I told you I was going to get you” while “smiling and laughing.” N.T. Trial (Waiver), Yol. 1, 4/10/08, at 41, 46. While Appellant was making these remarks, the victim was unconscious, his eyes were rolled back into his head, blood was coming from his nose, his head was bloody, and he was involuntarily twitching. Appellant’s gleeful remarks upon viewing the victim in that condition indicate that Appellant had intended that the victim suffer the resultant harm.
Additionally, the evidence creates a reasonable inference that although Mr. Price knew that he and Appellant were going to engage in a fistfight, the victim was unprepared when he actually was struck.
The fact that the victim was caught unaware is further supported by the severity of Mr. Price’s injuries. As stated above, the victim suffered brain trauma as well as two facial and two spinal fractures. Indeed, throughout his brief, Appellant insists that the fall, rather than his punch,
caused Mr. Price’s life-threatening damages. Patrick, supra, supports the conclusion that such evidence was sufficient to establish that Appellant had the requisite mens rea to sustain a conviction for aggravated assault.
We cannot accept Appellant’s premise that the absence of any intent to continue the assault after he landed the single blow militates against a finding of intent to inflict serious bodily injury. Given the immediately-evident severity of the victim’s harm, it was apparent that Appellant simply did not need to proceed further with his attack because the victim already had sustained serious bodily injury. The victim was unconscious and lying on the ground involuntarily twitching while blood flowed from his nose. Appellant’s gloating remarks that he had accomplished his purpose clearly confirmed his desire to severely hurt Mr. Price, regardless of whether those statements established that he wanted to continue the attack. Merely because the comments following the assault did not evidence intent to further attack does not render those admissions irrelevant herein. See footnote 2, supra. As the trial court aptly noted, “Defendant’s act of taunting the unresponsive
Commonwealth v. Roche,
We are cognizant of our Supreme Court’s pronouncement in Commonwealth v. O’Hanlon,
This case bears no resemblance to O’Hanlon. There is no doubt that Appellant actually sought to hurt Mr. Price. Appellant provoked an altercation with the older, lighter, smaller man and landed the blow when the victim was not on guard. After the assault, Appellant rejoiced that he had inflicted the injuries that he caused to the victim.
In addition, the evidence herein establishes that while hospitalized, the victim was in real danger of dying. The medical stipulation stated that Mr. Price was at a “high risk” of sudden and “fatal” deterioration due to one or more of the injuries that he sustained in the assault. Commonwealth’s Exhibit C-5 at 1. Thus, this case actually is one where death, for some reason, failed to occur despite the fact that the injuries could have caused that result.
As the Commonwealth’s evidence established beyond a reasonable doubt that Appellant’s intent fell within the parameters of the crime of aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1), the judgment of sentence is affirmed.
Judgment of sentence affirmed.
Notes
. Mr. Moody stated that he did not hear these comments and that Appellant appeared upset about Mr. Price's appearance. The triаl court concluded that "neither version [was] entirely credible. In resolving the inconsistencies, the court was persuaded by the testimony of complainant’s son regarding defendant's initial celebratory response.” Trial Court Opinion, 7/25/08, at 6 n. 3. Thus, we must accept William's characterization of Appellant's actions after the assault for purposes of this appeal.
. The Alexander case does not require us to ignore this piece of evidence. That Court expressly stated that "any evidence of [the defendant’s] intent to inflict serious bodily injury must be gleaned from the other circumstances surrounding [the defendant's] attack on the victim.” Commonwealth v. Alexander, 477 Pa. 190,
. As we clearly delineated in Commonwealth v. Jones,
Herein, the inference that the victim was unprepared when Appellant punched him
The inference in this respect is not the sole evidence upon which we base the finding that Appellant intended to inflict serious bodily injury. That finding is also premised upon 1) the disproportionate size and age between the victim and the assailant; 2) Appellant's aggressive initiation of the confrontation; and 3) statements Appellant made after the blоw. Thus, the manner in which the blow was struck is not the "sole” evidence establishing Appellant’s intent to inflict serious bodily injury. Thus, the inference can be made pursuant to a preponderance of the evidence standard.
. This characterization is supported by the sentencing transcript, which states: Appellant "admitted that he [was] solely responsible for making the terrible rash decision to strike Mr. Price in a premature attempt to defend himself when Mr. Price reached behind his back during their dispute.” N.T. Sentencing, Vol. 1, 5/22/08, at 5.
Dissenting Opinion
DISSENTING OPINION BY
Because the learned Majority marginalizes Supreme Court precedent directly on point and parses the facts of the case in ways I believe were never contemplated by either the trial court or even the Commonwealth, I respectfully dissent. In Commonwealth v. O’Hanlon,
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.A. § 2702(a)(1). Serious bodily injury is defined 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.A. § 2301.
Where, as here,
In OH anion
[F]or 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. The recklessness must, therefore, be such that life threatening injury is essentiаlly certain to occur. This state of mind is, accordingly, equivalent to that which seeks to cause injury. Examples of such behavior make the distinction clear. In Commonwealth v. Daniels,467 Pa. 35 ,354 A.2d 538 (1976), appellant had fired a gun into a crowd; in Commonwealth v. Laing, [456 A.2d 204 (Pa.Super.1983) ], appellant drove his car into a crowd, after having aimed it at an individual; in [Commonwealth v.] Scofield, [521 A.2d 40 (Pa.Super.1987) ], the appellant drove at a pedestrian. [See also] Commonwealth v. Hlatky, [626 A.2d 575 (Pa.Super.1993) ];
Commonwealth v. Rohach, [496 A.2d 768 (Pa.Super.1985) ]. In each of these instances, the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions. In each case, the consequence was ignored.
O’Hanlon,
Since Burton admits that his actions caused serious bodily injury, this Court should limit its analysis to whether the Commonwealth proved beyond a reasonable doubt that he acted with malice, i.e., with an extreme indifference to the value of human life under circumstances which almost assured that injury or death would ensue. Burton argues that the evidence presented at trial failed to prove that he acted with malice, claiming that although he threatened to fight Price and then punched him, he neither threatened to kill or inflict serious bodily injury upon Price, nor used a deadly weapon on him. He notes that he did not employ escalating force on Price, “sucker punch” him,
Burton directs our attention to a panel decision of this Court presenting facts substantially similar to those in this case. In Commonwealth v. Roche,
On appeal, the defendant argued to this Court that the evidence was insufficient to sustain his aggravated assault conviction because his “single weaponless punch to the victim’s head did not demonstrate the requisite intent on his part to cause the victim serious bodily injury nor did the single punch evidence a hеightened degree of recklessness on his part.” Id. at 768. We concluded, inter alia, that the facts of the case did not establish that Roche acted with the requisite malice required to support a conviction for aggravated assault. Id. at 771. In finding that the evidence was insufficient to prove that Roche acted recklessly, we found:
Appellant’s act of throwing one punch after using belligerent words was clearly insufficient to establish that he acted with such a heightened degree of recklessness that he was virtually assured that death or serious injury would occur from his act. Appellant was not, nor could he be, virtually or even reasonably certain that death or serious injury would be the likely and logical result of his lone punch. This was not the functional equivalent of a murder in which for whatever reason death failed to occur.
Id. at 772 (emphasis added).
Burton also compares the facts of his case to thosе presented in Commonwealth
After reviewing the law pertaining to recklessness and aggravated assault under 18 Pa.C.S.A. § 2702(a)(1), I cannot agree with the Majority’s conclusion that the evidence proved, beyond a reasonable doubt, that Burton displayed the level of recklessness required for a conviction under that section. The facts of this case simply do not present anything approaching “the functional equivalent of a murder in which, for some reason, death fails to occur.” O’Hanlon,
Moreover, Burton’s behavior did not rise to the level of the examples of recklessness provided in O’Hanlon, e.g., firing a gun into a crowd, driving a ear into a crowd or at a pedestrian. In those cases, the defendants could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of their actions and that they ignored that risk. The evidence does not support a similar conclusion with respect to Burton’s street fight with Price.
In its written opinion submitted pursuant to Pa.R.A.P.1925(a), the trial court did not discuss the holding of Roche or engage in an analysis of recklessness pursuant to the standards set forth by our Supreme Court in O’Hanlon. Instead, it analyzed whether Burton possessed the specific intent to cause serious bodily injury using a list of factors for determining specific intent set forth in Commonwealth v. Alexander,
The Majority concludes that because two of these factors were present in this case (Burton’s disproportionate size and his threatening statements), this established Burton’s intent to cause serious bodily injury to Price. With respect to size of Burton and Price, Price testified at trial that he wаs 5'5]/>" and weighed approximately 162 pounds on the date of the incident. N.T., 4/10/08, at 10. Burton’s physical characteristics on the date of the fight were neither established at trial nor entered into the record. The trial court did ask him to stand up and apparently determined by looking at him that Burton appeared to be over 6'0" tall, to weigh over 200 pounds, and to be significantly larger and more muscular than Price. Trial Court Opinion, 7/25/08, at 5.
In this regard, the facts here do not differ significantly from those presented in Roche. There the defendant was found to be twice as large as and much stronger than the victim. The defendant was also acting belligerently, challenging his victim to arm wrestle and then asking if he was “a tough guy” before striking him. This Court found, however, that while it was indisputable that the victim suffered serious bodily injury from the single blow delivered by the defendant, the attendant facts and сircumstances (including the defendant’s size and strength) did not suggest that the blow was delivered with the specific intent of inflicting serious bodily injury, or with a reckless disregard for human life. Roche,
Importantly, in my view the factors set forth in Alexander were not intended to provide a quantitative test to determine whether malice exists in these cases. Instead, they are merely useful guides to assist in determining whether the heightened degree of recklessness required for aggravated assault under subsection 2702(a)(1) exists. Regardless of whether any or all of the Alexander factors exists in a particular case, the standards more recently elucidated by the Supreme Court in O’Hanlon must ultimately direct the analysis. The offensive act must occur under circumstances in which life-threatening injury or death is essentially certain to occur, and where the defendant could reasonably expect that serious bodily injury or death would be the “likely and logical consequences of his actions.” O’Hanlon,
In determining whether the Commonwealth proves that an appellant had the requisite intent, a fact-finder is free to conclude that “the accused intended the natural and probable consequences of his actions to result therefrom.” Faulk,
. Burton acknowledges that he caused Price to suffer serious bodily injury. Appellant's Brief at 10.
. Malice exists where there is a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Commonwealth v. Bruce,
.The Majority refuses to apply the legal principles set forth in O’Hanlon to this case, noting factual differences between the two cases. Majority Opinion at 605. Respectfully, while it is true that O’Hanlon involved a car crash
. The Majority’s contention that the victim in this case “was unprepared when he was actually struck,” Majority Opinion at 603 & n. 3, is wholly unsupported by the record on appeal. In particular, the record does not reflect that either the Commonwealth or the trial court (as the trier of fact) ever even suggested (either at trial, in the Rule 1925(a) opinion, or in appellate briefs) that Price was anything other than a willing participant in a common street fight. Indeed, Price and Burton both walked to a different location to engage in the fight (the end of the block), and Price removed items from his pockets and gave them to Moody in preparation for the fight. N.T., 4/10/08, at 18, 20. Moody testified merely that he heard a punch and a grunting noise as he stepped out of the way
. In Patrick, we held thаt a defendant acted with “reckless indifference under circumstances which virtually assured serious bodily injury” where he "sucker punched” his victim after getting into an altercation with him at a bar. Patrick,
. See, e.g., Commonwealth v. Davis,
. In its written opinion, the trial court stated that this Court has "repeatedly acknowledged that an actor may intend to cause 'serious bodily injury’ with only a single punch.” Trial Court Opinion, 7/25/08, at 4. However, the principal case the trial court cited in support of this proposition, Commonwealth v. Dailey,
Moreover, the cases cited in Dailey are inap-posite to the case at bar because they all involved prosecutions under section 2702(a)(3), which provides that "attempts to cause or intentionally or knowingly causes bodily injury" to, inter alia, police officers constitute aggravated assault. See Commonwealth v. Biagini,
. Although the Commonwealth now characterizes Burton’s punch as a "bone-shattering, knockout blow to the head,” Appellee's Brief at 2, it introduced no medical or expert testimony at trial to substantiate this claim. Instead, it merely introduced Price's medical records and a stipulation summarizing his injuries.
Similarly, in its written opinion the trial court speculates that when a "significantly weaker victim” receives a blow to the head, there is an "elevated probability the victim will be rendered unconscious or temporarily incapacitated ('dazed') due to deficient physical stature.” Trial Court Opinion, 7/25/08, at 6. Again, however, there is simply no evidence