Com. v. Kimbrough, J.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2022
• Docket: 1163 WDA 2021
• Status: Unpublished

Opinion

J-S14027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEREMY LAMONT KIMBROUGH : : Appellant : No. 1163 WDA 2021

Appeal from the Judgment of Sentence Entered July 26, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002613-2019

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: SEPTEMBER 26, 2022

Jeremy Lamont Kimbrough (Appellant) appeals nunc pro tunc from the

judgment of sentence entered in the Erie County Court of Common Pleas after

his jury convictions of aggravated assault, simple assault, and recklessly

endangering another person (REAP).1 On appeal, Appellant challenges the

sufficiency of the evidence for his conviction of aggravated assault,2 arguing

the Commonwealth failed to establish he intended to cause serious bodily

injury or acted with extreme indifference to human life. We affirm on the

basis of the trial court opinion.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2701(a)(1), 2702(a)(1), 2705, respectively.

2 Appellant does not assert any issues regarding his convictions of simple assault and REAP. J-S14027-22

In the early morning hours of September 7, 2019, while attending a

party at a home on East 11th Street in Erie, Pennsylvania, Appellant engaged

in a verbal argument with Karrie Anderson (Victim), his former girlfriend and

the mother of his children. Trial Ct. Op., 12/21/21, at 1. The argument turned

physical when Appellant punched Victim “in the face with such force that she

flew off the porch and onto a concrete sidewalk below.” Id. At trial, Tanisha

Blum, a witness present during the incident, testified that Victim was not the

initial aggressor of the attack. See N.T., 6/17/21, at 59. As a result of the

attack, Victim suffered a traumatic brain injury where she lost a portion of her

skull, declined in cognitive function, and “never fully recovered . . . before her

death on March 19, 2020.”3 Trial Ct. Op. at 1.

Appellant was subsequently charged with aggravated assault and REAP.

This matter proceeded to a two-day jury trial, which began on June 16, 2021.

At the close of the Commonwealth’s case, Appellant made an oral motion for

a judgment of acquittal, arguing the Commonwealth did not establish that

Appellant possessed the specific intent to cause serious bodily injury or, in the

alternative, the recklessness required for aggravated assault. N.T., 6/17/21,

at 73. The trial court denied the motion, stating the testimony reflects that

3 It merits mention that at trial, investigating officers, Erie Police Department Patrolmen Andrew Miller and Daniel Post, testified Victim was between 5’5 and 5’8 with a “heavier” body type, while Appellant was 6’2 and 195 pounds. N.T., 6/16/21, at 89, 107.

-2- J-S14027-22

serious bodily injury occurred and “came from [Appellant’s] punch by a closed

fist.” Id. at 75. The court looked at the following factors:

the location of the punch, a punch to the face as [V]ictim stood close by . . . a particularly steep set of stairs with concrete below, [Appellant] being almost a foot taller than [V]ictim . . . almost 10 inches larger, and . . . no evidence that [V]ictim was the aggressor . . .did sufficiently manifest recklessness to the degree that it showed . . . an extreme indifference to [V]ictim.

Id. Appellant did not testify or present evidence at trial.

After the conclusion of the trial, the jury found Appellant guilty of one

count each of aggravated assault, simple assault,4 and REAP. On July 26,

2021, the trial court sentenced Appellant to a term of 60 to 120 months’

incarceration for the aggravated assault conviction, followed by a term of 24

months’ probation for the REAP conviction.5

Appellant filed a post sentence motion for reconsideration of his

sentence, which the trial court denied on August 4, 2021. On September 10,

2021, Appellant filed a motion to reinstate his appellate rights nunc pro tunc,

which the trial court granted three days later. Appellant filed the present

timely appeal and complied with the trial court’s order to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). ____________________________________________

4 Appellant requested the trial court include a jury instruction for the lesser included offense of simple assault. N.T., 6/17/21, at 81. The trial court agreed and altered the verdict sheet to include simple assault. Id. at 82.

5Appellant’s conviction for simple assault merged with aggravated assault for sentencing purposes.

-3- J-S14027-22

On appeal, Appellant raises the following issue:

Whether the Commonwealth failed to present sufficient evidence to find . . . Appellant guilty beyond a reasonable doubt of aggravated assault?

Appellant’s Brief at 3.6

Our standard of review of a challenge to the sufficiency of the evidence

is well-settled:

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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citation

omitted).

6While the Commonwealth requested an extension of time to file its appellee’s brief, which this Court granted on April 12, 2022, a review of the docket reveals it has not filed the document. See Order, 4/12/22. Nevertheless, this does not impact our review.

-4- J-S14027-22

In Appellant’s sole claim on appeal, he argues the Commonwealth did

not present sufficient evidence to support the intent element of his aggravated

assault conviction. Appellant’s Brief at 7. He states: “While [Victim] did suffer

a serious bodily injury, the surrounding facts and circumstances do not

suggest that [he] punched [Victim] with the specific intent of inflicting serious

bodily harm upon her.” Id. at 8. Appellant relies on Commonwealth v.

Alexander, 383 A.2d 887 (Pa. 1978), to support his argument that he did not

possess “the requisite criminal state of mind” for the jury to infer that his

actions amounted to an “intent to cause serious bodily injury or a reckless

disregard[.]” Id. at 9. He also claims the Commonwealth “failed to establish

[that he] acted recklessly under circumstances manifesting extreme

indifference to the value of human life.” Id. Appellant maintains that Victim’s

injuries were “catastrophic,” but an “unintended consequence” of his actions.

Id. at 10. He insists that the Commonwealth failed to establish the requisite

intent of aggravated assault, and thus, is entitled to relief. Id.

To be guilty of aggravated assault, an individual must “attempt[ ] to

cause serious bodily injury to another, or cause[ ] such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference

to the value of human life.” 18 Pa.C.S. § 2702(a)(1). “Serious bodily injury”

is any “[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of

function of any bodily member or organ.” 18 Pa.C.S. § 2301.

-5- J-S14027-22

Here, no one disputes that Victim suffered serious bodily injury. We

note:

Where the victim suffers serious bodily injury, the Commonwealth is not required to prove specific intent.

The 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.

Commonwealth v Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en

banc) (citations omitted).

Regarding Appellant’s sole claim on appeal, after a thorough review of

the record, the briefs of the parties, the applicable law, and the well-reasoned

opinion of the trial court, we conclude Appellant is not entitled to relief. The

trial court opinion comprehensively discusses and properly disposes of his

claim. See Trial Ct. Op. at 3-11 (finding: (1) Appellant’s reliance on

Alexander is misplaced because here, unlike Alexander, the evidence

supports the jury’s conclusion that Appellant did inflict serious bodily injury

on Victim which caused her to suffer a skull fracture and a decline in her

cognitive abilities; (2) the circumstances surrounding Appellant’s attack on

Victim, namely their difference in size, the force of the closed fist punch, their

location when Appellant attacked Victim, and the evidence supporting

Appellant’s pattern of abuse towards Victim, supported the jury’s reasonable

inference that Appellant intended to cause serious bodily injury; (3) the

present facts are similar to Commonwealth v. Burton, 2 A.3d 598 (Pa.

-6- J-S14027-22

Super. 2010) (en banc), in which a conviction for aggravated assault was

upheld where the aggressor delivered a single blow to a victim who then

experienced serious bodily injury with a real threat of death; (4) Appellant’s

actions were also similar to the defendant’s in Interest of N.A.D., 205 A.3d

1237 (Pa. Super. 2019), where a juvenile defendant delivered one punch while

the victim was not looking and cause them to become unconscious, and a

panel of this Court concluded that the defendant acted “at least recklessly”

manifesting extreme indifference towards the value of human life).

Accordingly, we affirm on the basis of the trial court’s opinion.

We direct that a copy of the trial court’s December 21, 2021, opinion be

filed along with this memorandum and attached to any future filings in this

case.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/26/2022

-7- Circulated 08/29/2022 09:17 AM

IN THE COURT OF COMMON PLEAS OF) ERIE -COUNTY, PENNSYLVANIA ?"? fn' n

COMMONWEALTH OF Pt" CRIMINAL DIVISION PENNSYLVANIA

V.

JEREMY LAMONT KIMBROUGH, DOCKET NO. 2613 OF 2019 DEFENDANT

1925(a) OPINION

December 21, 2021

Defendant, Jeremy Kimbrough, appeals his conviction on aggravated assault, simple

assault, and recklessly endangering another person. Attrial, the Commonwealth presented

evidence that in the early morning hours of September 7, 2019, Kimbrough and Karrie Anderson,

his former girlfriend and mother of his children, became enmeshed in an argument while at aparty;

the argument concluded with Kimbrough punching Anderson in the face with such force that she

flew off the porch and onto aconcrete sidewalk below. Transcript (Tr.), Day 1, pp. 71, 73, 75, 83-

84, 95, 114; Day 2., pp. 37, 59-60. Asaresult, Anderson suffered a "severe traumatic brain injury"

that led to the loss of a significant portion of her skull and aprofound decline in cognitive

functioning. Tr., Day 1, pp. 59, 61, 125. She never fully recovered from her injuries before her

death on March 19, 2020. Tr., Day 1, pp. 111, 120-21.

At the close of the Commonwealth's case, Kimbrough made aMotion for Judgment of

Acquittal on the aggravated assault charge, arguing that there was insufficient evidence to show

either an intent to cause serious bodily injury or that he caused such injury with recklessness

"manifesting extreme indifference to the value of human life." 18 Pa.C.S. § 2702(a)(1); Tr., Day

2, pp. 73. The Court denied the Motion, holding that apunch to the face at close range by an aggressor significantly larger than the victim from aporch on the edge of asteep set of stairs

located above aconcrete sidewalk manifested an extreme indifference to the value of human life

sufficient to submit the charge to ajury. Tr., Day 2, pp. 75.

The jury ultimately convicted Kimbrough on all counts. Tr., Day 2, p. 132. The Court

sentenced Kimbrough to aperiod of incarceration of 5-10 years followed by 2years of probation.

Sentencing Tr., p. 27. Kimbrough filed a Post-Sentence Motion for Reconsideration and

Modification, which the Court denied, Kimbrough subsequently filed aMotion to Reinstate

Appellate Rights Nunc Pro Tune, which the Court granted.

The instant appealed followed. In his Statement of Matters Complained of on Appeal,

Kimbrough raises a sole issue: whether "the evidence was insufficient to convict [him] of

Aggravated Assault," Matters Complained of on Appeal, p. 1. Specifically, Kimbrough argues

that "[p]ursuant to well-settled case law" aconviction for aggravated assault based upon asingle

"sucker punch" to avictim is insufficient. Matters Complained of on Appeal, p. 2.

In reviewing challenges to the sufficiency of the evidence presented at trial, the operative

question is:

[W]hether 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 areasonable 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 adefendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as amatter 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 areasonable 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.

2 Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa. Super. 2019) (citation and internal brackets

A person commits the crime 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)). Serious

bodily injury is defined as "[b]odily injury which creates asubstantial 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. "[T]he phrase ` under circumstances manifesting extreme

indifference to the value of human life' modifies ` recklessly' such that reckless conduct not

circumstantially manifesting such indifference will not support an aggravated assault conviction

under this subsection." Commonwealth v. Nichols, 692 A.2d 181, 186 (Pa. Super. 1997). Rather,

"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"

or "be such that life threatening injury is essentially certain to occur." Commonwealth v. O'Hanlon,

653 A.2d 616, 618 (Pa. 1995). In other words, aggravated assault is "the functional equivalent of

amurder in which, for some reason, death fails to occur." Id.

Just as in his Motion for Judgment of Acquittal at trial, Kimbrough asserts that the single

blow or "sucker punch" he inflicted on Anderson was insufficient to establish aggravated assault

"[p]ursuant to well-settled case law[.]" Matters Complained of on Appeal, p. 2. In Commonwealth

v. Alexander, 383 A.2d 887 (Pa. 1978), our Supreme Court considered whether abroken nose

sustained as aresult of asingle blow was sufficient to support aconviction for aggravated assault.

The Commonwealth conceded that the victim did not actually suffer aserious bodily injury, but

3 argued that the aggressor's act of striking the victim with aclosed fist sufficiently evinced his

intent to cause serious bodily injury. Id. at 193. In rejecting this argument, the Court explained:

While there can be no dispute about the physiological significance of the head, where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that apunch was delivered to that portion of the body is sufficient, without more, to support afinding that appellant intended to inflict serious bodily injury. Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports afinding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Criminal intent may be proved by direct or circumstantial evidence. In the instant case, the only direct evidence of appellant's intent is his testimony to the effect that he did not intend to seriously injure the victim. Thus, any evidence of his intent to inflict serious bodily injury must be gleaned from the other circumstances surrounding appellant's attack on the victim. In this case there simply are no such circumstances to support afinding that appellant harbored the requisite intent. There is no evidence that appellant was disproportionately larger or stronger than the victim; appellant was not restrained from escalating his attack upon the victim; appellant had no weapon or other implement to aid his attack; appellant made no statements before, during, or after the attack which might indicate his intent to inflict further injury upon the victim. Appellant delivered one punch and walked away.

Id. at 194 (citations omitted).

Here, there exist "other circumstances surrounding the defendant's attack on the victim"

that would reasonably allow the jury to infer that he intended to cause serious bodily injury when

he delivered the blow. Id. Viewing the evidence in the light most favorable to the Commonwealth,

Kimbrough was disproportionately larger than Anderson, standing six feet two inches tall and

weighing 195 pounds, while Anderson stood only five feet five inches tall. Tr., Day 1, pp. 89, 107.

The evidence also indicated that the punch was applied with such force that Anderson "flew down

the stairs onto the cement" below. Tr., Day 2, p. 59. Kimbrough would have been aware when he

punched Anderson that she was standing on the edge of aporch stairway above a concrete

sidewalk, increasing the risk that her head would sustain further serious injury when she fell. Tr.,

4 Day 1, pp. 83-84. Additionally, Kimbrough's statement that Anderson was "okay" and that "they

did this all the time" suggests an intentional pattern of abusive behavior. Tr., Day 2, p. 60. And

while Anderson may not have been unaware of his presence, the jury could have reasonably

inferred she was taken off-guard by the punch, as none of the witnesses testified that she attempted

to avoid the blow. Thus, while not all of the Alexander factors are implicated in this case, there

was sufficient circumstantial evidence from which the jury could reasonably conclude that

Kimbrough intended to inflict serious bodily injury. See Commonwealth v, Russell, 209 A. 3d 419,

428 (Pa. Super. 2019) (holding that the presence of three of the four Alexander factors was

sufficient to support afinding of intent to inflict serious bodily injury); see also Commonwealth v,

Palmer, 192 A.3d 85, 96 (Pa. Super. 2018) (noting "[i]t is difficult to accept that this behavior was

designed to do anything other than kill or inflict serious bodily injury, and the jury was permitted

to attach significance to the natural and probable outcome of that behavior when assessing intent.")

(citation and footnote omitted).

Even assuming, for argument's sake, that the evidence is insufficient to support an intent

on the part of Kimbrough to cause serious bodily injury to Anderson, then any reliance on

Alexander is misplaced. In Alexander, all agreed that the aggressor did not actually inflict serious

bodily injury as that term is defined under the Crimes Code, 383 A.2d at 193, namely, "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,

but in this case, the evidence is more than sufficient to support the jury's determination that it did.

After being punched and knocked to the ground, Anderson was unresponsive,. blood

seeping from her mouth and pooling at her right eye socket. Tr., Day 1, pp. 49, 74; Day 2, p. 59.

As a result of the punch, she sustained as skull fracture and subdural hematoma requiring

5 neurosurgical intervention. Tr., Day 1, p. 49. Anderson's brain swelling was not able to be

controlled with medications, requiring an additional surgery to remove aportion of her skull. Tr.,

Day 1, p. 55. Had the portion of her skull not been removed, she likely would have gone brain

dead. Tr., Day 1, p. 56. Anderson was eventually discharged to a traumatic brain injury

rehabilitation program. Tr., Day 1, pg. 59. At the time of her discharge from the hospital into

rehabilitation, she had not had the missing piece of her skull replaced, requiring her to wear a

helmet to protect her brain. Tr., Day 1, pp. 61-62, 125. She remained wheelchair bound, suffered

lingering memory loss, had trouble understanding certain words, could often not remember what

day of the week it was, and needed reminders to engage in basic hygienic functions, such as

bathing. Tr., Day 1, 123-25. These conditions persisted for the remainder of Anderson's life until

she passed away on March 19, 2020. Tr., Day 1, pp. 111, 120-21.

"[W]here serious bodily injury is inflicted, the Commonwealth is not required to prove a

specific intent; this is because aggravated assault may be proven if the defendant acted recklessly."

Commonwealth v. Hlatky, 626 A.2d 575, 581 (Pa. Super. 1993) (citation omitted). As previously

noted, the requisite mens rea is not ordinary recklessness, but recklessness manifesting an extreme

indifference to the value of human life "such that life threatening injury is essentially certain to

occur." O'Hanlon, 653 A.2d at 618. The challenge for the Commonwealth (assuming arguendo

that it failed to offer sufficient evidence of an intent to cause serious bodily injury) is to show that

it offered sufficient evidence to satisfy this heightened recklessness mens rea. The case law on

this point is instructive.

In Commonwealth v. Patrick, 933 A.2d 1043 ( Pa. Super. 2007) ( en bane), the aggressor

punched the victim on the side of his head, knocking him off his feet. Id. at 1044. The victim hit

his head on asidewalk with nothing to cushion the fall. Id. As aresult, the victim suffered severe

6 brain trauma, spending two days in acoma and several weeks in therapy. Id. at 1047. The Court

noted the evidence demonstrated that the defendant "inflicted an assault on the victim with reckless

indifference under circumstances which virtually assured serious bodily injury." Id. Patrick,

however, considered whether the evidence was sufficient for purposes of apreliminary hearing

where the Commonwealth need only establish aprima facie case by demonstrating evidence of

each element of aggravated assault; the Commonwealth was not required to prove the offense

beyond areasonable doubt. Id. Thus, Patrick, although instructive, is not alone dispositive of the

question raised by Kimbrough in this appeal: whether the evidence was sufficient to convict him

of aggravated assault beyond areasonable doubt.

Perhaps most amenable to Kimbrough's position is Commonwealth v. Roche, 783 A.2d

766 (Pa. Super. 2001). In that case, the victim declined an offer to arm wrestle from the defendant,

who was twice the victim's size. Id, at 767. Inebriated, the defendant followed the victim out of

the bar and ultimately delivered aclosed-fist blow to the victim's left eye, causing him to fall to

the ground unconscious, hitting his head on concrete, and sustaining ascalp laceration that began

to bleed profusely. Id. Noting that "[t]he aggravated assault statute is not astrict liability statute[,]"

the Court held that "belligerent words and the throwing of one punch are in and of themselves

insufficient factors to support the conclusion that Appellant had the requisite intent to cause serious

bodily injury when he struck the victim." Id. at 770.

Despite insufficient evidence of aspecific intent to cause serious bodily injury, the Court

went on to consider whether the Commonwealth alternatively had sufficient evidence to prove a

mens tea of recklessness manifesting extreme indifference to the value of human life. Id. at 771.

On this point, the Court held:

Appellant's act of throwing one punch after using belligerent words was cl early insufficient to establish that he acted with such aheightened degree of recklessness

7 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 amurder in which for whatever reason death failed to occur.

This was instead an all too common situation in which an individual, no doubt overcome by visions of his pugilistic prowess induced by consumption of alcohol, struck another individual with his fist outside of abar. The law justifiably sanctions such reprehensible behavior as that which Appellant demonstrated through the offenses of simple assault and reckless endangerment, offenses for which Appellant was rightfully convicted. Appellant correctly does not challenge his convictions for those offenses as the evidence amply supports his conviction for them. Appellant is not, however, afailed murderer, and his conviction for aggravated assault therefore cannot stand.

Id. at 772-73 (footnote omitted). Applying the rationale from Roche to the case at bar,

Kimbrough's conviction for aggravated assault is arguably not supported by sufficient evidence.

The only problem for Kimbrough is that Roche is no longer good law. In Commonwealth

v. Burton, 2A.3d 598 (Pa. Super. 20 10) (en bane), the Court repudiated its earlier panel decision

in Roche. There, the defendant delivered asingle blow to the victim, who "fell headfirst to the

pavement without the benefit of areflexive action to protect against the fall." Id. at 599, 604. As

aresult, the victim suffered atraumatic brain injury leading to subdural hemorrhaging and brain

swelling. Id. at 599-600. The Court held that the evidence was sufficient to show an intent to cause

serious bodily injury. Id. at 603. Addressing Roche, the Court stated:

Inexplicably, in that decision, we did not consider the obviously pertinent circumstances that the victim was turning around when he was blindsided by aman who was twice as large and significantly stronger as well as the existence of other factors, including that the defendant aggressively initiated the attack, which was ceased due to the arrival of police. Given the presence of numerous factors establishing the defendant's intent to inflict serious bodily injury upon his victim as well as his actual accomplishment of that goal, it is clear that the Roche holding is not viable.

8 Id. at 605. The Court noted "[w]e are cognizant of our Supreme Court's pronouncement... that,

[a]ggravated assault is the functional equivalent of amurder in which, for some reason, death fails

to occur." Id. ( quoting Q'Hanlon, 653 A.2d at 61 S) (internal quotation marks and ellipsis omitted).

However, the Court explained that "the evidence herein establishes that while hospitalized, the

victim was in real danger of dying ... 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." Id.

Here, as in Burton, the aggressor struck asingle blow to the victim with "immediately-

evident severity[,]" leaving the victim "unconscious and lying on the ground[.]" Id. at 604.

Additionally, the victim was "lighter" and "smaller" than the aggressor. Id. at 605. The evidence

also indicated that "the victim was in real danger of dying" while hospitalized. Id. While Burton

did not explicitly address whether the evidence was sufficient to show recklessness manifesting an

extreme indifference to the value of human life, it logically follows that evidence sufficient to

support a higher mens rea, i.e. specific intent to cause serious bodily injury, will necessarily

support afinding of alower mental state, such as extreme disregard for the value of human life.

Such was the case in Interest of N.A,D. (Appeal of N.A.D.), 205 A.3d 1237 (Pa. Super.

2019). In that case, ajuvenile punched his victim in the jaw on the left side of his face. Id. at 123 8.

The victim was "out for awhile" after the punch. Id. When the victim regained consciousness,

blood was pouring from his mouth and he could not speak. Id. at 1238-39. Immediately following

the attack, the aggressor expressed remorse for his actions, crying and apologizing to the victim.

Id. at 1239. Nevertheless, the juvenile was convicted of aggravated assault. Reviewing the

sufficiency of the evidence on appeal, the Superior Court, relying on Patrick and Burton,

concluded:

Viewing the facts in the most favorable light to the Commonwealth as the verdict- winner, the evidence was sufficient to establish that N.A.D. acted at least recklessly.

9 N.A.D. had his fists clenched during the initial part of the confrontation, and then waited until the victim was not facing him to punch him with such force that not only broke the victim's jaw but also knocked him unconscious for aperiod of time while he laid in apuddle of his own blood. N.A.D.'s behavior preceding the attack and the extreme force of just one blow, combined with what the trial court reasonably described as a "sneak attack" sufficed to raise an inference that he acted recklessly under circumstances manifesting extreme indifference to the value of human life.

Id. at 1240 (citation omitted).

Just as in Appeal of N.A.D., the evidence presented at Kimbrough's trial was sufficient to

enable the jury to reasonably conclude that he acted with amens rea of recklessness manifesting

an extreme indifference to the value of human life when he delivered the single-blow punch to

Anderson. First, he was significantly taller than her, standing six feet two inches tall, while she

stood only five feet five inches in height. Tr., Day 1, pp. 89, 107. Second, Kimbrough initiated

the aggression. Tr., Day 2., p. 35. Third, Kimbrough punched Anderson in the face, avital part of

the body, with aclosed fist. Tr., Day 2, pp. 35-36, 58. Fourth, the force of the punch was so strong

that she "flew" off of the porch. Tr., Day 2, pp. 36-37, 59. Fifth, Anderson stood on the edge of

an elevated porch stairway overlooking a sidewalk, increasing the chances she would sustain

further serious injuries if she landed on the concrete. Tr., Day 1, pp. 80-84. Sixth, although there

was no evidence that Anderson was necessarily turned away from Kimbrough or unaware of where

he stood, that she apparently made no attempt to avoid the punch reasonably permitted the jury to

infer that she was surprised by the attack. Seventh, Kimbrough appeared to downplay the severity

of the assault in the moments after he punched Anderson, stating she was "okay" and that "they

do this all the time." Tr., Day 2, p. 60. These actions on the part of Kimbrough represent an

extreme indifference for the value of Anderson's life. Indeed, the fact that she landed on the back

of her head, Tr., Day 2, p. 37, that she was knocked out, blood visibly pooling from her mouth and

10 eyes, and the severity of the brain trauma and rehabilitation she endured, all confirm the gross

recklessness of Kimbrough's actions. Tr., Day 1, pp. 49, 55-56, 59, 61-62, 74; Day 2, p. 59

In sum, contrary to Kimbrough's suggestion, the case law reveals that asingle blow or

"sucker punch" to the head can be sufficient to sustain aconviction for aggravated assault under

Section 2702(a)(1). To be sure, not every punch to the head will necessarily be adequate to

constitute aggravated assault such that it is "the functional equivalent of amurder in which, for

some reason, death fails to occur." O'Hanlon, 653 A.2d at 61 S. Instead, the analysis is highly fact-

specific and dependent upon the nature of the punch itself and the circumstances in which it is

delivered. But by the same token, neither does Pennsylvania law categorically preclude a

conviction for aggravated assault based upon asingle punch, as illustrated in cases like Patrick,

Burton, and Appeal ofN.A.D.

All things considered, and viewing the evidence in the light most favorable to the

Commonwealth, the evidence presented at trial was sufficient as amatter of Pennsylvania law to

show that Kimbrough inflicted serious bodily injury upon Anderson by virtue of his single "sucker

punch" to her head, and that he acted either with specific intent to do so or with recklessness

manifesting an extreme indifference to the value of human life. To the extent that Roche suggests

otherwise, that decision "does not comport with" the current state of the law in this

Commonwealth. Burton, 2. A.3d at 605. Because the evidence was sufficient to permit the jury to

find Kimbrough guilty beyond areasonable doubt of aggravated assault under Section 2702(a)(1),

his conviction should be armed.

BYTHE Ifih URT:

M ARSH LL J.PICCININI, JUDGE

11 cc: Court Administration Jeremy C. Lightner, Esquire- District Attorney's Office Emily M. Merski, Esquire 210 East 2nd Street, Erie, PA 16507 (for Defendant)