Com. v. Poole, D.

• Court: Superior Court of Pennsylvania
• Decided: April 18, 2018
• Docket: 553 MDA 2017
• Status: Unpublished

Opinion

J-S81003-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : DENESHYA A. POOLE : : No. 553 MDA 2017 Appellant :

Appeal from the Judgment of Sentence January 12, 2017 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001374-2015

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 18, 2018

Deneshya A. Poole appeals from the judgment of sentence entered in

the Lycoming County Court of Common Pleas, after a jury found her guilty of

simple assault and aggravated assault – enumerated person.1 We affirm.

Appellant is an inmate at SCI Muncy. On January 20, 2015, Correctional

Officer George Tipler was escorting Appellant back to her prison cell in the

Restricted Housing Unit (“RHU”) when Appellant dug her nails into the back of

CO Tipler’s hand, which gouged his skin and caused him to bleed. Appellant

was charged with aggravated assault of an enumerated person (correctional

officer), and simple assault. A jury found her guilty of both charges. The simple

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 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2701(a)(1) and 2702(a)(3), respectively. J-S81003-17

assault charge merged for sentencing purposes, and the court gave her a

mitigated range sentence of 18 to 36 months of incarceration for aggravated

assault. Appellant filed timely post-sentence motions, which the court denied.

Her appeal is now before us.

Appellant attempts to raise two challenges on appeal. At the outset, we

note that an unfortunate typographical error appearing periodically

throughout her brief insists the evidence is sufficient to convict her of both

aggravated and simple assault. Further, though Appellant has separated her

brief into four sections, with two purportedly addressing her weight of the

evidence claims, Appellant uses exactly the same argument in each section.

Though Appellant cites to generic weight of the evidence law, she follows

this law with the identical conclusion from the sufficiency sections of her brief:

the evidence is “insufficient to sustain a conviction for the offense[].

Specifically, the Commonwealth failed to meet the element of Bodily Injury.”

Appellant presents no relevant argument on her weight claim; consequently,

this claim is waived.2 See Pa.R.A.P. 2111 (listing requirements for presenting

cognizable issue on appeal). And despite the jumbled presentation of

2 A verdict is said to be contrary to the evidence such that it shocks one’s sense of justice when “the figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d, 938 A.2d 198 (Pa. 2007). Had we addressed this claim on the merits, we would have found the verdict does not in any respect shock one’s sense of justice. The figure of justice is firmly rooted to her pedestal.

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Appellant’s brief, we find she intended to raise a sufficiency argument with

respect to the bodily injury element of her convictions. Thus, we will address

that argument.

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

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003).

“[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we

do not assess credibility nor do we assign weight to any of the testimony of

record.” Id. (citation omitted). Therefore, we will not disturb the verdict

“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.” Bruce,

916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen

two equally reasonable and mutually inconsistent inferences can be drawn

from the same set of circumstances….” Commonwealth v. Woong Knee

New, 47 A.2d 450, 468 (Pa. 1946).

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A person is guilty 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 person is guilty of aggravated assault – enumerated

person if he attempts to cause, or intentionally or knowingly causes bodily

injury to a correctional officer in the performance of the officer’s duty. See 18

Pa.C.S.A. § 2702(a)(3). Bodily injury is the impairment of a physical condition,

or substantial pain. See 18 Pa.C.S.A. § 2301.

Our Court has found evidence sufficient for a finding of bodily injury in

a case where the defendant pushed the victim into a doorframe, and caused

the victim to suffer a laceration that bled and produced a visible scab for a

week or two. See Commonwealth v. Duck, 171 A.3d 830, 837 (Pa. Super.

2017). Similarly, a defendant who struck an officer with his fist, resulting in

slight pain and swelling of the officer’s jaw, could be properly charged with

aggravated assault. See Commonwealth v. Marti, 779 A.2d 1177, 1183 (Pa.

Super. 2001). Bodily injury was also found in a case where a student grabbed

an instructional aide, leaving red marks and bruises for approximately four

days. See In re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000). Whether the

victim requires medical treatment or misses work is of no moment to our

analysis, as these are not prerequisites for a finding of bodily injury. See id.

Instantly, Appellant lodges in the RHU, an area, as its name connotes,

separate from the general population of the prison. Some inmates in the RHU

are subject to special transportation procedures while moving between the

RHU and other areas of the prison. Due to Appellant’s past behavioral issues,

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prison authorities record her movements while outside of her cell. Appellant’s

hands must be secured in handcuffs behind her back when she is outside of

her cell.

At trial, the Commonwealth presented the videotaped recording of the

incident, and the following testimony. CO Tipler testified that he and two other

correctional officers were escorting Appellant back to her cell in the RHU. See

N.T. Trial, 10/25/16, at 26. While CO Tipler walked her there, Appellant

screamed obscenities at him. See id. Once Appellant was placed back in her

cell, Appellant had to put her hands through a small opening on the cell door

to have her handcuffs unlocked. See N.T. Trial, 10/26/16, at 4. Appellant had

completed this procedure many times before, during previous trips outside of

her cell. See id., at 18.

However, instead of allowing CO Tipler to unlock her handcuffs, she dug

her fingernails into the back of his hand. See N.T. Trial, 10/25/16, at 29. CO

Tipler shouted at Appellant to “stop fucking scratching me.” Id., at 36.

Appellant continued to dig her fingernails into the back of the officer’s hand,

resulting in two bleeding wounds. See id., at 38. CO Tipler pulled his hand

away and requested medical attention. See id. CO Tipler testified he still had

a scar on the back of his hand at the time of trial from the one of the gouges

Appellant made in his skin. See id.

The correctional officer operating the video camera during this incident

also testified. He stated CO Tipler’s hand was “covered in blood” after

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Appellant scratched him, and that CO Tipler had to seek medical treatment for

his wounds. N.T. Trial, 10/25/16, at 47.

The prison’s registered nurse also testified, and his medical report was

introduced into evidence. See id., at 52-53. The report stated that CO Tipler

had an abrasion on the back of his hand. See id., at 52. The nurse testified

that CO Tipler had washed his hands by the time he was treated, and his hand

had stopped bleeding. See id., at 53.

Appellant presented a physician’s aide from the prison who stated that

Appellant frequently complained her handcuffs were too tight. See id., at 65.

Appellant also testified. She stated she was unaware she scratched CO

Tipler, and that she was just wiggling her fingers to get feeling back in her

hands. See N.T. Trial 10/26/16, at 10. Appellant admitted that she heard an

officer shout, “stop trying to scratch me,” but claimed she did not know which

officer shouted, or that the officer was shouting at her. Id., at 19.

We evaluate the foregoing evidence in the light most favorable to the

Commonwealth as the verdict-winner. In sum, the Commonwealth’s case

showed CO Tipler was an officer of a correctional institution acting in

performance of his duties at the time of the incident. The Commonwealth

proffered evidence to show Appellant used her nails to gouge CO Tipler’s hand,

causing it to bleed and scar.

We find the Commonwealth supplied sufficient evidence for the jury to

find that the injuries Appellant inflicted on CO Tipler’s hand constituted

impairment of a physical condition or substantial pain, and thereby bodily

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injury. Consequently, we find the Commonwealth presented sufficient

evidence to show Appellant committed aggravated assault. Accordingly, we

affirm Appellant’s judgment of sentence for aggravated assault – enumerated

person, and simple assault.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/18/18

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