Commonwealth v. Nichols

692 A.2d 181, 1997 Pa. Super. LEXIS 790
CourtSuperior Court of Pennsylvania
DecidedApril 2, 1997
DocketNo. 00669
StatusPublished
Cited by82 cases

This text of 692 A.2d 181 (Commonwealth v. Nichols) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Nichols, 692 A.2d 181, 1997 Pa. Super. LEXIS 790 (Pa. Ct. App. 1997).

Opinion

EAKIN, Judge.

Stephen Nelson Nichols appeals from the order of the Court of Common Pleas of Clinton County denying his motion for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. We affirm in part, vacate in part, and remand.

On June 8, 1991, Ronald Harter and Mark Larson went to appellant’s house to retrieve debris that had fallen onto appellant’s property from their truck. After the debris was removed, a fight ensued between appellant and Harter, which ceased when Larson intervened. Appellant returned to his house while Harter and Larson searched for their eyeglasses lost during the scuffle. Appellant reappeared with a baseball bat and ordered both men off his property; Larson said they would leave as soon as they found their glasses. In response, appellant said “you’ll get your glasses,” took the bat and struck Larson in the jaw near the bottom of his left ear. Harter and Larson fled, while appellant threw bricks at their departing vehicle. Harter suffered a broken nose, a broken ear drum and facial cuts. Larson’s jaw was broken and was wired shut for six weeks, during which he was forced to eat through a straw.

Following a jury trial, appellant was found guilty of two counts of aggravated assault,1 one count of reckless endangerment, one count of criminal mischief, and one count of simple assault. On December 18, 1992, appellant was sentenced to prison for forty-eight to ninety-six months on the count of aggravated assault, 18 Pa.C.S. § 2702(a)(1), plus restitution, a $500.00 fine and costs; no separate sentence was imposed for the conviction under section 2702(a)(4).2

Appellant filed a direct appeal; this court affirmed the judgments of sentence on December 3, 1993; our Supreme Court denied appellant’s petition for allowance of appeal. On August 21, 1995, appellant filed a motion for PCRA relief, which was denied after an evidentiary hearing. This appeal followed.

Appellant claims (1) the evidence was insufficient to support his conviction under 18 Pa.C.S. § 2702(a)(1), (2) trial counsel was ineffective for failing to call character witnesses, (3) trial counsel was ineffective for failing to impeach Commonwealth witnesses, and (4) the trial court’s instructions on aggravated assault were erroneous.

Appellant did not raise the claims of insufficient evidence and erroneous jury instructions in his direct appeal, but did properly raise them in his PCRA petition in the context of trial counsel’s alleged ineffectiveness. However, these ineffectiveness claims are not [184]*184set forth in appellant’s brief in the statement of questions presented pursuant to Pa.RA.P. 2116(a); they are tacked on the discussion of the substantive claims in the argument section of his brief and can be deemed waived. Commonwealth v. Mercado, 437 Pa.Super. 228, 250, 649 A.2d 946, 957 (1994) (when an appellant attempts to tack on claims of ineffective assistance of counsel without presenting them in the statement of questions presented, the ineffective assistance claims are waived); Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984) (same).

Since the ineffectiveness claims are waived, so are the substantive claims, since we can only reach them through properly raised allegations of trial counsel’s ineffectiveness. Nevertheless, we may address a waived claim lest it arises in a subsequent PCRA petition raising the ineffectiveness of all prior counsel. See, e.g., Commonwealth v. Hackman, 424 Pa.Super. 526, 529, 623 A.2d 350, 351 (1993); Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16, 598 A.2d 1011, 1012-14 (1991); accord Commonwealth v. Widmer, — Pa. —, 689 A.2d 211 (1997) (although Widmer failed to file post-sentence motion, Court overlooked technical waiver of weight of the evidence claim where trial court addressed it, found it meritorious but lacked jurisdiction to act upon it). Thus, we will address appellant’s first and fourth claims as well as the related ineffectiveness claims.

In any ineffectiveness claim, appellant must first demonstrate the underlying claim has arguable merit, that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate appellant’s interest, and but for the act or omission in question, the outcome of the proceedings would have been different. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995). Counsel is never ineffective for failing to raise a meritless claim. Id. at 120-21, 661 A.2d at 358.

When a challenge to the sufficiency of evidence is made, our task is to determine whether the evidence and all reasonable inferences therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, was sufficient to enable the fact finder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Tapper, 450 Pa.Super. 220, 675 A.2d 740 (1996).

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 the circumstances manifesting extreme indifference to the value of human life. 18 Pa. C.S. § 2702(a)(1). Appellant claims the evidence faded to establish that victim Larson suffered “serious bodily injury,” or that appellant possessed the requisite mental state.

“Serious bodily injury” is injury creating 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. Here, Larson’s jaw was wired shut for six weeks diming which he could only ingest through a straw. Suffering a broken jaw and being confined to a liquid diet constitutes impairment of the function of a bodily member. See Commonwealth v. Cassidy, 447 Pa.Super. 192, 200, 668 A.2d 1143, 1146 (1995), alloc. denied, 545 Pa. 660, 681 A.2d 176 (1996) (victim’s wearing of removable braces on her wrist and back for two months comprised impairment of function of a bodily member).

Appellant’s claim the evidence did not establish the requisite mens rea is without merit. A baseball bat, when swung at the head, can be a very deadly weapon,3 and it is well settled the use of a deadly weapon on a vital part of the body is sufficient to establish a specific intent to kill. Commonwealth v. Carbone, 524 Pa. 551, 562, 574 A.2d [185]*185584, 590 (1990). Clearly, a specific intent to cause serious bodily injury can be inferred from the same circumstances. See Commonwealth v. Pandolfo, 300 Pa.Super. 447, 451, 446 A.2d 939, 941 (1982) (blows to a portion of the body as vital as the head exhibited intent to inflict serious bodily injury).

However, where the victim suffers serious bodily injury, the Commonwealth need not prove specific intent. Commonwealth v. Hlatky, 426 Pa.Super.

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Bluebook (online)
692 A.2d 181, 1997 Pa. Super. LEXIS 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-nichols-pasuperct-1997.