In the Int. of: S.B., Appeal of: S.B.

• Court: Superior Court of Pennsylvania
• Decided: June 9, 2021
• Docket: 1630 EDA 2020
• Status: Unpublished

Opinion

J-S13041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.B., A MINOR : : : : : No. 1630 EDA 2020

Appeal from the Dispositional Order Entered July 27, 2020 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-JV-0000088-2020

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 09, 2021

S.B. appeals from the dispositional order entered in the Court of

Common Pleas of Northampton County (trial court) that adjudicated him

delinquent of aggravated assault and related charges.1 S.B. challenges the

sufficiency of the evidence to support the mens rea required for aggravated

assault. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a) (Aggravated Assault), 2701(a)(1) (Simple Assault)

and 2705 (Recklessly Endangering of Another Person (REAP)) J-S13041-21

I.

The parties do not dispute the underlying factual and procedural

histories in this matter, which we take from our independent review of the

record and the trial court’s October 19, 2020 opinion.

On February 11, 2020, the Northampton County District Attorney filed

allegations of Simple Assault and REAP against S.B. for an incident in which

he twice threw a hard object causing injuries to the eye of the victim, A.W.

After further investigation revealed the serious nature of the injury, the

District Attorney added the charge of aggravated assault.

At the July 27, 2020 adjudicatory hearing, Lower Saucon Township High

School students K.P. and A.W. testified that on February 8, 2020, at

approximately 3:20 p.m., they were walking down the school’s crowded

hallway toward the busses when a hard “ball-like” object hit K.P. in her upper

back near her neck causing her to lunge forward. A.W. described the contact

as making a thud and thought at the time that it was a hard lacrosse ball

(counsel clarified that it was hardened modeling clay). S.B. reacted by picking

up the object, smiling and laughing. As K.P. and A.W. continued down the

hall, the young women repeatedly glanced behind them to see who had thrown

the object. A second hard ball-like object then struck A.W. directly in her eye,

bounced off her and hit K.P. in the shoulder. A.W. immediately started

screaming. She described the incident as “the most excruciating pain I ever

felt in my entire life. … I didn’t think I could open [my eye]. It [] felt like it

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was pushed into the back of my head. I didn’t think my eye was in the right

place.” (N.T. Hearing, 7/27/20, at 21-22). Video surveillance showed S.B.

“winding up” before forcefully throwing the object at the two unsuspecting

students and walking away without any apparent concern after the second

throw struck A.W. A.W. held onto K.P. who guided her to a teacher and then

the school nurse. A.W.’s mother took her to a Philadelphia eye specialist. As

a result of the incident, A.W. is now partially blind in that eye, having lost

depth perception and eighty percent of her vision. Neither student knew S.B.

Videotape footage from the school corroborated the young women’s

testimony. (See id. at 1-24). Lower Saucon Township Police Officer Steve

Kunigus testified that although at the time of the occurrence police only

charged S.B. with Simple Assault, when the ongoing investigation revealed

the seriousness of the injury, they added the aggravated assault charge. (See

id. at 29).

At the conclusion of the testimony, S.B.’s counsel represented that S.B.

was not disputing that he threw the object and stipulated that it caused serious

bodily injury to A.W. (See id. at 26-27). However, counsel argued that the

Commonwealth failed to establish that the circumstances manifested an

extreme indifference to the value of human life as required for an aggravated

assault conviction. (See id.).

In adjudicating S.B. delinquent of all charges, the court made the

following findings:

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First of all, I found … both female student witnesses[] to be credible. I also make a finding that based upon the video, it was obvious that this was a crowded hallway.

I also make a finding, based upon the testimony, that not only was the object thrown at head-level height, it was apparently aimed. The first witness testified that she was struck near the shoulder area. And I made a finding that these two young ladies kept turning around, and that is something I was thinking about when I was hearing the testimony.

It’s reasonable for me to conclude that he saw them turning around and still threw the object again, and I made a finding that it was a hard enough object that the elements for aggravated assault are met and they are met beyond a reasonable doubt. …

(Id. at 36).

On July 31, 2020, the court entered a dispositional order adjudicating

S.B. delinquent of all charges. He timely appealed and he and the court have

complied with Rule 1925. See Pa.R.A.P. 1925.

II.

S.B. admits that his actions were inexcusable. He argues, however, that

despite the seriousness of A.W.’s injury, the court erred in adjudicating him

delinquent of aggravated assault because the evidence was insufficient to

establish the required mens rea.2 Specifically, he claims “(a) aggravated

2 It is well-established that:

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 (Footnote Continued Next Page)

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assault is the functional equivalent of murder in which for some reason death

fails to occur (b) [it] requires a showing of ‘malice’ equal to that for third-

degree murder and (c) S.B.’s conduct in twice throwing a hard object down a

school hallway was insufficiently egregious to sustain a conviction for the

offense[.]” (S.B.’s Brief, at 4). Instead, he argues that he only should have

been found guilty of the second-degree misdemeanor offenses of Simple

Assault and REAP, which provide that a person is guilty if he “intentionally,

knowingly or recklessly causes bodily injury to another[]” and if “he recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S. §§ 2701(a)(1), 2705.

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 trier 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 32 A.3d 1275 (Pa. 2011).

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Section 2702(a) of the Crimes Code provides, in pertinent part, “[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. § 2702(a)(1). “Serious bodily injury” is “[b]odily 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.

Where the victim suffers serious bodily injury, the Commonwealth is not

required to prove the defendant acted with the specific intent to cause the

victim’s injuries, although using a deadly weapon on a vital part of the victim’s

body would establish such intent. See Commonwealth v. Nichols, 692 A.2d

181, 185 (Pa.Super. 1997).

To prevail on a theory of recklessness in a prosecution for aggravated assault, the Commonwealth must show that the assailant’s recklessness rose to the level of malice, a crucial element of aggravated assault. The malice that is required for aggravated assault is the same as that required for third degree murder. Malice consists of 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. Miller, 955 A.2d 419, 422 (Pa. Super. 2008) (citations

and quotation marks omitted). The Commonwealth must show “the defendant

consciously disregarded an unjustified and extremely high risk that his actions

might cause death or serious bodily harm. This state of mind may be inferred

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from conduct, recklessness of consequences, or the cruelty of the crime.”

Commonwealth. v. Payne, 868 A.2d 1257, 1261 (Pa. Super. 2005), appeal

denied, 877 A.2d 461 (Pa. 2005) (internal citations and quotation marks

omitted).

S.B. argues that the Commonwealth failed to establish malice because

his actions in throwing a piece of hardened clay down the hallway was not the

functional equivalent of attempted murder in which, for some reason, death

fails to occur. Although he admits that a deadly weapon “need not be

inherently lethal, and items such as a baseball bat, an axe, an iron bar, a

heavy cuspidor, and even a bedroom slipper have been deemed ‘deadly

weapons’ under varying circumstances[,]” he maintains that because the

piece of clay that he threw was not inherently dangerous, it reflects a reduced

level of culpability. (S.B.’s Brief, at 17). He posits that throwing a piece of

clay is not the same as an individual “firing a gun into a crowd” or “driving a

car into the crowd,” and that his actions failed to establish a sustained course

of conduct. (Id. at 17) (citing Trial Ct. Op., at 5); (see also id. at 16-19).

A.W. credibly testified that before she was struck, she observed that the

force with which K.P. was hit in the back by the first piece of hardened clay

caused her to lunge forward. Video evidence depicted S.B. “winding up” and

laughing after the first strike before aiming another projectile at the young

women’s heads and throwing it with enough force that when it hit A.W. in the

eye, she experienced the most excruciating pain she had ever felt, with her

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eye feeling like it was out of its socket and pushed back into her head. (See

N.T. Hearing, 7/27/20, at 21-22). As a result of the assault, she suffers

permanent near total blindness in the struck eye. It was for the court, as fact-

finder, to resolve any doubts regarding S.B.’s guilt where the undisputed

evidence was not so weak and inconclusive that as a matter of law, no

probability of fact could be drawn from the combined circumstances. See

Hansley, supra at 416. Under the circumstances of this case, the hardened

piece of clay was used as a deadly weapon that caused serious bodily injury.

It is reasonable to conclude that had it struck a different part of A.W.’s head,

it could have resulted in death.

Similar singular blows to the head with resulting serious bodily injury

have been found sufficient to establish aggravated assault. For example, this

Court has found one surprise sucker punch to a victim’s head that caused him

to fall and hit his head on the sidewalk, resulting in brain trauma, was

sufficient to support a finding of the reckless indifference required to support

an aggravated assault charge. See Commonwealth v. Patrick, 933 A.2d

1043, 1047 (Pa. Super. 2007), appeal denied, 940 A.2d 364 (Pa. 2007).

Evidence also was sufficient to support a finding that a juvenile acted

recklessly with extreme indifference to human life when he punched a victim

who was not facing him with enough force to break the victim’s jaw and render

him unconscious. See Interest of N.A.D., 205 A.3d 1237, 1240 (Pa. Super.

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2019); see also Commonwealth v. Burton, 2 A.3d 598 (Pa. Super. 2010)

(evidence of one punch to head sufficient to establish aggravated assault). 3

Accordingly, when viewed in the light most favorable to the

Commonwealth as verdict winner, the trial court properly found that the

evidence was sufficient to establish the malice required to convict S.B. of

aggravated assault. See Miller, supra at 422; Payne, supra at 1261;

Nichols, supra at 185; 18 Pa.C.S. § 2702(a)(1).

Dispositional order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/9/2021

3 Neither are we persuaded by S.B.’s argument that the Commonwealth’s discovery of the serious nature of A.W.’s injury did not support adding the aggravated assault charge. As explained above, serious bodily injury is an element of aggravated assault, and Officer Kunigus testified the Commonwealth did not include the charge until the investigation disclosed that this element could be met.

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