In the Interest of: A.B., Appeal of: A.B.

• Court: Superior Court of Pennsylvania
• Decided: December 7, 2020
• Docket: 493 WDA 2020
• Status: Unpublished

Opinion

J-S49016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.B., A MINOR : : : : : No. 493 WDA 2020

Appeal from the Dispositional Order Entered March 17, 2020 In the Court of Common Pleas of Allegheny County Juvenile Division at No(s): CP-02-JV-0000406-2020

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 07, 2020

Appellant, A.B., appeals from the March 17, 2020 Dispositional Order

entered in the Allegheny County Court of Common Pleas, which adjudicated

her delinquent for Aggravated Assault of a teaching staff member1 and found

her in need of treatment, rehabilitation, or supervision. Upon review, we

affirm.

The relevant factual and procedural history is as follows. On February

28, 2020, Appellant, who was a resident at New Outlook Academy, a juvenile

rehabilitative facility and school, got into a verbal and physical altercation with

teachers at the school.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2705(a)(5). J-S49016-20

On the afternoon in question, Appellant was a student in Glenn

Gutierrez’s class. At the end of the period, Mr. Gutierrez asked Appellant to

move her desk back to its original location before leaving the classroom.

Appellant became agitated and began cursing at Mr. Gutierrez and threatening

to “slap his bitch ass.” N.T. Hearing, 3/17/20, at 7. Mr. Gutierrez informed

Appellant that she was not allowed to speak to him that way, and that her

language was going to result in a behavior report. Appellant responded that

she did not care, threatened Mr. Gutierrez again, and became “enraged.” Id.

at 8. Appellant attempted to exit the classroom prior to dismissal, and Mr.

Gutierrez stood in the classroom doorway blocking the exit. Appellant

proceeded to push Mr. Gutierrez out of the way. When Mr. Gutierrez

attempted to block Appellant’s path a second time, Appellant pushed him

again, and he allowed her to pass by.

Michael Snider, who is a teacher and school supervisor, was standing in

the hallway and attempted to intervene. Mr. Snider tried to stop Appellant

from leaving the floor by putting up his arms. Appellant, who was screaming,

used her right closed fist to hit Mr. Snider on the left side of the head. Mr.

Snider used his arms to block his face. Appellant proceeded to use her right

closed fist to hit Mr. Snider on the left side of the head a second time. Mr.

Gutierrez observed the altercation, which, according to him, “looked

intentional[.]” Id. at 11. Other staff members intervened and Appellant

agreed to walk to a different floor to calm down.

-2- J-S49016-20

On the same day, police officers arrested Appellant and the

Commonwealth charged her with one count of Aggravated Assault. The

Commonwealth filed a delinquency petition and, on March 17, 2020, the

juvenile court held an adjudicatory hearing on the petition. The

Commonwealth presented testimony from Mr. Gutierrez and Mr. Snider, who

testified to the events as stated above.

Appellant testified on her own behalf and presented a different version

of events. In sum, Appellant testified that, on the day in question, she was

completing her work in Mr. Gutierrez’s class when she heard an announcement

for the “second floor kids” to be dismissed.2 Id. at 38. Appellant stated that

she heard Mr. Gutierrez tell the dismissed students to move their desks back,

but he would not let those students leave the classroom because Appellant

had not yet moved her desk back. Id. Appellant testified that she informed

Mr. Gutierrez that he had not asked her, specifically, to move her desk back

and when Mr. Gutierrez finally requested that she do so, Appellant complied.

Id. at 39. Appellant stated that she gathered her classwork in both hands

and walked out of the classroom without Mr. Gutierrez trying to stop her. Id.

Appellant denied pushing Mr. Gutierrez. Id.

Appellant testified that when she got into the hallway, Mr. Gutierrez

informed Mr. Snider that she “just walked out of the classroom.” Id. at 40.

Appellant testified that Mr. Snider tried to stop her, she tried to go past him, ____________________________________________

2 Students were dismissed by floor, and Appellant was a “third floor kid.”

-3- J-S49016-20

and Mr. Snider pushed her. Id. Appellant further testified that she asked Mr.

Snider to stop pushing her, he pushed her again, and she became “irritated”

and started crying. Id. at 41. Appellant testified:

So after that he pushed me again. I just started getting more mad and agitated because he kept putting his hands on me. And I wasn’t hitting him, I was just trying to get away from something else that was going to become bigger. So after that he pushed me again. I’m crying. At this point I said [k]eep your fucking hands off me, stop fucking hitting me and pushing me. He pushed me again.

Id. Appellant further testified that Mr. Snider “smacked” her and left a red

mark under her eye. Id. at 44. Appellant denied punching Mr. Snider. Id.

Finally, Appellant stated that when she went to a different floor to calm down,

she went into the bathroom, punched the wall, and banged her head. Id. at

49.

At the conclusion of the hearing, the trial court adjudicated Appellant

delinquent for Aggravated Assault of a teaching staff member, and found

Appellant to be in need of treatment, supervision, or rehabilitation.

Appellant timely appealed. Appellant and the trial court both complied

with Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

Is the adjudication of delinquency related to the charge of Aggravated Assault not supported by sufficient evidence in that there was no harm or injury to any teacher or student at the school, and this was a [de minimis] infraction[,] which should have been dismissed as such?

Appellant’s Br. at 6.

-4- J-S49016-20

Appellant raises a challenge to the sufficiency of the evidence. When

the Commonwealth charges a juvenile with an act that would constitute a

crime if committed by an adult, the Commonwealth must prove the elements

of that crime beyond a reasonable doubt. In Interest of P.S., 158 A.3d 643,

650 (Pa. Super. 2017). “When considering a challenge to the sufficiency of

the evidence following an adjudication of delinquency, we must review the

entire record and view the evidence in the light most favorable to the

Commonwealth.” In Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super.

2016) (citations omitted). Further, “the test to be applied is whether, viewing

the evidence in the light most favorable to the Commonwealth and drawing

all reasonable inferences therefrom, there is sufficient evidence to find every

element of the crime charged.” Id. (citations omitted). The Commonwealth

may sustain its burden by wholly circumstantial evidence. In re V.C., 66 A.3d

341, 349 (Pa. Super. 2013). “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.” In re K.A.T., Jr., 69 A.3d 691, 696 (Pa. Super. 2013)

(citation omitted). ”The fact-finder is free to believe all, part, or none of the

evidence presented at trial.” Id. (citation omitted).

The Commonwealth satisfies its burden of proof for Aggravated Assault

of a teaching staff member where it proves beyond a reasonable doubt that

the defendant “attempts to cause or intentionally or knowingly causes bodily

injury to a teaching staff member . . . acting in the scope of his or her

-5- J-S49016-20

employment or because of his or her employment relationship to the school.”

18 Pa.C.S. § 2702(a)(5). “Bodily injury” is defined as “[i]mpairment of

physical condition or substantial pain.” 18 Pa.C.S. § 2301. “Substantial pain

may be inferred from the circumstances surrounding the physical force used.”

Commonwealth v. Duck, 171 A.3d 830, 836 (Pa. Super. 2017).

Notably, to sustain a conviction for assault it is not essential that the

victim endure actual injury, rather, “[i]t is enough if the actor attempted to

inflict bodily injury. In Interest of J.L., 475 A.2d 156, 157 (Pa. Super. 1984)

(emphasis in original). To demonstrate an “attempt” to inflict bodily injury,

the Commonwealth must show that the actor had a specific intent to cause

bodily injury. Id. Although the Commonwealth may prove this intent by

circumstantial evidence, “the circumstances must be such that an intent to

cause bodily injury may reasonably be inferred therefrom.” Id.

Appellant first argues that the Commonwealth did not meet its burden

to prove Aggravated Assault because it failed to present evidence that Mr.

Snider suffered impairment or serious pain. Appellant’s Br. at 12. Appellant

further contends that she did not intend to cause bodily injury to Mr. Snider.

Id. These arguments lack merit.

As an initial matter, the trial court found Mr. Gutierrez’s and Mr. Snider’s

testimony that Appellant used a closed fist to hit Mr. Snider on the side of the

head twice to be wholly credible. Trial Ct. Op., dated 5/29/20, at 10. The

trial court made findings—which are supported by the record—that Appellant

had a history of fighting and aggression, was extremely agitated on the day

-6- J-S49016-20

in question, walked out of Mr. Gutierrez’s classroom without permission, and

assaulted Mr. Snider when he confronted her in the hallway. Id. Moreover,

the trial court credited Mr. Gutierrez’s testimony that Appellant’s hit “looked

intentional.” Id. at 4 (citing N.T. Hearing at 11).

Under the totality of the circumstances, viewing the evidence in the light

most favorable to the Commonwealth, it was reasonable for the trial court to

infer that Appellant intentionally attempted to cause Mr. Snider bodily injury

when she punched him twice on the side of the head. Accordingly, Appellant’s

claim that the Commonwealth did not present sufficient evidence to prove

Aggravated Assault of a teaching staff member fails.

Appellant next argues that she did not intend to cause bodily harm, and

cites J.L., supra, to support her argument. Appellant’s Br. at 17. Appellant

avers that, like the juvenile in J.L., she was just angry and did not intend to

cause bodily injury. Rather, she argues, she was trying to remove herself

from the situation to calm down. Id. at 17-22. Appellant’s argument fails as

Appellant’s case is easily distinguished from J.L.

In J.L., this Court reversed the adjudication of a sixteen-year-old for

simple assault for elbowing her two-year-old nephew on the couch while

refusing to give him candy. 475 A.2d at 158. This Court concluded that anger,

alone, does not translate to intent to cause bodily injury and was reluctant to

“attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling,

perhaps even punching and kicking, that not infrequently occur between

siblings or other members of the same family.” Id. at 157. This Court

-7- J-S49016-20

characterized the juvenile’s actions as “inconsiderate,” but not rising to the

level of assault. Id. at 158.

Here, unlike the juvenile in J.L., Appellant did not elbow her victim once.

Rather, she punched Mr. Snider twice on the side of the head with a closed

fist. Moreover, Appellant was not in an intra-family relationship with either

Mr. Gutierrez or Mr. Snider, but, instead, was in a student-teacher

relationship.

In similar situations, this Court has concluded that the fact that a

juvenile actor “was a student and [the victim was] an educational aide . . .

only serves to highlight the assaultive nature of the contact.” In re M.H.,

758 A.2d 1249, 1252 (Pa. Super. 2000). Further, this Court has observed

that, unlike roughhousing between siblings or family members, “[v]iolence in

our public schools is an ever increasing problem which presents a troubling

challenge to teachers and aides who are charged with the weighty

responsibility of educating our Commonwealth's children.” Id. Appellant’s

reliance on J.L. is misplaced and her argument is unpersuasive.

Finally, Appellant argues that the adjudication of delinquency should be

reversed because it was a de minimis infraction under Section 312 of the

Crimes Code. Appellant’s Br. at 26-27 (citing 18 Pa.C.S. § 312). Appellant

asserts that the incident was trivial, inconsequential, and is a part of the

normal course of business in a school setting for juveniles. Id. at 32-33.

Therefore, Appellant contends that the trial court should have applied Section

312, which allows a court to dismiss a prosecution if it finds the conduct of the

-8- J-S49016-20

defendant to be de minimis in nature. Id. at 26-27 (citing 18 Pa.C.S. § 312).

We disagree.

This Court reviews a claim that the trial court erred by not dismissing

an infraction as de minimis for an abuse of discretion. Commonwealth v.

Lutes, 793 A.2d 949, 963 (Pa. Super. 2002). Section 312 provides, in

relevant part, that a trial court shall dismiss a prosecution if it finds that the

conduct of the accused was “within a customary license or tolerance,” or “did

not actually cause or threaten the harm or evil sought to be prevented by the

law defining the offense or did so only to an extent too trivial to warrant the

condemnation of conviction[.]” 18 Pa.C.S. 312(a)(1)(2). “The purpose of

Section 312 is to remove petty infractions from the reach of the criminal law.”

In re R.W., 855 A.2d 107, 109 (Pa. Super. 2004) (citation and internal

quotation marks omitted). A trial court should not dismiss an offense as de

minimis in nature where harm to either the victim or society occurs. Lutes,

793 A.2d at 963.

Instantly, the trial court found testimony to be credible that Appellant

intentionally used a closed fist to punch her teacher, Mr. Snider, twice on the

side of the head during the school day. This Court perceives no basis for

classifying Appellant’s conduct as merely de minimis in nature. Appellant’s

conduct is neither customary, trivial, petty, nor normal conduct tolerated in a

school setting. As discussed above, the fact that Appellant was a student and

Mr. Snider was her teacher “only serves to highlight the assaultive nature

of the contact.” M.H., 758 A.2d at 1252 (emphasis added). Accordingly, the

-9- J-S49016-20

trial court did not abuse its discretion when it failed to conclude that

Appellant’s actions were de minimis in nature pursuant to Section 312 and

dismiss the delinquency petition.3

In conclusion, our review of the record in the light most favorable to the

Commonwealth indicates that the Commonwealth presented sufficient

evidence for the trial court to find that Appellant’s actions constituted an

intentional attempt to inflict bodily harm. We, thus, affirm the Order

adjudicating Appellant delinquent for Aggravated Assault of a teaching staff

member.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/7/2020

3 We further note that Appellant raises this issue for the first time on appeal, in her Pa.R.A.P. 1925(b) Statement. We decline to find the issue waived “as neither the statute nor case law requires a defendant to preserve the issue of [de minimis] infractions by means of inclusion in an omnibus motion. On the contrary, the language of the statute requires the trial court to dismiss the prosecution on its own accord, upon a determination that the defendant’s conduct involved [de minimis] infractions.” Commonwealth v. Gemelli, 474 A.2d 294, 300 (Pa. Super. 1984).

- 10 -