Com. v. Bruce

• Decision Date: 04 January 2007
• Citation: 916 A.2d 657
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ford James BRUCE, Appellant.
• Court: Pennsylvania Superior Court

916 A.2d 657

COMMONWEALTH of Pennsylvania, Appellee v. Ford James BRUCE, Appellant.

Superior Court of Pennsylvania.

Filed January 4, 2007.

Argued September 19, 2006.

Wayne P. McGrew, Greensburg, for appellant.

Wayne B. Gongaware, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

BEFORE: STEVENS, TODD, and McCAFFERY, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County after a jury convicted Appellant of aggravated assault, involuntary manslaughter, simple assault, and reckless endangerment. Sentenced to consecutive sentences of five to fifteen years' imprisonment for aggravated assault and one to two years for involuntary manslaughter, Appellant filed post-sentence motions, which the court denied. Appellant herein challenges the court's evidentiary rulings, the sufficiency and weight of the evidence, and the sentence imposed.¹ We affirm.

¶ 2 The evidence adduced at trial was that Appellant walked to the parked car of the victim, his friend Danne McCutcheon, and delivered through the open driver's side window four punches to the face and throat of the seated McCutcheon. McCutcheon's wife testified that she ran down to McCutcheon's car immediately after the attack to find McCutcheon sitting in the driver's seat with his head leaning back toward the middle of the car, blood coming from his mouth, and immobilized. He remained behind the wheel in this reclined position upon the arrival of paramedics, who described him as "clinically dead" at that point.

¶ 3 The cause of death, according to the expert testimony of Dr. Cyril Wecht, a physician specializing in anatomic, clinical, and forensic pathology, was a complete tear through the left vertebral artery, caused by the sharp, sudden, angular rotational twisting of McCutcheon's neck. Dr. Wecht identified as the manner of death blunt force trauma to the lower face, consistent with a punch, as indicated by a contusion laceration of McCutcheon's lip. Appellant denied confronting McCutcheon with the intent to inflict harm, and claimed that he sought only to discuss allegations made by Appellant's girlfriend that McCutcheon had raped her the night before. According to Appellant, he became physical only after McCutcheon refused to talk, got in his car with his children, and then made what Appellant construed as a sarcastic remark about the alleged rape.

¶ 4 Appellant first contends that "[t]he jury's verdict of guilty in both the aggravated assault and involuntary manslaughter charges rendered the verdict inconsistent [thus warranting a new trial]." Brief for Appellant at 8. Because the crux of Appellant's argument in support of this issue is in fact no more than a challenge to the sufficiency of the evidence supporting his aggravated assault conviction, we proceed to Appellant's sufficiency claim raised in his second issue.

¶ 5 Appellant's sufficiency challenge is based on the argument that the Commonwealth failed to prove he acted with requisite mens rea. We disagree.

¶ 6 Our test for 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 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. Frisbie, 889 A.2d 1271, 1274-75 (Pa.Super.2005) (citations and quotations omitted).

¶ 7 Under the Crimes Code, a person may be convicted of aggravated assault, graded as a felony of the first degree punishable by a maximum term of incarceration of twenty years, if he or she "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.A. § 2702(a)(1). Serious bodily injury is further defined by the Crimes Code as "bodily 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.A. § 2301.

¶ 8 Where, as here, the victim suffered serious bodily injury, the Commonwealth may establish the mens rea element of aggravated assault with evidence that the assailant acted either intentionally, knowingly, or recklessly.² Looking first to whether evidence established intent to cause serious bodily injury, we note that such an inquiry into intent must be determined on a case-by-case basis. Commonwealth v. Dailey, 828 A.2d 356 (Pa.Super.2003). Because direct evidence of intent is often unavailable, intent to cause serious bodily injury may be shown by the circumstances surrounding the attack. Commonwealth v. Caterino, 451 Pa.Super. 42, 678 A.2d 389 (1996). In determining whether intent was proven from such circumstances, the fact finder is free to conclude "the accused intended the natural and probable consequences of his actions to result therefrom." Commonwealth v. Rosado, 454 Pa.Super. 17, 684 A.2d 605, 608 (1996).

¶ 9 Circumstances deemed probative in this inquiry have included evidence that the assailant was disproportionately larger or stronger than the victim, that the assailant had to be restrained from escalating his attack, that the assailant had a weapon or other implement to aid his attack, or that the assailant made statements before, during, or after the attack which might indicate his intent to inflict further injury. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978). Depending on the circumstances, "even a single punch may be sufficient." Dailey, 828 A.2d at 360. See also Alexander, 477 Pa. at 194, 383 A.2d at 889 ("We hasten to add that a simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault.").

¶ 10 The aggravated assault statute is not, however, a strict liability statute. Commonwealth v. Roche. 783 A.2d 766, 770 (Pa.Super.2001). Thus, showing that a single punch caused serious bodily injury does not necessarily sustain a conviction for aggravated assault unless the circumstances establish that the assailant acted with the requisite mens rea under the statute. Id.

¶ 11 In Roche, supra, the appellant verbally provoked a much smaller bar patron who declined his invitation to arm wrestle, and then punched the patron in the eye as the patron was attempting to leave the bar. The single punch left the patron's eye seriously injured. In vacating the appellant's aggravated assault conviction, this Court determined that the Commonwealth failed to prove the appellant acted with intent to cause serious bodily injury.

Appellant's 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. During the initial encounter in the bar, Appellant did not threaten the victim with harm or injury but merely challenged him to arm wrestle and briefly pushed the victim when the victim declined his offer. When the victim exited the bar and Appellant followed, Appellant again did not specifically threaten the victim with injury or insinuate that he would cause physical harm to the victim, aside from Appellant's childish inquiry as to whether the victim thought he was a "tough guy." After Appellant delivered his lone, ill-advised punch with his hand, he ceased his attack immediately and did not engage in further physical contact with the victim. Though the victim was defenseless, Appellant did not continue to strike the victim while the victim was lying motionless on the ground nor did Appellant pursue or extend his attack to the victim's companion. Moreover, and importantly, Appellant did not possess or use a weapon or other instrumentality of harm at any time before or during the attack. While Appellant's actions certainly demonstrated the sufficient requisite intent to sustain his conviction for simple assault, in that they showed that he acted with the intent to cause Appellant bodily injury, they were not so egregious or sustained to suggest that he legally possessed the specific intent to inflict serious bodily harm when he punched [the victim] once.

Id. at 770-71.

¶ 12 Present in Dailey, supra, however, was a key circumstance absent in Roche. The appellant in Dailey appealed his conviction under Section 2702(a)(2) (attempting to cause serious bodily injury to a corrections officer). The record revealed that the appellant had rendered the victim corrections officer "dazed" and helpless with two punches to the head and moved toward the victim in a boxing stance, ready to deliver another punch, before other corrections officers subdued him. This Court held that evidence showing the appellant intended to strike again a dazed and...