Com. v. Hudgens

• Decision Date: 03 December 1990
• Citation: 400 Pa.Super. 79,582 A.2d 1352
• Parties: COMMONWEALTH of Pennsylvania v. Dennis HUDGENS, Appellant.
• Court: Pennsylvania Superior Court

Page 1352

582 A.2d 1352

400 Pa.Super. 79

COMMONWEALTH of Pennsylvania v. Dennis HUDGENS, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 17, 1990.

Filed Dec. 3, 1990.

James R. Protasio, Williamsport, for appellant.

Robert W. Ferrele, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before OLSZEWSKI, KELLY and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant's convictions for simple assault, ¹ reckless endangerment, ² terroristic threats, ³ and possession of an instrument of crime. ⁴

Appellant presents the following issues for our review: (1) whether the evidence was insufficient to establish that the victim was in fear of imminent serious bodily injury; (2) whether the evidence was insufficient to establish that the victim was threatened; (3) whether the evidence was insufficient to support appellant's conviction for possession of an instrument of crime; (4) whether the verdict was against the weight of the evidence; (5) whether the trial court erred in refusing to award appellant a new trial because of the Commonwealth's failure to furnish appellant with exculpatory evidence; ⁵ (6) whether trial counsel was ineffective in failing to call certain witnesses or appellant to testify on his behalf; (7) whether trial counsel was ineffective in failing to request that the case be continued; and (8) whether trial counsel was ineffective in failing to obtain a copy of the tape of the testimony presented at the preliminary hearing so that it could be used to impeach the Commonwealth's witnesses. For the reasons set forth below, we affirm the judgment of sentence.

Before addressing the merits of these issues, it is first necessary to recount the relevant facts of this case. On April 26, 1989, appellant, Dennis Hudgens, and some friends visited the Space Station Video Game Arcade located near the intersection of Campbell and West Edwin Streets in Williamsport, Pennsylvania. One of the members in Hudgens' group was Joey Lebert, who was approximately thirteen years of age at this time. ⁶ Lebert was dressed in a Ninja-type ⁷ of costume on this occasion. A group of teenagers, who were approximately fifteen to eighteen years of age, were also present in the arcade. Some of the teenagers began to tease and harass Lebert with regard to his Ninja costume. As a result, Lebert left the arcade. The teenagers followed Lebert outside the arcade and continued their teasing. Lebert then observed the teens moving closer to him and he began to fear for his safety. In order to avoid a confrontation with the group, Lebert ran into a nearby alley.

Appellant subsequently became aware of the difficulties which Lebert encountered with the group of teens. Consequently, he exited the arcade and asked one member of the group, Clyde Swope, whether he was responsible for harassing or teasing Lebert. Swope denied making any comments to the boy. Hudgens disbelieved Swope and continued to exchange words with him. A heated argument ensued, during which Hudgens informed Swope that he was going to get him. In support of his threat, Hudgens then removed a sword which was concealed in his trousers. The sword resembled the type of weapon used by Samurai ⁸ or Ninja ⁹ warriors. Hudgens menaced Swope with the sword by holding it within five to six inches of Swope's body and by touching Swope's hand with the sword. Upon seeing the sword, Swope became frightened and attempted to back away from Hudgens. One of Swope's friends, Shalamar/Casper Brown, then entered the melee in order to protect Swope from possible harm. At this point, Brown and Hudgens argued, until Hudgens sheathed his sword and walked away, with another of his friends, Forrest Mull.

Delores Mayer, who happened to be driving by the arcade at the time of the incident, witnessed the altercation between Swope and Hudgens and notified the police. Following Mayer's call, the police arrived at the arcade and observed Hudgens and Mull walking away from the arcade. Upon seeing the police, Hudgens gave the sword to Mull and directed him to run away, while Hudgens ran in another direction. Although Hudgens managed to escape, Mull was apprehended by the police. Hudgens was later arrested, however.

Following a jury trial, appellant was convicted of the above charges on October 19, 1989. Post-trial motions were timely filed by trial counsel, and were denied by the trial court. Appellant was thereafter sentenced on February 5, 1990, at which time he was represented by new counsel. A timely motion to modify sentence was then presented to the trial court; this motion was also denied. This appeal followed.

The first three issues raised by appellant all involve questions pertaining to the sufficiency of the evidence. In reviewing claims of this type,

we must view the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine whether the jury could reasonably have found all of the elements of the crime to have been established beyond a reasonable doubt....

Commonwealth v. Parker, 387 Pa.Super. 415, 418-419, 564 A.2d 246, 248 (1989) (internal citations omitted). We shall address appellant's sufficiency questions with this standard in mind.

The first issue raised by appellant pertains to his conviction for simple assault. Under the Crimes Code, "a person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury." ¹⁰ 18 Pa.C.S.A. § 2701(a)(3). Appellant contends that the Commonwealth failed to prove simple assault because the evidence was insufficient to establish that the victim was in fear of imminent serious bodily injury.

For support, appellant relies on testimony presented at trial which indicated that the victim wanted to continue the confrontation with appellant and that he was only prevented from doing so by his friend, Shalamar Brown. The specific testimony to which appellant refers was offered in support of his defense by his friend, Forrest Mull. Defense counsel asked Mull to describe the manner in which the victim, Clyde Swope, acted following the incident between Hudgens and Swope. Mull answered:

Well, he was upset. He was like yelling at his friends, "I ain't afraid of Dan, let him back out", and he was just in a rage. He was, like, very upset because they was threatened.

N.T., Volume I, at p. 63. Defense counsel then asked Mull whether it would be accurate to say that Swope wanted to continue to fight with Hudgens, and Mull responded in the affirmative. See id., at pp. 63-64.

We fail to discern how this testimony supports appellant's position. First, we note that the victim offered testimony which seems to contradict the version offered by Mull. Swope testified that after Shalamar Brown had intervened, appellant put his sword away and then pulled it out again before finally sheathing the sword and leaving the area. See N.T., Volume I, at p. 21. Thus, the facts adduced at trial could equally support an inference that appellant, rather than Swope, was the continued aggressor. However, even if we were to accept Mull's testimony, we are unable to comprehend how it rendered the evidence insufficient, since this portion of Mull's testimony only described Swope's conduct after he had been separated from Hudgens and after Hudgens had left the area. While Mull's observation indicated that Swope may have been full of youthful bravado after the threat posed by the sword had been removed, it does not indicate whether the victim was threatened by or was put in fear of imminent serious bodily injury while he faced an opponent armed with a Samurai sword. Accordingly, we find the victim's conduct after Hudgens left the area to be irrelevant to our determination as to whether the evidence was sufficient to sustain appellant's conviction for simple assault.

Appellant also suggests that the victim was not placed in fear of imminent serious bodily injury because Swope did not testify that appellant attempted to strike him with the sword or that appellant held the sword in a striking position. At trial, Swope testified that appellant threatened that he would get Swope. See N.T., Volume I, at pp. 14 and 22. Swope further indicated that appellant menaced him with the sword by holding it within five to six inches away from Swope's hand and by touching Swope's hand with the sword. See N.T., Volume I, at pp. 14 and 21-22. In addition, the victim testified that he was afraid that appellant would stick him with the sword. See id., at p. 16. Forrest Mull corroborated this aspect of Swope's testimony and admitted that Swope seemed scared or frightened of appellant. See id at pp. 41 and 64. Swope's observation of the events was also supported by the testimony of Delores Mayer, who observed the fight as she was driving by the arcade. Mayer stated that she saw "a person with a sword or a saber aggressively approaching another man who was backing off and stepping off the curb". See id., at p. 30. Mayer further testified that from her vantage point, appellant appeared to be more hostile and aggressive than the victim, who attempted to back away from the fight. See id.

Although appellant acknowledges this testimony, he cites Commonwealth v. Fry, 341 Pa.Super. 333, 491 A.2d 843 (1985) for the proposition that a mere touch is insufficient to sustain a conviction for simple assault. See Appellant's Brief at p. 7. We find the type of conduct at issue in Fry to be significantly different from appellant's conduct in this case. In Fry, the defendant grabbed a ten year old girl by putting his arms around her and lifting her off of the ground. The child attempted to resist her attempted abduction by kicking and screaming. Fortunately for the child, her actions attracted the attention of safety patrol members who ran to assist her. Upon seeing the patrol members, Fry released the child. On...