Com. v. Roche

• Decision Date: 27 August 2001
• Citation: 783 A.2d 766
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Sean ROCHE, Appellant.
• Court: Pennsylvania Superior Court

783 A.2d 766

COMMONWEALTH of Pennsylvania, Appellee, v. Sean ROCHE, Appellant.

Superior Court of Pennsylvania.

Submitted April 17, 2001.

Filed August 27, 2001.

Reargument Denied October 31, 2001.

Karl Baker, Public Defender, Philadelphia, for appellant.

Catherine L. Marshall, Assistant District Attorney, Philadelphia, for Commonwealth, appellee. Before: McEWEN, President Judge Emeritus, JOYCE, J., and CERCONE, President Judge Emeritus.

CERCONE, President Judge Emeritus:

¶ 1 Appellant, Sean Roche, appeals from his judgment of sentence of eleven and one-half (11-1/2) months to twenty three (23) months for his conviction of the offenses of aggravated assault, simple assault and reckless endangerment of another person.¹ After review, we vacate Appellant's aggravated assault conviction and remand for resentencing on only his simple assault and reckless endangerment convictions.

¶ 2 The underlying facts, which formed the basis of Appellant's conviction, as aptly set forth in the opinion of the Honorable Sandy Bryd, and supported by the certified record, are as follows:

Christian Frenz, the complainant, and his friend Daniel Judge entered Brownie's, a bar located at Second and Market Street in Philadelphia, Pennsylvania on August 7, 1999, between 9:00 and 10:00 p.m. The men remained in the bar drinking alcoholic beverages until they got up to leave approximately 2:00 a.m. on August 8, 1999.

As Mr. Frenz and Mr. Judge were about to leave the bar [Appellant] asked Mr. Frenz if he wanted to arm wrestle. [Appellant] was twice as large and appeared much stronger than Mr. Frenz. Mr. Frenz declined the offer and headed toward the exit, whereupon [Appellant] shoved Mr. Frenz. Mr. Frenz was about to say something in response but Mr. Judge advised him against it. Immediately after the shoving incident Mr. Frenz and Mr. Judge left Brownie's and walked along the alleyway toward their car. After they were about three hundred feet away from the bar, Mr. Judge turned around and saw [Appellant] and another male exit Brownie's and proceed to follow them down the alleyway. [Appellant] caught up to the men and asked the complainant "Are you a tough guy?" When Mr. Frenz turned around [Appellant], without provocation, delivered a closed fist blow to the victim's left eye. Mr. Frenz fell to the ground unconscious[.] [When Mr. Frenz's head struck the concrete he sustained a scalp laceration which began to bleed profusely. N.T. Trial, 2/7/2000 at 39, 58.] ... Fortunately, a police car drove by at that moment and Mr. Roche and his companion turned and ran away.

Mr. Frenz tried to get up, lost his balance and fell back down. An ambulance subsequently arrived and he was transported to Thomas Jefferson University Hospital. Doctors determined that he suffered an orbital blowout, frontal rim and sinus fractures. During his five day hospitalization, surgery was performed to attach a plate on the bottom eyelid. Mr. Frenz also received eight staples to close the wound to the back of his head. At the time of trial, some six (6) months later, Mr. Frenz still suffered from straight upward double vision gaze. (N.T., 2/7/00, 55-58).

Trial Court Opinion, filed 11/29/2000, at 2.

¶ 3 Appellant was arrested and proceeded to a bench trial before Judge Byrd, who found him guilty of the aforementioned offenses. On the aggravated assault conviction, Judge Byrd sentenced Appellant to a term of eleven and one-half (11-1/2) to twenty-three (23) months' incarceration followed by thirteen (13) years of reporting probation. On the simple assault conviction, Judge Byrd imposed a concurrent term of imprisonment of eleven and one-half (11-1/2) to twenty-three (23) months. On the reckless endangerment conviction, Judge Byrd imposed a term of five (5) years probation to run concurrently with the sentence for aggravated assault. Judge Byrd also ordered Appellant to pay $41,188.54 in restitution to the victim for unreimbursed medical expenses.

¶ 4 On appeal to our Court, Appellant presents one issue for our consideration:

WAS NOT THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT, GRADED AS A FELONY OF THE FIRST DEGREE, INASMUCH AS APPELLANT DID NOT ACT WITH THE INTENT TO CAUSE SERIOUS BODILY INJURY NOR UNDER CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE WHEN HE PUNCHED THE COMPLAINANT ONCE IN THE EYE?

Appellant's Brief at 3.

¶5 Appellant argues that the evidence was insufficient to sustain his conviction for aggravated assault. While the Appellant concedes that the victim suffered a serious bodily injury, he contends that this alone is not enough to justify his conviction. He reasons that the statute requires that the Commonwealth show that, when Appellant acted, he did so with the intent to cause serious bodily injury or that his conduct exhibited a reckless disregard for the possibility that it would cause the victim serious bodily injury. Therefore, Appellant argues that his single weaponless punch to the victim's head did not demonstrate the requisite intent on his part to cause the victim serious bodily injury nor did the single punch evidence a heightened degree of recklessness on his part. After careful consideration, we must agree.

In reviewing a sufficiency of the evidence claim, the test we apply is whether the evidence, and all reasonable inferences taken from the evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, were sufficient to establish all the elements of the offense beyond a reasonable doubt.

Commonwealth v. Lawson, 759 A.2d 1, 5 (Pa.Super.2000), appeal denied, 565 Pa. 640, 771 A.2d 1281 (2001); Commonwealth v. Williams, 554 Pa. 1, 9, 720 A.2d 679, 683 (1998).

¶ 6 The relevant section of the Crimes Code under which Appellant was convicted is Section 2702(a)(1) which provides:

2702. Aggravated Assault

(a) OFFENSE DEFINED.—A person is guilty of aggravated assault if he:

(1) 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).² Serious bodily injury is further defined by the Crimes Code as "[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.A. § 2301.

¶ 7 In its opinion the Trial Court indicated that it found Appellant guilty of aggravated assault since "[t]estimony describing the events leading up to the attack, i.e. the challenge to arm-wrestle, the shoving incident, following the victim out of the bar and calling out `Are you a tough guy?' support the conclusion that Mr. Roche attacked Mr. Frenz without provocation and after sufficient deliberation to form the intent to inflict serious bodily injury." Trial Court Opinion, filed 11/29/2000, at 4. Because the Trial Court specifically found that Appellant intended to cause serious bodily injury via his actions, we are required, in evaluating Appellant's claim, to first ascertain whether the Commonwealth has "presented sufficient evidence to show that the defendant intentionally caused, or attempted to cause, serious bodily injury manifesting extreme indifference to the value of human life." Commonwealth v. Caterino, 451 Pa.Super. 42, 678 A.2d 389, 391 (1996),appeal denied, 546 Pa. 652, 684 A.2d 555 (1996). "A person acts intentionally with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result." 18 Pa.C.S.A. § 302(b)(1); Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183, 186 (1993).

¶ 8 As our Court has previously stated:

As intent is a subjective frame of mind, it is of necessity difficult of direct proof[.][W]e must look to all the evidence to establish intent, including, but not limited to, appellant's conduct as it appeared to his eyes[.] Intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.

Commonwealth v. Little, 418 Pa.Super. 558, 614 A.2d 1146, 1154 (1992), appeal denied, 533 Pa. 608, 618 A.2d 399 (1992).

¶ 9 Appellant relies principally on Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) as support for his contention that his act of throwing one punch did not demonstrate the requisite intent to justify his conviction for aggravated assault. In Alexander, the victim was standing on a street corner when the defendant walked up to him and punched him once in the face breaking his nose. On appeal, the Commonwealth did not contend that the victim actually suffered serious bodily injury from this blow; rather, the Commonwealth contended that the appellant's act of striking the victim in the face once with a closed fist was enough to demonstrate the specific intent on his part to cause serious bodily injury. The Supreme Court rejected this argument and said:

While there can be no dispute about the physiological significance of the head, where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that a punch was delivered to that portion of the body (the head) is sufficient, without more, to support a finding that appellant intended to inflict serious bodily injury. Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Criminal intent may be proved by direct or circumstantial evidence. In the instant case, the only direct evidence of appellant's intent is his testimony to the effect that he did not intend to seriously injure the victim. Thus, any evidence of

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