Commonwealth Of Pa. v. Burton

• Decision Date: 03 August 2010
• Citation: 2 A.3d 598
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Darryl BURTON, Appellant.
• Court: Pennsylvania Superior Court

2 A.3d 598

COMMONWEALTH of Pennsylvania, Appellee

v.Darryl BURTON, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 10, 2009.

Filed Aug. 3, 2010.

Mark Cichowicz, Public Defender, Philadelphia, for appellant.

Samuel H. Ritterman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, BENDER, BOWES, GANTMAN, DONOHUE, SHOGAN and ALLEN, JJ.

OPINION BY BOWES, J.:

Darryl Burton appeals from the judgment of sentence of three to six years imprisonment followed by four years probation that was imposed after he was found guilty of aggravated assault, simple assault, and reckless endangerment at a nonjury trial. Appellant assails the sufficiency of the evidence supporting his conviction of aggravated assault. We affirm.

On June 1, 2007, Appellant, Darryl Burton, delivered a single blow to William Price, Jr., resulting in significant permanent injuries to the fifty-one-year-old victim. The parties stipulated to the following. Mr. Price was admitted to the Hospital of the University of Pennsylvania after being struck by Appellant. A June 13, 2007 examination by an attending neurosurgeon, Dr. Joshua Levine, revealed that the victim had incurred a traumatic brain injury, brain swelling, intracranial hypertension, was ventilator-dependent due to respiratory failure, suffered from renal failure, had an occipital bone fracture, and possibly sustained a spinal joint dislocation. At that time, Dr. Levine concluded that Mr. Price was “critically-ill and at high risk for sudden, fatal deterioration due to one or more of the listed medical conditions.” Commonwealth's Exhibit 5 at 1.

Six days later, Dr. Eric Zager, another attending neurosurgeon at the hospital, reported that Mr. Price remained unresponsive and had a subdural hemorrhage, subarachnoid hemorrhage to the right temporal lobe, a basal skull fracture, a left occipital depressed skull fracture, an intraparenchimal hemorrhage, bilateral inferior frontal lobel, dens fracture on C-2, and spinous fracture of T-4. Mr. Price was discharged to Moss Rehab Hospital on June 22, 2007, and as of July 11, 2007, was still in need of aggressive physical and occupational therapy.

On April 10, 2008, following a nonjury trial, Appellant was convicted of aggravated assault. In addition to the above-described stipulation, the Commonwealth presented three witnesses, the first of whom was the victim. Mr. Price was five feet five inches tall and weighed 162 pounds when the June 1, 2007 assault occurred. The victim remembered nothing about the day in question, and only recalled awakening at the Moss Rehab Hospital. Due to the incident, he lost his senses of taste and smell.

The Commonwealth's next witness, Alfonzo Moody, testified as follows. On the day in question, Mr. Moody and the victim were on Ella Street in Philadelphia when Appellant saw Mr. Price and started “hollering and screaming” the following, “[Y]ou're going to give me my money, you're going to give me my money.” N.T. Trial (Waiver), Vol. 1, 4/10/08, at 17. Mr. Price responded that he made a payment on the amount that he owed Appellant every time that they encountered each other. Appellant retorted that he wanted all of his money immediately, to which Mr. Price replied that he did not have the required cash.

At that point, Appellant came “running over” to the victim and Mr. Moody, and “acted like he was getting ready to hit” the victim. Id. at 18. Since Mr. Moody “was in between them,” Appellant did not attempt to land a blow. Id. Mr. Price told Appellant that he was not afraid of him, and Appellant stated, “[A]ll right, wait until we get at the end of the block.” Id. at 18. Mr. Price, Mr. Moody, and Appellant proceeded to walk toward the end of the block.

When they reached that destination, the victim gave Mr. Moody the contents of his pocket, and “they ... told” Mr. Moody to “move out of the way.” Id. at 20. Mr. Moody testified, “[W]hen I went to move out of the way to turn around ... that's when I heard Mr. [Price] hit the ground.” Id. at 20. Mr. Moody explained that he heard a “grunt” as the victim was punched and struck the ground. Id. at 21.

The Commonwealth's final witness was the victim's son, William Price, III, who had observed his father, Mr. Moody, and Appellant walking down the street. Five minutes later, one of his neighbors told him that his father was badly hurt. William ran down the street and encountered Appellant “sitting in the middle of the street saying I got you, I got you, I told you I was going to get you.” Id. at 41. William reported that as he made these remarks, Appellant was “smiling and laughing.” Id. at 46. ¹

When Appellant was making these comments in a celebratory manner, the victim's appearance was as follows. Mr. Price was rendered unconscious, and his eyes had rolled back into his head so that only the whites were visible. In addition, he “had blood coming out of his nose, blood [o]n the back of his head,” and his head was moving “like a worm.” Id. at 42. The paramedic who responded to the scene of the crime confirmed that Mr. Price was unresponsive, bleeding from the mouth, and sweating profusely. Id. at 54.

At trial, Appellant “was asked to stand,” and the trial court “assessed the defendant's stature relative to the victim, taking into account the decrease in the victim's weight since the date of the incident.” Trial Court Opinion, 7/25/08, at 5 n. 1; N.T. Trial, 4/10/08, at 75. The trial court stated that Appellant “was significantly larger and stronger than the victim.” Id. at 5.

The trial court adjudicated Appellant guilty of aggravated assault, simple assault, and reckless endangerment. This appeal followed imposition of the above-described judgment of sentence. A panel of this Court, with one Judge dissenting and one Judge concurring in the result, concluded that the evidence was insufficient to sustain Appellant's conviction of aggravated assault. The Court granted en banc review, and this matter is now ready for resolution. As noted, Appellant raises the single allegation that the evidence was insufficient to sustain his conviction.

In reviewing a claim regarding the sufficiency of the evidence, an appellate court must determine whether the evidence was sufficient to allow the fact finder to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 (1995). In doing so, a reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. Id. Furthermore, in applying this standard, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032 (2007). When performing its review, an appellate court should evaluate the entire record and all evidence received is to be considered, whether or not the trial court's rulings thereon were correct. Additionally, we note that the trier of fact, while passing on the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence. Id. at 217, 928 A.2d at 1032-33.

Commonwealth v. Galvin, 603 Pa. 625, 985 A.2d 783, 789 (2009).

Appellant was convicted under 18 Pa.C.S. § 2702(a)(1), which provides, “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.” Serious bodily injury is defined 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. § 2301.

The question of whether the delivery of a single punch is sufficient to sustain a conviction for aggravated assault was addressed by our Supreme Court in Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). In that case, the defendant approached the victim, struck him once in the head with his fist, and walked away. The victim, who never lost consciousness, was transported to the hospital with a fractured nose, which the Commonwealth conceded did not constitute serious bodily injury, which is defined in 18 Pa.C.S. § 2301. The trial court convicted the defendant of aggravated assault and we affirmed, but the Supreme Court reversed.

The Commonwealth therein maintained that even though the victim had not sustained serious bodily injury, the defendant's action of punching the victim's head with his fist was sufficient to demonstrate that the defendant had intended to inflict such harm. Our Supreme Court disagreed. It acknowledged that the head is a vital body part, but stated that “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 is sufficient, without more, to support a finding that [a defendant] intended to inflict serious bodily injury.” Id. at 889.

The Alexander Court continued that where the victim of an assault consisting of a single punch does not sustain 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.” Id. The Court stated that “any evidence” of a defendant's “intent to inflict serious bodily injury” can “be gleaned from the other circumstances surrounding” the defendant's attack on the victim. Id. It then analyzed the case before it. The Court announced that the following factors can be utilized in ascertaining whether the defendant intended to inflict serious bodily injury by one blow: 1) if the defendant “was disproportionately larger or stronger than the victim;” 2) whether the defendant would have escalated his attack but was restrained from...