Commonwealth v. Duck ( 2017 )

J-S60038-17
2017 PA Super 310COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT W. DUCK, JR. :
:
Appellant : No. 410 WDA 2017
Appeal from the Judgment of Sentence February 7, 2017
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000340-2016
BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 29, 2017
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of McKean County following Appellant’s conviction by a
jury on the charge of simple assault (M-2), 18 Pa.C.S.A. § 2701(a)(1). After
a careful review, we affirm.
The relevant facts and procedural history are as follow: Appellant, who
is thirty-eight years old, was arrested in connection with the assault of his
eighteen-year-old nephew, Isaac Duck (“the victim”). On December 5,
2016, Appellant, who was represented by counsel, proceeded to a jury trial.
At the trial, the victim testified that, on July 8, 2016, Appellant was at the
victim’s house, and they began to argue. N.T., jury, 12/5/16, at 9. During
the argument, the victim retreated to his bedroom and sat on his bed;
however, Appellant came into the room and continued arguing with the
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* Former Justice specially assigned to the Superior Court.
J-S60038-17
victim. Id. at 10-12. At some point, Appellant left the bedroom and went
downstairs, and the victim also went downstairs to get a drink, at which
point the argument continued. Id. at 12. Suddenly, without the victim
hitting or swinging at Appellant, Appellant pushed the victim “really hard,”
resulting in the victim “smashing” the back of his head on a door frame and
falling to the ground. Id. at 13-14.
The victim testified that, as a result of his head hitting the door frame,
his head was bleeding “a lot,” he was disoriented, and he felt dizzy. Id. at
14, 24. He also sustained a laceration to his arm as a result of being pushed
by Appellant. Id. at 18. He described the pain as a “five, six” on a scale of
one to ten with ten being the highest. Id.
The victim indicated that, at this point, his little brother, Zachary Duck
(“Zachary”), tackled Appellant and wrestled with him on the floor. Id.
Meanwhile, someone called 911 and the victim, who testified that he was
scared, went outside while awaiting the police. Id. at 16-17.
On cross-examination, the victim noted that he is “skinny,” weighing
only 130 pounds. Id. at 23. On re-direct examination, the victim noted
that, after Appellant shoved him and he fell to the ground, Appellant stood
over him and did not try to help him. Id. at 24.
Zachary testified that, on July 8, 2016, he was playing games on the
computer in the dining room when he heard Appellant and the victim
arguing. Id. at 28. He testified that, during the argument, the victim said
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“F-U” to Appellant, and Appellant “picked [the victim] up and slammed him
to the floor.” Id. Zachary described the incident as a “choke slam.” Id. at
29. As Appellant stood over the victim, Zachary, who was concerned that
Appellant “was going to do more to [the victim],” tackled him and wrestled
with him, resulting in Zachary’s eyeglasses breaking. Id.
Zachary indicated that, as he was wrestling with Appellant, his
grandfather, who is Appellant’s father, intervened, saying, “What the heck’s
going on?” Id. at 29, 39. Zachary indicated his grandfather “didn’t now
anything else [had] happened.” Id. at 29. After Zachary’s grandfather
mentioned someone needed to leave or he would call the cops, Appellant
said, “Don’t call the cops.” Id. at 30. Zachary testified Appellant also said,
“If a cop comes in here, I’m going to kill them[.]” Id. at 31.
Zachary testified that he believes Appellant then went into the kitchen
and returned with a knife; however, he admitted that he could not see well
because his eyeglasses were broken. Id. In any event, he called 911, and
he went outside because he was scared. Id. at 31-33. Zachary testified
that he suffered scrapes and bruises from Appellant’s fingers, and he was
“pretty upset” about the victim getting “hurt like that.” Id. at 32.
On cross-examination, Zachary clarified that, during the argument,
Appellant “just got up, went around [Zachary],...picked [the victim] up,
[and] slammed him to the floor.” Id. at 35. Zachary explained that
Appellant actually lifted the victim off the ground by placing one hand
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around the victim’s neck and the other hand on the victim’s back. Id. He
described the incident as “more than just a shove.” Id. at 36. Rather, he
observed Appellant “physically hoist[ ] [the victim] in the air and slam[ ]
him.” Id. Zachary admitted that, after he and the victim went outside,
Appellant did not come outside until the police arrived. Id. at 39-40.
Robynn Duck (“Ms. Duck”) testified that she is the victim’s mother,
Appellant is her brother, and she was upstairs on July 8, 2016, when she
“heard [a] crash.” Id. at 43. Ms. Duck testified she ran downstairs and
observed Zachary, who was crying, on the telephone. Id. at 44. She
noticed the next day that the victim had a gash on the back of his head and
a scratch on his arm. Id. at 45, 48. She testified the injuries were visible
for a week or two after the incident. Id. at 46.
Police Officer Benjamin Lobdell testified that, on July 8, 2016, he was
dispatched to the residence at issue for “a domestic in progress with
weapons involved.” Id. at 49. He arrived at the residence within one
minute of receiving the call and found family members outside of the
residence. Id. at 50. The family was distraught, informed him of the
assault, and told him that Appellant was still inside of the house. Id. The
family informed the officer that Appellant had a knife and was threatening to
hurt any law enforcement official who entered the home. Id.
At this point, Appellant exited the house without a weapon and was
arrested. Id. at 51. Upon entering the residence, Officer Lobdell did not
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observe any weapons in plain view. Id. at 59. Officer Lobdell testified that
he transported Appellant to the police station, and Appellant reported that
he had been assaulted by the victim and Zachary. Id. at 60. Officer Lobdell
described Appellant as compliant from beginning to end. Id. at 61. Officer
Lobdell testified that Appellant weighs approximately 180 pounds and is six
feet two inches tall. Id. at 63.
At the conclusion of the trial, the jury convicted Appellant of a single
count of simple assault (M-2) as to the victim. Sentencing was scheduled
for January 6, 2017; however, at this time, Appellant, through his counsel,
made an oral motion for extraordinary relief under Pa.R.Crim.P. 704(B)(1) 1
seeking judgment of acquittal on the basis of insufficient evidence. The trial
court took the motion under advisement and rescheduled sentencing for
February 7, 2017.
On February 7, 2017, prior to sentencing, the trial court denied
Appellant’s previously made oral motion for extraordinary relief for judgment
of acquittal; however, Appellant presented the trial court with a new oral
motion for extraordinary relief under Pa.R.Crim.P. 704(B)(1). Specifically,
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1 We note that Pa.R.Crim.P. 704(B)(1) provides that “[u]nder extraordinary
circumstances, when the interests of justice require, the trial judge may,
before sentencing, hear an oral motion in arrest of judgment, for a judgment
of acquittal, or for a new trial.”
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Appellant moved for a new trial. Appellant averred that he had just received
victim and witness statements to be used for sentencing purposes. One of
the statements was authored by his father, Robert Duck, Sr. 2 N.T.,
sentencing, 2/7/17, at 7.3 The following relevant exchange occurred
between Appellant’s counsel, the Commonwealth, and the trial court with
regard to the oral motion for a new trial:
[APPELLANT’S COUNSEL]: I think there might be a discovery
violation that I wasn’t aware of. The—the father, Robert Duck,
[Sr.,] indicates through his letter that prior to the trial, he was
taken upstairs with the witnesses to go over testimony with the
DA. He gave an account in his letter, which I want to submit to
the Court. He believed the boys were just wrestling, and they
said they didn’t need his testimony. That was never given to
[the] Defense even verbally as discovery and that’s potentially
exculpatory evidence of what the witness....
***
[ADA]: Your Honor, with regard to the conversation I had with
Mr. Duck (the father/grandfather) before the Trial, I believe—it’s
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2Robert Duck, Sr., is Appellant’s father. He is also Zachary and the victim’s
grandfather.
3 In the statement provided to Appellant for sentencing purposes, Robert
Duck, Sr., indicated the following:
My name is Robert Duck, Sr. I believe that the time my son
Robert spent in jail is punishment enough for what took place.
On the day of his trial the witnesses were taken upstairs to go
over their testimony when I told them that I though[t] that the
boys were just wrestling[.] [T]hey told me that they didn’t need
my testimony and I was not even permitted into the
courtroom[.] I believe that the defense attorney should have
been aware of my testimony. Thank you for your time. Robert
W. Duck, Sr.
Appellant’s Brief at 25-26. See Motion for Reconsideration for Motion for
New Trial, filed 2/21/17.
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my recollection that he either didn’t see the events or wasn’t
close enough, and that’s why I wasn’t calling him. This
obviously involved a lot of family, so I was trying to keep the
amount of people who had to testify to a minimum. I don’t
recall any mention of any sort of exculpatory or contradictory
evidence that Mr. Duck informed me of prior to trial. And that—
and that certainly would not be my reason for not putting him up
there because I thought there was going to be some exculpatory
evidence.
THE COURT: And this is [Appellant’s] father.
[ADA]: I—yes, I believe so, Your—
THE COURT: So, I would think that testimony wouldn’t have
had any real effect anyway.
[APPELLANT’S COUNSEL]: Your Honor, it may not have; but if
it’s exculpatory, if it’s somebody who was in the home when this
hap—and I don’t know—I don’t know what the statement was. I
just found out about this myself. If it’s somebody that was in
the home that could speak to potential intent, you had three
witnesses. [Appellant’s] sister in this case was upstairs, just
heard it. The alleged victim said he was pushed into a doorway
after a verbal argument, and [Zachary] who was the—the
younger brother was the only decent witness in this whole case
said that it was a choke slam, that the injury was sustained a
completely different way.
Now, if we have another witness and the Commonwealth
was aware of the statement that went to intent, that they were
just horsing around versus he was trying to injure him, they
have to at least tell me on the ongoing discovery rules so that I
could potentially call him as a witness. They can’t decide what is
important to their case and not tell [the] Defense of potentially
exculpatory evidence.
[ADA]: And, Your Honor, I’ll—I’ll submit that I have no
recollection of that statement ever being made to me in terms of
the boys wrestling.
Id. at 7-10.
The trial court denied Appellant’s oral motion for extraordinary relief
for a new trial under Pa.R.Crim.P. 704(B)(1) and sentenced him to three
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months to twelve months in prison. Appellant filed written motions for
reconsideration of the denial of his two oral motions for extraordinary relief,
and the trial court denied the motions for reconsideration. This timely,
counseled appeal followed on March 8, 2017, and all Pa.R.A.P. 1925
requirements have been met.
In his first issue, Appellant contends the evidence was insufficient to
support his conviction on one count of simple assault, and thus, the trial
court erred in denying his oral motion for extraordinary relief for a judgment
of acquittal under Pa.R.Crim.P. 704(B)(1). Specifically, Appellant contends
the evidence was insufficient to establish that the victim, in fact, suffered
bodily injury. In this vein, it is Appellant’s position that the victim did not
suffer an impairment of physical condition or substantial pain. Rather, he
argues the victim suffered a temporary hurt from a trivial contact which is a
customary part of modern day living and which frequently occurs between
family members. See Appellant’s Brief at 20-21. We disagree.4
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4 It is well-settled that “[t]he Commonwealth need not establish that the
victim actually suffered bodily injury; rather, it is sufficient to support a
conviction if the Commonwealth establishes an attempt to inflict bodily
injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa.Super.
1994) (citation omitted). In the event this Court concludes the victim did
not, in fact, suffer bodily injury, Appellant has presented an alternative
argument to this Court; namely, that the evidence was insufficient to
establish that he attempted to cause bodily injury to the victim. However, in
light of our discussion infra, we find it unnecessary to address the alternative
basis, which supports a conviction for simple assault under Section
2701(a)(1).
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Our review of a ruling denying a motion for judgment of acquittal is
guided by the following principles:
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on a particular
charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge. As we have
stated:
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 [that of] 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. Graham, 81 A.3d 137, 142 (Pa.Super. 2013) (quotation
marks and quotation omitted).
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Here, Appellant was convicted of simple assault under 18 Pa.C.S.A. §
2701(a)(1),5 which provides the following:
§ 2701. Simple assault
(a) Offense defined.-- Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if
he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
18 Pa.C.S.A. § 2701(a)(1) (bold in original).
18 Pa.C.S.A. § 2301 defines “bodily injury” as “[i]mpairment of
physical condition or substantial pain.” Substantial pain may be inferred
from the circumstances surrounding the physical force used.
Commonwealth v. Smith, 848 A.2d 973 (Pa.Super. 2004).
Here, in rejecting Appellant’s claim that the evidence was insufficient
to establish that the victim, in fact, suffered “bodily injury,” the trial court
relevantly stated the following:
The victim testified that he and [Appellant] got into a
verbal altercation which escalated to an assault when [Appellant]
pushed the victim into the frame of a doorway. [The victim
testified,] “I was pushed into the doorway, like, really hard.”
[N.T., jury, 12/5/16, at 14.] The victim’s brother, [Zachary,]
related that [Appellant] picked up the victim and “slammed him
to the floor” after which [Zachary] tackled [Appellant]. [Id. at
24-25.] The victim’s head hit the door frame causing a cut with
significant bleeding and which resulted in a scab visible for [a
week or two after the incident.] [The victim testified that he felt
disoriented and dizzy after hitting his head. Id. at 14.] After
____________________________________________
5Appellant was convicted of simple assault as a misdemeanor in the second
degree. Appellant has not challenged the grading of the offense.
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the attack, the victim remembers [Appellant] then standing over
him until he was tackled by [his] brother. The victim testified:
Q: What sort of injuries did you have after
this—the physical altercation with [Appellant]?
A: An injury to the back of my head...Oh,
yeah. An injury to the back of my head and an
injury on my left arm.
Q: Okay. And you said an injury to your left
arm. What kind of injury was it? Was it, like
scratches or bruising or—
A: Yeah, it was just a laceration.
Q: Okay. And did those hurt at all?
A: Little bit, yeah.
Q: Okay. I know you’re 18 and, you know
trying to be tough, but on a scale of one to ten, what
was the pain level like?
A: Five, Six.
***
Applying [the appropriate] standard, the Commonwealth
provided sufficient evidence for the jury to find that [the victim
suffered actual bodily injury.]
Trial Court Opinion, filed 4/7/17, at 2-3.
We agree with the trial court’s reasoning in this regard. Specifically,
we agree that the victim’s head laceration, which bled “a lot,” resulted in the
victim feeling “dizzy” and “disoriented,” produced a scab that was visible for
a week or two, and caused pain described by the victim as a “five, six” on a
scale of one to ten with ten being the highest, sufficiently meets the
definition of “bodily injury” for purposes of the simple assault statute. See
Commonwealth v. Marti, 779 A.2d 1177 (Pa.Super. 2001) (holding officer
who was struck in the jaw with a closed fist resulting in “slight swelling and
pain” suffered actual bodily injury); In the Interest of M.H., 758 A.2d
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1249 (Pa.Super. 2000) (holding student suffered bodily injury for purposes
of simple assault where high school teacher’s aide grabbed the student’s arm
and pushed her against a wall causing bruises on her arm that lasted several
days); Commonwealth v. Adams, 482 A.2d 583 (Pa.Super. 1984) (finding
actual bodily injury where the victim was struck in the head with an object
hard enough to almost knock her unconscious).
We note that we specifically reject Appellant’s argument that the
victim suffered a temporary hurt from a trivial contact which is a customary
part of modern day living and which frequently occurs between family
members. In support of his argument, Appellant cites to Commonwealth
v. Kirkwood, 520 A.2d 451 (Pa.Super. 1987), and Interest of J.L., 475
A.2d 156 (Pa.Super. 1984). In Marti, supra, this Court examined these
two cases and held as follows:
In Kirkwood, the defendant was charged with simple
assault for aggressively fast dancing with a woman. The victim
testified that she had pleaded with Kirkwood to stop because he
was hurting her, but that he had continued to swing her until her
husband intervened. She said the incident lasted approximately
forty seconds and left her with bruises and cut marks on her
arms. As a result, she testified she suffered pain in her arms
and her right knee for a short period of time thereafter. We
concluded these facts did not constitute sufficient bodily injury to
sustain a conviction of a simple assault, in that “temporary aches
and pains brought about by strenuous, even violent, dancing are
an inadequate basis for imposing criminal liability upon a dance
partner for assault.” Kirkwood, 520 A.2d at 454. We also
opined “the assault section of the Crimes Code was intended to
protect and preserve one’s physical well-being and was not
intended to prevent temporary hurts resulting from trivial
contacts which are a customary part of modern day living.” Id.- 12 -
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In Interest of J.L., supra, we reversed the adjudication
of delinquency of a sixteen-year-old [girl] for simple assault
where she elbowed her nephew to push him away [while they
were seated on the living room couch.] [The toddler did not cry
or exhibit any pain.] We noted “it is difficult to attach criminality
to the pushing, shoving, slapping, elbowing, hair-pulling,
perhaps even punching and kicking, that frequently occur
between siblings or other members of the same family.” Id. at
157.
Marti, 779 A.2d at 1181.
We find Appellant’s reliance on Kirkwood and Interest of J.L. to be
misplaced as these cases are clearly distinguishable from the facts of the
instant matter. Viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, the victim in the instant case did not
suffer a “temporary hurt” resulting from a “trivial contact” as occurred in
Kirkwood. Rather, the victim suffered a visible injury to his head as a
result of being pushed “really hard” or “slammed to the floor” during a
verbal argument. It cannot be viewed in any sense as “trivial” social contact
as was the, albeit aggressive, dancing in Kirkwood.
Furthermore, with regard to Appellant’s reliance upon Interest of
J.L., we note that, in that case, unlike in the instant matter, there was no
indication the juvenile caused actual bodily injury to her nephew. Rather,
the issue was whether she attempted to cause such bodily injury when she
elbowed him. In any event, considering the spectrum of assaultive
behavior, convictions for simple assault of a family member have been
upheld where the behavior is clearly criminal, as occurred in the case sub
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judice. See Commonwealth v. Ogin, 540 A.2d 549 (Pa.Super. 1988) (en
banc) (upholding simple assault convictions of the child victim’s parents;
existence of substantial pain to victim sufficient to sustain convictions could
be inferred from facts that child victim was grabbed by arm and flung
against building by one parent and then screamed for several minutes, that
she was struck in the face by one parent with extreme force causing her to
fall against wall). Thus, we find no merit to Appellant’s first claim.
In his final claim, Appellant alleges the trial court erred in denying his
oral motion for extraordinary relief for a new trial under Pa.R.Crim.P.
704(B)(1). Specifically, Appellant asserts the Commonwealth violated
Pa.R.Crim.P. 573(B)(1)(a) and Commonwealth v. Brady, 373 U.S. 83, 83
S.Ct. 1194 (1963), by failing to disclose that Appellant’s father/the victim’s
grandfather, Robert Duck, Sr., made a statement to the prosecutor on the
morning of the trial indicating that he believed “the boys were just
wrestling.”
In Brady, the United States Supreme Court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87, 83 S.Ct. at 1196-97. In response to the dictates of Brady, our
Supreme Court promulgated Pa.R.Crim.P. 573 with respect to discovery in
criminal cases. The Rule lists certain items and information that are subject
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to mandatory disclosure by the Commonwealth when they are (1) requested
by the defendant, (2) material to the case, and (3) within the possession or
control of the prosecutor. Pa.R.Crim.P. 573(B). Mandatory discovery
includes any evidence favorable to the accused that is material to either guilt
or punishment. Pa.R.Crim.P. 573(B)(1)(a).
With regard to Brady’s and Rule 573(B)1)(a)’s requirement that the
evidence be “material,” this Court has held that “in the context of pre-trial
disclosure, evidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Commonwealth v. Ferguson, 866 A.2d 403,
407 (Pa.Super. 2004) (quotation marks and quotation omitted). In this
context, a “reasonable probability” is defined as “a probability sufficient to
undermine confidence in the outcome.” Id. (quotation marks and quotation
omitted).
In the case sub judice, assuming, arguendo, Appellant’s father, Robert
Duck, Sr., made a pre-trial statement to the prosecutor indicating he
believed “the boys were just wrestling,” the prosecutor failed to disclose the
statement to Appellant, and Appellant made a proper discovery request, we
conclude that Appellant has not demonstrated that he is entitled to relief
under Brady or Pa.R.Crim.P. 573(B)(1)(a).
Robert Duck, Sr.’s statement does not identify “the boys” to which he
was referring. It is noteworthy that the only evidence offered on this matter
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was from Zachary, who indicated his grandfather, Robert Duck, Sr., entered
the room after Appellant assaulted the victim but while Zachary and
Appellant were on the ground wrestling. Thus, inasmuch as there is no
indication from Robert Duck, Sr.’s statement that he witnessed Appellant’s
physical assault of the victim, Appellant has failed to demonstrate that the
statement contained “material” evidence. See Ferguson, supra.In any event, assuming, arguendo, Appellant established Robert Duck,
Sr.’s statement contained “material” evidence, it is well-settled that “no
Brady violation occurs where the parties had equal access to the
information or if the defendant knew or could have uncovered such evidence
with reasonable diligence.” Commonwealth v. Morris, 573 Pa. 157, 178,
822 A.2d 684, 696 (2003) (citation omitted). Here, by all accounts,
Appellant knew, or reasonably ought to have known, that Robert Duck, Sr.,
was in the house and walked into the room at some point during the physical
encounters. Accordingly, Appellant had equal access to or could have
uncovered Robert Duck, Sr.’s alleged observation with reasonable diligence.
For all of the aforementioned reasons, we affirm.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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