Com. v. Thomas, O. ( 2019 )

J-S40010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
OZELL THOMAS,
Appellant No. 1668 WDA 2018
Appeal from the Judgment of Sentence Entered October 10, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005303-2017
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*
CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:
FILED DECEMBER 06, 2019
While I concur with the Majority that the evidence was sufficient to
support Thomas’s conviction for endangering the welfare of children, I do not
agree that the evidence was sufficient to sustain his convictions for aggravated
assault, simple assault, and recklessly endangering another person.
Accordingly, I respectfully concur in part and dissent in part.
To begin, the record ostensibly fails to contain, and the Commonwealth
does not point to, crucial facts that would support a finding of recklessness.
Consequently, I cannot determine that the evidence shows a substantial and
unjustifiable risk of injury that Thomas consciously disregarded. Absent from
the record is evidence establishing the size disparity between Thomas and the
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* Retired Senior Judge assigned to the Superior Court.
J-S40010-19
victim at the time of the incident, which I deem pertinent to assessing the risk
of injury posed by Thomas’s conduct. For example, the risk of injury posed
by a 250-pound man throwing a 55-pound boy would logically be more
substantial than a 150-pound man throwing an 80-pound boy. The
Commonwealth contends that “[t]he fact that [Thomas], a middle-aged man,
was able to throw the victim, a nine-year-old third grader, by grabbing his
shirt with one hand shows that there was a great disparity in size and strength
between [the] victim and [Thomas].” Commonwealth’s Brief at 10. However,
in my view, that argument raises another problem with the evidence proffered
to prove the risk posed by Thomas’s conduct. Grabbing a boy by his shirt with
one hand and throwing him would seemingly present less of a risk of injury
than lifting a boy up overhead and throwing him across the room with two
hands.1 Without the foregoing information, it is difficult to say, beyond a
reasonable doubt, that Thomas consciously disregarded a substantial and
unjustifiable risk that injury would result from his throwing the victim across
the room.
I also regard Commonwealth v. Cassidy, 668 A.2d 1143 (Pa. Super.
1996), which both the trial court and the Majority rely on, as distinguishable.
Initially, I agree with Thomas that the Cassidy Court’s analysis of
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1 It is also unclear to me how far Thomas threw the victim. At trial, on cross-
examination of the victim, Thomas’s counsel asked about the distance he was
thrown, and the victim testified that it was as far as the space between where
he was sitting and where certain papers were set on a table in the courtroom.
N.T. Trial, 8/9/2018, at 19-20. Obviously, this description is not useful for
purposes of appellate review.
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recklessness is non-binding dicta. See Thomas’s Brief at 18-19; see also
Cassidy, 668 A.2d at 1146 (“As we already have concluded, [the] appellant
… caused serious bodily injury intentionally; thus, the issue of recklessness
need not be addressed.”). Nevertheless, the facts in Cassidy were also more
developed than the case at bar. In Cassidy, the defendant was convicted of
aggravated assault after he “picked up his wife and threw her with such force
that she struck the door frame to the bathroom, ricocheted across the hall and
struck the door frame to [a] bedroom, and finally landed on the floor.”
Cassidy, 668 A.2d at 1144. The Cassidy Court noted that the defendant
conceded that “he is larger and stronger than his wife[,]” and observed that
the defendant was enraged at the time and “picked her up and threw her
across the room with such force that she bounced from one doorjamb to
another, finally coming to rest on the ground.” Id. at 1146; see also id. at
1144.
Here, in contrast, the victim testified that he did not hit any furniture or
walls, but that his wrist landed on the broom and he hit the floor. N.T. Trial
at 19. Thus, the evidence does not indicate that Thomas tried to throw the
victim into any object or threw him with such great force that he ricocheted
off of anything or traveled far, which would make injury more certain to ensue.
Although one could argue that the fact that the victim broke his wrist
demonstrated the great force used by Thomas, Thomas cautions us of the
“false logic” of “arguing from the temporal sequence to cause and effect
relationship” — in other words, just because the victim suffered a broken wrist
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does not mean, in and of it itself, that Thomas acted recklessly. See Thomas’s
Brief at 14 (citing In re K.J.V., 939 A.2d 426 (Pa. Super. 2007)). Thomas
emphasizes “accidents — even tragic ones — can occur through a parent’s
mistake, ordinary negligence, or inadvertence, not only as a result of reckless
conduct.” Id. at 15. In addition, this incident occurred in the context of
Thomas’s trying to discipline the children, not during a heated marital
argument like in Cassidy, which supports an inference that the injury may
have occurred negligently or accidentally, rather than intentionally or
recklessly. In sum, while Thomas should not have thrown the victim across
the room, I conclude that the Commonwealth did not prove beyond a
reasonable doubt that he acted recklessly in doing so. As a result, I would
reverse Thomas’s convictions for aggravated assault, simple assault, and
recklessly endangering another person.
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