Com. v. Gagliard, A. ( 2017 )

J-S18026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY J. GAGLIARD
Appellant No. 2460 EDA 2016
Appeal from the Judgment of Sentence dated May 24, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001127-2016
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED MAY 25, 2017
Appellant, Anthony J. Gagliard, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial conviction for simple assault.1 We affirm.
On January 11, 2016, at about 5:00 P.M., the loss prevention officer
(“LPO”) at the Burlington Coat Factory located at the corner of Castor
Avenue and Cottman Avenue in Philadelphia observed, through a live closed
circuit television feed, Appellant enter the store, proceed to the women’s
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2701(a). Although Appellant was generally charged under 18
Pa.C.S. § 2701(a), Appellant acknowledges that “Sections (a)(2) and (a)(4)
of the simple assault statute are not applicable to the instant case,” and
both the Commonwealth and the trial court agree that his conviction is
sustainable only under Subsection (a)(1). See Appellant’s Brief at 8 n.2;
Commonwealth’s Brief at 5; Trial Ct. Op., 9/13/16, at 3.
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shoe department, and put a pair of women’s shoes in a plastic bag. Trial Ct.
Op., 9/13/16, at 1-2 (unpaginated) (citing N.T., 5/24/16, at 36-40, 43-44,
47). Appellant then walked to the men’s department, selected a pair of
men’s pants, and put them over his shoulder. Appellant approached the
cash register with the items and attempted to return the women’s shoes in
exchange for the pants. Id. at 2 (citing N.T., 5/24/16, at 43). The LPO,
“who had been observing [Appellant], radioed the employee at the cash
register to let the exchange go through due to his observations.” Id. (citing
N.T., 5/24/16, at 49).
After the exchange, the LPO confronted Appellant and started to escort
him to the store’s loss prevention office. Trial Ct. Op., 9/13/16, at 2.
Appellant pushed the LPO, giving the LPO a bruise above his chest, and
“began to punch and flail his arms, attempting to resist apprehension.” Id.
(citing N.T., 5/24/16, at 54, 56, 88). Appellant and the LPO “scuffle[d],”
and Appellant “hit” the LPO “in the mouth with an elbow causing a bloody
lip.” Id. (citing N.T., 5/24/16, at 57).
Appellant presents one issue for our review:
Was not the evidence insufficient to support the verdict of guilty
of simple assault in as much as the [A]ppellant’s conduct did not
establish the attempt to cause or the actual infliction of bodily
injury, or the attempt by physical menace to inflict imminent
serious bodily injury as required by the simple assault statute?
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Appellant’s Brief at 4.2
Our standard of review is:
A claim challenging the sufficiency of the evidence is
a question of law. Evidence will be deemed sufficient
to support the verdict when it establishes each
material element of the crime charged and the
commission thereof by the accused, beyond a
reasonable doubt. . . . When reviewing a sufficiency
claim the court is required to view the evidence in
the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa. Super.
2003) (citation omitted), appeal denied, 574 Pa. 773, 833 A.2d
143 (2003). As a reviewing court, we many not weigh the
evidence or substitute our judgment for that of the fact-finder,
who is free to believe all, part, or none of the evidence.
Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa.
Super. 2003).
Commonwealth v. Chambers, ___ A.3d ___, 2017 WL 900006, at *2-*3
(Pa. Super. 2017).
Appellant claims that the Commonwealth failed to prove the elements
of simple assault. Specifically, Appellant contends: “[It] is impossible to
conclude intent to cause injury or substantial pain where there was an
incidental bloody lip. Here, there is no evidence of substantial pain or
physical impairment, the predicate injury for simple assault.” Appellant’s
____________________________________________
2
Because the Commonwealth and the trial court concede that 18 Pa.C.S. §
2701(a)(3) — “attempts by physical menace to put another in fear of
imminent serious bodily injury” — does not apply to Appellant, we will not
address the “attempts by physical menace” aspect of Appellant’s issue. See
Commonwealth’s Brief at 5; Trial Ct. Op., 9/13/16, at 3.
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Brief at 11. Appellant similarly asserts that “swinging his arms and elbows”
alone cannot demonstrate an attempt to cause bodily injury. Id. at 12.
The relevant assault statute states: “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. § 2701(a)(1) (emphasis added). “Bodily
injury” is defined as “[i]mpairment of physical condition or substantial pain.”
18 Pa.C.S. § 2301. Both aggravated assault, see 18 Pa.C.S. § 2702, and
simple assault share this definition of “bodily injury,” and, hence, cases
involving aggravated assault are equally instructive in clarifying this term.
As the trial court concluded that Appellant gave the LPO actual bodily
injuries (a bruise and a bloody lip), we need not address the “attempts to
cause” portion of 18 Pa.C.S. § 2701(a)(1). Trial Ct. Op., 9/13/16, at 2, 5
(citing N.T., 5/24/16, at 54, 56-57, 88).
We extensively discussed the bodily injury requirement in
Commonwealth v. Marti, 779 A.2d 1177, 1181-82 (Pa. Super. 2001), as
follows:
In [Commonwealth v.] Wertelet, [696 A.2d 206 (Pa. Super.
1997),] we noted that the Crimes Code definition of bodily injury
as “impairment of physical condition or substantial pain,” 18
Pa.C.S.A. § 2301, “is worded rather generally and does not
provide a great deal of guidance.” Wertelet, 696 A.2d at 210.
We further recognized the lack of cases attempting to define the
term. Id. In attempting to define the term, the panel compared
Wertelet’s actions with those of the defendants in the cases of
Commonwealth v. Kirkwood, 360 Pa. Super. 270, 520 A.2d
451 (1987) and Interest of J.L., 327 Pa. Super. 175, 475 A.2d
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156 (1984). 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. In Interest of J.L., supra, we reversed the
adjudication of delinquency of a sixteen-year-old for simple
assault where she elbowed her nephew to push him away. 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.
Consequently, the Wertelet panel found the actions in
Kirkwood and J.L. were “on par with the nature of the affront
committed here by [Wertelet].” The panel reasoned as follows:
There is no evidence that appellant reared back and
kicked Trooper Funk as hard as she could. Indeed,
she kicked him with the back of her heel as she was
flailing about and squirming while the troopers
attempted to handcuff her. Trooper Funk was not
seriously impaired by the kicks, he was able to
continue working, and he did not report even any
bruising or swelling. Trooper Funk’s characterization
of the pain as similar to ‘bumping your shin on a
coffee table’ aligns the encounter with those
described above and does not fall within the general
connotation of the term ‘injury.’
Wertelet, 696 A.2d at 212, 213 (footnote omitted). . . .
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We find further support for our conclusion by examination of the
cases defining bodily injury in the context of a simple assault.
In the Interest of M.H., 758 A.2d 1249 (Pa. Super. 2000),
appeal denied, 564 Pa. 735, 766 A.2d 1250 (2001), we
affirmed an adjudication of delinquency for simple assault
involving the reckless infliction of bodily injury to a high school
teacher’s aide. The evidence therein demonstrated M.H.
aggressively grabbed the victim’s arm and pushed her up
against a wall causing bruises on her arm that lasted several
days. The injury did not require medical treatment or cause the
victim to miss any work. On appeal, M.H. argued the evidence
was insufficient to prove simple assault because the victim’s
injury did not constitute “bodily injury” under 18 Pa.C.S.A. §
2701(a)(1). After analyzing the rationale of Wertelet, we
rejected this argument noting:
We are not willing to view this incident as a
‘temporary hurt’ resulting from a ‘trivial contact.’ It
cannot be viewed as contact incident to a struggle
as in Wertelet, which the officer there described as
akin to bumping his shin. It cannot be viewed in
any sense as social contact as was the, albeit
aggressive, dancing in Kirkwood. Nor can we view
this incident as the type of noncriminal contact
resulting from family stress and rivalries as in
Interest of J.L. In short, we do not consider
M.H.’s conduct in any way a ‘customary part of
modern day living.’ Kirkwood, 520 A.2d at 454.
In the Interest of M.H., 758 A.2d at 1252. See, e.g.,
Commonwealth v. Jorgenson, 341 Pa. Super. 550, 492 A.2d 2(1985) rev. on other grounds, 512 Pa. 601, 517 A.2d 1287(1986) (stating “[a] jury may infer that striking a person across
the face causes pain;” even if there is no testimony of pain);
Commonwealth v. Adams, 333 Pa. Super. 312, 482 A.2d 583(1984) (affirming conviction for simple assault where victim was
struck in the head with an object hard enough to almost knock
her unconscious); Commonwealth v. Richardson, 431 Pa.
Super. 496, 636 A.2d 1195, 1196 (1994) (holding testimony
that appellant’s punch broke officer’s glasses and caused pain for
a few days was sufficient to sustain finding of actual bodily
injury); Commonwealth v. Ogin, 373 Pa. Super. 116, 540 A.2d
549 (1988) (en banc), appeal denied, 521 Pa. 611, 557 A.2d
343 (1989) (finding substantial pain may be inferred from the
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circumstances surrounding the physical force used, even in the
absence of significant injury).
After a thorough review of the record, the briefs of the parties, the
above applicable law, and the well-reasoned opinion of the Honorable
Stephanie M. Sawyer, we conclude that Appellant’s issue merits no relief.
The trial court opinion comprehensively discusses and properly disposes of
the question presented. See Trial Ct. Op., 9/13/16, at 3-5 (finding (1)
pushing and flailing arms can be reasonably inferred to show the specific
intent to cause bodily injury (citing M.H., 758 A.2d at 1252)); (2) LPO’s
bloody lip and bruising are enough to find that bodily injury occurred; and
(3) the physical contact by Appellant against the LPO was neither a social
contact, as in Kirkwood, 520 A.2d at 454, nor does it fit within this Court’s
definition of temporary aches and pains, as described in Wertelet, 696 A.2d
at 212-13). Thus, we affirm on the basis of the trial court’s opinion, and the
parties are instructed to attach a copy of the trial court’s opinion of
September 13, 2016, to any future filing that references this Court’s
decision.
Judgment of sentence affirmed.
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J-S18026-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2017
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Circulated 04/27/2017 03:13 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTHOF PENNSYLVANIA,
CP-51-CR-0001127-2016
v.
ANTHONY GAGLIARD
2460 EDA 2016
FILED
Appellant
SEP T :f 2016
. Crimiof1tAppea1s Unit
F,rstJud1c1al Districtof PA
OPINION
STEPHANIE M. SAWYER, J. DATE: SEPTEMBER 13, 2016
This is an appeal by Defendant, Anthony Gagliard, challenging this courts conviction of
simple assault on the sufficiency of the evidence presented at trial. The issues are whether the
evidence established the requisite mens rea for the offense, and whether the complaining witness
suffered a bodily injury.
I. RELEVANT FACTS
According to the testimony of Loss Prevention Officer (LPO) Hal Eckman, on January 11,
2016 at around 5:00 p.m., LPO Eckman was working at the Burlington Coat Factory located at the
comer of Castor Avenue and Cottman Avenue in the City and County of Philadelphia. N.T.
5/24/16 at 36, 40.1 LPO Eckman observed, through a live closed circuit television (CCTV) system,
Defendant enter the store and proceed to the Women's Shoe Department where he put a pair of
women's shoes in a plastic bag. Id at 37, 39, 43-44. Defendant then walked over to the Men's
1
All references to the record refer to the transcript of the trial recorded on May 24, 2016.
Department and selected a pair of men's pants, putting them over his shoulder. Id at 43, 47.
Defendant approached the cash register with the items and attempted to return the women's shoes
in exchange for the pants then on Defendant's shoulder. Id. at 43. LPO Eckman, who had been
observing Defendant, radioed the employee at the cash register to let the exchange go through due
to his observations. Id at 49.
After the transaction was completed, LPO Eckman confronted Defendant and started to
escort him down to the store's loss prevention office. Id. at 50. As LPO Eckman and Defendant
started to walk towards that office, Defendant broke free from LPO Eckman's grip and ran towards
the exit. Id at 51. Another LPO, Mohammad Rasheed, helped LPO Eckman chase Defendant to
the middle of Cottman Avenue where Defendant pushed LPO Eckman in the shoulder, giving him
a bruise above his chest. Id at 51, 52. Defendant was eventually apprehended and escorted back
into the store. Id After coming back into the store, a struggle ensued where Defendant pushed
LPO Rasheed down and began to punch and flail his arms, attempting to resist apprehension. Id.
at 54, 88. A third, unidentified LPO, then grabbed Defendant in a bear hug while Defendant was
flailing his arms. Id. at 56. At some point during the scuffle Defendant hit LPO Eckman in the
mouth with an elbow causing a bloody lip. Id at 57.
II. APPLICABLE LAW
A. STANDARD OF REVIEW
When reviewing a claim of insufficient evidence, the appellate court must look to the
following standard of review: "In reviewing the sufficiency of the evidence [ the appellate court]
must consider whether the evidence presented at trial, and all reasonable inferences drawn
therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support
the [fact finder's] verdict beyond a reasonable doubt." Commonwealth v. Patterson, 91 A.3d 55,
66 (Pa. 2014) (alteration in original) (citation omitted), cert. denied, Patterson v. Pennsylvania,
135 S. Ct. 1400 (2015). "The Commonwealth can meet its burden by wholly circumstantial
evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the
evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn
from the combined circumstances." Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. Ct.
2013) (en bane) (internal quotation marks and citation omitted), appeal denied, 95 A.3d 277 (Pa.
2014). "(T]he 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." Id. (alteration in original)
(citation omitted). Because evidentiary sufficiency is a question of law, the appellate court
standard of review is de novo and (the appellate court's] scope of review is plenary."
Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (alteration in original) (citation omitted),
cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014). However, "[w]here the record
supports the factual findings of the trial court [an appellate court is] bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Bomar, 826
A.2d 831, 842 (Pa. 2003) (alteration in original).
B. SIMPLE ASSAULT
"In order to sustain its burden of proof for simple assault, the Commonwealth must show
that the defendant 'attempt[ed] to cause or intentionally, knowingly or recklessly cause[d] bodily
injury to another."' 18 PA.CONS.STAT.ANN. § 2701(a)(l) (West 2014). In addition, "bodily
injury" is defined as "impairment of physical condition or substantial pain. 18
PA.CONS.STAT.ANN.§2301 (West 1973).
Furthermore, it is axiomatic that simple assault does not require a victim to suffer
actual bodily injury. The attempt to inflict bodily injury may be sufficient. This
intent may be inferred from the circumstances surrounding the incident if a specific
intent to cause bodily injury may reasonably be inferred therefrom.
Commonwealth v. Polston, 616 A.2d 669, 679 (Pa. Super. Ct. 1992) (internal citations omitted),
appeal denied, 626 A.2d 1157 (Pa. 1993 ).
A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor's conduct and the circumstances
known to him, its disregard involves a gross deviation from the standard of conduct
that a reasonable person would observe in the actor's situation.
18 PA.CONS.STAT.ANN. § 302(b)(3) (West 1973).
Similarly, even if the accused was not aware of the risk he ran of achieving the
actual result, a court can find him guilty of criminally reckless conduct if "the actual
result involves the same kind of injury or harm as the probable result and is not too
remote or accidental in its occurrence .... "
Commonwealth v. Moore, 395 A.2d 1328, 1331 (Pa. Super. Ct. 1978) (citing 18 PA.CONS.STAT.§
303( c)(2)).
"[I]n considering the spectrum of assaultive behavior, convictions for simple assault have
been upheld where the behavior is more clearly criminal." In re MH, 758 A.2d 1249, 1252 (Pa.
Super. Ct. 2000) (affirming conviction of simple assault where an educational aide was grabbed
by the arm by a student and pushed against the wall, receiving bruises on her arm that lasted several
days). The Court also declined to find that a woman, struggling with a police officer and kicking
him in the shin, caused the requisite bodily injury to sustain a charge of aggravated assault. Id. at
1251 (citing Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. Ct. 1997)). The court noted
however, that because this was a charge of aggravated assault-where several other charges of
resisting arrest, harassment or simple assault might have been more appropriate-the court might
have been more inclined under the same facts to conclude that simple assault had been proven. Id.at 1251 n. 5. In another case, social contact from aggressive dancing, where the victim was swung
violently about the dance floor and suffered pain in her arms and knees for a short period afterward,
was insufficient to find assaultive behavior. Id. at 1252 (citing Commonwealth v. Kirkwood, 520
A.2d451, 454 (Pa. Super. Ct. 1987)). The Court held that: "[t]emporary aches and pains brought
about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability
upon a dance partner for assault." Id.III. LEGAL ANALYSIS
LPO Eckman was pushed above his chest and elbowed in the face, causing a bruise and a
bloody lip, respectively. This struggle occurred because LPO Eckman was investigating suspected
criminal activity from Defendant. According to LPO Eckman's testimony and this Court's
findings of fact, Defendant was punching and flailing his arms wildly in an attempt to resist
apprehension by the store's Loss Prevention Officers.
In regards to the mens rea requirement for attempting to cause bodily injury: throwing
punches, pushing, shoving and flailing arms can all be reasonably inferred to show the specific
intent to cause bodily injury. Alternatively, even if it was not Defendant's intent to injure one of
the LPOs, failing arms, pushing, shoving, and punching was clearly reckless as it unequivocally
showed a conscious disregard to a substantial and justifiable risk that bodily injury would occur
from those actions.
In addition, LPO Eckman's bloody lip and bruising are enough to find that bodily injury
occurred. The physical contact by Defendant against LPO Eckman was neither a social contact
like the one described in Kirkwood nor does it fit within this Court's definition of temporary aches
and pains as described in Wertelet. This case is more akin to the physical contact described in In
re M H, where a court is more likely to find bodily injury for assaultive behavior when a defendant
engages in criminal conduct.
l
)
IV. CONCLUSION
In light of the totality of the facts presented at trial, the Commonwealth established the
necessary mens rea and the bodily injury requirements for simple assault. As a result of the above
analysis, Defendant was found guilty of simple assault and the decision of this court should be
affirmed.