Com. v. Hanna, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY A. HANNA :
:
Appellant : No. 1188 WDA 2018
Appeal from the Judgment of Sentence Entered, May 30, 2018,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0006686-2017.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 06, 2019
Timothy A. Hanna appeals from the judgment of sentence imposed after
he was convicted of aggravated assault, simple assault, harassment and
disorderly conduct following a non-jury trial.1 After review, we affirm.
The trial court set forth a very detailed summary of the testimony in this
case. Essentially, Hanna went to the hockey rink in Bethel Park on March 11,
2017, after he received a phone call from his wife. According to Hanna, the
hockey coach, Dave Kelly, made disparaging remarks to Ms. Hanna about their
son. As Hanna waited outside the players’ dressing room to talk to the coach
after the game, the coach’s wife, Christie Kelly, approached him and asked
him not to speak with the coach for 24-hours as required by the coach’s rule.
Hanna started screaming at Ms. Kelly and threatening to harm her husband.
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1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2709(a)(1), and 5503(a)(3).
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He was bent over Ms. Kelly, poking her in the head with his nose and spitting
on her. Ms. Kelly raised her hand and pushed Hanna’s head away from her
face. Hanna then hit Ms. Kelly in the head and knocked her to the ground.
Hanna claimed he accidentally bumped Ms. Kelly in self-defense, after she
struck him with her jewelry-cladded hand.
Later that evening, Ms. Kelly could not understand what her daughter
was saying to her; she was dizzy and nauseated. She also had a "pounding
headache." Mr. Kelly took Ms. Kelly to the hospital. While there, Ms. Kelly
was so sensitive to the bright lights that they had to be turned off while she
was examined. After several tests, including a CT scan, Ms. Kelly was
diagnosed with a concussion and neck and back injuries.
Following the incident, Ms. Kelly was unable to work for three and one-
half months and, during that time, she was deemed disabled by her
employer's insurance company. Eventually, she returned to work on light duty
and was restricted to working two to three days per week. As of the date of
trial, Ms. Kelly was still being treated by a concussion specialist. She required
physical therapy. Ms. Kelly continues to be sensitive to light and must work
in dimly lit rooms. She still suffers from headaches as a result of the assault.
Following a non-jury trial, the court convicted Hanna of all charges. The
trial court sentenced Hanna to 11 1/2 to 23 months of incarceration plus 3
years of probation. However, following post-sentence motions, the trial court
reduced Hanna’s sentence to 18 months of house arrest with electronic
monitoring plus 3 years of probation.
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Hanna filed this timely appeal. Both the trial court and Hanna complied
with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Hanna raises five issues:
1. Did the trial court commit a legal error by concluding that the
Commonwealth proved the mens rea, serious bodily injury, and
causation elements of Aggravated Assault beyond a reasonable
doubt?
2. Was the evidence insufficient to support a conviction for
Aggravated Assault?
3. Should Mr. Hanna have been acquitted on the basis of the self-
defense justification that was offered at trial?
4. Were Mr. Hanna's convictions against the weight of the
evidence?
5. Should the case be remanded for further proceedings in light of
new evidence?
Hanna’s Brief at 7.
Initially we note that Hanna’s first two issues relate to the sufficiency of
the evidence to convict him of aggravated assault. Therefore, we address
them together.
When analyzing whether the evidence was sufficient to support a
conviction, this Court must “view the evidence in the light most favorable to
the Commonwealth as the verdict winner in order to determine whether the
jury could have found every element of the crime beyond a reasonable doubt.”
Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence
established at trial need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
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Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012). “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.” Commonwealth
v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc). Additionally, this
Court cannot “re-weigh the evidence and substitute our judgment for that of
the fact-finder.” Id. A challenge to the sufficiency of the evidence presents
a pure question of law and, as such, our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065,
1076 (Pa. 2017).
Hanna first argues that the evidence was insufficient to sustain his
conviction for aggravated assault. Specifically, he contends that the
Commonwealth failed to show that Hanna exhibited the requisite level of
recklessness contemplated under the Crimes Code and thus failed to establish
the requisite mens rea.2 Hanna’s Brief at 13. Therefore, according to Hanna,
his sentence should be vacated. Id. at 13. We disagree.
A person is guilty of aggravated assault “if he: (1) attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
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2 The trial court specifically convicted Hanna on the basis that he recklessly
caused serious bodily injury to Ms. Kelly under circumstances manifesting
extreme indifference to the value of human life. Trial Court Opinion,
11/30/18, at 15.
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or recklessly under circumstances manifesting extreme indifferent to the value
of human life.” 18 Pa.C.S.A. 2702(a)(1). Where the victim suffers serious
bodily injury, the Commonwealth is not required to prove specific intent.
Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997) (citing
Commonwealth v. Hlatky, 626 A.2d 575 (Pa. Super. 1993), appeal denied,
644 A.2d 1200 (Pa. 1994)). “Serious bodily injury” is injury creating 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. Under those circumstances, “[t]he
Commonwealth need only prove that [the defendant] acted recklessly under
circumstances manifesting an extreme indifference to the value of human life.”
Id. To establish the degree of recklessness contemplated by the aggravated
assault statute, “the offensive act must be performed under circumstances
which almost assure that injury or death will ensue.” Commonwealth v.
O'Hanlon, 653 A.2d 616, 618 (Pa. Super. 1995); Commonwealth v.
Hickson, 586 A.2d 393 (Pa. Super. 1990), alloc. denied, 593 A.2d 838(1991).
Here, Hanna does not dispute that there was sufficient evidence to
establish that Ms. Kelly suffered serious bodily injury.3 Nonetheless, we note
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3 Although Hanna references serious bodily injury in his sufficiency issue, he
does not address it in the argument portion of his brief relating to sufficiency.
Rather, he focuses on the mens rea and recklessness elements. Because he
did not develop this issue, it is waived. See Commonwealth v. Walter, 966
A.2d 560 (Pa. 2009).
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that the evidence established that Ms. Kelly sustained serious bodily injury
stemming from Hanna’s attack. Ms. Kelly sustained a concussion. As a result,
she was deemed disabled and unable to work for a period of time; she also
required specialized medical treatment. Ms. Kelly continues to suffer from
light sensitivity and headaches. Thus, contrary to Hanna’s argument, because
Ms. Kelly suffered serious bodily injury as a result of the assault, the
Commonwealth was not required to prove specific intent. Thus, the
Commonwealth only needed to prove that Hanna acted recklessly.
Based upon our review of the record, we conclude that the
Commonwealth presented sufficient evidence to demonstrate that Hanna’s
conduct was reckless and therefore proved mens rea beyond a reasonable
doubt. The trial court aptly summarized this evidence as follows:
[Hanna] was substantially larger than Ms. Kelly, approximately a
foot taller. The evidence established that [Hanna] was enraged
and angry with the victim's husband. [Hanna] angrily directed
threats to Ms. Kelly. He threatened to kill her husband. He was
so close to her that he spit on her. When she tried to remove
herself from the situation and after she asked [Hanna] to cease
his conduct in front of the players, the defendant violently struck
her in the head. [Hanna’s] act of brutally punching Ms. Kelly in
the face under these circumstances was sufficient to prove that
he ignored a substantial and unjustifiable risk that Ms. Kelly would
suffer serious bodily injury from his conduct.
Trial Court Opinion, 11/30/18, at 15-16. Moreover, we have previously held
that a single punch to the head is sufficient to establish the requisite level of
recklessness to prove aggravated assault when the victim suffers serious
bodily injury. Commonwealth v. Burton, 2 A.3d 598, 605 (Pa. Super.
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2010); see also Commonwealth v. Patrick, 993 A.2d 1043 (Pa. Super.
2007). We, therefore, conclude that the evidence was sufficient to
demonstrate that Hanna acted recklessly.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude that the Commonwealth presented
sufficient evidence to sustain Hanna’s conviction for aggravated assault.
Accordingly, Hanna’s first and second issues entitle him to no relief.
In his third issue, Hanna argues that the trial court erred in finding that
he did not act in self-defense. Specifically, Hanna claims the trial court
improperly concluded that Hanna had a duty to retreat; such obligation only
applies to a claim of self-defense when deadly force is used. Hanna’s Brief at
17. Therefore, according to Hanna, his sentence should be vacated. Id. at
18. We disagree.
As a general rule, an individual is justified in using force upon another
person “when the actor believes that such force is immediately necessary for
the purpose of protecting himself against the use of unlawful force by such
other person on the present occasion.” 18 Pa.C.S.A. 505 (a). “If the
defendant properly raises self-defense under Section 505 of the Pennsylvania
Crimes Code, the burden is on the Commonwealth to prove beyond a
reasonable doubt that the defendant's act was not justifiable self-defense.”
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (internal
quotations and citations omitted). The justified use of deadly force requires,
inter alia, proof “that the actor did not violate any duty to retreat or to avoid
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the danger.” Commonwealth v. Harris, 665 A.2d 1172, 1174 (Pa. 1995).
However, in cases not involving deadly force, there is no legal duty to retreat.
Commonwealth v. Pollino, 467 A.2d 1298, 1300 (1983). Where only
battery is involved, “force may be met with force so long as it is only force
enough to repel the attack.” Id. at 1301.
At trial, Hanna claimed that he acted in self-defense by hitting Ms. Kelly
when she tried to push him away. In considering his claim of self-defense,
the trial court stated:
You know, in the public arena when somebody is confronted with
force being used, doesn't he have a duty to retreat if he can fairly
do so, Mr. Horowitz? Isn't that the law? Is that not the law? When
somebody is being confronted with an assault or some type of risk
or threat of force being used against him, does he not have the
duty to retreat?
N.T., 2/23/18, at 228. We agree that, under our cited precedent, Hanna had
no duty to retreat in this matter. However, as the trial court explained,
Hanna’s claim of self-defense was not credible. The trial court observed: “The
principal evidence that Hanna acted in self-defense was the self-serving
statement of [Hanna] himself. Trial Court Opinion, 11/30/18, at 16. The trial
court further determined that “[Hanna’s] testimony was patently false in
almost all respects beyond [Hanna’s] admission that he was involved in the
contentious event with Ms. Kelly.” Id. at 17. The trial court explained:
[T]his Court accepted the Commonwealth's evidence to establish
that the defendant committed aggravated assault and simple
assault against Ms. Kelly. The credible evidence demonstrated
that the only contact initiated by Ms. Kelly was her attempt to
push the defendant away from her as he was screaming
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vulgarities, threatening her husband and spitting on her while his
face was inches from hers. Moreover, discounting the defendant's
version that he was attempting to defend himself at the time he
struck Ms. Kelly, the only other remaining evidence supporting
self-defense was the testimony of the defendant's son and two of
the son's friends. Their testimony was inconsistent and also not
credible. A few of the witnesses claimed Ms. Kelly slapped the
defendant, not a punch as the defendant claimed. One witness
claimed the defendant never entered onto the ice. This Court
believes that the credible evidence established proof beyond a
reasonable doubt that the defendant did not act in self-defense.
Trial Court Opinion, 11/30/18, at 17. From this statement, it is evident that
the trial court did not find Hanna had a duty to retreat from the confrontation.
Instead, the trial found Hanna’s claim of self-defense was not credible.
“Although the Commonwealth is required to disprove a claim of self-defense
arising from any source beyond a reasonable doubt, a [trier of fact] is not
required to believe the testimony of the defendant who raises the claim.”
Commonwealth v. Bullock, 948 A.2d 818, 825 (Pa. Super. 2008). The trial
court was free to reject Hanna’s testimony as incredible. As such, the trial
court did not error in rejecting Hanna’s claim of self-defense. Hanna’s third
issue entitles him to no relief.
In his fourth issue, Hanna claims that his conviction for aggravated
assault was against the weight of the evidence.4 Specifically, Hanna argues
that the Commonwealth failed to prove that Ms. Kelly sustained serious bodily
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4 We note that, in his statement of issues, Hanna references “verdicts” (plural)
as being against the weight of the evidence. However, in his brief, he only
addresses whether the Commonwealth established serious bodily injury which
relates to the aggravated assault conviction. We further note that our
interpretation that his weight claim only relates to the aggravated assault
conviction is consistent with his post-trial motion.
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injury or that the assault caused her injury. According to Hanna, at trial, the
Commonwealth did not call an expert witness to testify regarding Ms. Kelly’s
concussion, but merely relied on her medical records. He claims that his
conviction for aggravated assault was against the weight of the evidence.
Hanna’s Brief at 19, 20.
Initially, we note that the trial court concluded that Hanna waived this
issue, finding that it was too vague for the court to determine the basis of his
claim. Trial Court Opinion, 11/30/18, at 18. Based upon our review of the
record, we agree.
An appellant must preserve a claim that the conviction is against the
weight of the evidence with the trial court by making a motion for a new trial.
Pennsylvania Rule of Criminal Procedure 607(A) provides an appellant three
ways to preserve the issue: 1) orally, on the record, at any time before
sentencing; 2) by written motion at any time before sentencing; or 3) in a
post-sentence motion. Pa.R.Crim.P. 607(A)(1)-(3). “An appellant's failure to
avail himself of any of the prescribed methods for presenting a weight of the
evidence issue to the trial court constitutes waiver of that claim.”
Commonwealth v. Weir, 201 A.3d 163, 167 (Pa. Super. 2018), appeal
granted, 215 A.3d 966 (2019); see also Comment to Pa.R.Crim.P. 607. A
claim challenging the weight of the evidence generally cannot be raised for
the first time in a Rule 1925(b) statement. Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009).
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Additionally, an appellant must comply with Pa.R.A.P. 1925 which
requires an appellant to “concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
Statement and/or not raised in accordance with the provisions of this [Rule]
are waived.” Pa.R.A.P. 1925(b)(4)(vii). “[T]he Rule 1925(b) statement must
be specific enough for the trial court to identify and address the issue an
appellant wishes to raise on appeal.” Id. (brackets, internal quotation marks,
and citation omitted). Moreover, “[a] theory of error different from that
presented to the trial jurist is waived on appeal, even if both theories support
the same basic allegation of error which gives rise to the claim for relief.”
Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (citation
omitted), appeal denied, 951 A.2d 1163 (2008); Tong-Summerford v.
Abington Mem'l Hosp., 190 A.3d 631, 649 (Pa. Super. 2018).
Our review of the record reveals that, although Hanna raised a weight
claim in his post-sentence motion, the theory set forth therein is different than
that raised in his 1925(b) statement or on appeal. In his post-sentence
motion, Hanna focused on the recklessness element of aggravated assault and
claimed that:
The evidence offered by the Commonwealth to demonstrate that
Mr. Hanna's actions exhibited extreme indifference to the value of
human life is such that sustaining a conviction for Aggravated
Assault shocks the conscience.
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In his 1925(b) statement, Hanna only set forth a general weight claim without
specifying any particular basis for it. Additionally, in his appellate brief, Hanna
focuses his weight claim on the serious bodily injury component of this
offense. Because Hanna has presented different theories to the trial court and
this Court as to why the verdict for aggravated assault is against the weight
of the evidence, we conclude that Hanna has failed to comply with both
Pa.R.Crim.P. 607 and Pa.R.A.P. 1925. Consequently, Hanna waived his weight
claim, and we cannot address the merits.
In his fifth issue, Hanna argues that he has discovered new evidence.
Specifically, he contends that Ms. Kelly and her husband filed a civil suit
against him, where they claim he negligently, rather than intentionally, caused
her injury. Because the victim now claims Hanna did not act intentionally, he
claims this matter should be remanded for further proceedings. Hanna’s Brief
at 21.
Based upon our review of the record, we observe that Hanna did not
raise this issue in his Pa.R.A.P. 1925(b) statement. As discussed above,
“[i]ssues not included in the statement and/or not raised in accordance with
the provisions of the [Rule] are waived.” Pa.R.A.P. 1925(b)(4)(vii). We
conclude that Hanna also waived this issue, and we cannot address the
merits.5
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5 We note that even if we were to address the merits, the Commonwealth
points out that Ms. Kelly testified at the criminal trial that she might file a civil
lawsuit. Therefore, contrary to Hanna’s argument, the fact that Ms. Kelly filed
a civil suit against Hanna is not new evidence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2019
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