Com. v. Bell, A.

J-A03044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARNOLD BELL :
:
Appellant : No. 536 EDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003916-2019
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 17, 2022
Arnold Bell (Appellant) appeals from the judgment of sentence imposed
on October 22, 2020, in the Lehigh County Court of Common Pleas following
his jury conviction of two counts each of aggravated assault, simple assault,
and recklessly endangering another person (REAP).1 Appellant’s sole issue on
appeal is a challenge to the sufficiency of the evidence supporting his
convictions of aggravated assault. We affirm.
On July 15, 2019, Appellant was charged with the aforementioned
offenses following an incident at his home earlier that day when the two
victims, Donte Dennis2 and Rodney Walker, suffered chemical burns. The case
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1 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), and 2705, respectively.
2 Throughout the trial, Dennis was also referred to as “Abigail Walker,” the
name provided to police. See Trial Ct. Op., 4/22/21, at 1 n.1. We, like the
trial court, will refer to the individual as Dennis. Id.
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proceeded to a jury trial commencing on August 17, 2020, during which
Appellant was represented by a public defender. The testimony presented
during Appellant’s trial is aptly summarized by the trial court as follows:
On July 15, 2019, Donte Dennis was staying with Appellant at
Appellant’s residence located [on] North Sherman Street,
Allentown, Lehigh County, Pennsylvania. Dennis and Appellant
met online in approximately 2017-2018 and developed a
friendship. In October of 2018, Dennis moved in with Appellant.
Dennis testified that on July 14, 2019, Rodney Walker, Dennis’
paramour, had attended a gathering with Dennis, Appellant, and
other individuals at Appellant’s house. Dennis testified that
Appellant generally got along with Walker. Dennis believed
Walker felt Dennis’ friendship with Appellant detracted from the
time Dennis spent with Walker.
Walker stayed at Appellant’s residence after the gathering.
During the evening hours of July 14, 2019 into July 15, 2019,
Walker and Dennis got into an ongoing argument that lasted much
of the night. At approximately 2:00 a.m. on July 15, 2019,
Appellant approached Dennis and said that Walker had to go.
Dennis testified that Walker was “rude” to Appellant and got into
a verbal altercation with him. At some point during this dispute,
Appellant directed Dennis to move and threw a cup of paint
stripper at Walker, which also struck Dennis.
Appellant testified in his own defense at trial and described
this incident. He explained he viewed his apartment as a safe
zone for Dennis. Appellant explained that on the evening of the
incident, Dennis and Walker were on the third-floor attic area of
Appellant’s apartment having an argument. Appellant was asleep
at about 2:00 a.m. or 3:00 a.m. on July 15, 2019 when he was
awakened by a loud commotion. Appellant testified that Walker
was carrying on, so he told Walker that he had 15 minutes to leave
the residence.
After Appellant instructed Walker to leave, Appellant
testified that Walker began coming toward him. In picking up his
belongings, Walker knocked over a mug containing paint stripper
that Appellant was using for a project. Appellant picked up the
container and was holding it. Appellant testified that Walker
attempted to strike punch him, which caused the mug to fly out
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of Appellant’s hands and sent paint stripper into a nearby fan.
This allegedly caused the paint stripper to splatter “everywhere,”
including on Appellant’s arms. The paint stripper also landed on
both Dennis and Walker. Neighbors heard the noise at this time
and began knocking on Appellant’s door and Appellant, Dennis,
and Walker believed they were going to call the police. Dennis
and Appellant attempted to rinse the paint stripper off of
themselves. Walker was trying to leave the residence.
Walker also testified about the incident at trial. Walker
indicated that Appellant yelled at both him and Dennis prior to the
incident. Walker testified that Appellant threw the paint stripper
at him while he was walking down the stairs to get away from his
confrontation with Appellant. The paint stripper was on the back
of Walker’s shoulder, on his neck, and partially on his forearm.
Walker denied seeing Appellant throw the mug at him. Walker
and Dennis subsequently left Appellant’s residence and proceeded
to Sacred Heart Hospital.
Office[r] Theodore Kiskeravage of the Allentown Police
Department testified that on July 15, 2019, at approximately 2:30
a.m., he was working in the early-morning hours when he heard
a call go out over the radio for a report of individuals who had acid
thrown on them. At approximately 3:30 a.m., a second call went
out indicating people had shown up at Sacred Heart Hospital who
had acid thrown on them. Officer Kiskeravage proceeded to
Sacred Heart and encounter[ed] Dennis, who self-identified as
Abigail Walker. Officer Kiskeravage observed what appeared to
be chemical burns on Dennis’ neck, right arm, and back. He also
observed Rodney Walker, who appeared to have more severe
chemical burns on his neck, right arm, flank, and back. Officer
Kiskeravage took pictures of the burns, which were admitted into
evidence as Commonwealth’s Exhibits 1-5. Walker and Dennis
were subsequently transported to Lehigh Valley Hospital’s Burn
Unit, which was better equipped to treat chemical burns than
Sacred Heart Hospital.
While at Sacred Heart Hospital, Officer Kiskeravage
interviewed Dennis and Walker. He learned that the incident had
occurred at . . . Appellant’s address, and that the suspect was
Appellant. Officer Kiskeravage also ascertained that Appellant had
a history of using and possibly cooking methamphetamines, so
prior to obtaining a search warrant and an arrest warrant,
Allentown Police Department contacted the Clandestine Lab Team
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from the Pennsylvania State Police to become involved due to the
suspected presence of toxic and corrosive chemicals.
At approximately 3:00 p.m. on July 15, 2019, after
obtaining the necessary warrants, Officer Kiskeravage arrived at
Appellant’s residence along with members of the Clandestine Lab
Team and other Allentown Police Department officers to effectuate
the warrants. There was not any evidence of methamphetamine
or chemicals needed to cook methamphetamine in the apartment.
Appellant was arrested at that time for the incident involving
Dennis and Walker.
During its case-in-chief, the Commonwealth offered the
testimony of Lisa Kurth, a surgical resident at Lehigh Valley
Hospital. Dr. Kurth testified that she had experience in the burn
unit at the hospital, and was qualified as an expert in burn
treatment and diagnosis. Dr. Kurth was one of the physicians who
treated the victims. Dr. Kurth testified that at approximately 5:50
a.m. on July 15, 2019, she encountered Dennis and Walker at the
burn unit shortly after their arrival. Both were treated with
Bacitracin ointment, IV fluids, and pain medication. Dr. Kurth
testified that both Dennis and Walker appeared to be in pain.
Trial Ct. Op. at 2-6 (footnotes omitted).
At the conclusion of trial, on August 18, 2020, the jury returned a verdict
of guilty on all charges. On October 22, 2020, the trial court sentenced
Appellant to an aggregate term of 7 to 15 years’ imprisonment. Appellant
filed a timely, counseled post-sentence motion on October 29th, challenging
the weight of the evidence supporting his convictions and requesting
modification of his sentence. The trial court denied the motion on November
2, 2020.
Thereafter, on November 9, 2020, Appellant filed two documents, pro
se, which are listed on the trial court docket as (1) “Motion to Modify and
Reduce Sentence” and (2) “Petition for Appeal of Conviction.” See Trial Ct.
Docket, 11/9/20. In the latter document, Appellant requested the trial court
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“grant his petition for Appeal of Conviction” based upon allegations of trial
counsel’s ineffectiveness and prosecutorial misconduct. See Petition for
Appeal of Conviction, 11/9/20, at 1 (unpaginated). The trial court did not
forward the pro se notice of appeal to this Court.
On November 19, 2020, the Public Defender’s Office filed a motion for
appointment of new counsel because Appellant’s petition “alleg[ed] ineffective
assistance of counsel.” Motion for Appointment of Counsel, 11/19/20, at 1
(unpaginated). The trial court granted the motion, and entered an order on
November 23, 2020, appointing present counsel, Matthew Rapa, Esquire, to
represent Appellant. See Order, 11/23/20. The next day, November 24th,
the trial court entered an order purporting to “STAY[ ]” Appellant’s petition
for appeal, and extend the appeal period until December 14, 2020, “pending
review by counsel.” Order, 11/24/20. The court noted that while Appellant’s
document “identified as an appeal, [it] raises issues which would be pursued
under the Pennsylvania Post Conviction Relief Act [(PCRA)3.]” Id. at n.1.
Thus, the court directed Attorney Rapa to “consult” with Appellant and
determine if he wanted to file a direct appeal or pursue relief through the
PCRA. Id. On December 4, 2020, the trial court entered another order,
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3 42 Pa.C.S. §§ 9541-9546.
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dismissing Appellant’s petition for appeal of conviction without prejudice based
upon its November 24th order, which purported to extend the appeal period.4
Thereafter, Attorney Rapa filed two motions for extension of time, both
of which the trial court granted. He ultimately filed an “[a]mended” notice of
appeal on March 5, 2021. See Appellant’s Amended Notice of Appeal, 3/5/21.
On March 9th, the trial court directed Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal within 45 days. Appellant
complied and filed a Pa.R.A.P. 1925(b) statement on April 14, 2021.
On June 3, 2021, this Court directed Appellant to show cause why the
appeal — filed on March 5, 2021, from the judgment of sentence imposed on
October 22, 2020 — should not be quashed as untimely. Order, 6/3/21.
Appellant filed a timely reply, asserting that the trial court extended the period
for filing a notice of appeal. See Appellant’s Reply to Rule to Show Cause,
6/4/21. On June 9, 2021, this Court entered a per curiam order referring the
issue to the merits panel. Order, 6/9/21. Accordingly, before we address
Appellant’s substantive issue, we must first determine whether this appeal is
properly before us.
Generally, a notice of appeal must be filed within 30 days after entry of
the order from which the appeal is taken. Pa.R.A.P. 903(a). In a criminal
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4On November 25, 2020, the trial court denied Appellant’s pro se motion to
modify or reduce his sentence. See Order, 11/25/20.
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case, the appeal lies from the judgment of sentence, unless a defendant files
a timely post-sentence motion. See Pa.R.Crim.P. 720(A)(3). In that instance,
the appeal must be filed within 30 days of the order denying the post-sentence
motion. See Pa.R.Crim.P. 720(A)(2)(a).
Here, the trial court entered an order denying Appellant’s counseled,
timely post-sentence motion on November 2, 2020. Thus, Appellant’s notice
of appeal was due by December 2, 2020. The notice of appeal forwarded to
this Court was filed on March 5, 2021, and is facially untimely.
Appellant asserts, however, that the trial court “extended the period” to
file a notice of appeal, and that counsel filed the appeal within that extended
time period. See Appellant’s Reply to Rule to Show Cause, 6/4/21, at 1-2
(unpaginated). This argument fails. Indeed, it is well-settled that neither a
trial court nor this Court has the authority to extend the time for filing a notice
of appeal. See Pa.R.A.P. 105(b) (“An appellate court . . . may not enlarge the
time for filing a notice of appeal[.]”); Commonwealth v. Anwyll, 482 A.2d
656, 657 (Pa. Super. 1984) (“When an Act of Assembly fixes the time within
which an appeal may be taken, a court may not extend time for appeal.”).
Thus, the trial court’s purported “extension” orders were legal nullities.
Nevertheless, upon our review of the record and relevant case law, we
conclude that a “breakdown in the processes of the court” occurred when the
trial court clerk failed to forward Appellant’s timely-filed, pro se Petition for
Appeal of Conviction to this Court. See Commonwealth v. Patterson, 940
A.2d 493, 498 (Pa. Super. 2007) (general rule prohibiting appellate court from
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extending time for filing an appeal “does not affect the power of the courts to
grant relief in the case of fraud or breakdown in the processes of the court.”).
Although, generally, courts will not accept pro se filings by a defendant who
is represented by counsel, we have recognized an exception to this rule when
the pro se filing is a notice of appeal. This Court’s decision in Commonwealth
v. Williams, 151 A.3d 621 (Pa. Super. 2016), is instructive.
In that case, like here, the appellant filed a timely, counseled post-
sentence motion, which the trial court denied. Williams, 151 A.3d at 623.
Within the relevant 30-day period, the appellant filed a pro se notice of appeal.
Id. However, instead of forwarding it to this Court, the trial court forwarded
the notice of appeal to counsel. Id. Counsel then filed an untimely notice of
appeal. Id.
Despite the facial untimeliness of the appeal, the Williams panel
accepted the appeal as timely filed. The panel opined that, although hybrid
representation is generally not permitted,
Superior Court Internal Operating Procedure (“I.O.P.”) 65.24
addresses hybrid representation in the context of a notice of
appeal as follows:
Where a litigant is represented by an attorney before the
Court and the litigant submits for filing a petition, motion,
brief or other type of pleading in the matter, it shall not be
accepted for filing, but noted on the docket and forwarded
to counsel of record.
Exceptions:
1. A pro se notice of appeal received from the trial
court shall be docketed, even in instances where
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the pro se [appellant] was represented by
counsel in the trial court.
2. A motion by the pro se for appointment of new
counsel, for reasons such as abandonment by counsel,
or to proceed pro se shall be docketed and referred to
Central Legal Staff, or the merits panel if constituted,
for review and further action by the Court.
3. A pro se brief or writing filed in response to
counsel's petition to withdraw from representation.
210 Pa. Code § 65.24 (emphasis added). Thus, we must address
the difference between pro se filings, generally, that are “noted
on the docket” under Pa.R.Crim.P. 576(A)(4), as opposed to a
notice of appeal being “docketed” under I.O.P. 65.24.
* * *
Because a notice of appeal protects a constitutional right, it
is distinguishable from other filings that require counsel to provide
legal knowledge and strategy in creating a motion, petition, or
brief. We thus hold that this Court is required to docket a
pro se notice of appeal despite [the a]ppellant being
represented by counsel[.] Additionally, in the case at bar, [the
a]ppellant’s pro se notice of appeal was docketed in the trial court
but not forwarded to this Court pursuant to Pa.R.A.P. 902
(note).[5] We deem this a breakdown in the operation of the
courts. Therefore, we shall accept this appeal as timely.
Id. at 623-24 (some emphasis added and footnotes omitted).
The same is true here. Indeed, the trial court recognized that
Appellant’s pro se Petition for Appeal of Conviction — filed within 30-days of
the order denying his post-sentence motion — appeared to be a notice of
appeal. See Order, 11/24/20, at n.1. At that point, the trial court should
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5 The Note to Pa.R.A.P. 902 provides that, when an appellant files a notice of
appeal, “[t]he clerk of the trial court transmits one set of the filed papers to
the appellate prothonotary (with the requisite filing fee).” Pa.R.A.P. 902,
Note.
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have forwarded the document to this Court, which would have preserved
Appellant’s direct appeal rights. Thus, here, as in Williams, we conclude
there was a breakdown in the operation of the courts, and we will accept
Appellant’s appeal as timely filed. See Williams, 151 A.3d at 624.
Accordingly, we proceed to an examination of Appellant’s substantive claim
on appeal.
Appellant raises one issue for our review:
Whether the sum total of all the evidence adduced at trial, even
when viewed in a light most favorable to the Commonwealth as
verdict winner, was sufficient as a matter of law to convict
Appellant of two counts of aggravated assault?
Appellant’s Brief at 4.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
[We consider] whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable a 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
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 finder
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.
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Commonwealth v. Riggs, 63 A.3d 780, 784 (Pa. Super. 2012) (citation
omitted).
In order to secure a conviction for aggravated assault, the
Commonwealth must prove, inter alia, the defendant
attempt[ed] to cause serious bodily injury to another, or cause[d]
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life[.]
18 Pa.C.S. § 2702(a)(1). The Crimes Code defines “serious bodily injury” as
“[b]odily 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. When a victim
suffers serious bodily injury, the Commonwealth is not required to prove the
defendant acted with the specific intent to cause that injury. See
Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997). Rather,
as noted above,
[t]he Commonwealth need only prove [the defendant] acted
recklessly under circumstances manifesting an extreme
indifference to the value of human life. For the degree of
recklessness contained in the aggravated assault statute to occur,
the offensive act must be performed under circumstances
which almost assure that injury or death will ensue.
Id. (citations and quotation marks omitted; emphasis added). See also
Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995) (explaining that
under the aggravated assault statute, “[t]he recklessness must . . . be such
that life threatening injury is essentially certain to occur[; t]his state of mind
is, accordingly, equivalent to that which seeks to cause injury”).
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Here, Appellant contends that the evidence was insufficient to prove he
intended to cause serious bodily injury to Walker and Dennis. Appellant’s Brief
at 11. He asserts that there was no testimony he threatened either one of
the victims or had to be restrained from harming them. Id. at 11-12. Instead,
Appellant maintains he permitted Walker and Dennis to stay in his home, and
“only asked Walker to leave when he began to become aggressive and rude.”
Id. at 11. Appellant insists that it was “[o]nly after Walker . . . refused to
leave and rushed . . . Appellant [that Walker was struck] with paint stripper.”
Id. He also emphasizes that after the victims “came in contact with the paint
stripper, [he] attempted to get them into the shower to wash off the
chemical.” Id. at 12 (record citation omitted). Thus, Appellant insists “the
Commonwealth failed to prove that [he] acted with the required mens rea to
support a conviction of aggravated assault[.]” Id.
In the present case, the jury found that both Walker and Dennis
sustained “serious bodily injury.” See Verdict, 8/18/20, at 1 (unpaginated).
Appellant does not dispute that finding on appeal. Thus, to the extent his
argument focuses on his intent – or lack thereof — to injure the victims, it is
misplaced. Indeed, when serious bodily injury occurs, “[t]he Commonwealth
need only prove [Appellant] acted recklessly under circumstances manifesting
an extreme indifference to the value of human life.” Nichols, 692 A.2d at
185. Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we conclude there was sufficient evidence for the jury to
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find Appellant intentionally, knowingly or recklessly caused serious bodily
injury to Walker and Dennis. See Riggs, 63 A.3d at 784.
Here, Appellant focuses on his own testimony that the liquid was
splashed on the victims as a result of an accident — according to Appellant, it
was only after Walker “rushed” him that Walker was “struck with paint
stripper[,]” and immediately thereafter, Appellant attempted to get both
Walker and Dennis in the shower to “wash off the chemical.” See Appellant’s
Brief at 11-12; N.T., 8/18/20, at 82-84. However, as the trial court opines,
“the testimony and evidence concerning the location of the chemical burns on
both victims supported the finding that, contrary to Appellant’s testimony, the
chemical burns resulted from Appellant throwing the mug at them.” Trial Ct.
Op. at 10.
Indeed, Walker testified that he and Dennis were walking down the
stairs leaving the apartment when Appellant “threw” the liquid on them. N.T.,
8/18/20, at 18-19. Dennis confirmed that Appellant was holding the cup in
his hand, and told Dennis — who was in between the two men — to “move
out of the way.” N.T., 8/17/20, at 112, 117. Dennis did not see Walker touch
Appellant. Id. at 117. Moreover, Appellant’s own testimony confirmed that
he knew the liquid in the mug was paint stripper, and in particular was “really
strong stuff,” because it was “the most abrasive one [he] could find for
removing all kinds of paint.” N.T., 8/18/20, at 81. Finally, the jury observed
the location of chemical burns on the neck, arm and back of both victims. See
N.T., 8/17/20, at 71, 74-76 (Trooper Kiskeravage testifying regarding the
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location of the burns, and displaying photographs to the jury); 122 (Dennis
showing the jury the scar on her arm); N.T., 8/18/20, at 23-24 (Walker
showing jury the scars on his chest and back). As the sole determiner of
credibility, the jury was free to believe Walker’s testimony that Appellant
threw the liquid at the victims, and reject Appellant’s claim that the spill was
accidental. See Riggs, 63 A.3d at 784.
Furthermore, to the extent Appellant argues he did not intend to harm
Dennis, we conclude the evidence was sufficient for the jury to find Appellant
acted recklessly. The testimony at trial established that Appellant knew when
he was about to throw “abrasive” paint thinner at Walker, Dennis was in the
crosshairs because he told Dennis to “move out of the way.” N.T., 8/17/20,
at 112. Although Dennis did not move, Appellant still threw the paint thinner
at Walker. Based upon this testimony, the jury could determine that Appellant
“could [have] reasonably anticipate[d] that serious bodily injury [to Dennis]
would be the likely and logical consequence of his actions.” O’Hanlon, 653
A.2d at 618. Thus, we conclude Appellant is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2022
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