In the Interest of: C.C.M., a Minor

J-S04007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.C.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.C.M. :
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:
: No. 1449 MDA 2017
Appeal from the Dispositional Order Entered August 17, 2017
In the Court of Common Pleas of Clinton County Juvenile Division at No(s):
CP-18-JV-0000073-2016
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 01, 2018
Appellant, C.C.M., a minor, appeals from the dispositional order
entered after he was adjudicated delinquent on charges of aggravated
assault and resisting arrest.1 We affirm.
The juvenile court summarized the factual history of this case as
follows:
Trooper [Andrew] Mincer[, of the Pennsylvania State Police
Department,] testified that on November 26, 2016 at 12:00
Noon he was requested by Chief David Winkleman of the Pine
Creek Police Department to act as Drug Recognition Expert
concerning the arrest of [Appellant] for Driving Under the
Influence of a Controlled Substance. Trooper Mincer testified
that Chief Winkleman transported [Appellant] to the
Pennsylvania State Police Barracks and arrived at approximately
12:15 P.M. Trooper Mincer testified that [Appellant] threatened
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1 18 Pa.C.S. §§ 2702(a)(3) and 5104, respectively.
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to kill Chief Winkleman and referred to him as “Winklenuts.”
Trooper Mincer indicated that Trooper Mincer determined that
[Appellant] was under the influence of a controlled substance
and informed Chief Winkleman of that after doing a drug
influence evaluation. Trooper Mincer indicated that the next step
was to take [Appellant] for a blood draw. At this point and time
[Appellant] pushed Trooper Mincer, pulled away and attempted
to strike Trooper Mincer by pulling back his arm with a closed fist
and moving his arm forward. Trooper Mincer took [Appellant] to
the ground. [Appellant] told Trooper Mincer “fuck you and leave
me alone.” [Appellant] was placed in handcuffs and Trooper
Mincer was assisted by another Trooper who happened to be in
the Barracks. [Appellant] then spit blood and [saliva] into
Trooper Mincer’s face and eyes and indicated to Trooper Mincer
that [Appellant] hoped that Trooper Mincer liked herpes and
referred to Trooper Mincer as a fat fuck. Once placed in
handcuffs, [Appellant] was taken to the Lock Haven Hospital for
a blood draw. Trooper Mincer did not receive any injury, but
indicated that [Appellant] had pulled back with a fist and was
attempting to strike Trooper Mincer, but Trooper Mincer prior to
being struck by [Appellant] took [Appellant] to the floor of the
State Police Barracks. Trooper Mincer indicated that
[Appellant’s] shoulder and head area struck the floor and that
when [Appellant] was brought to [his] feet that [Appellant] had
a bloody lip and then spit on Trooper Mincer’s face at which point
the blood and [saliva] entered Trooper Mincer’s eyes.
Juvenile Court Opinion, 10/4/17, at 2-3.
In connection with the incident that occurred on November 26, 2016,
written allegations were filed alleging that Appellant had committed the
crimes of aggravated assault and resisting arrest. Adjudication hearings
were held on April 3, 2017, and June 28, 2017. At the conclusion of the
June 28, 2017 hearing, Appellant was adjudicated delinquent on all
allegations. The juvenile court conducted a disposition hearing on August
17, 2017. After receiving a Juvenile Social History, the juvenile court placed
Appellant on supervision with the Clinton County Juvenile Probation Office
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and directed Appellant to complete 150 hours of community service. This
appeal followed. Both Appellant and the juvenile court have complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the evidence was sufficient to prove beyond a
reasonable doubt that Appellant committed the offense of
Aggravated Assault upon Trooper Mincer? Specifically, whether
there was sufficient evidence to establish beyond a reasonable
doubt that Trooper Mincer suffered bodily injury as defined in the
crimes code?
2 Whether the evidence was sufficient to prove beyond a
reasonable doubt that Appellant committed the offense of
Aggravated Assault upon Trooper Mincer? Specifically, whether
there was sufficient evidence to establish beyond a reasonable
doubt that Appellant attempted to cause bodily injury to Trooper
Mincer as that term is defined by the Crimes Code?
a. Whether there was sufficient evidence to establish
beyond a reasonable doubt that it was Appellant’s
specific intent to cause bodily injury to Trooper
Mincer?
b. Whether the evidence was sufficient to establish
beyond a reasonable doubt that Appellant took a
substantial step to cause bodily injury to Trooper
Mincer?
Appellant’s Brief at 8-9.2
Appellant argues that the evidence was insufficient to support an
adjudication of delinquency on the charge of aggravated assault. Appellant’s
Brief at 16-21. Specifically, Appellant contends that the Commonwealth
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2 In his appellate brief, Appellant presents both of his issues in a single
argument. Accordingly, we will address his argument with a single analysis.
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failed to prove that Trooper Mincer actually suffered a bodily injury, and the
Commonwealth failed to prove that Appellant attempted to cause bodily
injury to the officer.
We begin our review with the following standard in mind:
In evaluating a challenge to the sufficiency of the
evidence, we must determine whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner,
together with all reasonable inferences therefrom, the trier of
fact could have found that each and every element of the crimes
charged was established beyond a reasonable doubt. In making
this determination, we must evaluate the entire trial record and
consider all the evidence actually received. It is within the
province of the fact finder to determine the weight to be
accorded each witness’s testimony and to believe all, part, or
none of the evidence introduced at trial.
In the Interest of J.C., 751 A.2d 1178, 1180 (Pa. Super. 2000).
Moreover, the Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by wholly circumstantial
evidence. In the Interest of J.D., 798 A.2d 210, 212 (Pa. Super. 2002).
Aggravated assault of a police officer is defined as “attempt[ing] to
cause or intentionally or knowingly caus[ing] bodily injury to any of the
officers, agents, employees or other persons enumerated in subsection (c),
in the performance of duty.” 18 Pa.C.S. § 2702(a)(3). Under subsection (c)
of section 2702, police officers are enumerated. 18 Pa.C.S. § 2702(c)(1).
To establish that a perpetrator committed aggravated assault under
section 2702(a)(3), the Commonwealth has no obligation to establish that
the officer actually suffered a bodily injury; rather, the Commonwealth must
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establish only an attempt to inflict bodily injury. Commonwealth v. Marti,
779 A.2d 1177 (Pa. Super. 2001) (emphasis omitted). This intent may be
shown by circumstances which reasonably suggest that a defendant
intended to cause injury. Id.; see also Commonwealth v. Galindes, 786
A.2d 1004, 1012 (Pa. Super. 2001) (“An attempt exists when the accused
intentionally acts in a manner which constitutes a substantial or significant
step toward perpetrating . . . bodily injury upon another.”).
The juvenile court addressed Appellant’s challenge to the sufficiency of
the evidence as follows:
[Appellant] simply argues that there was insufficient
evidence to establish beyond a reasonable doubt that [Appellant]
committed the offense of Aggravated Assault upon Trooper
Mincer. [Appellant] was charged with committing Aggravated
Assault by an attempt to cause bodily injury on a police officer
by resisting arrest, attempting to strike and spitting blood and
[saliva] into the face of Trooper Mincer. The Commonwealth
does not allege that Trooper Mincer suffered bodily injury, only
that there was an attempt made by [Appellant].
In Commonwealth vs. Fortune, 68 A.3d 980 (Pa. Super.
2013) appeal denied, 621 Pa. 701, 78 A.3d 1089, the Superior
Court found that where an accused possessed the required
specific intent, acts in a manner which constitutes a substantial
step towards perpetrating a serious bodily injury upon another
that this was sufficient to find that an attempt to commit
aggravated assault has occurred. The Superior Court further
indicated that an intent ordinarily must be proven through
circumstantial evidence and inferred acts, conduct or attendant
circumstances. In this case, [Appellant] had threatened to harm
Chief Winkleman, another Law Enforcement Officer who had
arrested [Appellant] for Driving Under the Influence of a
Controlled Substance and after pushing Trooper Mincer, pulled
his arm back with a closed fist and attempted to strike the
Trooper, who then took evasive actions to halt such injury to the
Trooper. As noted, [Appellant] has only been charged with
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Attempting to Cause Bodily Injury to the Trooper. Bodily injury is
defined as impairment of physical condition or substantial pain.
See 18 Pa.C.S.A. § 2301. Clearly, [Appellant] who had
threatened to kill a Law Enforcement Officer in the presence of
Trooper Mincer, attempted to strike Trooper Mincer with a closed
fist to his face, spit in Trooper Mincer’s face with blood and
[saliva] hoping that Trooper Mincer contracted an infectious
disease, all indicate that [Appellant] had a specific intent to
cause impairment of physical condition or substantial pain to
Trooper Mincer.
Juvenile Court Opinion, 10/4/17, at 3-4.
It was within the hearing judge’s province to find that Appellant, by
pulling his fist back and then spitting blood and saliva into the state
trooper’s face and eyes, intended to cause injury to Trooper Mincer. Trooper
Mincer testified that Appellant pulled his fist back, which the trooper believed
was an attempt by Appellant to strike him. N.T., 4/3/17, at 49-50. Trooper
Mincer further stated that Appellant had assumed a threatening posture. Id.
at 51. After Trooper Mincer handcuffed Appellant, Appellant responded by
spitting blood and saliva into the trooper’s face and eyes. Trooper Mincer
testified that when Appellant spit at him, “the saliva and blood went all
through my face and into my eyes.” Id. at 40. He further explained that
Appellant’s “comment at that point was something to the effect of, I hope
you like herpes you fat fuck.” Id. This statement made by Appellant at the
time of his actions further establishes that Appellant was attempting to inflict
bodily injury.
Based on the foregoing evidence, we are satisfied that the hearing
judge properly determined the Commonwealth established beyond a
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reasonable doubt the element of attempt to cause bodily injury, which was
necessary for the adjudication of delinquency for the offense of aggravated
assault. Accordingly, we conclude that the evidence was sufficient to sustain
Appellant’s adjudication of delinquency and that Appellant’s contrary claim
lacks merit.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
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