Com. v. Worthington, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES W. WORTHINGTON
Appellant No. 685 EDA 2015
Appeal from the Judgment of Sentence March 2, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004535-2014
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED MARCH 11, 2016
James W. Worthington appeals from the judgment of sentence
imposed on March 2, 2015, in the Court of Common Pleas of Bucks County
following a bench trial before the Honorable Albert J. Cepparulo, Jr.
Worthington was found guilty of aggravated assault and recklessly
endangering another person1 and received an aggregate sentence of 36 to
72 months’ incarceration followed by 7 years of probation. In this timely
appeal, Worthington claims the verdict was against both the weight and
sufficiency of the evidence in that the Commonwealth failed to prove the
mens rea to commit aggravated assault, and that his sentence was
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702(a)(1) and 2705, respectively.
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improperly based upon the ill-will and prejudice of the trial court. After a
thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm.
The trial court has provided an exhaustive, 12-page recitation of the
facts underlying this matter. See Trial Court Opinion, 6/4/2015, at 1-12.
We rely upon those facts in rendering our decision. For ease of reference,
we summarize the facts, thusly:
On St. Patrick’s Day, March 17, 2014 and into the early morning hours
of March 18, 2014, the victim, Anthony McGeehan, and Worthington were
drinking at the Green Parrot, a bar in Newtown Township, Bucks County,
Pennsylvania. Although the two men had mutual acquaintances, who were
also at the bar, they were unknown to each other and were not drinking
together; they simply happened to be at the same bar at the same time.
As McGeehan and his party left the bar for the night, one of the
women who was in the McGeehan party was outside the bar talking with
Worthington. McGeehan went over to the pair and, for reasons unexplained,
a shouting match ensued between McGeehan and Worthington. Worthington
then tackled McGeehan in the parking lot, between two cars. Worthington, a
professional physical trainer who was taller, heavier than McGeehan, as well
as being a trained fighter, bit McGeehan on the throat and then on the right
ear. While biting the ear, he pulled with his teeth, tearing the outer aspect
of McGeehan’s ear from his head. Bystanders then pulled Worthington off
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McGeehan. McGeehan attempted to get to Worthington, but Worthington
ran away, spitting the ear into the parking lot, some distance from the scene
of the fight.
Our standard of review for challenges to the sufficiency and weight of
the evidence are well settled:
Our standard of review for a challenge to the sufficiency of the
evidence is de novo, but our scope of review is limited to
considering the evidence of record, and all reasonable inferences
arising therefrom, viewed in the light most favorable to the
Commonwealth as the verdict winner. Commonwealth v.
Rushing, 627 Pa. 59, 99 A.3d 416, 420-21 (2014). Evidence is
sufficient if it can support every element of the crime charged
beyond a reasonable doubt. Commonwealth v. Forrey, 108
A.3d 895, 897 (Pa. Super. 2015); Commonwealth v.
Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). The trier of
fact, while passing upon the credibility of witnesses and the
weight of the proof, is free to believe all, part, or none of the
evidence. Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d
1203, 1211 (2003).
Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015).
Additionally, we note,
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial
should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Widmer, 560 Pa. at 319-320,
74 A.2d at 752. Rather, “the role of the trial judge is to
determine that ‘notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.’ ” Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
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“a new trial should be awarded when the jury's verdict is so
contrary to the evidence as to shock one's sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Brown, 538 Pa. at 435, 648
A.2d at 1189.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Brown, 648 A.2d at 1189. Because the trial judge has had
the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court's determination that the verdict is
against the weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
of the least assailable reasons for granting or denying a
new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that
a new trial should be granted in the interest of justice.
Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
With these standards in mind, we examine Worthington’s claims that
the Commonwealth failed to demonstrate he possessed the mens rea to
have committed aggravated assault. Because his claims regarding the
weight and sufficiency of the evidence are linked, we will address the claims
together.
In relevant part, the statutory definition of aggravated assault is as
follows:
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(a) Offense defined.--A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life;
18 Pa.C.S. § 2702(a)(1).
Serious bodily injury is statutorily defined as:
Bodily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement or protracted loss or
impairment of any bodily member or organ.
18 Pa.C.S. § 2602.2 Additionally,
When a victim actually sustains serious bodily injury, the
Commonwealth can, but does not necessarily have to, establish
specific intent to cause such harm.
Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010).3
The intent to cause serious bodily injury-the only element of
aggravated assault at issue here-may be proven by direct or
circumstantial evidence. Where one does not verbalize the
reasons for his actions, we are forced to look to the act itself to
glean the intentions of the actor. Where the intention of the
actor is obvious from the act itself, the finder of fact is justified
in assigning the intention that is suggested by the conduct.
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2
Here, there is no challenge to the fact that McGeehan suffered serious
bodily injury when approximately one-half of his right ear was torn from his
head. See Appellant’s Brief at 4.
3
The Commonwealth may also prove the defendant acted recklessly under
circumstances manifesting extreme indifference to human life. The
Commonwealth has not argued this standard.
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Commonwealth v. Hall, 830 A.2d 537 (Pa. 2003).
Although Worthington presently claims, and testified at trial, that his
action in biting McGeehan was taken in self-defense and was additionally the
product of the heat of battle, the trial court rejected those claims, finding
Worthington’s version of the events at issue incredible. See Trial Court
Opinion, 6/4/2015 at 19. Rather, the trial court credited the
Commonwealth’s version of the events, with Worthington knowingly
engaging in a fight with McGeehan, escalating the situation by tackling
McGeehan to the ground and straddling him, and then biting him first on the
neck and then on the ear. While biting his ear, the evidence demonstrated
he not only bit down, but he tore at the ear, removing a large portion of it.
The trial court also found that Worthington’s flight from the scene and
admission to at least two other people he had bitten someone’s ear off in a
fight, as evidence of intent. We further note that the evidence demonstrated
Worthington was larger than McGeehan, was formally trained in various
forms of combat, and had to be forcibly pulled from McGeehan to stop the
attack.4
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4
To counter these observations, Worthington argues in his brief the effects
of alcohol on McGeehan: “As part of the failure to factor in alcohol the court
below fails to perceive that alcohol is in many way a great leveler, sapping
the skill of the able and emboldening someone such as McGeehan who
professed not to be a fighter. Who among us has not experienced the
alcohol fueled rage and uncommon strength it gives to someone who is
(Footnote Continued Next Page)
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In light of our standard of review, we find no error in the trial court
inferring the requisite mens rea to Worthington based upon this
circumstantial evidence.
In much the same vein, we find no abuse of discretion in the trial
court’s refusal to grant Worthington relief on his challenge to the weight of
the evidence. The trial court found inconsistencies in the testimony of the
witnesses presented by both defense and the Commonwealth, but
determined the specific facts used to find intent were amply supported from
multiple witnesses. See Trial Court Opinion at 19-20; Commonwealth v.
Robinson, 128 A.3d at 264. Accordingly, the verdict did not shock the trial
court’s sense of justice. See Commonwealth v. Clay, 64 A.3d at 1054-55.
Finally, Worthington claims he is entitled to resentencing because the
trial court demonstrated prejudice against him. Specifically, he contends the
trial court showed class prejudice by implying Worthington was a child of
wealth, and further demonstrated prejudice by questioning Worthington’s
mother about prior biting incidents even though none of the alleged
incidents resulted in arrest or prosecution.
The Commonwealth claims this is a challenge to the discretionary
aspect of Worthington’s sentence and Worthington failed to include the
_______________________
(Footnote Continued)
under the influence.” Appellant’s Brief at 32-33. We need not comment on
this argument.
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mandatory Pa.R.A.P. 2119(f) statement, thereby waiving the claim.
Worthington, on the other hand, claims his challenge is one of fundamental
fairness and due process and is not a challenge to the discretionary aspect of
his sentence, therefore no Rule 2119(f) statement was required. Neither the
Commonwealth nor Worthington have provided case law directly on point.
We believe the claim is the functional equivalent of a claim of vindictive
sentencing.
[A] claim of vindictiveness is a waivable challenge to the
discretionary aspects of the sentence. Appellant failed to include
this claim within his Rule 2119(f) statement. The Commonwealth
has objected. Thus, we hold that this issue is waived.
Tuladziecki; Goggins; Roser.[5]
Commonwealth v. Robinson, 931 A.2d 15, 22 (Pa. Super. 2007) (en
banc).
Accordingly, we agree with the Commonwealth that the claim is
waived. However, in an abundance of caution, we will also address the
substance of the claim to resolve the issue in the alternative.
Our review of the certified record leads us to conclude this allegation is
frivolous, at best. In its Pa.R.A.P. 1925(a) opinion, the trial judge explains
that rather than demonstrating prejudice or ill will, he was properly
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5
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987);
Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc);
and Commonweqlth v. Roser, 914 A.2d 447 (Pa. Super. 2006).
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considering Worthington’s entire background and circumstances. We quote
the Honorable Albert J. Cepparulo, Jr.:
In this case, [Worthington] claims that this court committed
error and evidenced bias by doing what is required of us by law
– considering [Worthington’s] background, which undoubtedly
includes his financial situation, familial support and previous
potential to receive treatment and become a successful member
of this society before such a violent criminal incident were to
occur. In fact, [Worthington’s] pre-sentence investigation report
is replete with instances in which [Worthington] reacted to
previous situations with anger, violence and force. It was
revealed that on at least three (3) prior occasions [Worthington]
bit another individual, breaking the skin and causing bleeding.
Although the majority of these occurrences did not result in
formal charges, we did take into consideration [Worthington’s]
background of fighting and violent behavior. However, it is
significant to note that this factor was just one among many
which we carefully considered in imposing [Worthington’s]
sentence.
***
Based on the foregoing, [Worthington’s] claims are without
merit, as [Worthington’s] familial support and financial situation
was just one factor among many considered by this court and,
parenthetically, we brought up [Worthington’s] resources only to
show that it was part of a pattern begun as a juvenile that when
[Worthington] did something unlawful his family backed him with
whatever was needed to avoid the long arm of the law and we
believed that this, in part, contributed to [Worthington’s]
increasing level of violence – he thought he could do so with
impunity. We did not base our sentence on any bias or solely on
the charge for which [Worthington] was convicted and, on the
contrary, we carefully considered all proper sentencing factors in
imposing sentence in this complex case.
Trail Court Opinion, 6/5/2015 at 23-24.
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We have carefully reviewed the notes of testimony from the
sentencing hearing of December 30, 2014 and the reconsideration hearing of
March 2, 2015. The original hearing of December 30, 2014 covers 139
pages of testimony and is one of the most complete sentencing hearings we
have reviewed. That hearing included multiple witnesses speaking on
Worthington’s behalf. Our review of the entire sentencing procedure leads
to the conclusion that the trial court conducted a fair, unbiased, non-
prejudiced hearing, and issued Worthington’s sentence based upon a
thorough and proper consideration of the facts and circumstances particular
to Worthington’s case. Accordingly, Worthington is not entitled to relief on
this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2016
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