Com. v. Cottle, J.

J-S49008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES COTTLE
Appellant No. 3475 EDA 2015
Appeal from the Judgment of Sentence October 21, 2015
In the Court of Common Pleas of Delaware County
Criminal Division, at No(s): CP-23-CR-0006306-2014
BEFORE: PANELLA, J., and OLSON, J., STEVENS, P.J.E.,*
MEMORANDUM BY PANELLA, J. FILED AUGUST 04, 2016
James Cottle (“Appellant”) appeals from the judgment of sentence
imposed after he was convicted of aggravated assault.1 We affirm.
The trial court summarized the pertinent facts as follows.
On July 23, 2014, the victim, Joseph Hans, took the
Market-Frankford Line SEPTA bus home from work. Mr. Hans
worked a night shift. He was sitting in the front of the bus at
about 4:30 a.m. when he heard some “commotion” coming from
the back of the bus. See N.T. 8/14/15 [at] 6-18. [Appellant] was
in the rear of the bus arguing with two women. The argument
went on for about ten minutes and during its course [Appellant]
used profanity and threatened to punch the women. See id. at
8-15. Mr. Hans spoke to a fellow passenger at the front of the
bus and said, “He ain’t going to hit a lady. . . I’ll knock him
out.[”] Id. at 11, 27. [Appellant] told Mr. Hans that he had
heard him and asked him where he “got off” the bus. Mr. Hans
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1
18 Pa.C.S.A. § 2702(a).
*Former Justice specially assigned to the Superior Court.
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replied, “69th Street” and [Appellant] said, “I got you.” Id. at 11-
12. The conversation took about ten seconds. Mr. Hans did not
engage in further conversation with [Appellant] and he never
threatened him. [Appellant] returned to harassing the women.
The women left the bus at 52nd Street. The bus continued
on to the 69th Street Terminal and Mr. Hans rose from his seat to
exit. He carried a cup of coffee in his left hand and headed
toward the rear of the bus to exit. Id. at 19-21. [Appellant] was
still in his seat. After alighting, Mr. Hans walked toward the front
of the bus. [Appellant] rose from his seat and followed Mr. Hans
off the bus. He continued to follow him on the sidewalk and then
came up behind Mr. Hans and “sucker punched” him from the
rear. [Appellant] struck Mr. Hans’s jaw and knocked him
unconscious. Id. at 20-25. Mr. Hans never saw [Appellant]
coming. He went down, hitting his head on the curb and “split
[his] skull wide open.” See id. at 20-23. The assault was
captured on video tape. It was viewed by the trial court and
admitted into evidence at trial. Exhibit C-1. After Mr. Han[s] fell
to the pavement unconscious, [Appellant] ran. He was arrested
eight days later after he was identified in a photo array. N.T.
8/20/15 [at] 7.
Mr. Hans suffered serious bodily injury. Detective Edward
Silverstein responded to the scene but found only a pool of blood
and Mr. Hans’s possessions because Mr. Hans had been
transported to the University of Pennsylvania Hospital Trauma
Center. [Id. at] 4-5. Eighteen hours later he woke up with
thirty-two staples in his head, a concussion and fractures
through his jaw line. N.T. 8/14/15 [at] 23. He suffered from
Vertigo, was out of work for two weeks[,] and thirteen months
later, at the time of trial, he was still experiencing residual
headaches. Id. at 23-26.
[Appellant] testified at trial. He stated that during their
brief interaction on the bus Mr. Hans told him that he “was going
to get laid the ‘f’ out if he hit [the women].” N.T. 8/20/15 [at]
17. He claimed that Mr. Hans gave him a “dirty look” as Hans
left the bus and that he felt threatened. On cross-examination
[Appellant] admitted that he prepared for a fight. He took his
jacket off before he left the bus and as Mr. Hans walked away
from the bus and away from [Appellant] he chased him down.
Mr. Hans never turned around and never threatened or
confronted [Appellant]. Id. at 17-24.
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Trial Court Opinion, 12/15/15, at 4-5.
At the conclusion of a bench trial, the trial court, in rendering its guilty
verdict, credited the testimony of Mr. Hans, while finding Appellant’s
testimony “totally incredible.” N.T., 8/20/15, at 36. The court further
expressed its belief that Appellant not only intended to assault Mr. Hans, but
that it was a premeditated attack. The trial court stated:
This is something that didn’t arise out of the course of a - – the
heat of an instance. This was premeditated. [Appellant] had
sufficient time to understand what was about to take place.
What the video shows and what the victim testified are one and
the same; that he [the victim] was leaving the bus and he has a
cup of coffee or some type of liquid. He’s obviously not expecting
to have a fight in this particular instance. [Appellant] comes up
behind him and it’s a sucker punch clearly. It’s thrown with
enough force to not only knock [Mr. Hans] off his feet [but also
to] break his jaw when he’s thrown to the ground. This could
have easily resulted in a murder case if he had struck his head in
a different fashion. [Mr. Hans] did in fact sustain serious bodily
injury in this particular case.
Id. at 36-37.
The trial court sentenced Appellant to a term of four to eight years of
imprisonment, and a consecutive three-year probationary term. This timely
appeal follows.
Appellant raises the following issue: “Did the [t]rial [c]ourt err in
convicting [Appellant] of the offense of Aggravated Assault because the
Commonwealth failed to prove beyond a reasonable doubt that he possessed
the requisite intent at the time of the encounter?” Appellant’s Brief at 5.
Our standard of review is well settled.
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The standard we apply in reviewing the sufficiency of the
evidence is whether[,] viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the 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.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
A person is guilty of aggravated assault if he “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.A. § 2702(a)(1).
Serious bodily injury is defined as bodily 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 organ.”
18 Pa.C.S.A. § 2301.
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When, as here, a victim suffers serious bodily injury, the
Commonwealth is not required to prove specific intent. See
Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en
banc). Instead, the Commonwealth need only prove that the defendant
acted with malice, which is defined as acting recklessly under circumstances
manifesting an extreme indifference to the value of human life. See id. To
rise to the level of malice, an offensive act must be performed under
circumstances that “almost assure that injury or death will ensue.”
Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995).
Here, in rejecting Appellant’s sufficiency challenge, the trial court
likened the facts before it to a more recent en banc decision from this Court,
and similarly concluded that Appellant’s actions in this case demonstrated
malice.
In Commonwealth v. Burton, 2 A.3d 598 (Pa. Super.
2010) [(en banc)] the Superior Court considered “whether the
delivery of a single punch is sufficient to sustain a conviction for
aggravated assault.[”] Id. at 601. As in this case, the victim in
Burton suffered serious bodily injury. The Superior Court looked
to the surrounding circumstances to determine whether
“[Burton] intentionally or knowingly caused [serious bodily
harm] or if he proceeded in such a manner that manifested an
extreme indifference to the value of [the victim’s] life. Id. at
603. The surrounding circumstances included a disparity in
weight between [Burton] and the victim, [Burton’s] celebratory
behavior after the fact while the victim lay unconscious, the fact
that [Burton] prepared to fight and hit the victim when the
victim had his hands behind his back and was unprepared for the
blow. Similarly, in this case [Appellant] delivered a blow to the
head, a vital body part, with such force that he fractured Mr.
Hans’s jaw and knocked him to the ground, splitting his head
open. The blow was unprovoked and unexpected. Mr. Hans was
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walking away from [Appellant] holding a cup of coffee in his
hand. He was in a vulnerable position and defenseless under the
circumstances. [Appellant’s] behavior leading up to the assault
demonstrated his intent to engage in a fight and the means he
employed, a “sucker punch” to the head from behind[,]
manifested an extreme indifference to the value of Mr. Hans’s
life. Afterward, when Mr. Hans lay bleeding and unconscious on
the pavement, [Appellant] ran. See also Commonwealth v.
Patrick, 933 A.2d 1043 (Pa. Super 2007) (reckless indifference
to human life was substantiated where defendant caused serious
bodily injury with a single punch to the side of the unsuspecting
victim’s head, causing the victim to fall “without reflexive
protection”); Commonwealth v. Bruce, [916 A.2d 657 (Pa.
Super. 2007) (the manner of the attack may reflect intent to
inflict serious bodily harm[)].
Trial Court Opinion, 12/15/15, at 6-7. Our review of the record amply
supports the trial court’s conclusion that the Commonwealth presented
sufficient evidence to convict Appellant of aggravated assault.
Appellant’s claims to the contrary are unavailing. Initially, we note
that, in making his arguments, Appellant does not acknowledge this Court’s
holdings in Burton and Patrick. Instead, he cites to two significantly older
cases, neither of which involved the “single punch” scenario. See Appellant’s
Brief at 13-14 (citing Commonwealth v. Magnelli, 502 A.2d 241 (Pa.
Super. 1985), and Commonwealth v. Rockwell, 340 A.2d 553 (Pa. Super.
1975)). Both cases are plainly inapposite.
Appellant also refers to his trial testimony that he believed he was
about to be attacked. Although he acknowledges that the trial court found
this testimony unworthy of belief, he refers to subsequent testimony and
medical evaluations regarding his mental health presented at the time of
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sentencing to challenge the trial court’s credibility determination. According
to Appellant, the trial court’s finding as to his credibility “leaves unaddressed
his medical history and psychological assessment which lend credence to his
[trial] testimony and cast grave doubt that he could have possessed the
requisite intent to commit the crime of Aggravated Assault.” Appellant’s Brief
at 15.
Appellant cites no case law that permits the trial court to disturb its
credibility determinations based up on trial testimony with information
gained subsequent to Appellant’s convictions. Thus, we do not consider this
claim further. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super.
2007) (holding that undeveloped claims will not be considered on appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2016
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