Com. v. Mallory, D.

J-S37028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESHAWN MALLORY, :
:
Appellant. : No. 2189 EDA 2017
Appeal from the Judgment of Sentence, June 30, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005945-2016.
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 21, 2019
Deshawn Mallory appeals from the judgment of sentence imposed after
the trial court convicted him of simple assault.1 We affirm.
The trial court summarized the facts as follows:
The incident in this case took place on May 15, 2016 when two (2)
police officers were radio dispatched to [Mallory’s] property. Upon
arrival to the property the officer testified that there was an active
argument going on inside the residence between [Mallory] and
[the complainant] that was escalating and may become
dangerous. The officers knocked on the door repeatedly and
loudly for a period of three (3) minutes stating they were the
police and needed to enter the premise[s]. As the argument
escalated[, Mallory’s] voice got louder and angrier[. W]hen
[Mallory] finally answered the door[, he,] in a very aggressive
manner . . . stated, “What?” Due to the distress of the
[complainant’s] voice during the time of the argument, the officers
entered the property to diffuse the situation. The officers created
distance between [Mallory] and the [complainant,] and she
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1 18 Pa.C.S.A. § 2701(a)(1).
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attempted to exit the property. As the [complainant] exited the
property[, Mallory] closed the distance between himself and the
complainant and struck her in the face with an open palm.
[Mallory] was taken into custody for the safety of the complainant
and made an attempt to run, but was blocked by one of the
officers from doing so.
Trial Court Opinion, 10/9/18, at 2 (citations to the record omitted).
Mallory was arrested and charged with simple assault and other crimes.2
The case of simple assault proceeded to a non-jury trial, and the trial court
convicted Mallory of that offense. On June 30, 2017, the trial court sentenced
Mallory to a period of two years of reporting probation, and required Mallory
to complete an anger management class. On July 7, 2017, Mallory filed a
timely notice of appeal. Both Mallory and the trial court complied with
Pa.R.A.P. 1925.
Mallory raises one issue on appeal: “[Whether] the evidence [was]
insufficient to support [Mallory’s] conviction on the charge of simple assault
where no actual bodily injury occurred, nor was any evidence of an attempt
to cause bodily injury advanced?” Mallory’s Brief at 4.
When analyzing whether the evidence was sufficient to support a
conviction, this Court must consider “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, 99
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2 A Philadelphia municipal court judge granted a motion for judgment of
acquittal on the charges of terroristic threats and recklessly endangering
another person after the Commonwealth’s case-in-chief. After Mallory’s
testimony and the arguments of counsel, the judge acquitted Mallory of
resisting arrest and unlawful restraint.
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A.3d 416, 420–21 (Pa. 2014). “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.” Commonwealth v. Brown, 52
A.3d 320, 323 (Pa. Super. 2012). Additionally, this Court cannot “re-weigh
the evidence and substitute our judgment for that of the fact-finder.” Id.
“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. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003).
The Commonwealth may satisfy its burden “by means of wholly
circumstantial evidence.” Id. Because a challenge to the sufficiency of the
evidence presents a pure question of law, our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d
1065, 1076 (Pa. 2017).
Under Pennsylvania law, “a person is guilty of assault if he attempts to
cause or intentionally, knowingly or recklessly causes bodily injury to
another.” 18 Pa.C.S.A. § 2701(a)(1). “Bodily injury” is defined as
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.
Even when no injury occurs, the Commonwealth may also establish a violation
of section 2701(a)(1) by proving that the defendant acted with specific intent
in an attempt to cause bodily injury. See Commonwealth v. Klein, 795
A.2d 424, 428 (Pa. Super. 2002). Specific intent can be inferred from
circumstances that “reasonably suggest that the defendant intended to cause
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bodily injury.” Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super.
2012). Thus, to establish simple assault, the Commonwealth must prove
beyond a reasonable doubt either that Mallory caused impairment of physical
condition or substantial pain, or that he intended to cause such impairment or
pain.
First, Mallory contends that the complainant suffered no bodily injury.
He claims that there was no testimony that the complainant suffered any
impairment of her physical condition. He also claims there was no evidence
that she suffered any substantial pain. Mallory’s Brief at 12. Mallory maintains
that there was no evidence from which pain could have been inferred, noting
that the officers did not observe the complainant cry out after being struck.
Id. at 12-13. As a result, Mallory argues that the Commonwealth failed to
prove that any bodily injury occurred. Id. at 12.
In support of this argument, Mallory relies on Commonwealth v.
Wertelet, 696 A.2d 206 (Pa. Super. 1997) (holding that “bodily injury”
doesn’t include “physical event[s] . . . commonly occurring in normal life
which, although unpleasant and somewhat painful, do not seriously interrupt
one’s daily life”); and Commonwealth v. Kirkwood, 520 A.2d 451 (Pa.
Super. 1987) (determining that “bodily injury” does not include “temporary
hurts resulting from trivial contacts”).
Second, Mallory argues that, because “the complainant sustained no
more than a slap with an open hand,” no reasonable inference can be drawn
that he attempted to cause bodily injury. Mallory’s Brief. at 14-15. Mallory
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asserts that the fact that he was angry and arguing with the complainant prior
to striking her does not establish specific intent to cause bodily injury. Id. at
15.
In support of this argument, Mallory relies on In Interest of J.L., 475
A.2d 156 (Pa. Super. 1984) (finding no intent to cause bodily injury by a
teenager who was angry for not being allowed to leave the house to visit her
boyfriend, and elbowed a two-year-old relative in an attempt to push the child
away).
In its 1925(a) opinion, the trial court determined that the testimony
presented at trial was sufficient to establish a violation of section 2701(a)(1)
because Mallory “deliberately stuck [the complainant] in the face.” Trial Court
Opinion, 10/9/18, at 3. The trial court did not specify whether it found that
Mallory caused bodily injury or attempted to cause bodily injury when
determining his guilt. However, this does not impede our review since “a trial
court can be affirmed on any valid basis appearing of record,”
Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007), and our review
of a sufficiency challenge is de novo. Jacoby, 170 A.3d at 1076.
Here, the evidence established that, as the complainant was exiting
Mallory’s apartment after an argument, Mallory closed the distance between
himself and the complainant, and then struck her “one time pretty forcefully.”
N.T., 1/27/17, at 14-15. The arresting officer further testified that Mallory
moved his arm in a “punching motion but with an open palm,” and struck the
complainant “in the face.” Id. at 15.
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Although the Commonwealth presented no direct evidence that the
complainant suffered impairment of physical condition or substantial pain,
viewing the record in the light most favorable to the Commonwealth, we
conclude that the evidence is sufficient to support a reasonable inference that
Mallory, at minimum, attempted to cause bodily injury. Because Mallory
moved towards the complainant prior to striking her in the face with a
punching motion, it is reasonable to infer that Mallory acted deliberately with
an intent to cause impairment of physical condition or substantial pain. See
Commonwealth v. Jorgenson, 492 A.2d 2 (Pa. Super. 1985), rev’d on other
grounds, 517 A.2d 1287 (Pa. 1986) (concluding that striking a victim twice in
the face after she refused the defendant’s sexual advances was sufficient to
prove an attempt to cause bodily injury); see also Commonwealth v.
Bryant, 423 A.2d 407, 412 (Pa. Super. 1980) (holding that kicking one victim
and throwing another victim to the ground was sufficient to establish an
attempt to cause bodily injury).3 Accordingly, we affirm Mallory’s judgment
of sentence.
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3 Mallory’s reliance upon J.L. is unavailing because that case is factually
distinguishable. J.L. involved an intra-family squabble where an angry
teenager elbowed her two-year-old relative in an attempt to push the child
away. There, the court determined that anger alone cannot be the basis for
concluding that a defendant intended to cause bodily harm. 475 A.2d at 158.
In this case, not only was Mallory angry with the complainant, but he also
deliberately moved towards her to strike her in the face with a punching
motion. This intentional act of domestic violence cannot be equated with a
family squabble between children.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2019
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