Com. v. Benton, J.

J-S40012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA BENTON :
:
Appellant : No. 3432 EDA 2019
Appeal from the Judgment of Sentence Entered December 4, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009508-2016
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2020
Appellant, Joshua Benton, appeals nunc pro tunc from the judgment of
sentence entered on December 4, 2017, in the Philadelphia County Court of
Common Pleas. After review, we affirm.
The trial court summarized the relevant facts and procedural history of
this matter as follows:
I. FACTUAL HISTORY
On January 14, 2016, then 61-year-old Charles Jackson was
riding the Broad Street line subway returning home from a
doctor’s appointment. Notes of Testimony (“N.T.”)3, 08/21/2017,
at 12-13. Due to his bad knees, Mr. Jackson was unable to stand
for an extended amount of time. Id. at 13. The 21-year-old,
athletically built Appellant was already seated on board when Mr.
Jackson approached and asked him to move his small green bag
which was occupying a seat on the subway. Id. at 13, 54.
Appellant responded by telling Mr. Jackson to not “touch my shit.”
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40012-20
Id. at 14. Appellant then stood up in front of Mr. Jackson and said
“get the fuck out of my face.” Id. When Appellant stepped aside,
Mr. Jackson then slid into the seat, previously occupied by
Appellant, by the window. Id. Appellant then sat directly behind
Mr. Jackson. Id. at 31. At some point, Appellant moved next to
the outer seat, where he continued to curse at Mr. Jackson. Id. at
15. As Mr. Jackson turned his head Appellant began “pummeling”
his face. Id. at 16. Appellant beat him with both hands and struck
him multiple times. Id. at 17. Mr. Jackson’s head swung left and
right like a “bobblehead.” Id. Eventually, Appellant stopped hitting
Mr. Jackson and walked to the rear of the subway car. Mr. Jackson
was bleeding profusely from his nose, his foot as well as his eyes
were hurting, and his knee was swollen. Id. at 20. He also received
a lump on his head which he still has to this day. Id.
3 The [t]rial [c]ourt heard the testimony of Mr. Jackson, Sgt.
Horn, and the Appellant and watched the video of the
incident. This Court found the Appellant incredible in his
testimony.
Mr. Jackson testified he “got some pride” and rose to
confront Appellant but found that he was unable to steady himself
and stumbled. Id. at 18. Whilst he was bent over and trying to
straighten his body, Appellant re-engaged Mr. Jackson and started
to beat him in the face again, knocking him down. Id. at 18, 21,
32, 39. Due to his sore knees, Mr. Jackson could not quickly move.
Id. at 18. Once again Appellant ran to the other side of the train,
and, again, Mr. Jackson turned to face him. Id. For a third time,
Appellant approached Mr. Jackson and beat him in his head and
face. Id. During the altercation, Mr. Jackson lost his shoe and went
to retrieve it. At that moment, Appellant ran off the subway but
not before taunting Mr. Jackson by stating, “look at you, you’re all
bleeding and everything.” Id. at 19. The victim had injuries to his
nose as well as his mouth and he was covered in blood. Id. at 43.
Mr. Jackson received so many injuries to his face that he could not
recall if he was additionally injured in the second and third attack.
Id. at 21.
Because of the amount of blood, the conductor stopped the
train. Id. at 23. Mr. Jackson was taken to Hahnemann Hospital
where he was treated and released. Id. at 23-24. For the next
couple of days, Mr. Jackson was unable to breathe until a large
blood clot discharged from his nose. Id. at 25.
-2-
J-S40012-20
II. PROCEDURAL HISTORY
Appellant was held for court on October 11, 2016. On
August 21, 2017, Appellant proceeded via non-jury trial and was
found guilty of Aggravated Assault and related charges.[1] On
December 14, 2017, he was sentenced to 6 (six) to 12 (twelve)
years of state incarceration.[2] Post[-]sentence motions were not
filed, and no direct appeal was taken. On November 29, 2018,
Appellant filed a Petition for Post-Conviction Relief. Appellant’s
direct appellate rights were reinstated by agreement on November
4, 2019. A timely appeal was filed on December 2, 2019.
Trial Court Opinion, 6/8/20, at 2-3. Both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
A. Did the trial court err, when it found that there was sufficient
evidence to prove, beyond a reasonable doubt, that Appellant …
was guilty of the criminal offense of aggravated assault (f1) (18
Pa.C.S.A. § 2702 (a) (1)), as [Appellant] did not cause the
complainant to suffer serious bodily injury, nor did [Appellant]
attempt to cause serious bodily injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference
to the value of human life?
Appellant’s Brief at 2 (full capitalization omitted).
____________________________________________
1 The trial court adjudged Appellant guilty of aggravated assault, simple
assault, recklessly endangering another person, harassment, and disorderly
conduct. 18 Pa.C.S. §§ 2702(a)(1), 2701(a), 2705, 2709(a)(1), and
5503(a)(1), respectively. At trial, Appellant admitted his guilt with respect to
simple assault, recklessly endangering another person, harassment, and
disorderly conduct. N.T. (Trial), 8/21/17, at 10-11. The sole issue at trial
was whether Appellant possessed the requisite intent necessary to establish
the crime of aggravated assault. Id.
2 The trial court sentenced Appellant solely on the aggravated assault
conviction. N.T. (Sentencing), 12/4/17, at 24.
-3-
J-S40012-20
We review a challenge to the sufficiency of the evidence under the
following parameters:
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[’s].
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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011)
(citation omitted).
The crime of aggravated assault is set forth at 18 Pa.C.S. § 2702 and
provides, in relevant part, as follows:
(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 defined as “bodily injury
which creates a substantial risk of death or which causes serious, permanent
-4-
J-S40012-20
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
Appellant contends that the evidence was insufficient to support his
conviction of aggravated assault. Appellant’s Brief at 11. The thrust of
Appellant’s argument is that the Commonwealth failed to prove Appellant
caused or attempted to cause serious bodily injury. Id.
At trial, the Commonwealth conceded that the victim did not sustain
serious bodily injury. N.T. (Trial), 8/21/17, at 47. Rather, the
Commonwealth’s theory of the case was that Appellant intended to and did
attempt to cause Mr. Jackson serious bodily injury as defined in 18 Pa.C.S. §
2702(a). Id. at 47-48.
An “‘attempt’ is found where an ‘accused who possesses the required,
specific intent acts in a manner which constitutes a substantial step toward
perpetrating a serious bodily injury upon another.’” Commonwealth v.
Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (quoting Commonwealth v.
Gray, 867 A.2d 560, 567 (Pa. Super. 2005)). “An intent ordinarily must be
proven through circumstantial evidence and inferred from acts, conduct or
attendant circumstances.” Id. (citation omitted).
The Pennsylvania Supreme Court in Commonwealth v.
Alexander, 477 Pa. 190, 383 A.2d 887 (1978)[,] created a
totality of the circumstances test to be used to evaluate whether
a defendant acted with the necessary intent to sustain an
aggravated assault conviction. In Commonwealth v. Matthew,
589 Pa. 487, 909 A.2d 1254 (2006), that Court reaffirmed the test
and articulated the legal principles which apply when the
Commonwealth seeks to prove aggravated assault by showing
-5-
J-S40012-20
that the defendant attempted to cause serious bodily injury.
Specifically, the Court stated, in relevant part, that:
Alexander created a totality of the circumstances
test, to be used on a case-by-case basis, to determine
whether a defendant possessed the intent to inflict serious
bodily injury. Alexander provided a list, albeit incomplete,
of factors that may be considered in determining whether
the intent to inflict serious bodily injury was present,
including evidence of a significant difference in size or
strength between the defendant and the victim, any
restraint on the defendant preventing him from escalating
the attack, the defendant’s use of a weapon or other
implement to aid his attack, and his statements before,
during, or after the attack which might indicate his intent to
inflict injury. Alexander, at 889. Alexander made clear
that simple assault combined with other surrounding
circumstances may, in a proper case, be sufficient to
support a finding that an assailant attempted to inflict
serious bodily injury, thereby constituting aggravated
assault.
Matthew, 909 A.2d at 1257 (citation and quotation marks
omitted). The Court indicated that our case law does not hold that
the Commonwealth never can establish a defendant intended to
inflict bodily injury if he had ample opportunity to inflict bodily
injury but did not inflict it. Rather, the totality of the circumstances
must be examined as set forth by Alexander. Id.Fortune, 68 A.3d at 984. Moreover, because direct evidence of the assailant’s
intent is often unavailable, intent to cause serious bodily injury may be shown
by the circumstances surrounding the attack. Commonwealth v. Bruce,
916 A.2d 657, 661 (Pa. Super. 2007) (citing Commonwealth v. Caterino,
678 A.2d 389 (Pa. Super. 1996)). In determining whether the attendant
circumstances prove intent, the fact finder is free to conclude “the accused
intended the natural and probable consequences of his actions to result
-6-
J-S40012-20
therefrom.” Id. (citing Commonwealth v. Rosado, 684 A.2d 605, 608 (Pa.
Super. 1996)).
Circumstances deemed probative in this inquiry have
included evidence that the assailant was disproportionately larger
or stronger than the victim, that the assailant had to be restrained
from escalating his attack, that the assailant had a weapon or
other implement to aid his attack, or that the assailant made
statements before, during, or after the attack which might indicate
his intent to inflict further injury. Commonwealth v. Alexander,
477 Pa. 190, 194, 383 A.2d 887, 889 (1978). Depending on the
circumstances, “even a single punch may be sufficient.”
[Commonwealth v. ]Dailey, 828 A.2d [356] at 360 [(Pa. Super.
2003)]. See also Alexander, 477 Pa. at 194, 383 A.2d at 889(“We hasten to add that a simple assault combined with other
surrounding circumstances may, in a proper case, be sufficient to
support a finding that an assailant attempted to inflict serious
bodily injury, thereby constituting aggravated assault.”).
Bruce, 916 A.2d at 661-662.
In finding that the evidence was sufficient to prove that Appellant
attempted to cause Mr. Jackson serious bodily injury, the trial court explained
as follows:
Here, the testimony by Mr. Jackson and the video evidence
shown at trial, clearly evidenced that Appellant knew what he was
doing when he intentionally, repeatedly struck Mr. Jackson with
his fists. When Mr. Jackson asked Appellant to move his bag so
that he may sit; Appellant told him “don’t touch my shit and get
the fuck out of my face.” N.T. at 14. Appellant then purposefully
moves to the seat directly behind Mr. Jackson. Id. After a few
moments, he positions himself in the aisle next to the open seat
he previously occupied and where Mr. Jackson was now seated.
Id. at 15. Whilst standing next to the seated victim, he used both
of his hands to “pummel his face.” Id. at 16. By Appellant’s own
admission, Mr. Jackson, whom he was much faster than, never
laid hands on him. Id. at 55.
This [c]ourt believes that these facts alone would be enough
to prove aggravated assault beyond a reasonable doubt. However,
-7-
J-S40012-20
the assault continued, and Appellant re-engaged Mr. Jackson not
once, but two more times. During each of these times, Mr. Jackson
was in a prone position when Appellant repeatedly struck the
victim in the face and head. Id. at 18, 21, 32, 39. Indeed, to add
insult to Mr. Jackson’s injury, whilst disembarking from the
subway, Appellant, in what this [c]ourt deemed to be him taking
pride in the assaults and bragging about his “accomplishment,”
boasted “look at you, you’re all bleeding and everything.” Id. at
19.
The combination of the perceived disrespect by Appellant,
the repeated threats of violence, the obvious disparity in age,
strength, speed, and health, along with words that more violence
would follow, elevated the attack on this elderly victim to the level
of an aggravated assault. These facts satisfy the elements with
sufficient evidence to support the conviction. See
Commonwealth v. Bruce, 916 A.2d 657, 663 (Pa. Super. 2007)
(evidence was sufficient to show that the defendant intended to
cause serious bodily injury to victim, so as to support conviction
for aggravated assault, even though defendant used his bare
hands to strike victim.)
Trial Court Opinion, 6/8/20, at 6-7.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we agree with the trial court’s conclusion. The record
reflects that Appellant and Mr. Jackson were in the confines of a train car.
N.T. (Trial), 8/21/17, at 54. Appellant was an athletically built, twenty-one
year-old man. Id. Conversely, the victim in this case, Mr. Jackson, was in
his sixties and had physical limitations including diabetes and problems with
his knees that prevented him from standing and caused him to move slowly.
Id. at 13, 18-20. Appellant waited for Mr. Jackson to turn his back, and he
attacked Mr. Jackson from behind causing injuries to Mr. Jackson’s head and
face. Id. at 16. Appellant ceased his attack, but he then chose to assault the
-8-
J-S40012-20
victim again and struck Mr. Jackson repeatedly in the face and head. Id. at
18-20. Appellant again stopped hitting the victim; however, Appellant then
re-engaged and began punching the already-injured victim in the head and
face a third time. Id.
In sum, Appellant, who was younger, stronger, and faster, attacked Mr.
Jackson from behind. Appellant assaulted Mr. Jackson three separate times,
and on each occasion, Appellant repeatedly beat Mr. Jackson about the head,
eyes, nose, and mouth. Under the totality of the circumstances, the evidence
satisfied the elements of attempt—Appellant possessed the specific intent and
acted in a manner constituting a substantial step toward causing serious bodily
injury. Fortune, 68 A.3d at 984. Accordingly, we conclude the evidence was
sufficient to prove Appellant guilty of aggravated assault. 18 Pa.C.S.
§ 2702(a)(1).
For the reasons set forth above, Appellant is entitled to no relief.
Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/01/2020
-9-