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In re L.C.D.

Superior Court of Pennsylvania

June 20, 2013

IN THE INTEREST OF L.C.D., A MINOR, APPEAL OF: L.C.D., A MINOR

NON-PRECEDENTIAL DECISION

Appeal from the Dispositional Order of May 24, 2012 In the Court of Common Pleas of Luzerne County Juvenile Division No(s).: CP-40-JV-0000120-2012.

BEFORE: BENDER, SHOGAN, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, L.C.D., appeals from the dispositional order in the Court of Common Pleas of Luzerne County committing him to a secure facility. Appellant asserts that the evidence presented at the adjudication hearing was insufficient to sustain the finding that he committed acts constituting aggravated assault against a police officer and a school employee.[1] We reverse the adjudication of delinquency based on aggravated assault, otherwise affirm the adjudication of delinquency, and remand this case for a new dispositional hearing.

The juvenile court summarized the evidence presented by the Commonwealth at the adjudication hearing as follows:

[T]he Commonwealth presented the testimony of Matthew Bonawitz, a school police officer with the Luzerne County Intermediate Unit. He is assigned to the Alternative Learning Center (ALC) in Plains Township, Luzerne County, Pennsylvania. Officer Bonawitz testified that part of the duties of his employment and assignment at ALC is to assist in conducting daily searches of the students using a metal detector. On [April 17, 2012], Officer Bonawitz was alerted by a school teacher, Gerald Gilsky, that [Appellant] was not properly searched. [Appellant] had already proceeded to the breakfast line when Officer Bonawitz approached him and told him to return to the search area. [Appellant] refused and struck Officer Bon[a]witz's arm. A struggle then ensued between [Appellant], Officer Bonawitz, and Mr. Gilsky when the three of them took to the ground. [Appellant] was then handcuffed and taken to Officer Bonawitz's office while waiting for charges to be approved. While in the office, [Appellant] kicked the door, made threats to Officer Bonawitz and Mr. Gilsky, and tried to head-butt Officer Bonawitz. The Plains Township Police Department was then called to assist. Most of the altercation was recorded by video surveillance and presented in Court at the Adjudication Hearing.

Juvenile Ct. Op., 8/24/12, at 2-3 (record citations and footnotes omitted).

The Commonwealth filed a delinquency petition alleging that Appellant committed acts constituting aggravated assault against a police officer, aggravated assault against a school employee, harassment, resisting arrest, and disorderly conduct.[2] An adjudication hearing was held on May 4, 2012, at which the juvenile court found Appellant delinquent for committing all acts alleged in the delinquency petition. The Honorable Tina Polachek Gartley, who presided over the adjudication proceeding, recused herself on May 16, 2012, and a dispositional hearing was held before the Honorable David W. Lupas. On May 24, 2012, the court committed Appellant to North Central Secure.[3] This appeal followed.[4]

Appellant presents the following question for review:

Whether the Commonwealth provided sufficient evidence for the [juvenile] court's finding of [Appellant's] factual responsibility for one count of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(3), and one count of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(5)?

Appellant's Brief at 1.

Appellant contends that the evidence presented at the adjudication hearing failed to demonstrate, beyond a reasonable doubt, that he committed offenses constituting violations of section 2702(a)(3) and (5). First, he argues that the evidence did not prove that Officer Bonawitz and Mr. Gilsky suffered bodily injury. Id. at 5. Second, he claims that the Commonwealth failed to produce sufficient direct or circumstantial evidence that he acted with an intent to cause bodily injury. Id. at 11. Specifically, he asserts that the only direct evidence of his intent was his own testimony that he did not intend to harm the officer or Mr. Gilsky. Id. at 10. Appellant further asserts that the circumstantial evidence—such as his size relative to the officer and Mr. Gilsky, the lack of purposeful blows or initial aggression, and his mere use of inappropriate language—did not amount to proof of intent to cause bodily injury. Id. at 11.

The Commonwealth concedes that the evidence was insufficient to prove that Officer Bonawitz and Mr. Gilsky suffered bodily. See Commonwealth's Brief at 6. The Commonwealth argues instead that the evidence, which included the presentation of video recordings of the incident, provided the juvenile court with a sufficient basis to find that Appellant: (1) resisted against lawful restraint, (2) pulled the officer and Mr. Gilsky to the ground, and (3) struck them either with his arms or feet. Id. at 8-10.[5] Thus, according to the Commonwealth, the record contained sufficient evidence of specific intent to cause bodily injury. Id. at 10 (citing Commonwealth v. Brown, 23 A.3d 544 (Pa. Super. 2011)).

Because the record establishes—and the Commonwealth concedes— that Appellant did not cause bodily injury to Officer Bonawitz or Mr. Gilsky, we consider the sufficiency of the evidence sustaining the finding that Appellant attempted to inflict bodily injury. For the reasons that follow, we conclude that the evidence presented at the adjudication hearing was insufficient to prove that Appellant attempted to inflict bodily injury upon the officer or Mr. Gilsky.

The standards governing our review of a challenge to the sufficiency of the evidence in an adjudication of delinquency are well settled:

The Superior Court will not disturb the lower court's disposition absent a manifest abuse of discretion. When a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof "beyond a reasonable doubt." When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth.
In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a defendant's innocence. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth.

In re R.N., 951 A.2d 363, 366-67 (Pa. Super. 2008) (citations omitted).

The aggravated assault statute provides, in relevant part:

(a) Offense defined.—A person is guilty of aggravated assault if he:
(3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c)[, including a police officer], in the performance of duty;
(5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member or other employee . . . while acting in the scope of his or her employment or because of his or her employment relationship to the school[.]

18 Pa.C.S. § 2702(a)(3), (5); see also 18 Pa.C.S. § 2702 (c)(1). The Crimes Code defines "[b]odily injury" as an "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S. § 2301.

Sufficient proof of an attempt to inflict bodily injury requires the Commonwealth to adduce evidence that an individual specifically intended to cause "bodily injury" and took a substantial step toward the infliction of bodily injury. See 18 Pa.C.S. § 901(a); see also Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005); Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002). Intent is defined, in relevant part, as a person's "conscious object" to engage in "conduct of that nature or to cause such a result." 18 Pa.C.S. § 302(b)(1). Lastly, intent may be proven by direct or circumstantial evidence. Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012).

In Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997), this Court analyzed the scope of the aggravated assault statute as applied to protected persons, such as police officers and teachers, and, specifically, the term "bodily injury."[6] In Wertelet, the appellant was involved in a dispute over the right-of-way for a telephone company to bury lines on her property, during which she threatened "to shoot anyone who came upon her property." Id. at 207-08. The utility company began burying lines on the appellant's property, but requested that Pennsylvania State Police Troopers be present. Id. at 208.

The Wertelet Court summarized the events giving rise to the appellant's conviction for aggravated assault against a police officer:

The troopers, noticing appellant driving up the road, blocked her vehicle's access to the property. [The a]ppellant parked the vehicle and walked onto her property in the area of the workers. [The a]ppellant told the workers and the troopers that they were trespassing and ordered them off the property. The workers responded that they had a valid right-of-way and asked appellant to stop interfering with their work. [The a]ppellant then grabbed a garden rake and began pushing dirt into the ditch. The troopers interceded at that point and tried to take [the] appellant's rake which she refused to give up. They then attempted to place her under arrest. [The a]ppellant resisted initial attempts to be placed in custody by struggling with the officers and kicking one of the troopers, Trooper Funk, in the shin area twice. The troopers were then successful in handcuffing her and she was arrested[.]

Id.

When examining the sufficiency of the evidence underlying the appellant's conviction for aggravated assault against a police officer, the Wertelet Court analyzed the term "bodily injury" in several contexts. First, the Court distinguished the statutory requirement of "bodily injury" from other injuries "commonly occurring in normal life which, although unpleasant and somewhat painful, do not seriously interrupt one's daily life." Id. at 210. Second, the Court reiterated that "the assault section of the Crimes Code was intended to protect and preserve one's physical well being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living." Id. at 211 (quoting Commonwealth v. Kirkwood, 520 A.2d 451 (Pa. Super. 1987)). Third, examining the aggravated assault statute in light of other crimes punishing similar conduct, the Court found "no justification apart from overzealousness to apply the . . . [the crime of aggravated assault against a police officer] so as to subsume the crime of resisting arrest and/or other lesser offenses." Id.

Thus, the Wertelet Court concluded:

The natural implication of having a provision for resisting arrest and aggravated assault of a police officer is to differentiate criminal conduct according to its severity and provide appropriate punishment for that conduct. However, an equally natural and logical implication of having a provision for resisting arrest and aggravated assault of a police officer is the recognition that they are not one in the same thing. That is, that there are physical acts of resistance which do not rise to the level of an aggravated assault. If appellant's conduct is considered to be an aggravated assault it is difficult to imagine an instance of resisting arrest which will not also be an aggravated assault as almost all acts of resisting arrest are likely to involve some physical resistance which will cause an officer some physical pain or discomfort. Further, as the name of the offense implies, aggravated assaults are assaults of a rather serious nature.

Id. (emphasis in original). Accordingly, the Court reversed the appellant's conviction for aggravated assault, holding that the "nature of the affront committed . . . by [the] appellant" was akin to petty slaps, kicks, and shoves not intended to be criminalized by the aggravated assault statute. Id. at 212.

In Commonwealth v. Brown, 23 A.3d 544 (Pa. Super. 2011), this Court acknowledged, but distinguished Wertelet. Brown, 23 A.3d at 56 n.16. In Brown, the defendant's conviction arose out of a traffic stop of the defendant based on suspicion of robbery. The Brown Court described the relevant facts as follows:

Officer DeBella asked [the defendant] Brown to step out of the minivan and place his hands behind his back. As Officer Schiazza attempted to handcuff Brown, Brown pulled away. Officer DeBella attempted to stop Brown from fleeing, but Brown grabbed the officer and threw him to the ground. With Officers Schiazza and DeBella in pursuit, Brown ran across the street and onto the lawn of a neighboring house. After being tackled by Officer Schiazza, Brown struggled and flailed his arms, striking the officer on the arm, shoulder and mouth. Chief Zimath responded to a call for backup and found Officers Schiazza and DeBella attempting to subdue Brown. Eventually, the officers handcuffed Brown[.]

Id. at 548.

The Brown Court held that "[it] was within the jury's province to find that [the defendant], by throwing Officer DeBella to the ground and then striking Officer Schiazza repeated by wildly failing his arms as he resisted arrest intended to cause injury to the officers." Id. at 560. For those reasons, the Brown Court found Wertelet to be inapposite and affirmed the defendant's conviction for aggravated assault. Id. at 560 n.16, 561.

Mindful of the framework in our decisional law, we review the evidence presented at Appellant's adjudication hearing in a light most favorable to the Commonwealth, as the prevailing party. See In re R.N., 951 A.2d at 366-67. Mr. Gilsky testified that before the start of school at Plains Alternative, all students are searched as they come in the back of the building. N.T., 5/4/12, at 25. The search consists of a "pat and wand search, " and any articles such as hats or bags are placed in lockers. Id. Appellant entered school on the morning of April 17, 2012, in visible possession of two items deemed to be contraband, a bag and a hat. Id. at 26. Appellant gave Mr. Gilsky the bag, but did not relinquish his hat. Id. More significantly, Appellant left the search area and went into the school before Mr. Gilsky conducted a search of his person. Id.

Officer Bonawitz testified that he was informed that Appellant was not properly searched by Mr. Gilsky before entering the school. Id. at 5-6. The officer approached Appellant while Appellant was in the breakfast line and ordered him to return to the search area. Id. at 7.

The video recording showed that after Officer Bonawitz approached Appellant, Appellant exited the breakfast line and, with the officer behind him, walked down the hallway toward the area where Mr. Gilsky was waiting. Video Recording, 4/17/12, Camera 3 at 06:55:29. As the officer and Appellant approached Mr. Gilsky, Appellant attempted to duck into a recessed area along the wall but the officer blocked his way. Id. Camera 9 at 06:55:33. Appellant then turned and started walking back toward the breakfast line, but the officer and Mr. Gilsky again positioned themselves to block Appellant's movement, at which time Appellant made a slapping motion at the officer's outstretched arm. Id. Camera 9 at 6:55:43-44. Appellant sidestepped toward the recessed area along the wall, but the officer and Mr. Gilsky each took hold of one of Appellant's arms. Id. Camera 9 at 06:55:49. The three disappeared momentarily into the recessed area and out of the view of the camera. Id. Camera 9 at 06:55:49. When Appellant emerged from the recessed area, Mr. Gilsky was holding him under his right arm with both hands, and the officer was holding his left arm with both of his hands. Id. at 06:56:22.

Officer Bonawitz testified that "when [Appellant] pushed my arm, that's when I removed handcuffs; and I attempted to place one cuff on him, which I did; and at that point that is when he began to struggle with me." N.T. at 7-8. The video recording showed as Mr. Gilsky was holding Appellant's right arm, Appellant pushed his arm outwards against Mr. Gilsky, twisted his body, and made a quick lunging motion as if to run down the hallway. Video Recording, Camera 9 at 06:56:03. Although Mr. Gilsky did not lose control of Appellant's arm, Appellant did manage to twist his body so that he was bent over between officer and Mr. Gilsky, and with the back of his head against Mr. Gilsky's chest. Id. Camera 9 at 06:56:07.

A greater struggle ensued to control Appellant. Officer Bonawitz moved behind Appellant in an attempt to secure the handcuffs to Appellant's other arm. Id. Camera 9 at 06:56:10. Appellant pushed his way forward into Mr. Gilsky forcing all three back into the recessed area. Id. Camera 9 at 06:56:13. Appellant then twisted so that the officer and Mr. Gilsky were on either side of him and propelled himself backwards out of the recessed area into the hallway. Appellant fell backwards across the hallway and back-first onto the ground and against the wall opposite the recessed area. Id. Camera 9, at 06:56:14. Mr. Gilsky, who maintained control of Appellant's left arm, was taken to the ground along with Appellant. Id. Camera 9 at 06:56:16. The officer was momentarily standing over Mr. Gilsky and Appellant, but then also went to the ground to the right of Appellant. Id. Camera 9 at 06:56:17.

After falling backwards into the wall, Appellant was pinned against the wall by Mr. Gilsky. Id. Camera 9 at 06:56:19. Mr. Gilsky and Officer Bonawitz wrestled Appellant away from the wall to the middle of the hallway. Id. Camera 9 at 06:56:25. Mr. Gilsky, who was kneeling down to the left side of Appellant, turned him over to a face-down position of the ground. During that time, the officer was on the ground alongside Appellant. Id. However, when the officer brought himself to a kneeling position alongside Appellant's right hip, Appellant flailed his legs and his heel approached the officer's chest or face. Id. Camera 9 at 06:56:37-06:56:40. The officer quickly adjusted his position and used his knee to pin down Appellant's right leg. Id. Appellant was then secured in handcuffs and taken to Officer Bonawitz' office. While walking down the hallway in handcuffs, Appellant was cursing, threatening the officer and Mr. Gilsky, and kicked an open door in the hallway.

Officer Bonawitz testified that Appellant "was very combative" in his office. N.T. at 14. The officer also stated that Appellant "stood up still handcuffed in my chair and got in my face as if he was going to head butt me." Id.

Mr. Gilsky's testimony corroborated Officer Bonawitz' description of the events that led to the struggle. Mr. Gilsky stated that while wrestling with Appellant, he was "hit several times" and that the officer was also "[h]it" several times. Id. at 28. He further stated that after Appellant was secured, Appellant made "typical threats" against the him and the officer such as "[w]hat's going to happen to us[, ] memory wise[, w]ait until I get out of these cuffs[, ] I' m going to get you." Id. at 31.

Mr. Gilsky testified that he was 6'3" tall and weighed 315 pounds, and described Officer Bonawitz as approximately 6'1" tall and weighing 250 pounds. Id. at 29. Mr. Gilsky described Appellant as appearing to be 5'10" tall and weighing 160 pounds at the hearing. Id. at 30. Appellant testified that he was 5'6" tall, and weighed 130 pounds. Id. at 57.

This record established that Appellant's actions were clearly oppositional and defiant. Moreover, his struggle against the lawful restraints imposed on him by Officer Bonawitz and Mr. Gilsky, required "substantial force to overcome" sufficient to prove acts constituting resisting arrest. See 18 Pa.C.S. § 5104. Our review also reveals that both Officer Bonawitz and Mr. Gilsky, at all times, acted appropriately and professionally when detaining and then securing Appellant, all while ensuring that Appellant could not injure them, himself, or other students.

However, although the officer testified that Appellant "pushed" his arm, and the video recording showed that Appellant made only a slapping motion towards the officer's arm, that contact did not suffice to establish an intent to cause bodily injury. Such contact fell with the rationale of Wertelet that the aggravated assault statute did not intend to immunize a protected person from trivial affronts. See Wertelet, 696 A.2d at 208.

Moreover, although the Commonwealth argues that that Appellant, similar to the facts in Brown, physically dragged Officer Bonawitz and Mr. Gilsky to the ground, the video recordings reveal that Appellant propelled himself backwards away from the officer and Mr. Gilsky, and then fell back first into the wall. Videotape, Camera 9 at 06:56:16. Unlike Brown, nothing in the present record suggested that Appellant deliberately grabbed and threw Mr. Gilsky to the ground. See Brown, 23 A.3d at 548. Moreover, the officer, was, in fact, able to maintain his footing even as Appellant and Mr. Gilsky went to the ground while holding onto Appellant. Videotape, Camera 9 at 06:56:15-06:56:17.

Furthermore, Officer Bonawitz and Mr. Gilsky testified that Appellant struck them while on the ground. However, neither their testimony, nor the video recording, provided a basis to conclude that Appellant had the capability to rear back and strike them in a manner that would evince the requisite intent to cause bodily injury or the taking of a substantial step toward the infliction of bodily injury. Indeed, given the efforts of the officer and Mr. Bonawitz, there was no indication that Appellant was able to free any part of his body from their control to deliver a punch or flail away wildly. Rather, when Appellant fell backwards into the wall, the officer and Mr. Gilsky maintained relative control over Appellant's body and quickly wrestled him into the middle of the hallway.

With respect to Officer Bonawitz' testimony that Appellant kicked him in the face, we find no reasonable basis to find that Appellant could have elevated his foot to strike the officer in the head during his initial resistance or the wrestling along the wall. However, when the officer and Mr. Gilsky placed Appellant in a prostrate position in the hallway, the officer moved to a kneeling position alongside Appellant's hip. Appellant kicked his legs up and down in a swimming motion several times. At this point, the location of Appellant's flailing feet and the officer's position over Appellant provided a reasonable basis to find that he was struck by Appellant's foot. However, in light of the facts that Appellant was face down on the ground at the time and was flailing his legs up and down with a limited range of motion, a finding that this blow evinced a conscious object to cause bodily injury cannot stand. See Wertelet, 696 A.2d at 211.

Lastly, the juvenile court, in its opinion, suggested that Appellant attempted to "head-butt" Officer Bonawitz. However, on this point, the officer testified that Appellant "stood up still handcuffed in my chair and got in my face as if he was going to head butt me." N.T. at 14 (emphasis added). While this testimony established that Appellant was threatening the officer, the act of "getting in the face" of an officer cannot constitute a substantial step toward the commission of aggravated assault.

Therefore, following our review of the governing legal principles and the record as a whole, and drawing all reasonable inferences in favor of the Commonwealth, we are constrained to conclude that Appellant's resistance did not cross the threshold into aggravated assault. See Wertelet, 696 A.2d at 211. Based on the testimony and the video recording, Appellant was unable to free himself from the control of the officer and Mr. Gilsky so as to flail about wildly as in Brown, or otherwise take a substantial step toward delivering a blow evincing a specific intent to inflict bodily injury. Consequently, the record provides no support for a conclusion that Appellant's conduct—as it was restrained by the officer and Mr. Gilsky— constituted aggravated assault under section 2702(a)(3) and (5).

Thus, the evidence presented at the adjudication hearing was insufficient to sustain the finding of delinquency based upon the two counts of aggravated assault. Accordingly, we reverse the adjudication based on aggravated assault, but otherwise affirm the adjudication of delinquency. Because our decision disrupts the basis for the dispositional order, we remand for a new dispositional hearing.

Adjudication reversed in part, and affirmed in part. Case remanded for a new dispositional hearing. Jurisdiction relinquished.

Judgment Entered.


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