from the Judgment of Sentence Dated January 27, 2014 In the
Court of Common Pleas of Philadelphia County Criminal
Division at No(s): CP-51-CR-0009375-2013,
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.
Brittany McFadden appeals from the judgment of sentence
following a bench trial and convictions for aggravated
assault, conspiracy to commit aggravated assault, simple
assault, recklessly endangering another person, and criminal
mischief. Trial Ct. Op. at 1. We affirm.
bench trial held on December 5, 2013, the victim, Michelle
Tolbert, testified that on the afternoon of June 21, 2013,
the last day of the school year, she was working for the City
of Philadelphia as a crossing guard. N.T., 12/5/13, at 13,
28. While she was at her designated street corner, a car
pulled up and Sharday McFadden, a relative of Appellant
Brittany McFadden, exited the car. Id. at 17, 111.
Ms. Tolbert did not know Sharday McFadden. Id. at
17. After a heated discussion, Sharday McFadden punched Ms.
Tolbert in the face. Id. at 18-20. A fray ensued,
which ended after the two women fell to the ground.
Id. Ms. Tolbert resumed helping children cross the
street. Id. at 20, 26. Ms. Tolbert's husband,
Torrey Caldwell, who normally accompanies Ms. Tolbert on her
work shift but was running late that day, arrived and called
the police. Id. at 24-25.
Sharday McFadden made a phone call. N.T. at 20. Within two or
three minutes, a group of people arrived, including
Appellant, who was also unknown to Ms. Tolbert. Id.
at 21-22, 36. Sharday McFadden again approached Ms. Tolbert,
who was standing against her truck. Id. at
39.Meanwhile, a group of children from a
nearby daycare had stopped by to give Ms. Tolbert a card to
thank her for her help during the school year. Id.
at 39. Shortly after Ms. Tolbert placed the card inside her
vehicle, Sharday McFadden again began punching her.
Id. at 22, 38-39. As the two fell to the ground,
Appellant approached and joined in the fray. Id. Ms.
Tolbert was on top of Sharday McFadden, and Appellant
"on top of [Ms. Tolbert] from the back."
Id. at 22. Appellant struck Ms. Tolbert on the back
of her head and scratched the sides of her face. Id.
at 22-23. Mr. Caldwell then pulled Sharday McFadden and
Appellant off of his wife, and he and his wife drove away.
Id. at 24-25.
Caldwell testified that when he first arrived, he noticed
that Ms. Tolbert's shirt was ripped, her vest was off,
and her hat was missing. N.T. at 53-54. There was a car
parked at the corner, and he saw a person later identified as
Sharday McFadden exit and punch Ms. Tolbert. Id.
at 54. He testified that he tried to break up the fight while
Ms. Tolbert defended herself. Id. As he was trying
to end the fight, another car arrived and three or four men
surrounded him and began pulling him. Id. at 54-55,
57. Mr. Caldwell then called the police. Id. at 57.
His wife had stopped fighting and was leaning against her
Jeep, where he saw some children give her a thank you card.
Id. at 57-58.
Caldwell testified that, as Ms. Tolbert was facing her car
and Mr. Caldwell was distracted by the new arrivals,
Appellant approached and punched Ms. Tolbert twice in the
head. N.T. at 58-59. Mr. Caldwell pushed Appellant away, and
she "might have tripped over one of the guys that were
there." Id. at 61. He did not see Ms. Tolbert
hit Appellant at any point. Id. at 62. Sharday
McFadden returned and again began to hit Ms. Tolbert.
Id. at 59-60. Mr. Caldwell testified that the fight
ended after his wife "grabbed [Sharday McFadden] and
choke-slammed her on the ground" and when he became
fearful due to the number of people from the neighborhood who
had arrived to watch the fight. Id. at 63.
Kener lives in the area of the incident, is Appellant's
neighbor, and has known Appellant since birth. N.T. at 83-84.
Ms. Kener testified she was at home on the day of the
incident, but went out to the street when she noticed her
granddaughter's book bag lying on her steps. Id.
at 92. She ran to the corner at the same time as Appellant
arrived. Id. at 96. When they got there, Sharday
McFadden and Ms. Tolbert were fighting. Id. at
85-86. Ms. Kener testified that Appellant tried to stop the
fight, but Mr. Caldwell grabbed Appellant's arm and threw
her to the ground. Id. at 86-87, 94. Ms. Kener said
she never saw Appellant hit Ms. Tolbert. Id. at 87.
She testified that Appellant has a reputation for being
"a very quiet person" who "doesn't bother
anybody" and who is not the type of person to initiate
conflict. Id. at 90-91.
Chamberlain, Ms. Kener's ten-year-old granddaughter (and
Sharday McFadden's cousin), testified that after walking
home from school that day she saw the fight start when Ms.
Tolbert "snuck"  Sharday McFadden. N.T. 102-103. She
later saw Appellant approach the corner with Ms. Kener.
Id. at 103. Miss Chamberlain said she did not
observe Appellant ever strike Ms. Tolbert. Id. at
105. Rather, according to Miss Chamberlain, Appellant tried
to separate the two fighters, until Mr. Caldwell
"slammed her on the ground." Id. at 104.
testified that she went to the corner that day to retrieve
Sharday McFadden's five-year-old daughter, who was
watching the fight between her mother and Ms. Tolbert. N.T.
at 121. When she arrived at the corner, the women had already
begun fighting, and none of the onlookers were trying to stop
them. Id. at 118-19, 123. Appellant testified that
she attempted to break up the fight, but was slammed on the
ground by Mr. Caldwell. Id. at 119-20, 123.
Appellant testified that she tried to pull Sharday McFadden
out from underneath of Ms. Tolbert, and did not put her hands
on or strike Ms. Tolbert. Id. at
119-20. Appellant was pregnant at the time of the
altercation, but the trial court sustained the
Commonwealth's objections to testimony about that fact.
Id. at 70, 84, and 120.
January 27, 2014, after finding Appellant guilty of the
crimes listed above, the trial court sentenced Appellant to a
total of six to twelve months of incarceration followed by
two years' probation. Trial Ct. Op. at 1. On February 26,
2014, Appellant filed a timely notice of appeal to this
Court. Id. After significant delays regarding
assembly of the record, the trial court filed a Rule 1925(a)
opinion on January 21, 2016. Trial Ct. Op. at
presents the following issues for our review:
[1.] WAS THE EVIDENCE INSUFFICIENT, AS A MATTER OF LAW, TO
SUSTAIN APPELLANT'S CONVICTION AND [JUDGMENT] OF SENTENCE
FOR AGGRAVATED ASSAULT, F-2 [(]18 PA. C.S.A. [§]
2702(A)(3)[)], SINCE THERE WAS NO EVIDENCE THAT THE
COMPLAINANT, A SCHOOL CROSSING GUARD, IS WITHIN THE PROTECTED
CLASS OF PERSONS SPECIFIED IN 18 PA. C.S.A [§] 2702(C)?
[2.] DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
SUSTAINING AS "NOT RELEVANT" TESTIMONY REGARDING
APPELLANT'S BEING PREGNANT AT THE TIME OF THE INCIDENT?
Brief at 2.
of the Evidence
standard of review for a sufficiency of the evidence
challenge is well established:
A claim challenging the sufficiency of the evidence presents
a question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and
accept as true all evidence and all reasonable inferences
therefrom upon which, if believed, the fact finder properly
could have based its verdict.
Commonwealth v. Fortune, 68 A.3d 980, 983 (Pa.
Super. 2013) (en banc) (internal quotation marks and
citations omitted), appeal denied, 78 A.3d 1089 (Pa.
was convicted of aggravated assault pursuant to 18 Pa.C.S
§ 2702(a)(3), which states that "a person is guilty
of aggravated assault if he . . . attempts to cause or
intentionally or knowingly causes bodily injury to any of the
officers, agents, employees or other persons enumerated in
subsection (c), in the performance of duty." Subsection
(c) lists 38 groups of persons, including "police
officers . . . firefighters, probation/parole officers,
sheriffs, prison authorities, judges, and numerous other
public servants." Commonwealth v. Rahman, 75
A.3d 497, 501 n.7 (Pa. Super. 2013).
trial court found that the victim of the assault, Ms.
Tolbert, was within the classes of persons identified under
Subsections 27 and 20 of Section 2702(c). Trial Ct. Op. at 6.
Section 2702(c)(27) lists a teacher, school board member, or
"other employee . . . of any elementary or secondary
publicly funded educational institution, any elementary or
secondary private school licensed by the Department of
Education or any elementary or secondary parochial school
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(c)(27). Section 2702(c)(20) includes,
"[a]ny person employed to assist or who assists any
Federal, State or local law enforcement official."
Id. § 2702(c)(20). The trial court stated:
The circumstantial evidence clearly proves Miss Tolbert falls
within either the "other employee" category as a
crossing guard, due to her relationship with the school by
crossing students to the other side of public streets, or
that working in her capacity as a crossing guard, Miss
Tolbert was doing her duty to serve the community to safely
escort children across busy streets, similarly to local
Trial Ct. Op. at 6.
argues that Ms. Tolbert did not fall under either subsection.
Appellant's Brief at 7-9. According to Appellant, not
only does the aggravated assault statute not specifically
list "crossing guards" anywhere in Subsection (c),
but Ms. Tolbert testified that she was employed by the City
of Philadelphia, not by a school, making her ineligible for
inclusion under the plain text of Subsection (c)(27).
Id. at 7-9 (citing N.T., 12/5/13, at 13). Appellant
adds that because no evidence was presented regarding Ms.
Tolbert's employment or the city department in which she
worked ("[p]olice, school district, streets, recreation,
etc."), she should also not have been deemed included
under Subsection (c)(20). Id. at 7-9 (citing N.T. at
Commonwealth counters that "[t]he aggravated assault
statute is broadly drawn when it comes to school-related
actors, and extends its protection to anyone acting in the
scope of his or her employment or because of his or her
employment relationship to the school."
Commonwealth's Brief at 6 (footnote omitted). While
admitting that Ms. Tolbert was employed by the City of
Philadelphia and thus was not a school employee, the
Commonwealth claims that the broad wording of Section
2702(c)(27) is sufficient to encompass school crossing
guards. Id. The Commonwealth makes no separate
argument regarding Subsection (c)(20).
assaulting a school crossing guard is encompassed within
Section 2702 is a question of first impression for a
Pennsylvania appellate court. Its resolution requires
construction of Section 2702. "In evaluating a trial
court's application of a statute, our standard of review
is plenary and is limited to determining whether the trial
court committed an error of law." Commonwealth v.
Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en
banc) (citation omitted). In making this determination,
we are guided by the Statutory Construction Act,
Commonwealth v. Merolla, 909 A.2d 337, 345 (Pa.
Super. 2006), which dictates:
1921. Legislative intent controls
(a)The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the
General Assembly. Every statute shall be construed, if
possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.
1 Pa.C.S. § 1921. "As a general rule, the best
indication of legislative intent is the plain language of a
statute." Commonwealth v. Bradley, 834 A.2d
1127, 1132 (Pa. 2003).
the Commonwealth places primary reliance on Section
2702(c)(27), we first examine whether a crossing guard like
Ms. Tolbert is included under that provision. We conclude
that she is not. The clear and unambiguous language of this
provision, which we are beholden to uphold, see 1
Pa.C.S. § 1921(b); Bradley, 834 A.2d at 1132,
states that, to be covered, Ms. Tolbert had to be an
"employee" of a publicly-funded, private, or
parochial school who was "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(c)(27). Ms. Tolbert was not such an employee.
Rather, Ms. Tolbert testified that she was employed as a
crossing guard by the City of Philadelphia. See N.T.
at 13. The Commonwealth concedes that crossing guards in
Philadelphia are employed by the City, and not by the School
District of Philadelphia, a separate legal entity.
See Appellee's Brief at 6 n.1. Therefore,
Section 2702(c)(27) does not apply to Ms. Tolbert.
Commonwealth observes that Section 2702(c)(27) applies both
to a person "acting in the scope of his or her
employment" and to someone acting "because of his
or her employment relationship to the school." It
declares that Ms. Tolbert "was acting in an employment
'relationship' to the school, regardless of her
actual employer, " adding: "In Philadelphia, school
crossing guards are employed by the police department;
nevertheless they have an obvious 'employment