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Commonwealth v. McFadden

Superior Court of Pennsylvania

February 15, 2017


         Appeal 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, MC-51-CR-0025869-2013

          BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J. [*]


          SOLANO, J.

         Appellant 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.[1] We affirm.

         At a 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.[2] 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.

         Meanwhile, 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.[3]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.[4]

         Mr. 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[5] 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.

         Mr. 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.[6] 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.

         Barbara 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.

         Sameerah 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" [7] 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.

         Appellant 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.[8] 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.

         On 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 1.[9]

         Appellant presents the following issues for our review:


         Appellant's Brief at 2.

         Sufficiency of the Evidence

         Our 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. 2013).

         Appellant 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).[10]

         The 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 police officers.

Trial Ct. Op. at 6.

         Appellant 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 13).

         The 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).

         Whether 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).

         Because 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).[11] 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.

         The 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 ...

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