Com. v. Hanna, T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACY DEL HANNA,
Appellant No. 2046 MDA 2014
Appeal from the Judgment of Sentence September 24, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007808-2013
BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.
MEMORANDUM BY BOWES, J: FILED OCTOBER 09, 2015
Tracy Del Hanna appeals from the September 24, 2014 judgement of
sentence of seven and one-half years to fifteen years incarceration, which
was imposed following his conviction of two counts of aggravated assault
and one count each of simple assault and possession of marijuana. We
affirm.
On September 28, 2013, Appellant and Timothy Morton fought over an
electric bill. During the course of the altercation, Appellant stabbed Morton
with a knife. Morton was transported by ambulance to the emergency room
and treated for a five and one-half inch deep stab wound to the buttocks.
Appellant was charged with aggravated assault (serious bodily injury),
*
Former Justice specially assigned to the Superior Court.
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aggravated assault (causing bodily injury with a deadly weapon), simple
assault, and possession of marijuana.
Appellant filed a post-sentence motion alleging that the jury
instruction regarding aggravated assault was erroneous and warranted a
new trial. The motion was denied. Appellant timely filed a notice of appeal
and complied with the trial court’s order to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises one issue
for our review:
1. Whether the trial court committed an error of law by
commingling the standards for attempting to cause serious
bodily injury and causing serious bodily injury under 18
Pa.C.S. § 2702(a)(1) when it gave instructions to the jury?
Appellant’s brief at 4.
Appellant was charged with two counts of aggravated assault, the first
count being a violation of 18 Pa.C.S. §2702(a)(1):
§ 2702. Aggravated assault.
(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).
The law is established that, “Where the injury actually inflicted did not
constitute serious bodily injury, the charge of aggravated assault can be”
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sustained only when the evidence supports a finding the defendant’s actions
toward the victim were “accompanied by the intent to inflict serious bodily
injury.” Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978);
see also Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006). Thus, if
serious bodily injury results, the mens rea requirement is that the defendant
may have acted knowingly, recklessly or intentionally; if no such injury
occurred, a defendant must act with specific intent to cause such injury to
be guilty of the crime.
Appellant contends that the trial court’s aggravated assault instruction
erroneously led the jury to believe that he could be convicted of this offense
if he recklessly attempted to cause serious bodily injury. He points to three
instances during the charge when the trial court incorrectly told the jury that
an attempt to cause serious bodily injury could be based on a reckless
attempt to cause serious bodily injury.
In reviewing claims of improper or incorrect jury instructions,
this Court will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.
We further note that, it is an unquestionable maxim of law in
this Commonwealth that a trial court has broad discretion in
phrasing its instructions, and may choose its own wording so
long as the law is clearly, adequately, and accurately presented
to the jury for its consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is there
reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014)
(citations omitted).
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Appellant first directs our attention to that portion of the charge where
the court instructed the jury as follows. In describing the type of mens rea
required, the court blurred the distinction between the situation where
serious bodily injury actually results and where serious bodily injury was
only attempted. The court advised the jury: “as you recall, I said the
Defendant needs to intentionally, knowingly or recklessly under
circumstances indicating an indifference to the value of human life cause or
attempt to cause serious bodily injury.” Id. at 125.
A moment later, the court instructed the jury that
You must find that the Defendant intentionally or
knowingly or recklessly under circumstances manifesting an
extreme indifference to the value of human life caused or
attempted to cause serious bodily injury to the victim in this
case.
N.T. Jury Trial, 8/6/14, at 126. According to Appellant, the court again
commingled the attempt to cause serious bodily injury with causing serious
bodily injury when it advised the jury:
In order to find the Defendant guilty of this aggravated
assault, you must find that the Commonwealth has proven
beyond a reasonable doubt that the Defendant intentionally,
knowingly or recklessly under circumstances manifesting an
extreme indifference to the value of human life caused serious
bodily injury or attempted to cause serious bodily injury.
Id. at 136.
Although the trial court subsequently clarified that an attempt
required the intent to causes serious bodily injury and a substantial step
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taken toward that end, id. at 137, Appellant contends that the instruction
as a whole was confusing. Furthermore, the confusion was not harmless as
Appellant received a self-defense instruction acknowledging that he used
deadly force, i.e., force capable of causing serious bodily injury. He argues
that the aggravated assault charge incorrectly implied that the self-defense
could be overcome if Appellant used a reckless amount of force sufficient to
cause serious bodily injury, which was a lower threshold.
We agree with Appellant that the trial court’s charge regarding
aggravated assault impermissibly invited the jury to find Appellant guilty if
he recklessly attempted to cause serious bodily injury. Counsel for Appellant
registered an objection to the charge on this ground. However, after further
discussion with Appellant, counsel advised the court that the instruction was
acceptable as they wished to downplay the aggravated assault. Id. at 132.
Nonetheless, the court decided to address Appellant’s concern regarding the
attempt to cause serious bodily injury portion of its charge. Counsel noted
an exception for the record, explaining, “we are prepared to leave it as it is
without rehashing all of them.” Id. at 134. The trial court revisited the
attempt to cause serious bodily injury language in § 2702(a)(2):
There’s another aspect to that also that he attempted to
cause serious bodily injury. With regard to attempt, it’s the
same thing as intentional, it’s that I want to cause serious bodily
injury, and with regard to attempt, it’s that I want to cause
serious bodily injury and I do a substantial step towards causing
that serious bodily injury.
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You don’t have to actually make a determination that
serious bodily injury resulted, but that I wanted to cause serious
bodily injury.
Go back to my analogy previously with regard to the
aggravated assault. I take a baseball bat and I swing it at your
head and you duck, didn’t cause serious bodily injury, but I can
tell you if I do that, and I would never do it, I’m attempting to
cause serious bodily injury. That’s the aggravated assault
serious bodily injury.
Id. at 136.
We find that the aforementioned instruction corrected the trial court’s
earlier instruction that erroneously implied that an aggravated assault
conviction could be based on a reckless attempt to cause serious bodily
injury. Moreover, Appellant, by choosing to acquiesce in the court’s earlier
misstatement of the law, waived any claim that the trial court’s charge as to
the mens rea for an attempt to cause serious bodily injury constituted
reversible error.1 Hence, no relief is due.
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1
After the jury was excused to begin its deliberations, it sent a note to the
trial court asking it to “[p]lease define the states of mind and confirm that
any one of them can cause guilt.” Id. at 158. The court re-instructed the
jury: “. . . any one of [the states of mind], intentional, knowing or reckless,
with regard to the aggravated assault is fine. If you find any one of those
states of mind for the first aggravated assault, that’s sufficient.” Id. at 160.
“So the states of mind necessary for the first aggravated assault,
intentionally, knowingly or recklessly, any one of those.” Id. “With regard
to the attempt to cause serious bodily injury, again, I want to cause serious
bodily injury and serious bodily injury does in fact occur.” Id. at 162.
Appellant did not object or renew his earlier objection to this instruction.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2015
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