Com. v. Brown, V. ( 2019 )

J-A30014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VONDA KAY BROWN :
:
Appellant : No. 615 WDA 2017
Appeal from the Judgment of Sentence Entered March 9, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004011-2015
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 5, 2019
Appellant Vonda Kay Brown appeals from the judgment of sentence
entered on March 9, 2017, following her conviction for, inter alia, aggravated
assault, 18 Pa.C.S. § 2702(a)(1).1 After careful review, we affirm.
The trial court set forth the following factual history:
This matter arises out of the . . . charges being filed against
[Appellant] when her severely disabled son was found to have
second degree burns to his right hand while under the care of
[Appellant]. The Commonwealth established that on October 13,
2014[,] the victim was brought by [Appellant] to the emergency
room of Ohio Valley Hospital at 7:29 p.m. with a complaint of right
hand swelling. The triage nurse described the victim’s right hand
as being swollen with multiple areas of large serosanguineous-
filled blisters. [Appellant] stated her son woke up with his hand
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1 Appellant also plead guilty to one count of false/fraudulent medical
assistance claim, 62 P.S. § 1407(a)(1), and one count of unentitled
reimbursement, 62 P.S. § 1407(a)(12), at a separate docket and was
sentenced for those convictions on February 7, 2017. Those convictions are
not implicated in the instant appeal.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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in that condition and that for the past few days the victim had
been hitting himself in the mouth with his right hand and that she
had put a sock on his hand to protect it and that when she
removed the sock that morning his hand was swollen. The triage
nurse believed that based on the appearance of his hand that it
had been burned. She testified that after she conducted her
examination she notified the [hospital physician that] victim’s
hand was burned.
The Commonwealth offered photographs of the victim’s
hand taken at the time of his presentation to the hospital which
showed the swelling and blistering of the hand as well as a clear
straight line of demarcation of the injury in the area of the wrist.
As a result of his disability, the victim was described as being non-
verbal with his arms, wrists and legs being severely contracted.
Although [Appellant] informed the nursing personnel that the
victim had been hitting his hand on his face, there was no bruising
or injuries to his face.
The Commonwealth called Officer Greg Boss of the City of
Pittsburgh Police Sex Assault and Family Crisis Unit who testified
that during his investigation he interviewed [Appellant] and that:
She told me that sometime between the 10th and
13th her son [hit] himself in the mouth with his right
hand, which caused a cut to his hand. At that time
she covered it to protect [it] with a sock, and a few
days later she noticed after she took the sock off that
it was badly infected at the time.
Boss also testified that [Appellant] was “very clear” during
their interview “that she was the sole provider and caretaker for
her son, nobody else cared for him but her.”
On cross examination Boss acknowledged he initially
interviewed the victim’s primary care physician who wasn’t able
to conclusively say how the injury happened and, therefore,
determined that the charges were “unfounded.” He also testified,
however, that at that time he had not yet reviewed the
photographs of the victim’s hand or obtained the medical records.
He further testified that: “So when I got the pictures and I saw
how severe they were, I felt that it needed to be investigated more
thoroughly.” He also spoke with physicians, including Dr. Stacy
Lane, who informed him that the injury to the victim’s hand was
a submersion burn.
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The Commonwealth also called Dr. Stacy Lane, an infectious
disease specialist. Dr. Lane testified that she examined the victim
on October 14, 2014 to determine if his injury was the result of
an infection. She indicated that her examination showed that the
victim had “marked bulbous lesions of his hand with splitting.”
She testified on her examinations he did not have any of the signs
of a primary infection, including white blood cell count elevation,
fever, elevated C-reactive protein or elevated sedimentation rate
and his blood cultures were normal. She testified that there were
no bite marks or cuts on the hand and that there was no
purulence, puss or induration which would be consistent with an
infection from a bite or infectious injury to the hand. She indicated
that if the injury was the result of a bite which is then covered
with a sock for an extended period there would be significant
purulence, a foul smell, necrosis and disfigurement. It was her
opinion the injury was a burn with resulting cellulitis. She testified
on cross-examination that she believed the injuries were caused
when the hand was “dunked in something hot,” but acknowledged
that she could not determine whether it was something hot or
something chemical.
The Commonwealth also called Dr. Michael Lally, a general
and vascular surgeon, who testified that he examined the victim
on October 14, 2014 and found that his hand was covered with
water blisters which he believed were from a burn from
immersion. Due to the appearance of the injury he ordered that
photographs be taken. He testified that all the melanin in the skin
was burn[ed] and lifted off and water blisters were uniformly
distributed across the entire hand all the way up from the nails to
the transition area of the wrist leaving [a] pink area of underlying
dermis. Dr. Lally testified that in a thermal or scald injury the first
thing that happens is that water blisters occur over the first 5 to
7 days after a burn. The blisters then drain and over the course
of the next weeks the area is repopulated with epidermal cells and
new skin. Dr. Lally testified that he was informed that the alleged
cause of the injury was a sock or glove being placed over a bite
or other injury to the hand, however, the wound or injury to the
victim’s hand was not consistent with that mechanism of injury.
Dr. Lally testified that if there was infection there would be a
central area of death of the skin and the subcutaneous tissue
would be liquefied and it would spread out in a starburst pattern
and work its way up the limb. He testified that the victim’s hand
did not have any of the characteristics of an infection. He testified
the injury was equally distributed over the entire hand both on the
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palmer and dorsal sides and even in the webs between the fingers
with a sharp demarcation line of the injury at the level of the
[wrist]. Dr. Lally further testified that the victim did not have any
of the signs of infection which would have included redness
spreading up his entire arm, swollen lymph nodes in the armpit,
elevated white count, fever, or other signs of toxicity. Dr. Lally
testified that the victim proceeded through the expected stages of
recovery of a scald burn. Dr. Lally testified that it was his opinion
that the injury was either a thermal or chemical burn.
The Commonwealth also called Dr. Ariel Aballay, a board-
certified general surgeon who practiced burn surgery for 10 years
and was director of the West Penn burn unit for three years.
Dr. Aballay testified that he reviewed the medical records and the
pictures of the victim’s hand and interviewed the individuals
involved in his care. He testified that based on his review of
materials the victim’s injuries were consistent with a second
degree burn. The characteristics of the injuries were the presence
of blisters on the entire hand and a clear line of demarcation
between burned and normal skin which was consistent with an
injury caused by the submersion of the hand into a hot liquid.
Dr. Aballay also testified there [were] no splattering burns
above the demarcation line which would be consistent with
someone accidently placing their hand in a hot liquid and then
attempting to remove it quickly. In addition, based on the victim
having severe contraction of the hips, knees, elbows and wrists it
was unlikely that the victim would extend the hand and put it [in]
a container with water by himself. He also testified that the
appearance of the blisters from a burn would be within 24 to 72
hours depending on the temperature of the water and the time of
exposure.
Dr. Aballay testified that the description of the injury
occurring from either a bite or blow to the hand which was then
covered by a sock, which then resulted in infection, was
inconsistent with the demarcation line of the injury at the wrist
and the involvement of the palmer aspect of the hand. On cross
examination Dr. Aballay testified that the injury was not consistent
with a chemical burn due to the uniformity of the injury between
the fingers, which was consistent with hot water. He testified that
in order to have a second degree burn of the nature shown by the
victim the hand would have to be submerged in hot water at 120°F
for several minutes but as the temperature increases the length
of time necessary to cause the burn decreases.
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The Commonwealth called Jennifer Sneer, an agent for the
Medicaid Fraud Control Section of the office of the Attorney
General who testified that she interviewed [Appellant] concerning
the victim’s hospitalization and that [Appellant] informed her that
in June 2014 the victim had become increasingly combative and
that he had been hitting himself in the face with his right hand to
the point that he made a cut on his knuckles. [Appellant] further
stated that shortly after she had taken the victim to his primary
care physician and when she came home she put Neosporin on
the cut and put a sock on his hand. [Appellant] also stated that
very shortly after the sock became wet with saliva and she
replaced the sock in June 2014 and that it stayed on his hand until
October 13, 2014 when she removed it.
[Appellant] testified that her son, who was born on June 20,
1990, suffered from cerebral palsy, muscular dystrophy, scoliosis
and a seizure disorder. As a result of these conditions he was
unable to speak, walk, feed or clothe himself or take care of his
personal needs and his arms, legs and hands were severely
contracted. She testified that when he would become agitated or
would be in pain he would hit himself in the mouth with his fist or
put his fist in his mouth and bite it causing cuts or bruises to his
hand. She testified that he has been biting his hands since he has
been about five years old. [Appellant] testified that in May of
2014 her son was becoming more combative and agitated and in
order to protect her son’s hand and his teeth she put a sock on
his right hand to keep him from biting it and to keep him from
knocking his teeth out. She denied that she ever told
investigators that she did not remove the sock for an extended
period but instead that she changed [it] regularly.
She testified that on October 13, 2014[,] when she removed
the sock, which she stated had been on overnight, she noted that
his right hand was swollen and had blisters. She testified she
called Dr. McKnight’s office and talked to her secretary on four
occasions and was told to put an ice pack on his hand. She
testified that she followed those instructions but wasn’t satisfied
so she took him to [the] hospital. She testified that she was never
told that her son was being treated for a burn but that she saw on
one of the reports that he had cellulites. [Appellant] testified she
cared for her son throughout his life and denied submerging his
hand in water or otherwise burning his hand.
On cross examination she acknowledged that when she
arrived at the hospital she told the staff he had been biting
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himself, that she had placed a sock on his hand and when she
removed the sock that morning his hand was swollen and covered
with blisters as shown in the photographs. She denied giving
inconsistent statements about the period of time that the sock was
on his hand, indicating [that] she had always denied that the sock
was on his hand continuously from July to October. She
contended that he had an open wound that had become infected
which resulted in the appearance of his hand.
[Appellant’s] daughter, Breanna McGee, also testified that
while she lived with her mother and her brother, [she had never
witnessed Appellant act aggressively towards the victim] and that
she had a reputation as a good and caring person. Upon
consideration of all testimony [Appellant] was found guilty of
aggravated assault.
Trial Court Opinion, 6/25/18, at 2–8 (citations omitted).
Appellant was initially sentenced to thirty-six to seventy-two months of
incarceration for the aggravated assault conviction under 18 Pa.C.S.
§ 2702(a)(1).2 Order, 2/7/17. Appellant filed a post-sentence motion on
February 13, 2017. Following a March 9, 2017 hearing on the post-sentence
motion, the trial court re-sentenced Appellant to twenty-six to fifty-two
months of incarceration. Order, 3/9/17. The trial court re-sentenced
Appellant because it found that she was subject to a lower offense gravity
score on the grounds that the evidence was not sufficient to establish that the
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2 Pursuant to 18 Pa.C.S. § 2702(a)(1),
(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;
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victim suffered serious bodily injury due to the lack of testimony about the
victim’s current condition, including whether he suffered any permanent
scarring from the burns. N.T. (Post-Sentence Motion Hearing), 3/9/17, at 7.
Appellant filed a second post-sentence motion, which the trial court denied.
This appeal followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant presents the following question for our review:
1. Was the evidence insufficient to convict [Appellant] of
aggravated assault (18 Pa.C.S. § 2702(a)(1)) as the
evidence failed to establish that the victim suffered serious
bodily injury or that she acted with the requisite mens rea?
Appellant’s Brief at unnumbered 5.
Our standard for review of a sufficiency of the evidence claim is as
follows:
When presented with a claim that the evidence was insufficient to
sustain a conviction, an appellate court, viewing all of the evidence
and reasonable inferences therefrom in the light most favorable
to the Commonwealth as the verdict winner, must determine
whether the evidence was sufficient to enable the fact-finder to
find that all elements of the offense were established beyond a
reasonable doubt.
Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation
omitted). “Furthermore, ‘[t]he Commonwealth may sustain its burden by
proving the crime’s elements with evidence which is entirely circumstantial
and the trier of fact, who determines credibility of witnesses and the weight
to give the evidence produced, is free to believe all, part, or none of the
evidence.’” Id. at 361–362 (quoting Commonwealth v. Brown, 701 A.2d
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252, 254 (Pa. Super. 1997)). “As an appellate court, we do not assess
credibility nor do we assign weight to any of the testimony of record.”
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).
Further, “circumstantial evidence is reviewed by the same standard as direct
evidence—a decision by the trial court will be affirmed so long as the
combination of the evidence links the accused to the crime beyond a
reasonable doubt.” Commonwealth v. Bricker, 1014 (Pa. Super. 2005)
(quotation omitted). “Additionally[,] we may not reweigh the evidence or
substitute our own judgment for that of the factfinder.” Commonwealth v.
Walker, 139 A.3d 225, 229 (Pa. Super. 2016).
Under 18 Pa.C.S. § 2702 (a)(1), “[a] person is guilty of aggravated
assault if he . . . attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly, or recklessly under circumstances
manifesting an extreme indifference to the value of human life.” 18 Pa.C.S.
§ 2702(a)(1). As noted by Appellant, the term “serious bodily injury” is
defined by statute as “bodily injury which creates a substantial risk of death
or which causes serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” Appellant’s Brief
at unnumbered 14 (quoting 18 Pa.C.S. § 2301).
Appellant asserts that intent is a fact-specific inquiry. Appellant’s Brief
at unnumbered 19. She argues that the Commonwealth failed to produce any
witnesses who observed Appellant abuse the victim, and relied instead upon
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“medical witnesses,” who testified that the victim’s injuries could not have
occurred as Appellant claimed they did. Id. Specifically, Appellant avers that
there was “no evidence as to how [the victim’s] injuries occurred,” and that
“there is a complete lack of evidence as to [Appellant’s] actual conduct, which
would support a finding of recklessness.” Id. at 22. Ultimately, Appellant
argues that the Commonwealth failed to prove that she “attempted to cause
serious bodily injury to her son, intentionally, knowingly, or recklessly.” Id.
at 21.
In its Pa.R.A.P. (a) 1925 opinion, the trial court reviewed the evidence
presented at trial and held that the following established that Appellant did
have the specific intent to cause bodily injury:
Based on the totality of the evidence, it is clear that the
Commonwealth established that [Appellant], who was the sole
person in custody and control of the victim, submerged the
victim’s hand into hot water or other liquid for a sufficient period
of time to cause second degree burns to his hand. Based on the
victim’s physical conditions and abilities, the Commonwealth
established that the victim did not accidently or inadvertently
place his own hand into the water. The evidence established that
a third person would have been required to place his hand into the
hot water and submerge it to his wrist for a period of time
necessary to cause the burns. It is clear that specific intent to
cause serious bodily injury can be inferred from the evidence. The
evidence establishes that this was not an inadvertent act in which
his hand fell or was placed into hot water and then was quickly
pulled away but instead that it was done purposefully and with the
intent to cause a serious injury to the hand. Therefore,
[Appellant] was appropriately found guilty of aggravated assault.
Trial Court Opinion, 6/25/18, at 10–11.
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“For aggravated assault purposes, an ‘attempt’ is found where the
accused, with the required specific intent, acts in a manner which constitutes
a substantial step toward perpetrating a serious bodily injury upon another.”
Commonwealth v. Alford, 880 A.2d 666, 670 (Pa. Super. 2005). In order
to determine whether an appellant possessed the requisite intent, this Court
will look at both direct and circumstantial evidence. Id. at 670–671. “In
determining whether intent was proven from such circumstances, the fact
finder is free to conclude the accused intended the natural and probable
consequences of his actions to result therefrom.” Commonwealth v.
Bradley, 69 A.3d 253, 257 (Pa. Super. 2013) (quoting trial court’s 1925(a)
opinion, 6/21/12, at 4–6) (finding the requisite intent where defendant, an
adult male, twisted the arm of small child and fractured child’s arm because
the “natural consequence of an adult twisting the arm of a small child this
hard was a fractured bone.”)).
Because direct evidence of intent is often unavailable, intent to
cause serious bodily injury may be shown by the circumstances
surrounding the attack. In determining whether intent was
proven from such circumstances, the fact finder is free to conclude
the accused intended the natural and probable consequences of
his actions to result therefrom.
Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citations
and quotations omitted).
As the trial court noted in its Rule 1925(a) opinion, Appellant was the
only person who provided care for the victim, who is disabled and dependent
upon Appellant for all of his needs. Trial Court Opinion, 6/25/18, at 10.
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Moreover, the victim’s upper extremities were contracted such that he would
have been unable to voluntarily or accidentally extend his hands to place them
in hot water. Id. Additionally, three doctors, an infectious disease specialist,
a general/vascular surgeon, and a burn specialist, testified that the injuries to
the victim were not due to an infection but were the result of the victim’s hand
being submerged in a hot liquid. Id. This finding was based upon the fact
that the victim showed no clinical signs of having an infection; there was a
demarcation line between burned and normal skin; and the victim’s entire
hand was involved. Id. Finally, Dr. Aballay, the burn specialist, testified that
the “lack of any splatter burns above the line of demarcation was inconsistent
with the hand being inadvertently placed in hot water and being immediately
pulled out.” Id. Given our standard of review and the evidence put forth by
the Commonwealth and accepted by the trier of fact, we are constrained to
find that the evidence is sufficient to support Appellant’s conviction for
aggravated assault pursuant to 18 Pa.C.S. § 2702 (a)(1).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2019
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