Com. v. Ferko, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant
v.
MICHAEL G. FERKO
No. 177 EDA 2014
Appeal from the Order Dated December 13, 2013
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000943-2013
BEFORE: ALLEN, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 15, 2015
The Commonwealth appeals from the order entered December 13,
2013, in the Chester County Court of Common Pleas granting the motion for
judgment of acquittal made by Appellee, Michael G. Ferko, on one count of
aggravated assault.1 After Ferko was convicted by a jury of terroristic
threats, simple assault (two counts), and aggravated assault – attempts to
cause serious bodily injury,2 he moved for a judgment of acquittal on the
charge of aggravated assault, which the trial court granted. On appeal, the
Commonwealth contends the court erred in granting Ferko’s motion because
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1
18 Pa.C.S. § 2702(a)(1).
2
18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1), (a)(3), and 2702(a)(1),
respectively. The trial court also found Ferko guilty of the summary offense
of harassment. 18 Pa.C.S. § 2709(a)(1).
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the evidence clearly supported the jury’s determination that Ferko attempted
to cause serious bodily injury to the victim. For the reasons set forth below,
we are compelled to reverse the order of the trial court, reinstate the jury’s
verdict, and remand for further proceedings.
The trial court summarized the testimony presented at Ferko’s trial as
follows:
During the early morning hours of January 21, 2013, [Ferko] and
his victim, J.M., were living together at the Pickering Inn, a hotel
in Phoenixville, PA. They had been together 4 or 5 months as
boy[friend] and girl[friend]. On that day, they had been drinking
all day long – beer and vodka. J.M. was intoxicated, as was
[Ferko]. J.M. testified that she wanted to party in the next
apartment, but that [Ferko] wanted to go to bed. [Ferko]
became agitated, which sparked the disagreement that led to
J.M.’s assault by [Ferko]. J.M. resisted and tried to get out of
the apartment. She clawed at his arms to get him to let her go.
[Ferko] backed away eventually, and the pair started drinking
again. When [Ferko] went in [the] bathroom,[3] J.M. ran
upstairs, but [Ferko] followed her and took her back to their
apartment. During the course of the argument and physicality
that morning, reported to have lasted from 45 minutes to 3
hours, J.M. dialed 911 on her cell phone. While she did not
speak to the 911 operator, the operator heard the melee and
notified police, who were able to triangulate J.M.’s location, and
responded to the hotel at 5:18 A.M. “for a report of a domestic.”
There, police confronted both [Ferko] and J.M. and, as reported
in the police affidavit, observed minor cuts and abrasions on
J.M.’s face and chest, who reported [Ferko] had punched her
numerous times and threatened to kill her. [Ferko] was
arrested, and J.M. was taken to Phoenixville Hospital, where she
was seen in the emergency room by a Physician’s Assistant, and
diagnosed with a pressure-punctured left [eardrum], a fractured
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3
The rooms in the hotel shared a bathroom, which was located in the
hallway, “[r]ight next door” to Ferko’s room. N.T., 12/2/2013, at 30.
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rib and a broken tooth. The diagnosis was verified by the PA’s
supervising physician, who did not examine J.M. The evidence
at trial was that the punctured eardrum was consistent with a
blow to the side of the face. The injuries, with the exception of
the broken tooth, were photographed and shown to the jury.
During the assault, [Ferko] suffered scratches on his arms,
which were photographed and shown to the jury. J.M. did not
seek follow-up care for her injuries.
Trial Court Order, 1/9/2014 at n.1.
At the conclusion of the testimony, the jury was instructed on the
following charges: aggravated assault - causing serious bodily injury;
aggravated assault – attempts to cause serious bodily injury; simple assault
– attempts to cause bodily injury; simple assault – attempts by physical
menace to put another in fear of serious bodily injury; and terroristic
threats. As noted above, on December 4, 2013, the jury returned a verdict
of guilty on one count of aggravated assault – attempts to cause serious
bodily injury, as well as both counts of simple assault, and terroristic
threats.4 The jury, however, found Ferko not guilty of aggravated assault –
causing serious bodily injury. Following the verdict, Ferko made an oral
motion for judgment of acquittal on the charge of aggravated assault –
attempts to cause serious bodily injury.5 On December 13, 2013, the trial
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4
In addition, the trial court found Ferko guilty of the summary offense of
harassment, but not guilty of the summary offense of disorderly conduct.
See 18 Pa.C.S. §§ 2709(a)(1) and 5503(a)(1), (4).
5
Ferko originally moved for judgment of acquittal on this charge at the close
of the Commonwealth’s case-in chief. See N.T., 12/3/2013, at 171. After
taking the matter under advisement, the trial court denied the motion the
(Footnote Continued Next Page)
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court granted Ferko’s motion. Thereafter, the Commonwealth filed a motion
for reconsideration, which the trial court denied on January 9, 2014. This
timely appeal followed.6
On appeal, the Commonwealth argues the trial court erred in granting
Ferko’s motion for judgment of acquittal. Specifically, the Commonwealth
contends the trial court applied an incorrect standard of review, and viewed
the evidence in a light most favorable to Ferko, rather than a light most
favorable to the Commonwealth, as verdict winner. See Commonwealth’s
Brief at 23. In support of this argument, the Commonwealth asserts the
court overlooked the testimony of a neighbor who witnessed the assault.
Moreover, it claims the trial court improperly considered Ferko’s voluntary
intoxication as a factor that “militate[d] against [his] formation of a specific
intent to commit aggravated assault[.]” Id. at 29.
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(Footnote Continued)
next day, stating “I think under the facts of this case this is a jury
question.” N.T., 12/4/2013, at 4 (emphasis supplied).
6
The Commonwealth certified in its notice of appeal that the trial court’s
order “effectively terminates the prosecution with respect to the charge of
Aggravated Assault.” Notice of Appeal, 1/10/2014. See Pa.R.A.P. 311(d);
Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985).
The trial court did not direct the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
nor did the court file an opinion pursuant to Pa.R.A.P. 1925(a). Rather, the
reasons for the trial court’s ruling are reflected in a footnote in its January 9,
2014, order denying the Commonwealth’s motion for reconsideration.
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Our review of a ruling granting a motion for judgment of acquittal is
guided by the following:
“A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and
is granted only in cases in which the Commonwealth has failed
to carry its burden regarding that charge.” As we have stated:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] the fact-finder.
In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
“It is well recognized, however, that a criminal conviction cannot
be based upon mere speculation and conjecture.”
Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citations
omitted), appeal denied, 93 A.3d 462 (Pa. 2014).
At issue in the present case is Ferko’s jury conviction of aggravated
assault – attempting to cause serious bodily injury. See 18 Pa.C.S. §
2702(a)(1).
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A person may be convicted of aggravated assault graded
as a first degree felony if he “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). “Serious bodily injury” means “[b]odily 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.” 18 Pa.C.S. §
2301. “A person commits an attempt when, with intent to
commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime.” 18
Pa.C.S. § 901(a). An attempt under § 2702(a)(1) requires a
showing of some act, albeit not one causing serious bodily
injury, accompanied by an intent to inflict serious bodily injury.
Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887,
889 (1978).
“A person acts intentionally with respect to a material
element of an offense when ... it is his conscious object to
engage in conduct of that nature or to cause such a result....”
18 Pa.C.S. § 302(b)(1)(i). “As intent is a subjective frame of
mind, it is of necessity difficult of direct proof.”
[Commonwealth v. ]Gruff, [822 A.2d 773, 776 (Pa. Super.
2003), appeal denied, 863 A.2d 1143 (Pa. 2004)] (quoting
Commonwealth v. Roche, 783 A.2d 766, 769
(Pa.Super.2001)). The intent to cause serious bodily injury may
be proven by direct or circumstantial evidence.
Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 542
(2003).
Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006).
In Matthew, supra, the Pennsylvania Supreme Court reaffirmed the
totality of the circumstances test, first utilized in Commonwealth v.
Alexander, 383 A.2d 887 (Pa. 1978), to determine whether a defendant
possessed the requisite specific intent to inflict serious bodily injury
necessary to support a conviction of aggravated assault, when the victim did
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not, in fact, suffer serious bodily injury as a result of the assault. The
Matthew Court explained:
Alexander provided a list, albeit incomplete, of factors that may
be considered in determining whether the intent to inflict serious
bodily injury was present, including evidence of a significant
difference in size or strength between the defendant and the
victim, any restraint on the defendant preventing him from
escalating the attack, the defendant’s use of a weapon or other
implement to aid his attack, and his statements before, during,
or after the attack which might indicate his intent to inflict
injury. Alexander, at 889. Alexander made clear that “simple
assault combined with other surrounding circumstances may, in
a proper case, be sufficient to support a finding that an assailant
attempted to inflict serious bodily injury, thereby constituting
aggravated assault. All we hold is that the evidence in the
instant case is insufficient to support such a finding.” Id., at
889-90.
Matthew, supra, 909 A.2d at 1257, citing Alexander, supra.
In Matthew, the Court determined that the defendant’s actions in
placing a loaded gun to the throat of the victim, then repeatedly pointing the
gun at the victim while threatening to kill him, was sufficient to establish the
defendant intended to inflict serious bodily injury, although the victim, was
not, in fact, injured at all. Id. at 1258-1259. The Court opined:
Regarding the intent element, there was sufficient
evidence for the fact-finder to conclude appellant possessed the
requisite intent to inflict serious bodily injury upon [the victim]
since he repeatedly threatened to kill [the victim]. See
[Commonwealth v.] Hall, [830 A.2d 537, 542 (Pa. 2003)]
(intent can be found where one verbalizes reasons for his
actions). If the threats alone were not enough to establish his
intent, the fact-finder could determine his intent from pushing
the loaded gun against [the victim’s] throat and otherwise
pointing it at him. See id. (“Where the intention of the actor is
obvious from the act itself, the [fact-finder] is justified in
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assigning the intention that is suggested by the conduct.”
(citation omitted)).
Id. at 1259.
Here, the trial court distinguished Matthew from the facts of this case
because Ferko “employed no weapon and made no repeated threats against
[the victim].” Order, 1/9/2014, at n.1. Rather, the trial court concluded:
[T]he angry encounter between [Ferko] and [the victim] during
which the assault occurred was variously described as having
lasted from 45 minutes to 3 hours. It defies credulity to
conclude under the factual circumstances of this case, had
[Ferko] harbored the specific intent to cause serious bodily injury
to [the victim], he could not have accomplished that purpose
and intent at any time during this protracted domestic incident.
Instantly, [the] Commonwealth was required to prove beyond a
reasonable doubt from the circumstances surrounding the
assault that [Ferko] had the specific intent to cause the type of
harm that in fact did not occur in this instance. As to [Ferko’s]
malicious conduct, []where malice is based on a reckless
disregard of consequences, it is not sufficient to show mere
recklessness; rather, it must be shown the defendant
consciously disregarded an unjustified and extremely high risk
that his actions might cause death or serious bodily injury. A
defendant must display a conscious disregard for almost certain
death or injury such that it is tantamount to an actual desire to
injure or kill; at the very least, the conduct must be such that
one could reasonably anticipate death or serious bodily injury
would likely and logically result. Commonwealth v. O’Hanlon,
653 A.2d 616, 618 (1995). The trial evidence clearly
demonstrated that both [Ferko] and [the victim] were
intoxicated, a factor that militates against [Ferko’s] formation of
a specific intent to commit aggravated assault under all of the
instant facts.
Id.
Therefore, the trial court determined the Commonwealth presented
insufficient evidence of Ferko’s specific intent to cause serious bodily injury
to the victim because: (1) Ferko did not use a weapon to assault the victim;
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(2) the assault occurred over a long period of time so that Ferko could have
inflicted serious bodily injury upon the victim if he had intended; and (3)
both Ferko and the victim were intoxicated at the time of the assault.
The Commonwealth counters, however, that in reversing the jury’s
verdict, the trial court viewed the evidence in a light most favorable to
Ferko, rather than the light most favorable to the Commonwealth, as verdict
winner. Moreover, in doing so, the court “overlooked” the testimony of
Ferko’s neighbor, Terri Bearden, who witnessed the assault.
Commonwealth’s Brief at 29.
A review of the trial testimony supports the Commonwealth’s claims.
The victim testified that when she attempted to leave the apartment in the
early morning hours of January 21, 2013, Ferko “[t]old [her] he didn’t want
[her] to leave, that [she] belonged in bed with him.” N.T., 12/2/2013, at
20. The argument soon turned physical, when Ferko “smacked [her] upside
[her] head a couple of times,” and, after she fell back onto the couch, he
“started punching [her] in [her] ribs and … upper body area.” Id. She
claimed Ferko was “straddled over top” of her, and that she began “clawing
at his arms” to get him off. Id. at 22-23. The victim further testified that
while Ferko was hitting her, “he said he was going to kill [her].” Id. at 32.
When Ferko finally relented, the victim went in search of a male
neighbor who lived upstairs. When she could not find him, she headed back
downstairs where she encountered Ferko who was “coming up the stairs to
get [her] and bring [her] back down.” Id. at 24. The victim testified that
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they started arguing again, and Ferko began “smacking [her] around.” Id.
at 25. She stated that when Ferko went to the bathroom in the hallway, she
dialed 911 on her cell phone and left the line open in the apartment so that
the police would come. She testified, “I was afraid [Ferko] was going to kill
me. He was hitting me over and over again and wasn’t stopping.” Id. The
victim kept Ferko out of their apartment until the police arrived.
A neighbor, Terri Bearden, testified that she was in her apartment next
door with her door closed when she heard the victim screaming, “stop it,
leave me alone, get off of me.” N.T., 12/3/2013, at 39. She started
banging on the victim’s door to see if the victim was OK. Ferko answered
the door, and Bearden saw the victim crying. She asked the victim to go to
the store with her so that Ferko could calm down. Bearden testified that
Ferko responded, “she is not going anywhere and took [the victim] and
threw her into this … dresser[-]like thing that was in their room, and
slammed the door.” Id. at 40. Bearden was able to “peek[] through” the
door because the hinge was broken.7 Id. at 41. She witnessed Ferko with
his hands on the victim’s throat, screaming, “I’m just going to kill you,” as
he was choking the victim. Id. Bearden testified that Ferko then started
punching the victim in her face with a closed fist. Id. at 43.
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7
Bearden testified that although she could see in the room, she could not
open the door. N.T., 12/2/2013, at 43.
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Accordingly, viewing the evidence in the light most favorable to the
Commonwealth, the testimony reveals that Ferko threatened to kill the
victim, while he slapped, punched, and choked her over a prolonged period
of time. Further, with regard to the Alexander factors, we note that while
Ferko did not use any weapon during the assault, the record reveals that he
was much larger than the 5’2”, 125-pound victim,8 and that he continued to
assault the victim, on and off, until the police finally arrived.
Moreover, we note the Matthews Court rejected the argument that
specific intent is lacking when a defendant “does not avail himself of the
opportunity to follow through with threats” to harm the victim. Matthews,
supra, 909 A.2d at 1258. Here, the jury was properly instructed on the
elements of the crime of aggravated assault – attempts to cause serious
bodily injury. See N.T., 12/4/2013, at 98-102. Furthermore, the trial court
instructed the jury on the totality of the circumstances test set forth in
Alexander, and told them that Ferko’s intent “may be proven by the totality
of the defendant’s conduct and any threats made during the encounter with
the victim.” Id. at 101. Therefore, the jury, as fact finder, was left to
determine whether the testimony of the victim and Bearden was credible,
and if so, whether Ferko’s words and actions demonstrated his intent to
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8
N.T., 12/2/2013, at 23. See Criminal Complaint, 1/21/2013, at 1 (listing
Ferko’s height and weight as 6’1” and 175 pounds).
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inflict serious bodily injury upon the victim. We conclude that the evidence
presented, which the jury did find credible, was sufficient for them to return
a verdict of guilty on that charge.
Lastly, with regard to the trial court’s statement that the intoxication
of both Ferko and the victim “militates against [Ferko’s] formation of specific
intent,”9 we note that such a consideration is improper under the law. It is
axiomatic that voluntary intoxication is not a defense to a criminal charge,
nor may evidence of intoxication be introduced to negate the intent element
of an offense. 18 Pa.C.S. § 308.10 Therefore, the fact that Ferko was
intoxicated at the time of the assault was irrelevant to the question of
whether he possessed the specific intent to inflict serious bodily injury on the
victim.
Accordingly, because we agree with the Commonwealth that the jury
was presented with sufficient evidence to support a verdict of aggravated
assault – attempts to cause serious bodily injury, we are compelled to
reverse the order of the trial court granting Ferko’s motion for judgment of
acquittal on that charge, reinstate the jury’s verdict, and remand for further
proceedings.
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9
Trial Court Order, 1/9/2014, at n.1.
10
The only exception to this rule is for a charge of first degree murder,
where evidence of intoxication may be introduced “whenever it is relevant to
reduce murder from a higher degree to a lower degree of murder.” 18
Pa.C.S. § 308.
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Order reversed. Jury’s verdict reinstated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2015
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