Com. v. Browne, J. ( 2016 )

J. A18024/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1750 MDA 2015
:
JO ANNE BROWNE :
Appeal from the Judgment of Sentence, May 29, 2015,
in the Court of Common Pleas Dauphin of County
Criminal Division at No. CP-22-CR-0001587-2014
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JO ANNE BROWNE, : No. 1876 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, May 29, 2015,
in the Court of Common Pleas Dauphin of County
Criminal Division at No. CP-22-CR-0001587-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 29, 2016
Before us for review are consolidated cross appeals. At No. 1750 MDA
2015, the Commonwealth of Pennsylvania (“Commonwealth”) appeals from
that portion of the Order arresting judgment on cross-appellant’s jury
* Former Justice specially assigned to the Superior Court.
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conviction of aggravated assault. Cross-appellant Jo Anne Browne
(“Browne”) appeals at No. 1987 MDA 2015 from the judgment of sentence
following her conviction by a jury of simple assault. We affirm that part of
the order arresting Browne’s judgment of sentence on the charge of
aggravated assault. We also affirm the judgment of sentence on the charge
of simple assault.
The trial court set forth the following factual history:
The trial testimony revealed that Kyle Browne,
son of Defendant Jo Anne Browne, dated Rashanda
Gaston for approximately four to five years.
Ms. Gaston testified she and Mr. Browne began
dating when she was in tenth grade. Ms. Gaston
also stated that her relationship with Defendant,
Mr. Browne’s mother, was good in the beginning but
went downhill over time. Ms. Gaston and
Mr. Browne had been apart for some time and had
reconciled, unbeknownst to Defendant.
On the morning of February 7, 2014,
Ms. Gaston and Mr. Browne went apartment hunting
in Hummelstown. The car driven by Mr. Browne did
not have a registration sticker on it. Consequently,
he was pulled over by Corporal Justin Hess of the
Hummelstown Borough Police Department.
Ms. Gaston testified that after they were pulled over,
the officer smelled marijuana. A search of the
vehicle ensued, and the car was impounded. At that
point, Mr. Browne called Defendant, who showed up
driving her orange Honda Element, a box-shaped
SUV. Ms. Gaston testified that Defendant was angry
and told her that she was not supposed to be with
Mr. Browne and had been told to stay away from
him. After Mr. Browne and Ms. Gaston were free to
go, they proceeded to leave the scene on foot.
Defendant pulled up in her vehicle and Mr. Browne
and Ms. Gaston got into her car. Mr. Browne in the
front seat and Ms. Gaston in the back. An argument
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ensued, and Ms. Gaston stated that Defendant
stopped the car in the middle of the street for them
to get out. Kyle got out first, and Ms. Gaston
claimed she could not get out of the car because the
door would not open, so Defendant drove off with
Ms. Gaston still in the back seat.
Ms. Gaston testified that the back door was not
opening, and she started kicking it, attempting to get
out. Ms. Gaston stated that she reached into the
front seat to try to open the front door and, at that
point, Defendant pulled Ms. Gaston down by her
hoody while driving and punched her in the face.
Ms. Gaston said she started kicking the back door
again very hard, and saw a stop sign and cars in
front of them slow down. She thought that when
Defendant got down to 10 or 15 miles per hour, that
she could jump out of the vehicle and into the snow.
She was seated on top of Defendant’s grandson’s car
seat at the time. The back door did eventually open
and Ms. Gaston noted that Defendant was traveling
at around 30 or 35 miles per hour. Ms. Gaston
testified that Defendant then reached over and
pushed her out of the vehicle. Witnesses came to
Ms. Gaston’s assistance until police officers and [an]
ambulance arrived. Ms. Gaston was transported to
Hershey Medical Center, where she was treated for a
broken tibia. Specifically, she had two surgeries
requiring a plate and screws.
One of the witnesses, Laurie Kawalski, was
driving on the opposite side of Defendant’s vehicle
on the day in question. Ms. Kawalski was almost
directly face-to-face with them on the other side of
the road and testified that she saw someone in the
driver’s seat push someone out of the car.
Following several witnesses for the defense
who testified as to Defendant’s reputation as a
peaceful, law-abiding person, Defendant testified on
her own behalf. Immediately before her testimony,
the jury was taken outside of the courthouse to view
Defendant’s Honda Element. Defendant confirmed
that she did not want Ms. Gaston to date her son.
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She did not believe Ms. Gaston was a good influence,
and she would send nasty texts to Defendant.
Defendant testified that Ms. Gaston did not get out
of the car when her son did, and instead just sat
there. Defendant was late for work at this point and
told her that she would drop Ms. Gaston off at
Wal-Mart on her way to work. Defendant said she
began lecturing Ms. Gaston, and Ms. Gaston started
cursing at her in response, and told her to let her
“the f**k out of the car,” and started kicking the
door. Defendant told her she would let her out but
had to slow down first. Defendant testified that
Ms. Gaston came up front between the two seats,
opened the front passenger door, then returned to
the back and popped the rear door open. Defendant
started to slow the car and, by the time Defendant
turned around, Ms. Gaston had jumped from the
vehicle. Defendant stated that she at no time
pushed her, threatened to push her, or wanted to
push her. She also testified that even if she wanted
to, she could not push someone out of her car.
Trial court opinion, 2/17/16 at 4-6 (citations omitted).
The record further reflects that Browne’s jury trial commenced on
March 9, 2015. On March 10, 2015, the evidentiary portion of the trial
concluded and the jury began deliberations late in the afternoon. The jury
returned its verdict on March 11, 2015. With respect to aggravated assault,1
the jury found Browne guilty of “aggravated assault, 1-A causing serious
bodily injury” and not guilty of “aggravated assault Subsection B, Count 1,
attempted.” (Notes of testimony, 3/11/16 at 13.). The jury also found
1
18 Pa.C.S.A. § 2702(a)(1).
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Browne guilty of simple assault and recklessly endangering another person
(“REAP”).2
During Browne’s sentencing hearing on May 29, 2015, the trial court
stated:
[THE COURT:] We have a number of things that
have occurred in this case. When a jury gets a case
with numerous witnesses and facts to consider, and
in this one we even had the view where the vehicle
was brought for them to see the vehicle, for them to
see the dynamics and the dimensions of the vehicle
in considering their verdict. As I had referenced
before in my comments, a jury must try to fit
together, if they can, all the pieces that they find to
be true and correct and come up with a fair and just
verdict.
Over the years I’ve been here, which have
been quite a few on this bench starting in 1994,
there are only two cases I would say that I would
have -- that would have caused me to, if you will, fall
off my chair at the verdict. Only two. . . . The
second one is this one with the aggravated assault
causing serious bodily injury, and I’ve struggled and
struggled and struggled with it, and I think I figured
it out. And I may be wrong.
It wasn’t until it hit me of what they found to
be not there, what the jury found to be not guilty,
that the light bulb went on. And part of the problem
or part of the concern I have is the very standard
charge I gave to the jury, because what they
convicted of was that serious bodily injury under
aggravated assault causing serious bodily injury,
they must first find that there was serious bodily
injury to [the victim]. And there’s no doubt she
suffered serious bodily injury. No doubt about it.
But we said that the Defendant caused it. But how?
How was it caused?
2
18 Pa.C.S.A. §§ 3701(a) and 2705, respectively.
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The Commonwealth’s fact pattern was that it
was done intentionally and knowingly. They had also
the catch of recklessly as well which came into play,
but the Commonwealth’s position factually was that
she physically pushed the victim out of the car. I’m
not sure that the jury bought that, because I know I
didn’t. I thought that was impossible to occur. No
offense, she’s not very tall. I know what it’s like to
not be very tall. You don’t have a long arm span. I
couldn’t imagine how you could sit in the driver’s
seat with your feet under the pedals and a left hand
to somehow hold the wheel, because you’re not
going to let go of it while the vehicle is going, even if
it’s only a small degree of speed . . . .
Notes of testimony, 5/29/15 at 19-21.
Thereafter, the trial court sentenced Browne to 12 months of probation
for REAP, found that simple assault merged with aggravated assault, and
imposed no further penalty for aggravated assault. (Id. at 28.)
On June 8, 2015, the Commonwealth filed a motion for modification of
sentence contending that the sentence did not reflect the verdict. On the
same day, Browne filed a post-sentence motion, followed by a supplemental
post-sentence motion following receipt of the trial transcript, raising weight
and sufficiency claims and moving for a judgment of acquittal on the
aggravated assault and simple assault convictions.
On September 28, 2015, the trial court granted, in part, the
Commonwealth’s motion for modification of sentence and sentenced Browne
to 12 months of probation on the simple assault count, to run consecutive to
the 12 months of probation imposed on the REAP count. The court also
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granted, in part, Browne’s post-sentence motion and arrested judgment on
the aggravated assault count because “the verdict was against the weight of
the evidence.” (Order of court, 9/28/15; Docket #20-10.) These timely
cross-appeals followed. Both parties complied with the court’s order to file a
Pa.R.A.P. 1925(b) statement. Thereafter, the trial court filed its
Pa.R.A.P. 1925(a) opinion wherein the court acknowledged:
This Court’s order granting in part both the
Commonwealth’s and [Browne’s] post-sentence
motions should have stated that there was
insufficient evidence of aggravated assault to
sustain the verdict (as opposed to the verdict being
against the weight of the evidence), as the
intended result was to arrest judgment (and not to
direct a new trial).
Trial court opinion, 2/17/16 at 3 (emphasis in original). The court then
addressed the Commonwealth’s challenge to the arrest of judgment on the
aggravated assault conviction under the proper sufficiency of the evidence
standard.
We will address the Commonwealth’s claims first. The Commonwealth
raises the following issues:
A. WHETHER THE TRIAL COURT ERRED IN
GRANTING AN ARREST OF JUDGMENT ON
COUNT ONE, AGGRAVATED ASSAULT, BASED
ON A CLAIM THAT THE JURY’S VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE?
B. WHETHER THE TRIAL COURT ABUSED ITS
DISCRETION IN DETERMINING THAT THE
JURY’S VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE AS TO COUNT ONE,
AGGRAVATED ASSAULT, WHERE THE
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EVIDENCE ALLOWED THE JURY TO
REASONABLY INFER THAT [BROWNE] ACTED
RECKLESSLY AND WITH MALICE IN CAUSING
SERIOUS BODILY INJURY TO THE VICTIM?
Commonwealth’s brief at 5.
At the outset, we note that the Commonwealth takes issue with the
trial court stating in its September 28, 2015 order that it arrested judgment
on Browne’s aggravated assault conviction “because the verdict was against
the weight of the evidence.” In its Pa.R.A.P. 1925(a) opinion, the trial court
corrected that error and set forth its reasoning for arresting judgment under
the proper sufficiency of the evidence standard. Courts have inherent power
to correct patent and obvious mistakes. See Commonwealth v. Holmes,
933 A.2d 57 (Pa. 2007). We will, therefore, determine whether the trial
court properly arrested judgment on Browne’s aggravated assault conviction
on insufficient evidence grounds.
Our standard of review of this claim is as follows:
When ruling on a motion in arrest of judgment,
a trial court is limited to ascertaining the absence or
presence of that quantum of evidence necessary to
establish the elements of the crime. At this stage in
the proceedings, the trial court is limited to rectifying
trial errors, and cannot make a redetermination of
credibility and weight of the evidence. . . .
For purposes of appellate review,
In passing upon such a motion [in arrest
of judgment], the sufficiency of the
evidence must be evaluated upon the
entire trial record. All of the evidence
must be read in the light most favorable
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to the Commonwealth and it is entitled to
all reasonable inferences arising
therefrom. The effect of such a motion is
to admit all the facts which the
Commonwealth’s evidence tends to
prove.
In order for a trial court to properly grant a criminal
defendant’s motion in arrest of judgment on the
ground of insufficient evidence, it must be
determined that accepting all of the evidence and all
reasonable inferences therefrom, upon which, if
believed the verdict could properly have been based,
it would be nonetheless insufficient in law to find
beyond a reasonable doubt that the defendant is
guilty of the crime charged.
Commonwealth v. Melechio, 658 A.2d 1385, 1387 (Pa.Super. 1995)
(citations, quotation marks, brackets, and emphasis omitted).
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 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 proof 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 the evidence
actually received must be considered. Finally, the
trier of fact while passing upon the credibility of
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witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
Under the Crimes Code, a person may be convicted of aggravated
assault, 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.A. § 2702(a)(1); see also Commonwealth v. McClendon,
874 A.2d 1223, 1229 (Pa.Super. 2005).
Here, the jury convicted Browne of aggravated assault after finding
that she caused the victim to sustain serious bodily injury. The trial court
arrested judgment because it determined that it was physically impossible
for Browne to have pushed the victim out of the Honda Element sport utility
vehicle (“SUV”). Where the evidence offered to support the verdict
contradicts physical facts, in contravention of human experience and the
laws of nature, then the evidence is insufficient as a matter of law. See
Commonwealth v. Santana, 333 A.2d 876, 878 (Pa. 1975).
The record reflects that 49-year-old Browne is 4 feet 11 inches tall.
(Notes of testimony, 3/10/15 at 91.) At the time of the incident, Browne
was driving the Honda Element SUV. The record further reflects that the
24-year-old victim stands 5 feet 4 inches tall and weighs 120 pounds.
(Notes of testimony, 3/9/15 at 17, 49.) The victim was sitting on the edge
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of an infant car seat that was located in the SUV’s right rear passenger seat.
(Id. at 46, 64-66.) As the victim prepared to jump out of the rear
passenger door, which was open, she held onto the front passenger head
rest with her left hand and pressed her right hand against the rear
passenger seat. (Id. at 34; 3/10/15 at 133, 134.) During this time, the
victim’s back faced Browne. (Notes of testimony, 3/10/15 at 133.)
The record further reflects that while Browne steered the vehicle with
her left hand and drove approximately 30 to 35 miles per hour, the victim
claimed that Browne reached behind the front passenger’s seat with her
right hand and pushed the victim “beside [her] left shoulder” and out of the
vehicle. (Notes of testimony, 3/9/15 at 34, 46.)
The trial court concluded that it was physically impossible for 4 foot
11 inch Browne to have reached behind the passenger’s seat of the SUV
while driving and push the victim out of the vehicle. In so doing, the trial
court specifically found that the verdict was contradicted by physical facts
and was, therefore, insufficient as a matter of law. On this basis, we cannot
find that the court abused its discretion, and we affirm the arrest of
judgment on Browne’s aggravated assault conviction.
We now turn to the issue on appeal raised by Browne:
Whether the trial court committed an error of law in
failing to arrest judgment as [to] simple assault
because there was insufficient evidence to sustain
the verdict[?]
Brown’s brief at 5.
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A person is guilty of simple assault if she “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another.”
18 Pa.C.S.A. § 2701(a)(1).
Here, the record reflects that during the altercation in the SUV, the
victim leaned up into the front seat area of the vehicle. As she did so, the
victim testified that Browne “pulled [her] down by [her] hoody” and punched
her in the face. (Notes of testimony, 3/9/15 at 32.) That evidence was
sufficient to sustain Browne’s conviction for simple assault.
Arrest of judgment on the aggravated assault conviction affirmed.
Judgment of sentence on the simple assault conviction affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2016
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