Com. v. Bazhutin, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROMAN VALDIMIR BAZHUTIN
Appellant No. 657 WDA 2016
Appeal from the Judgment of Sentence April 6, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008616-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 1, 2017
Roman Bazhutin appeals from the judgment of sentence, entered in
the Allegheny County Court of Common Pleas, following his conviction for
one count of simple assault.1 After review, we affirm.
The trial court aptly summarized the facts of this case as follows:
[On] March 24, 2015, Tracey Ondek was drinking at Kimmie’s
Bar in Castle Shannon. At approximately 5:30 p.m., Ondek left
the bar with her friend, Christina Altmeyer, and the two went to
Ondek’s house. When the defendant arrived at Ondek’s house,
he agreed to drive Christina home. Upon returning to Ondek’s
house, the two began to fight and the Defendant grabbed Ondek
around her neck and punched her in the face, causing a
laceration to her nose and swelling to her lip. During the
altercation, the Defendant called 911 to request police assistance
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2701(a)(1).
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because he was arguing with an intoxicated person, although he
left before the police arrived. Ondek told Officer Kress of the
Castle Shannon Police Department that the Defendant had
grabbed and hit her and the Officer had Ondek write out a
statement of what had happened. Officer Kress testified that
although Ondek appeared to be intoxicated, she was not
incapacitated and was capable of answering questions and
talking about her injuries.
At trial, Ondek testified that she fell at Christina’s house and the
Defendant called the police because she fell. Upon further
questioning, Ondek testified that she could not remember what
had happened or what she had said to the police because she
had an alcohol-induced black out. When Ondek persisted in
stating that she could not remember, the Commonwealth played
a recording of a jail call between the Defendant and Ondek on
April 15, 2015, which stated, in part:
THE DEFENDANT: You’re going to have to fucking
tell them that you are a drunk fucking retard and
that you don’t know what the . . . you can’t tell them
what happened. You fucking . . . you gotta tell them
that fucking I didn’t touch you.
Do you realize how quick everything happened to
me? Do you even fucking . . . don’t even know what
the fuck happened. It all happened within the fucking
five minutes. We went up to the fucking house, you
fell on your fucking face, we came fucking home, you
started destroying the car, I called the fucking cops.
That’s what fucking happened. And then I fucking
left after you got into my fucking car. That’s what
fucking happened, and that’s what you tell them,
that’s what fucking happened. You tell them that you
were fucking drunk, which you were. You were
drinking all fucking goddamn day. Everything
happened so goddamn quick you didn’t realize that
that’s what happened. I don’t . . . I can’t fucking see
them.
See, the problem is . . . okay . . . they are not gonna
fucking convict me on it . . . when it . . . hopefully,
hopefully, hopefully, because you know what’s gonna
happen? That fucking . . . this new charge, if it
doesn’t get fucking dropped at Barton’s, I have to sit
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down here for six fucking months to wait for it to go
in front of fucking McDaniels. The fucking . . . the
judge we went in front of last time who fucking
fucked me over. Wouldn’t that be fucking grand. Go
in front of her and you’re gonna say ooohhh, I don’t
remember what happened again. You need to
fucking tell them to fuck off. Do you understand
that?
MS. ONDEK: Yeah, Roman. Do you want me . . .
THE DEFENDANT: When it comes to fucking court,
I better not fucking hear anything else.
MS. ONDEK: Do you want me to get Jimmy or
what?
THE DEFENDANT: I don’t fucking know . . . You’re
fucking struggling for money, and I don’t fucking
have any. If you go to fucking court and you’re
fucking convincing enough . . . tell that you’re
fucking psychotic and a drunk fucking mess, I don’t
see a fucking reason to . . .
. . . Yeah, it’s gonna make you look like a fucking
retard, but, honey, it’s time to get some fucking
help.
[N.T. Trial, 2/29/2016, at 37-39.]
Trial Court Opinion, 11/30/16, at 2-3.
On March 1, 2016, Bazhutin was tried before a jury and convicted of
simple assault. On April 6, 2016, the trial court sentenced Bazhutin to two
years’ probation. On May 6, 2016, Bazhutin timely filed an appeal. After
receiving an extension of time, Bazhutin filed a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal on September 15, 2016.
On appeal, Bazhutin presents the following issue for our review:
Was the evidence sufficient to prove beyond a reasonable doubt
that [Bazhutin] committed simple assault of his girlfriend
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considering that she was highly intoxicated and angry at him
when she accused him of hitting her, she later denied that he hit
her, and she fell which likely caused her nose laceration?
Brief of Appellant, at 4.
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier or fact could have found that each and every element of
the crime charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
In order to convict an accused of simple assault, the Commonwealth is
required to prove Bazhutin attempted to cause or intentionally, knowingly or
recklessly caused bodily injury to Ondek. 18 Pa.C.S.A. § 2701(a)(1). “Bodily
injury” is defined as “[i]mpairment of physical condition or substantial pain.”
18 Pa.C.S.A. § 2301. “To convict a defendant on a charge of simple assault,
the Commonwealth need not establish the victim actually suffered bodily
injury; rather, it is sufficient to support a conviction if the Commonwealth
establishes an attempt to inflict bodily injury.” Commonwealth v.
Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012); see 18 Pa.C.S.A. § 2701.
Circumstances which reasonably suggest that a defendant intended to cause
injury are evidence of such intent. See id. See Commonwealth v.
Eckrote, 12 A.3d 383, 386 (Pa. Super. 2010) (“[E]ntirely circumstantial
evidence is sufficient so long as the combination of the evidence links the
accused the crime beyond a reasonable doubt.”).
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Ondek stated to Officer Kress that Bazhutin grabbed her by the neck
and hit her in the face, causing swelling to her lip. She affirmed this
statement in writing. Further, Officer Kress observed and photographed a
welt on her neck and a laceration on her nose, injuries consistent with
Ondek’s verbal and written recitation of the facts. Officer Kress testified
Ondek’s state of inebriation did not prevent her from discussing her injuries.
Viewed in the light most favorable to the Commonwealth, this evidence was
sufficient to establish all of the requisite elements of the crime of simple
assault.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2017
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