HomeMy WebLinkAbout99-0570 Criminal COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CHARLES LEON NElL
Defendant · NO. 99-0570 CRIMINAL
OPINION PURSUANT TO PA.R.A.P. 192~
Hoffer, P.J.
The defendant is Charles Leon Neil, currently of 92 Creek Road,
Newburg. On February 7, 1999, defendant was the live-in boyfriend of Debra
Wright, residing with her and her minor son, J.O., at 762 B Grahams Woods
Road, Newville. On the evening in question, defendant and J.O. were at home
watching television together. The mother was not present. Defendant had been
drinking. Defendant criticized J.O. for using impolite language and talking back
to his mother. Subsequently, defendant hit J.O. in the eye and punched a hole in
the wall. When Ms. Wright returned home from work, she called the police.
Although he did not need medical attention, J.O. sustained a black eye. At trial,
Ms. Wright produced photographs of J.O.'s black eye and the hole in the wall.
Defendant has been charged with harassment, criminal mischief, and
simple assault. For the reasons explained below, we found defendant guilty of
harassment and criminal mischief?
Sentence of defendant was probation, $9.00 restitution and a fine of $150.00.
NO. 99-0570
The crime of harassment is committed when, with intent to harass, annoy
or alarm another person, one strikes, shoves, kicks or otherwise subjects him to
physical contact, or attempts or threatens to do the same. 18 Pa.C.S.A.
§2709(a)(1). The Commonwealth introduced into evidence a photograph of J.O.
taken after the incident. J.O.'s left eye is visibly swollen and bruised. There are
dark purplish marks on his eyelid. While his right eye is open, it appears that he
can barely open the left. We found that the defendant struck J.O. as the result of
defendant's rage and, in doing so, intended to harass, annoy, or alarm him.
In his statement of matters complained of on appeal, defendant makes this
incredible assertion: "The evidence of the force used and the injury caused was
not sufficient evidence to overcome, nor was it evidence of sufficient weight to
overcome, the defense of justification (18 Pa.C.$. §509) beyond a reasonable
doubt." In other words, "1 am entitled to give the boy a black eye because of the
words used by the boy."
The use of force upon or toward the person of another is justifiable if:
(1) The actor is the parent or guardian or other person similarly
responsible for the general care and supervision of a minor or a
person acting at the request of such parent, guardian or other
responsible person and:
(i) the force is used for the purpose of safeguarding or
promoting the welfare of the minor, including the preventing or
punishment of his misconduct; and
(ii) the force used is not designed to cause or known to create
a substantial risk of causing death, serious bodily injury,
disfigurement, extreme pain or mental distress or gross degradation.
18 Pa.C.S.A. §509.
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NO. 99-0570
In a case where a parent grabbed a child's pajama top, resulting in a
bruise on the child's neck, and slapped the child on another occasion, the court
found that the parent had not maliciously struck the child. See Boland v. Leska,
454 A.2d 78, 308 Pa. Super. 169 (1982). The court found that the parent had not
meant to bruise the child, but that the bruise occurred inadvertently. See Id. at
78. The court further found that both instances closely followed errant behavior
by the child and neither involved extreme force or was part of a repeated course
of unwarranted punishment. See Id.
We found the force used in the present case was excessive. Defendant
punched J.O. in the eye, hard enough to badly bruise the eye. The force used in
this case was not designed to safeguard or promote the welfare of J.O.; instead,
it was used as punishment and it exceeds the scope of justified force under
§509. Although testimony was presented that defendant had permission to
smack J.O. "on the buff", the boy's mother testified that she did not approve of
defendant punching him in the eye. We therefore conclude that defendant's use
of force in striking J.O. was not justified under §509.
Defendant was also convicted of criminal mischief for punching a hole in
Ms. Wright's wall. Criminal mischief occurs when one damages tangible property
of another intentionally or recklessly. 18 Pa.C.$.A. §3304. Ms. Wright testified,
and defendant admits, that he punched a hole in the wall, causing damage. The
Commonwealth introduced into evidence a photograph of a sizable hole in the
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NO. 99-0570
wall, with penetration of the drywall structure. We found that defendant hit the
wall in a fit of anger, and that his act constitutes criminal mischief.
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