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Home My WebLink About97-2152 CriminalCOMMONWEALTH Vo GERALD LYNN BLAIN OTN: E9304433 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 97-2152 CRIMINAL TERM : : CHARGES: (1) SIMPLE ASSAULT : (2) HARASSMENT IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., October 19, 1998. In this criminal case involving charges of simple assault and summary harassment, Defendant has appealed to the Superior Court from a guilty verdict~ and from a judgment of sentence,2 following a jury trial. 3 As of the writing of this opinion, Defendant has not responded to an order pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) directing that a statement of matters complained of on appeal be filed;4 consequently, it will be assumed that the issue being raised on appeal is sufficiency of the evidence. ~ This premature appeal was filed on August 13, 1998, and has been docketed by the Superior Court at No. 01274HBG98. In addition to being premature, the notice of appeal inadvertently gave the date of the order appealed from as July 13, 1998; the trial actually concluded on July 14, 1998. 2 This appeal was filed on September 10, 1998, and has been docketed by the Superior Court at No. 01356HBG98. 3 The jury found Defendant guilty of simple assault, and the court found Defendant guilty of summary harassment. N.T. 76, Trial, Commonwealth v. Blain, No. 97-2152 Criminal Term (Cumberland County) (hereinafter N.T. ). Defendant received sentences of fines and probation for the offenses. See Order of Court, August 11, 1998. See Order of Court, September 10, 1998. STATEMENTOEFACTS In reviewing the sufficiency of evidence to sustain a guilty verdict, the court must "view the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as the verdict winner." Commonwealth v. Modaffare, 529 Pa. 101,103, 601 A.2d 1233, 1234 (1992), citing Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). Viewed in this light, the evidence at trial may be summarized as follows: On Wednesday, October 22, 1997, at about 5:00 p.m., Defendant accidentally struck a dog which he and his wife, Linda Hawk Smith, owned with his truck at their home in Plainfield, Cumberland County, Pennsylvania.5 Ms. Smith took the dog, which had suffered two dislocated hips, a broken leg, a broken tail, and substantial bruising, to a veterinarian, who treated it and released it to her the following day.6 As Ms. Smith attempted to deal with the crippled animal which she had brought home, Defendant became angry with regard to the veterinarian bill incurred.7 As Defendant became loud, the dog began shaking.8 Ms. Smith succeeded in moving the argument away from the dog, into the kitchen? Defendant was upset with the dog? When Ms. Smith suggested that he should be responsible for half the bill, he hurled a collection of ham scraps which she kept for purposes 5 N.T. 14-18, 23. 6 N.T. 17-19. 7 N.T. 16, 19-24. 8 N.T. 23. 91'd. Jo N.T. 24. The bill was over $700. N.T. 19. 2 of administering medicine to her pets against the kitchen cabinets,l~ Ms. Smith reacted by turning and slapping him.~2 Defendant, who is 5' 11" tall and weighed about 175 pounds,~3 struck Ms. Smith, who is 5' 4" tall and weighed about 105 pounds,TM twice~s with a closed fist16 in the stomach as she tried to protect her head with her hands? Ms. Smith landed on the floor? Ms. Smith, who was crying and sweating,~9 got up, went to another room, called her mother and asked her to come over.2° Defendant followed her into the room and said, "Give me the damn phone.''2~ He attempted to take the phone from her, and in the ensuing struggle the phone fell and a lamp shade was broken? Defendant then called 911.23 Pennsylvania State Troopers who responded to the scene found Ms. Smith bent over ~ Id. ~2 N.T. 25. 13 N.T. 53. ~4 N.T. 15-16. is N.T. 39. ~6 N.T. 33. 17 N.T. 25-26, 32. la N.T. 26. 19 N.T. 26, 28. zo N.T. 26-27, 30. 21 N.T. 27. 22 Id. 23 N.T. 28. and complaining of shortness of breath and pain.z4 Her abdomen displayed redness where she had been hit? Medical personnel were summoned for her by the troopers,z6 Two weeks later Ms. Smith was having difficulty lifting her arm, and sought further medical treatment.27 No other trauma intervened between the events recounted above and this treatment? DiSCUSSiON For purposes of this case, a person commits a simple assault when he "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another." Act of December 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. § 2701(a)(1). "Bodily injury" is "impairment of physical condition or substantial pain." Id., 18 Pa. C.S. § 2301. Summary harassment, for purposes of this case, is committed when a person, "with intent to harass, annoy or alarm another person .... strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same." Id., as amended, 18 Pa. C.S. § 2709(a)(1) (1998 Supp.). With respect to self-defense, "[t]he use of force upon or toward another person is justifiable when the actor [reasonably] believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by another person on the present occasion." Act of December 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. §§ 501,505(a). Once self-defense has been properly placed in issue, the burden rests upon the did. 24 N.T. 37-38, 41. N.T. 30. 2s N.T. 38-41. 26 N.T. 38, 42. 27 N.T. 31. 28 N.T. 31-32. Ms. Smith's mother arrived at about the same time as the troopers 4 Commonwealth to disprove it beyond a reasonable doubt. Commonwealth v. Hill, 427 Pa. Super. 440, 629 A.2d 949 (1993), appeal denied, 538 Pa. 609, 645 A.2d 1313 (1994). A trier of fact is, of course, "free to believe all, part, or none of the evidence." Commonwealth v. Jackson, 506 Pa. 469, 474, 485 A.2d 1102, 1105 (1984) (citations omitted). In the present case, it is believed that the jury could properly have found beyond a reasonable doubt that Defendant attempted to cause and/or intentionally, knowingly or recklessly caused Ms. Smith substantial pain and/or impairment of physical condition by twice striking her in the abdomen with a closed fist, producing a visible mark, manifest pain and extended physical impairment. Similarly, it is believed that the court could reasonably have concluded by the same standard that Defendant had struck or otherwise subjected Ms. Smith to offensive contact with the intent to annoy or alarm her, by the same conduct. In addition, it is believed that neither the jury nor the court was required to find that the Commonwealth had failed to disprove the proposition that Defendant reasonably believed, under the circumstances (which included the participants' relative sizes and the victim's defensive posture), that the force he employed was immediately necessary to protect himself? For the foregoing reasons, it is believed that the evidence was sufficient to sustain the verdicts, and that the judgment of sentence was properly entered. William I. Gabig, Esq. Assistant District Attorney Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Attorney for the Commonwealth 29 The jury was charged on the right of self-defense. N.T. 64-65. 5 Thomas S. Diehl, Esq. Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 Attorney for the Defendant 6