Loading...
HomeMy WebLinkAbout02-1958 CriminalCOMMONWEALTH JACK N. WAULK, JR. IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-1958 CRIMINAL TERM OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLANT PROCEDURE 1925 Bayley, J., June 12, 2003:-- On January 22, 2003, defendant, Jack N. Waulk, Jr., was convicted by a jury of aggravated assault, a felony in the first degree.1 On March 18, 2003, he was sentenced to pay the costs of prosecution, make restitution of $178.40 to Gregory Bryan, $34,902.18 to Pennsylvania Blue Shield, $454.70 to the Pennsylvania Victim's Compensation Program, and undergo imprisonment in a state correctional institution for a term of not less than six years or more than twenty years. Defendant filed a direct appeal from this judgment of sentence to the Superior Court of Pennsylvania. He filed a concise statement of matters complained of on appeal which is the subject of this opinion. The evidence in a light most favorable to the Commonwealth is as follows? GREGORY BRYAN testified that on June 27, 2002, he attended the graduation of his daughter from the Computer Leaning Center. The graduation was held in the 18 Pa.C.S. § 2702(a)(1). Commonwealth v. Rochelle, 461 Pa. 340 (1975). 02-1958 CRIMINAL TERM ballroom of a Holiday Inn in Hampden Township, Cumberland County. Because of a severe thunderstorm, the electricity went out and the ceremony was cut short. Michelle Bryan, the daughter's mother and Bryan's ex-wife, was at the ceremony with her boyfriend, defendant, Jack Waulk. Gregory Bryan and defendant had never met. When the ceremony stopped, Bryan, his ex-wife and defendant agreed to have a drink together in a bar in the hotel. While in the bar, Bryan and his ex-wife talked about their daughter and their past while the men each drank two beers. Defendant became jealous, and said he heard Bryan was an "asshole." Bryan asked him where he heard that and defendant said, "1 check my women out very carefully before I make them my girlfriend." Bryan then told defendant that he heard from his daughter that defendant was an "asshole." He said, "This looks like it irritates you that I'm finally getting along with my ex-wife." Defendant said that it did. Bryan said, "1 really don't think that there is anything you're going to be able to do about it." Defendant said, "Why don't we go outside and I'll show you what I can do." Bryan said sarcastically, "Right." That is the last thing he remembered while at the bar. The following four witnesses who were in the bar did not know any of the persons involved in this incident. MICHELLE WALTER saw three people sitting across from her at the bar. testified: She The man fell off his barstool, and the man who was doing the hitting went over above him and proceeded to hit him with both hands. And, again, because of the height of the bar, similar to this, I could see him drawing -2- 02-1958 CRIMINAL TERM his legs back to kick him but couldn't see the kicks actually hitting his body, but I assume he was hitting and kicking... A lot of times. I a couple of times winced and turned away because I wasn't counting, obviously, the punches. The witness was asked: And you said there was a motion that could have been a kick. Did you see more than one of those or just one? She answered "Yes, more than one." She further testified: "[t]he bartender kind of pushed him [defendant] away, and other men came out to kind of get him away from the man being hit .... " I~ALINDA SUE RETTINGER was with Michelle Walters. She testified that she saw the victim fall to the ground off a barstool backward and away from the bar. Defendant then bent over and hit the victim with his fists while the victim was on the ground. The bartender and some security guards pulled defendant away from the victim. Defendant was "struggling and kicking, trying to like - almost like he was trying to continue to hit him and kick him." DONALD $OBR testified that he was diagonally across the bar from the victim and defendant. He saw the victim slide off the barstool. Defendant was trying to strike him as he was going down. It took approximately four to five bouncers to get him out of the bar. ROBERT GEESAI~AN testified that he was on an outside deck and heard a commotion. He looked into the bar and saw the victim on the floor in a "fetal position" with someone bent over him. He testified that "it looked like he was taking punches, -3- 02-1958 CRIMINAL TERM maybe moving his feet, but I couldn't say for sure that's what he was doing. I saw that movement." Geesaman testified that bouncers took away the defendant and that it was hectic and there was a commotion in getting him out of the bar. As a result of this incident, Gregory Bryan's eye was ruptured, the retina was torn, and the lens was knocked into the middle of the eye. He had a broken nose, fractured right cheekbone, and broken facial bones in the area of his sinuses and eye. He had cuts on his chin and ear, the ear requiring stitches. He had scrapes on his elbows and one knee. He continues to have ringing in the injured ear. He is blind in his eye. At the time of trial he had three surgeries on his eye and there will be more. He will not recover full vision. Defendant raises three issues in his concise statement of matters complained of on appeal. We will review the issues seriatim as they are set forth in the statement. I. THE COMMONWEALTH PRESENTED INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT JACK N. WAULK, JR. ("DEFENDANT"), HAD THE SPECIFIC INTENT TO INFLICT SERIOUS BODILY INJURY OR EXHIBITED A RECKLESS INDIFFERENCE TO THE VALUE OF HUMAN LIFE BECAUSE THE COMMONWEALTH WITNESSES' TESTIMONY WAS SPECULATIVE AND UNCERTAIN AS TO WHETHER DEFENDANT HIT OR KICKED THE COMPLAINANT WHEN HE WAS LYING UNCONSCIOUS ON THE FLOOR. CASE LAW SHOWS THAT, EVEN IN INSTANCES WHERE SERIOUS BODILY INJURY IS INFLICTED, THE FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM MUST DEMONSTRATE THAT THE DEFENDANT DELIVERED MORE THAN A SOLITARY PUNCH TO PROVE AGGRAVATED ASSAULT. SINCE SUCH EVIDENCE IS LACKING IN THIS CASE, JUDGMENT OF SENTENCE SHOULD BE VACATED. -4- 02-1958 CRIMINAL TERM When reviewing a sufficiency of the evidence claim, we are required to view the evidence in a light most favorable to the verdict winner, giving the verdict winner the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Brown, 822 A.2d 83 (Pa. Super. 2003). The Crimes Code at 18 Pa.C.S. Section 2702(a) provides: A person is guilty of aggravated assault if he: (1) 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. (Emphasis added.) "Serious bodily injury" is defined in Section 2301 as: Bodily 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. The Crimes Code at 18 Pa.C.S. Section 302 provides: (1) A person acts intentionally with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result .... (2) A person acts knowingly with respect to a material element of an offense when... (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. (3) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from -5- 02-1958 CRIMINAL TERM the standard of conduct that a reasonable person would observe in the actor's situation. (Emphasis added.) Defendant cites Commonwealth v. Roche, 783 A.2d 766 (Pa. Super. 2001), in support of his claim of the insufficiency of the evidence to support is conviction. In Roche, the Superior Court of Pennsylvania stated: To sustain a conviction [for aggravated assault] the Commonwealth must also prove that the Appellant acted with the requisite mens rea or criminal state of mind. The facts in Roche as set forth by the Superior Court were: Christian Frenz, the complainant, and his friend Daniel Judge entered Brownie's, a bar located at Second and Market Street in Philadelphia, Pennsylvania on August 7, 1999, between 9:00 and 10:00 p.m. The men remained in the bar drinking alcoholic beverages until they got up to leave approximately 2:00 a.m. on August 8, 1999. As Mr. Frenz and Mr. Judge were about to leave the bar [Appellant] asked Mr. Frenz if he wanted to arm wrestle. [Appellant] was twice as large and appeared much stronger than Mr. Frenz. Mr. Frenz declined the offer and headed toward the exit, whereupon [Appellant] shoved Mr. Frenz. Mr. Frenz was about to say something in response but Mr. Judge advised him against it. Immediately after the shoving incident Mr. Frenz and Mr. Judge left Brownie's and walked along the alleyway toward their car. After they were about three hundred feet away from the bar, Mr. Judge turned around and saw [Appellant] and another male exit Brownie's and proceed to follow them down the alleyway. [Appellant] caught up to the men and asked the complainant "Are you a tough guy?" When Mr. Frenz turned around [Appellant], without provocation, delivered a closed fist blow to the victim's left eye. Mr. Frenz fell to the ground unconscious[.] [When Mr. Frenz's head struck the concrete he sustained a scalp laceration which began to bleed profusely.]... Fortunately, a police car drove by at that moment and Mr. Roche and his companion turned and ran away. Mr. Frenz tried to get up, lost his balance and fell back down. An ambulance subsequently arrived and he was transported to Thomas Jefferson University Hospital. Doctors determined that he suffered an orbital blowout, frontal rim and sinus fractures. During his five day -6- 02-1958 CRIMINAL TERM hospitalization, surgery was performed to attach a plate on the bottom eyelid. Mr. Frenz also received eight staples to close the wound to the back of his head. At the time of trial, some six (6) months later, Mr. Frenz still suffered from straight upward double vision gaze. The Superior Court reversed the conviction of defendant for aggravated assault and upheld his conviction for simple assault. The Court stated: Appellant's belligerent words and the throwing of one punch are in and of themselves insufficient factors to support the conclusion that Appellant had the requisite intent to cause serious bodily injury when he struck the victim. During the initial encounter in the bar, Appellant did not threaten the victim with harm or injury but merely challenged him to arm wrestle and briefly pushed the victim when the victim declined his offer. When the victim exited the bar and Appellant followed, Appellant again did not specifically threaten the victim with injury or insinuate that he would cause physical harm to the victim, aside from Appellant's childish inquiry as to whether the victim thought he was a "tough guy." After Appellant delivered his lone, ill-advised punch with his hand, he ceased his attack immediately and did not engage in further physical contact with the victim. Though the victim was defenseless, Appellant did not continue to strike the victim while the victim was lying motionless on the ground nor did Appellant pursue or extend his attack to the victim's companion. Appellant offered no indication that he intended to inflict further harm. Moreover, the importantly, Appellant did not possess or use a weapon or other instrumentality of harm at any time before or during this attack. In short, Appellant merely delivered one punch to the victim's face with his hand and walked away. While Appellant's actions certainly demonstrated the sufficient requisite intent to sustain his conviction for simple assault, in that they showed that he acted with the intent to cause Appellant bodily injury, they were not so egregious or sustained to suggest that he legally possessed the specific intent to inflict serious bodily harm when he punched Appellant once. (Footnotes omitted.) The Court further concluded that the Commonwealth did not meet its burden of proving that defendant acted recklessly under circumstances manifesting an extreme indifference to the value of human life. It noted that in Commonwealth v. O'Hanlon, -7- 02-1958 CRIMINAL TERM 653 A.2d 616 (Pa. 1995), the Supreme Court of Pennsylvania stated: [F]or the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue. The recklessness must, therefore, be such that life threatening injury is essentially certain to occur. This state of mind is, accordingly, equivalent to that which seeks to cause injury. The Superior Court concluded: Appellant's act of throwing one punch after using belligerent words was clearly insufficient to establish that he acted with such a heightened degree of recklessness that he was virtually assured that death or serious injury would occur from his act. Appellant was not, nor could he be, virtually or even reasonably certain that death or serious injury would be the likely and logical result of his one punch. This was not the functional equivalent of a murder in which for whatever reason death failed to occur. This was instead an all too common situation in which an individual, no doubt overcome by visions of his pugilistic prowess induced by consumption of alcohol, struck another individual with his fist outside of a bar. The law justifiably sanctions such reprehensible behavior as that which Appellant demonstrated through the offenses of simple assault and reckless endangerment, offenses for which Appellant was rightfully convicted. (Footnote omitted.) Roche is distinguishable from the present case. First, the defendant in Roche, during the initial encounter in the bar, did not threaten the victim with harm; instead, he challenged the victim to arm wrestle. In the case sub judice, defendant, inflated with jealously, threatened Bryan by challenging him to fight by saying, "Why don't we go outside and I'll show you what I can do." This was clearly not mere posturing because defendant then sucker punched Bryan with enough force to knock him off the barstool and render him unconscious. Second, the defendant in Roche delivered a single blow to the victim's face but he did not continue to strike the victim who was lying motionless -8- 02-1958 CRIMINAL TERM on the ground. In the present case, four witnesses testified that defendant continued to attack Bryan and strike him with his fists while he was lying on the floor. Three witnesses testified that they saw defendant moving his feet in a kicking motion while Bryan was on the floor. Third, the defendant in Roche had the opportunity to continue to strike the victim before the police arrived; however, after the initial punch he refrained from continuing his attack and fled the scene when he saw the police car on the street. In contrast, defendant in the present case delivered the sucker punch to Bryan's head and then continued to attack him until he was pulled away by employees of the bar. This sustained attack resulted in extensive serious injuries to Bryan. These distinguishing factors provided sufficient evidence for the jury to conclude that defendant intentionally and knowingly caused Bryan serious bodily injury. In Roche, the Superior Court cited Commonwealth v. Davis, 267 Pa. Super 370 (1979), to illustrate the level of recklessness necessary to sustain a conviction for aggravated assault. In Davis, the defendant assaulted his girlfriend, and chased her out of the house as she tried to escape. The girlfriend sought shelter inside a car, but the defendant broke the windshield with his fist and continued to assault her. The girlfriend again broke free and Gloria Amos, the victim, attempted to provide safety inside her car. The defendant struck Amos in the face which knocked her unconscious and broke her jaw, causing her to spend four days in the hospital and six weeks with her jaw wired shut. The Superior Court looked at defendant's overall conduct, including the chase of his girlfriend, and concluded that he acted with extreme disregard of the -9- 02-1958 CRIMINAL TERM value of human life; therefore, he met the heightened degree of recklessness required by the aggravated assault statute. The Roche court distinguished the facts in Davis by stating that "[n]o such frenzied and sustained manic pursuit was undertaken by Appellant in this case as his actions were limited to the throwing of a single punch." In the present case, defendant's overall conduct is more analogous to Davis. Defendant, unlike Roche, did not deliver a single blow and end his attack; instead, he sucker punched Bryan which rendered him unconscious and then continued to attack him with his fists and feet while he was defenseless and unconscious on the floor. This sustained attack, which left Bryan with extensive serious injuries including a broken nose, fractured right cheekbone, broken facial bones in the area of the sinuses and eye, and which resulted in blindness in one eye and ringing in the ear, showed a substantial disregard of the value of human life. These factors were sufficient for the jury to conclude that defendant recklessly under circumstances manifesting extreme indifference to value of human life caused serious bodily injury to Bryan. For the foregoing reasons we conclude that there was sufficient evidence for the jury to convict defendant of aggravated assault under Section 2702(a) of the Crimes Code. II. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO CALL THE BARTENDER TO TESTIFY ON BEHALF OF DEFENDANT BECAUSE THE BARTENDER SAW DEFENDANT WHEN THE VICTIM WAS ON THE GROUND AND HIS STATEMENT SUPPORTS DEFENDANT'S CLAIM THAT HE NEVER PUNCHED OR KICKED THE VICTIM WHILE HE WAS LYING ON THE -10- 02-1958 CRIMINAL TERM FLOOR. THE BARTENDER, UNLIKE THE COMMONWEALTH WITNESSES, HAD AN UNOBSTRUCTED VIEW OF DEFENDANT AND THE VICTIM AFTER HE FELL TO THE GROUND. THE BARTENDER WAS AVAILABLE AND WILLING TO TESTIFY ON BEHALF OF DEFENDANT. THUS, TRIAL COUNSEL'S FAILURE TO HAVE THE BARTENDER TESTIFY SERIOUSLY PREJUDICED DEFENDANT'S CASE. Defendant has new appellate counsel. He did not file a post-sentence motion in this court pursuant to Pa.R. Crim. P. 720. See Commonwealth v. Hudson, 820 A.2d 820 (Pa. Super. 2003). Therefore, this issue of ineffectiveness of trial counsel cannot be reviewed on this direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. Commonwealth v. Grant, 818 A.2d 226 (Pa. 2002). What a witness who was not called to testify would have testified to is not apparent on the record. Therefore, there is no basis to even consider the dicta in Commonwealth v. Rosendary, 818 A.2d 526 (Pa. Super. 2003), and Commonwealth v. Ruiz, 819 A.2d 92 (Pa. Super. 2003), that a claim of ineffective trial counsel may be considered when counsel's ineffectiveness is apparent on the trial court record. II1. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S MOTION TO MODIFY SENTENCE BECAUSE THE MAXIMUM SENTENCE IS MANIFESTLY EXCESSIVE GIVEN THAT THE COMMONWEALTH PARTICIPATES IN A FEDERAL GRANT PROGRAM WHICH REQUIRES THE STATE TO CONTINUE THE INCARCERATION OF A DEFENDANT CONVICTED OF AGGRAVATED ASSAULT UNTIL 85 PERCENT OF THE MAXIMUM TERM IS SERVED. Defendant is thirty-six years old. He has the following criminal record. 1985 Indiana County Theft 12 months probation -11- 02-1958 CRIMINAL TERM 1987 Dauphin County Disorderly conduct 3 months probation 1988 Dauphin County Two counts of burglary and two counts of conspiracy to burglary Not less than 5 months or more than ten months in the county prison for the thefts. One to three months for the conspiracies 1989 Dauphin County Theft Not less than 7 days or more than six months in the county prison 1991 Indiana County Theft Not less than 6 months or more than twenty-three months in a state correctional institution Receiving stolen property Costs and fine 1991 Indiana County Simple assault Not less than I year or more than two years in a state correctional institution Forgery Not less than 2 years or more than ten years in a state correctional institution Theft Not less than 1 year or more than three years in a state correctional institution 2001 Indiana County Criminal mischief Costs and fine 2002 Somerset County Accident involving damage to unattended vehicle Cost and fine Under Pennsylvania Sentencing Guidelines, the offense gravity score for this first degree felony of aggravated assault was eleven and the prior record score was -12- 02-1958 CRIMINAL TERM five. A mitigated range minimum sentence was 60 months, standard range 72-90 months, and aggravated range 102 months. The minimum sentence imposed of not less than six years (72 months) was the lowest standard range Pennsylvania Guideline sentence. The offense carried a maximum sentence of twenty years. 18 Pa.C.S. § 1103(1). Besides having an extensive criminal record, this is the second time that defendant has been imprisoned in a state correctional institution for an assault. Defendant does not argue that the lowest standard range minimum guideline sentence was unreasonable, see Commonwealth v. Drumgoole, 341 Pa. Super. 468 (1985). Rather, he maintains that it was an abuse of discretion to impose the maximum sentence of twenty years because of the way the Pennsylvania Board of Probation considers parole of state prisoners. This court has no jurisdiction over the parole of a state prisoner. Whatever action the State Board of Probation and Parole may take with regard to an eventual parole of defendant has no bearing on the reasonableness of the sentence imposed. The ability to maintain control over this defendant for the length of the maximum term was warranted because he is a violent repeat offender who is a danger to the community. There was no abuse in discretion in sentencing him to a term of imprisonment of not less than six year or more than twenty years. (Date) Edgar B. Bayley, J. -13- 02-1958 CRIMINAL TERM Jaime Keating, Esquire Assistant District Attorney Elizabeth A. Hoffman, Esquire For Defendant :sal -14-