The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PARISH LEE BROWN, SR.
Appellant No. 2202 MDA 2013
Appeal from the Judgment of Sentence October 31, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000631-2013
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 22, 2014
Appellant, Parish Lee Brown, Sr., appeals from the October 31, 2013
aggregate judgment of sentence of six and one-
imprisonment imposed after a jury found him guilty of aggravated assault
and endangering the welfare of children.1 After careful review, we affirm
the judgment of sentence.
The relevant facts and procedural history of this case may be
summarized as follows. On December 12, 2012, Appellant struck his minor
child, P.B., with a belt and fist, then placed him in scalding hot water in a
bathtub, causing second and third-degree burns on approximately 8% of his
body. N.T., 9/30-10/1/13, at 82-84, 169. P.B. was subsequently admitted
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1
18 Pa.C.S.A. §§ 2702 and 4304, respectively.
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to Memorial Hospital after it was discovered that the skin on his foot, leg,
and buttocks had bubbled. Id. at 125-128. P.B. was later transferred to the
Lehigh Valley Hospital Regional Burn Center for treatment, including skin
grafts, where he remained for 11 days. Id. at 169-170.
Appellant was subsequently charged with one count each of simple
assault,2 aggravated assault, and endangering the welfare of children. The
case proceeded to a jury trial on September 30, 2013. At trial, the trial
court instructed the jury, utilizing the standard jury instructions defining
aggravated assault and defining the element of recklessness. Additionally,
injuries during its deliberations that had been admitted into evidence during
the course of the trial. Following a two-day jury trial, Appellant was found
guilty of aggravated assault and endangering the welfare of children on
October 1, 2013.3 As noted, the trial court sentenced Appellant to an
aggregate term of six and one-half t
31, 2013. On November 8, 2013, Appellant filed a timely post-sentence
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2
18 Pa.C.S.A. § 2701.
3
The simple assault charge was nolle prossed prior to trial.
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motion, which was denied by the trial court that same day. On December 9,
2013, Appellant filed a timely notice of appeal.4
On appeal, Appellant raises the following issues for our review.
I. Whether the trial court committed an error in
special instruction to the jury regarding the
fact that the recklessness needed for
aggravated assault requires that the offensive
act be performed under circumstances which
almost assure that injury or death will ensue
and must be such that life threatening injury is
essentially certain to occur?
II. Whether the trial court committed an error in
law by sending photographs of the victim back
to the jury when Appellant and Commonwealth
had stipulated that serious bodily injury had
occurred and the only argument related to
mens rea?
5
Appella
permitting several photographs of P.B. to be viewed by the jury during
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4
excluded from the computation of time. See 1 Pa.C.S.A. § 1908 (providing
that when the last day of a calculated period of time falls on a Saturday or
Sunday, as is the case herein, such day shall be omitted from the
computation). Additionally, Appellant and the trial court have complied with
Pa.R.A.P. 1925.
5
For the ease of our
claims in a different order than presented in his appellate brief.
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serious bodily injury had occurred and the only argument related to
mens rea Id.
the injuries [depicted in the photographs] were inflammatory[
no probative value [in determining whether Appellant possessed the
requisite mens rea Id. at 11, 13. For the following reasons, we disagree.
Pennsylvania Rule[] of Criminal [P]rocedure
[646] provide[s] that, upon retiring, the jury may
take with it such exhibits as the judge deems proper,
with the exception of a trial transcript, written or
recorded confession, the information or indictment,
or written jury instructions, other than portions of
the charge on the elements of the offense. Allowing
the jury to view, in deliberations, documentary
evidence used to illustrate or explain, although not
admitted into evidence, does not per se create
prejudicial error. An error may be harmless where
the properly admitted evidence of guilt is so
overwhelming and the prejudicial effect of the error
is so insignificant by comparison that it is clear
beyond a reasonable doubt that the error could not
have contributed to the verdict.
Commonwealth v. Stetler, --- A.3d ---, 2014 WL 2472308, *23 (Pa.
Super. 2014) (citations and internal equations marks omitted).
Upon careful review, we agree with the trial court that the
mens rea t so
prejudicial as to preclude their introduction to the jury during its
deliberations. In reaching this conclusion, we adopt the following reasoning
of the trial court opinion.
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The [trial c]ourt concludes that it did not err by
sending the photos of the victim into the jury room
for deliberations. During trial, the Commonwealth
introduced the photos and then published them to
the jury. [N.T., 9/30-10/1/13, at 127-128].
[Appellant] never objected to either the introduction
or the publication of the photos. Id. At the end of
the trial, the Commonwealth moved to have the
photos admitted into evidence. Id. at 180. Again,
[Appellant] did not object. Id. The Commonwealth
also used these photos during its closing argument.
After hearing argument, the [trial c]ourt decided to
send only three photos back to the jury deliberation
room. [Id. at 259-261]. The [trial c]ourt stated
that these particular photos were not overly
inflammatory, and since they were admitted as
exhibits, the Commonwealth was entitled to have
them go back to the jury room because the
Commonwealth has the burden to prove its case.
Id. [Appellant] only objected to sending the photos
back with the jury, not to their admissibility.
[Appellant] avers that the jury did not need these
photos for deliberations because the parties
stipulated to the element of serious bodily injury.
The [trial c]ourt finds that numerous factors
militate against a finding of prejudice. First,
[Appellant] never objected when the photos were
admitted as exhibits during trial. Second, the [trial
c]ourt allowed them to be admitted as exhibits. Both
of these factors show that the photos were relevant
evidence and that their probative value outweighed
any unfair prejudice. Third, the [trial c]ourt limited
the number of photos that went back with the jury,
and after viewing them, it found that these three
photos were not overly inflammatory. Fourth, these
exhibits could have aided the jury in their
deliberations regarding recklessness.
Trial Court Opinion, 4/28/14, at 5-6 (internal quotation marks and case
citations omitted; formatting of citation to notes of testimony corrected).
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discretion by permitting the aforementioned photographs to accompany the
jury during its deliberations must fail.
discretion in failing to instruct the jury that, in order to find Appellant guilty
of aggravated assault, the Commonwealth was required to prove a
recklessness needed for aggravated assault requires that the offensive act
be performed under circumstances which almost assure that injury or death
will ensue[,] and must be such that life threatening injury is essentially
Id. at 9-
is insufficient to sustain a conviction for Id. at 10.
After careful review, we disagree.
Our standard of review in addressing challenges to jury instructions is
an abuse of discretion. Commonwealth v. Leber, 802 A.2d 648, 651 (Pa.
Super. 2002). iscretion in phrasing its
instructions, and may choose its own wording so long as the law is clearly,
adequately, and accurately
Commonwealth v. Williams, 959 A.2d 1272, 1286 (Pa. Super. 2008)
(citation omitted), affirmed, 9 A.3d 613 (Pa. 2010).
propriety of jury instructions, this Court will look to the instructions as a
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whole, and not simply isolated portions, to determine if the instructions were
Id. We will not find an a
the instruction under review contained fundamental error, misled, or
or Appellant suffered prejudice. Commonwealth v.
McRae, 5 A.3d 425, 430-431 (Pa. Super. 2010) (citation omitted), appeal
denied, 23 A.3d 1045 (Pa. 2011).
Preliminarily, we note that the crime of aggravated assault is codified
in Section 2702 of the Pennsylvania Crimes Code, which provides, in
pertinent part, as follows.
§ 2702. Aggravated assault
(a) Offense defined.--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[.]
18 Pa.C.S.A.
material element of an offense when he consciously disregards a substantial
and unjustified risk that the material element exists or will result from his
Commonwealth v. Fabian, 60 A.3d 146, 154 (Pa. Super. 2013)
(citations omitted), appeal denied, 69 A.3d 600 (Pa. 2013).
In the instant matter, the record reveals that the trial court instructed
the jury at great length on the crime of aggravated assault and the element
of recklessness, mirroring Pennsylvania Standard Suggested Jury Instruction
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(PSSJI) § 15.2702B. See N.T., 9/30-10/1/13, at 247-248. Specifically, the
trial court gave the following instruction to the jury on the definition of
A person acts recklessly with respect to serious
bodily injury when he or she consciously disregards a
substantial and unjustifiable risk that serious bodily
injury will result from his or her conduct. The risk
must be of such a nature and degree that,
considering the nature and
conduct and the circumstances known to him, its
disregard involves a gross deviation from the
standard of conduct that a reasonable person would
the kind of reckless conduct from which a life-
threatening injury is almost certain to occur.
Id. at 248.
mere recklessness is insufficient to
have instructed the jury that the Commonwealth was required to prove
citing Commonwealth v. Myers, 722 A.2d 1074, 1078 (Pa. Super. 1998)
the narrow holding of [Commonwealth v. Nichols, 692
A.2d 181 (Pa. Super. 1997),] only requires reversal when a trial court fails
appeal denied, 740 A.2d
231 (Pa. 1999). This argument is misplaced.
Our Supreme Court has repeatedly recognized that a trial court has
broad discretion in phrasing its instructions to the jury, and a trial court
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provided the law is clearly,
adequately, and accurately presented to the jury. See Commonwealth v.
Ballard
obliged to issue the charge that appellant pro
cert. denied, Ballard v. Pennsylvania, 134 S. Ct. 2842 (2014). As
discussed, supra on aggravated assault and
recklessness in this matter mirror, nearly verbatim, Section 2702(a)(1) and
PSSJI § 15.2702B. See N.T., 9/30-10/1/13, at 247-248. Contrary to
conveyed to the jury that there must be a disregard for a substantial and
unjustifiable risk that serious bodily injury will occur, and that a life
threatening injury is almost certain to occur. See id. at 248. We further
use the
-4;
see also N.T., 9/30-10/1/13, at 196.
Upon review, we conclude that the
aggravated assault and the element of recklessness, when viewed as a
reflected the applicable law.
Williams, supra
proposed jury instructions on recklessness in order to dispel any confusion
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on the part of the jury was fully within its discretion. See Ballard, supra.
October 31, 2013
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2014
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