Com. v. Adderly, N.

J-S18039-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

v. :

:

NATHANIEL ADDERLY, :

:

Appellant : No. 553 MDA 2015

Appeal from the Judgment of Sentence February 24, 2015

in the Court of Common Pleas of Luzerne County

Criminal Division, at No(s): CP-40-CR-0002420-2013

BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 23, 2016

Nathaniel Adderly (Appellant) appeals from the February 24, 2015

judgment of sentence of 30 to 60 months of incarceration following his non-

jury convictions for two counts of aggravated assault. We affirm.

The facts underlying Appellant’s conviction took place on October 20,

2012, while Appellant was an inmate at the Luzerne County Correctional

Facility. The trial court summarized the Commonwealth’s evidence as

follows.

Correctional Officer [Kristofer] Renfer testified credibly

under oath that while in line to go out to the yard, [Appellant]

failed to adhere to direct orders and stated, “Who the fuck do

you think you’re talking to; I will fuck you up.” [Appellant]

positioned himself in an aggressive boxer stance with his fists up

which caused CO Renfer justified concern. CO Renfer managed

to hit a nearby red button which is a direct duress alarm line.

This alarms sends a signal to a central control where there are

three to four officers and the alarm is only hit when an officer

needs immediate assistance on a block.

*

Retired Senior Judge assigned to the Superior Court.

J-S18039-16

After the alarm was sounded and prior to CO Helfrich’s

arrival [Appellant] stated to CO Renfer, “It's on now, mother

fucker,” grabbed ahold of CO Renfer, was on top of him swinging

his arms, punching him in the chest, kicking, screaming violently

and thrashing around. CO Renfer testified that he suffered

injuries to his shoulder and had bruising on his chest, arms, and

left hip and sought medical treatment that night at the Wilkes-

Barre General Hospital. Moreover, CO Renfer credibly testified

that the altercation seemed like a lifetime, was an intense

situation and extremely scary. Moreover, CO Renfer specifically

recalls CO Helfrich and CO Schrader assisting in the ultimate

restraint of [Appellant] but only after an intense struggle as

[Appellant] became more and more combative, fighting the

whole time, tooth and nail.

Luzerne County Correctional Facility Officer Helfrich

testified under oath before the court. CO Helfrich corroborated

that he heard yelling and screaming and determined that CO

Renfer needed assistance. CO Helfrich personally observed

[Appellant’s] refusal to listen to direct orders to “cuff up” which

is a command to turn around and allow a CO to restrain an

inmate. CO Helfrich credibly testified that he made a

determination that [Appellant] needed to be “taken down”

meaning down to the floor and away from CO Renfer.

[Appellant] would not allow CO Helfrich to restrain him, kept

refusing and began throwing arms, elbows, and doing anything

he could to get the COs away from him and there were multiple

strikes by [Appellant] upon the corrections officers.

Witness/victim Luzerne County Correctional Facility Officer

Charles Schrader testified before the Court. CO Schrader

corroborated the testimony of CO Renfer that he received and

responded to an “all available” alarm call to the second floor.

When CO Schrader arrived, he personally observed CO Renfer

and [Appellant] in an altercation, locked up in each other’s

shirts. CO Schrader also attempted to take [Appellant] to the

floor, [Appellant] resisted and was throwing elbows at the

guards trying to cuff him; namely, CO Schrader, CO Renfer and

CO Helfrich. As a result of [Appellant’s] conduct, CO Schrader

hit his head on the wall during the altercation and suffered a

concussion.

Trial Court Opinion, 5/21/2015, at 3-5 (citations omitted).

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Based upon this evidence, the trial court convicted Appellant of two

counts of aggravated assault on January 7, 2015. Following a presentence

investigation, Appellant was sentenced as detailed above. Appellant timely

filed a notice of appeal, and both Appellant and the trial court complied with

Pa.R.A.P. 1925.

On appeal, Appellant argues that the evidence was insufficient to

support the verdict.1 Appellant’s Brief at 4. We consider Appellant’s

challenge pursuant to the following standard.

[O]ur standard of review of sufficiency claims requires that we

evaluate the record in the light most favorable to the verdict

winner giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence. Evidence will be

deemed sufficient to support the verdict when it establishes each

material element of the crime charged and the commission

thereof by the accused, beyond a reasonable doubt.

Nevertheless, the Commonwealth need not establish guilt to a

mathematical certainty. Any doubt about the defendant’s guilt is

to be resolved by the fact finder unless the evidence is so weak

and inconclusive that, as a matter of law, no probability of fact

can be drawn from the combined circumstances.

1

In his statement of questions presented, Appellant specifies that his claim

is that there was “no competent medical evidence presented to support the

existence of bodily injury[;] only hearsay evidence from alleged victims[;

and] no video evidence regarding actual alleged assaults even though there

were security cameras in the hallways of the correctional facility.”

Appellant’s Brief at 4 (numbers and some capitalization omitted). However,

in the argument portion of his brief, Appellant fails to make any arguments

regarding hearsay or the failure to produce security videos, let alone to

provide authority to support such claims. We shall limit our review to the

issue developed by Appellant in his brief, namely whether the evidence

offered at trial established all of the elements of aggravated assault. See,

e.g., Winklespecht v. Pennsylvania Bd. of Prob. & Parole, 813 A.2d

688, 691 n.1 (Pa. 2002) (limiting review to issues developed in brief).

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Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 (Pa. Super. 2013)

(internal quotations and citations omitted). The Commonwealth may sustain

its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

Appellant was convicted of violations of subsection 2702(a)(3) of the

crimes code, which provides in relevant part: “A person is guilty of

aggravated assault if he … attempts to cause or intentionally or knowingly

causes bodily injury to any of the officers, agents, employees or other

persons enumerated in subsection (c), in the performance of duty….” 18

Pa.C.S. § 2702(a)(3). Subsection (c) includes an “[o]fficer or employee of a

correctional institution, county jail or prison….” 18 Pa.C.S. § 2702(c)(9).

“Bodily injury” is defined as “impairment of physical condition or substantial

pain.” Commonwealth v. Rahman, 75 A.3d 497, 501 (Pa. Super. 2013)

(quoting 18 Pa.C.S. § 2301).

“[I]n a prosecution for aggravated assault on a [corrections] officer[,]

the Commonwealth has no obligation to establish that the officer actually

suffered a bodily injury; rather, the Commonwealth must establish only an

attempt to inflict bodily injury, and this intent may be shown by

circumstances which reasonably suggest that a defendant intended to cause

injury.” Rahman, 75 A.3d at 501 (internal quotation marks and citation

omitted; emphasis in original).

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Appellant contends that the Commonwealth’s evidence showed neither

an attempt by Appellant to cause bodily injury nor the suffering of actual

bodily injury by either officer. Appellant insists that there was no evidence

of intent necessary for an attempt because there was no indication that

Appellant took “any steps toward attacking either officer that demonstrated

intent, as the alleged injuries were committed during [the officers’] attempts

to take down [Appellant].” Appellant’s Brief at 11. Further, Appellant

maintains that there was no evidence that either officer actually suffered

bodily injury within the meaning of the statute because there “was no

testimony that any treatment was required, that either officer missed work,

or that they were unable to perform certain functions like dressing or

walking for even a day or two as a result of the scuffle.” Id. at 18.

In support of his argument, Appellant relies upon Commonwealth v.

Kirkwood, 520 A2d 451 (Pa. Super. 1987). The facts underlying the

conviction in Kirkwood are as follows.

Paula Sheasley testified that on the evening of August 11,

1984, she, along with her husband, her sister, and her brother-

in-law, went to the Greendale Tavern in Cowanshannock

Township, Armstrong County, to dance and to get something to

eat. At approximately 1:30 a.m. on the following morning, she

observed that Kirkwood was also at the tavern. Sheasley was a

correctional officer at the Armstrong County Prison, and she

knew Kirkwood as a former inmate who was then on parole.

Later, while she was dancing a fast dance with the other

members of her party, she said, Kirkwood had approached her,

had grabbed her by the arm and had begun to swing her

violently around the dance floor. Sheasley said that she had

pleaded with Kirkwood to stop because he was hurting her, but

that he had continued to swing her until her husband

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intervened. The incident, she said, lasted approximately forty

seconds and left her with bruises and cut marks on her arms.

As a result, she testified, she suffered pain in her arms and her

right knee for a short period of time thereafter.

Kirkwood, 520 A.2d at 452-453. Kirkwood was convicted of simple assault

under 18 Pa.C.S. § 2701(a)(1), which provided that a person is guilty of

assault if he or she attempted to cause or intentionally, knowingly or

recklessly caused bodily injury to another.2 After discussing at length the

meaning of the term “bodily injury,” this Court held that the evidence was

insufficient to sustain Kirkwood’s conviction:

In the instant case, [Kirkwood’s] uninvited attentions and

violent dancing, according to the victim, caused bruises and

slight cuts on her arms, and her right knee and arms hurt as a

result of the manner in which appellant swung her during the

dance. There was no evidence that she had consulted a

physician or that she had lost time from work. We conclude that

this evidence was insufficient to establish either the “physical

impairment” or the “substantial pain” which is necessary to

prove the crime of criminal assault as defined in 18 Pa.C.S.

§ 2701. Temporary aches and pains brought about by

strenuous, even violent, dancing are an inadequate basis for

imposing criminal liability upon a dance partner for assault.

Appellant’s invitation to the dance, even if uncivil and harassing,

was not assaultive within the meaning of the statute.

Id. at 454. Notably absent from the Court’s opinion is any discussion of

whether Kirkwood attempted to cause bodily injury.

2

A conviction for aggravated assault against an officer of the

Commonwealth under § 2702(a)(3) and a conviction for simple assault

under § 2701(a)(1) both require proof that the defendant caused or

attempted to cause bodily injury.

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The instant case is more analogous to Commonwealth v. Brown, 23

A.3d 544, 560 (Pa. Super. 2011), than to Kirkwood. In Brown, this Court

offered the following analysis.

At trial, Officer Schiazza testified that when he attempted to

handcuff Brown, Brown pulled away, threw Officer DeBella to the

ground, and ran away. Officer Schiazza further testified that

after he tackled Brown, Brown struggled violently with him, and

that as Brown flailed his arms he struck the officer repeatedly on

the arm, shoulder and mouth, causing him to have a swollen lip.

Whether the officer’s swollen lip constitutes a “bodily injury” for

purposes of section 2702(a)(3) is irrelevant, since in a

prosecution for aggravated assault on a police officer the

Commonwealth has no obligation to establish that the officer

actually suffered a bodily injury; rather, the Commonwealth

must establish only an attempt to inflict bodily injury, and this

intent may be shown by circumstances which reasonably suggest

that a defendant intended to cause injury. It was within the

jury’s province to find that Brown, by throwing Officer DeBella to

the ground and then striking Officer Schiazza repeatedly by

wildly flailing his arms as he resisted arrest, intended to cause

injury to the officers.

Brown, 23 A.3d at 560 (citations omitted).

Similarly, the trial court noted the following regarding Appellant’s

intentions to harm the COs:

[Appellant] was an incarcerated inmate within a correctional

facility not adhering to repeated clear orders to “cuff up.”

Rather, [Appellant] boldly announced to CO Renfer that he was

going to “fuck him up” and that it is “now on [m]other

[f]ucker.”[3] Those words were immediately followed by the

overt physical manifestation of [Appellant] taking a most

aggressive boxer-like stance raising his fists. Thus, first came

the words where we get a glimpse of [Appellant’s] subjective

frame of mind, then comes the action of a fighting stance with

3

Although it is a distinction without a difference, the trial transcript records

CO Renfer’s testimony as being that Appellant said “It’s on now, mother

fucker.” N.T., 1/7/2015, at 14, 23.

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fists raised. CO Renfer clearly and reasonably realized the

gravity of the situation by sounding the duress alarm; a device

only used when a matter cannot be handled by CO alone. All

three Correctional Officers, Renfer, Helfrich and Schrader, while

in their capacity as Correctional officers, corroborated that

[Appellant] failed to comply with repeated orders, and

[Appellant] was on top of CO Renfer, punching, swinging,

throwing elbows, and thrashing and striking all of the corrections

officers with apparent impunity.

Trial Court Opinion, 5/21/15, at 7.

These determinations as to Appellant’s intent are supported by the

record.4 Appellant’s actions were similar to those of the defendant in

Brown. N.T., 1/7/2015, at 14 (indicating that Appellant’s “aggression was

insane” in his “thrashing around, screaming violently, kicking his legs”).

Based upon Brown, we agree that the evidence was sufficient to prove that

Appellant at least attempted to cause bodily injury to COs Renfer and

Schrader, regardless of whether the COs actually suffered what amounts to

a “bodily injury” under section 2702(a)(3).

Judgment of sentence affirmed.

4

Appellant argues that CO Renfer’s testimony about his interactions with

Appellant before the other COs arrived is contradicted elsewhere in the

record. Appellant’s Brief at 15. However, the trial court found CO Renfer’s

testimony on this point to be credible. Trial Court Opinion, 5/21/2015, at 3.

This Court will not disturb the fact-finder’s credibility determinations.

Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa. Super. 2013)

(“Questions concerning inconsistent testimony ... go to the credibility of the

witnesses. A determination of credibility lies solely within the province of

the factfinder. Moreover, any conflict in the testimony goes to the credibility

of the witnesses and is solely to be resolved by the factfinder.” (internal

quotation marks and citations omitted)).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2016

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