J-S69007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: N.G. : No. 287 EDA 2015
Appeal from the Dispositional Order January 9, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0002891-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 09, 2016
Appellant, N.G., appeals from the dispositional order entered in the
Philadelphia County Court of Common Pleas, following her adjudication of
delinquency for aggravated assault.1 We affirm the dispositional order.
The relevant facts and procedural history of this case are as follows.
On or about October 13, 2014, A.C. [“Victim”] encountered Appellant and
Appellant’s older sister, C.G., at Conrad Square in Philadelphia. Appellant
and C.G. confronted Victim because Victim’s brother had made fun of
Appellant. C.G. yelled at Victim and tried to get Victim to fight. Instead of
fighting, Victim went to get her mother to help resolve the situation. When
Victim’s mother arrived, C.G. and Victim’s mother engaged in a verbal
altercation. After the verbal altercation between C.G. and Victim’s mother
ended, Victim believed the situation had been resolved. Appellant, however,
then yelled at Victim and challenged Victim to a fight. Victim tried to walk
1
18 Pa.C.S.A. § 2702(a)(1).
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away, but Victim and Appellant began fighting after Appellant grabbed
Victim’s hair. During the fight, Victim and Appellant ended up on the ground
with Appellant on top of Victim. Appellant subsequently smashed Victim’s
head into the pavement repeatedly, which caused Victim to lose
consciousness. Several adults pulled Appellant off Victim, and an ambulance
transported Victim to the hospital.
On November 4, 2014, the Commonwealth filed a petition to
adjudicate Appellant delinquent for the offenses of recklessly endangering
another person (“REAP”), simple assault, and aggravated assault. In the
delinquency petition, the Commonwealth graded the aggravated assault as a
second-degree felony (“aggravated assault—F2”); however, the description
of the offense used the language for aggravated assault graded as a first-
degree felony (“aggravated assault—F1”). On January 9, 2015, the court
held an adjudication hearing. Following the hearing, the court adjudicated
Appellant delinquent of aggravated assault—F1 and sentenced Appellant to
probation until further court order. On January 20, 2015, Appellant timely
filed a notice of appeal. On March 11, 2015, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant timely complied on April 6, 2015.
Appellant raises the following issues for our review:
WAS NOT THE EVIDENCE INSUFFICIENT TO ADJUDICATE
[APPELLANT] OF AGGRAVATED ASSAULT AS A FELONY OF
THE SECOND DEGREE, AS CHARGED AS THERE WAS NO
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WEAPON INVOLVED AND [VICTIM] WAS NOT A SPECIAL
VICTIM UNDER [18 PA.C.S.A. § 2702(C)]?
WAS NOT THE EVIDENCE INSUFFICIENT TO ADJUDICATE
[APPELLANT] OF ANY OFFENSE WHERE THE COMPLAINING
DOCUMENT CHARGED AN ASSAULT ON OCTOBER 13, 2014
WHILE THE WITNESSES TESTIFIED VARIOUSLY THAT
WHAT HAPPENED OCCURRED ON OCTOBER 14 OR
OCTOBER 15, 2014?
(Appellant’s Brief at 2).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues the Commonwealth failed to prove the necessary elements to
adjudicate Appellant delinquent of aggravated assault—F2 under 18
Pa.C.S.A. §§ 2702(a)(3), (a)(4), (a)(5), (a)(6), (a)(7), or (a)(8). Appellant
avers Victim does not qualify as a Section 2702(c) special victim as
necessary to adjudicate Appellant delinquent of aggravated assault—F2
under Sections 2702(a)(3), (a)(6), or (a)(7). Appellant also claims the
Commonwealth failed to prove Appellant used a deadly weapon during the
assault as necessary to adjudicate Appellant delinquent of aggravated
assault—F2 under Section 2702(a)(4). Appellant further asserts that Victim
does not qualify as a teacher, school board member or other employee as
necessary to adjudicate Appellant delinquent of aggravated assault—F2
under Section 2702(a)(5). Appellant finally contends Victim is not under six
years of age as necessary to adjudicate Appellant delinquent of aggravated
assault—F2 under Section 2702(a)(8). Appellant also argues the
Commonwealth failed to prove the facts asserted in the delinquency petition
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because the date of the incident differed between the delinquency petition
and the testimony presented at the adjudication hearing. For these reasons,
Appellant concludes the evidence was insufficient to support her adjudication
of delinquency for aggravated assault—F2, and this Court should vacate
Appellant’s adjudication of delinquency. We disagree.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines aggravated assault as follows:
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§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated
assault if [s]he:
(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstance
manifesting extreme indifference to the value of
human life;
(2) attempts to cause or intentionally, knowingly, or
recklessly causes serious bodily injury to any of the
officers, agents, employees or other persons
enumerated in subsection (c) or to an employee of
an agency, company or other entity engaged in
public transportation, while in the performance of
duty;
(3) 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;
(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon;
(5) attempts to cause or intentionally or knowingly
causes bodily injury to a teaching staff member,
school board member or other employee, including a
student employee, of any elementary or secondary
publicly-funded educational institution, any
elementary or secondary private school licensed by
the Department of Education or any elementary or
secondary parochial school while acting in the scope
of his or her employment or because of his or her
employment relationship to the school;
(6) attempts by physical menace to put any of the
officers, agents, employees or other persons
enumerated in subsection (c), while in the
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performance of duty, in fear of imminent serious
bodily injury;
(7) uses tear or noxious gas as defined in section
2708(b) (relating to use of tear or noxious gas in
labor disputes) or uses an electric or electronic
incapacitation device against any officer, employee
or other person enumerated in subsection (c) while
acting in the scope of his employment;
(8) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to a child less than six
years of age, by a person 18 years of age or older;
or
(9) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to a child less
than 13 years of age, by a person 18 years of age or
older.
(b) Grading.—Aggravated assault under subsection
(a)(1), (2) and (9) is a felony of the first degree.
Aggravated assault under subsection (a)(3), (4), (5), (6),
(7) and (8) is a felony of the second degree.
18 Pa.C.S.A. § 2702(a)-(b). Serious bodily injury is defined as “[b]odily
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.” 18 Pa.C.S.A. § 2301.
“Indictments must be read in a common sense manner and are not to
be construed in an overly technical sense.” Commonwealth v. Ohle, 503
Pa. 566, 588, 470 A.2d 61, 73 (1983). The purpose of an indictment is to
provide the accused with sufficient notice to prepare a defense, and to
insure that he will not be tried twice for the same act. Commonwealth v.
Conaway, 105 A.3d 755, 764 (Pa.Super. 2014), appeal denied, __ Pa. __,
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118 A.3d 1107 (2015). “[A] variance is not fatal unless it could mislead the
defendant at trial, involves an element of surprise prejudicial to the
defendant’s efforts to prepare his defense, precludes the defendant from
anticipating the prosecution’s proof or impairs a substantial right.” Ohle,
supra at 589, 470 A.2d at 73. Importantly, the Commonwealth does not
need to prove that the crime occurred on the date alleged in the indictment,
except where the date is an essential issue in the case. Commonwealth v.
Young, 561 Pa. 34, 64, 748 A.2d 166, 182 (1999).
Instantly, the description of the offense in Appellant’s delinquency
petition stated, “the offender did intentionally cause/attempt to cause
serious bodily injury to the complainant, A.C….” (See Delinquency Petition,
filed 11/4/14, at 1). This language mirrors the language for aggravated
assault—F1 under Section 2702(a)(1), and put Appellant on notice that the
Commonwealth planned to adjudicate her of aggravated assault—F1, despite
the aggravated assault—F2 designation in the delinquency petition. See 18
Pa.C.S.A. § 2702(a)(1). Additionally, the trial court’s opinion cited the
language of aggravated assault—F1 when it explained its decision to
adjudicate Appellant delinquent of aggravated assault—F1. Under these
circumstances, Appellant knew that the Commonwealth sought an
adjudication of delinquency for aggravated assault—F1 and that the trial
court did, in fact, adjudicate Appellant delinquent of aggravated assault—F1.
Thus, the record belies Appellant’s assertion that her adjudication of
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delinquency was for aggravated assault—F2.
Further, the minor discrepancy over the date of the incident did not
prejudice Appellant’s preparation of her defense. The delinquency petition
stated the offense occurred on October 13, 2014, while the witnesses at the
adjudication hearing testified the offense occurred on October 14 or 15,
2014. Nevertheless, Appellant presented the eyewitness testimony of her
older sister, C.G., who was present at the fight between Appellant and
Victim. The presentation of this testimony demonstrated Appellant’s
awareness of the allegations against her and the incident from which those
allegations stemmed. Appellant’s actions also established that Appellant was
not surprised or misled at the adjudication hearing by the date variance.
See Ohle, supra. Additionally, Appellant does not allege that the date of
the offense is an essential issue in her case. See Young, supra. Thus, the
date discrepancy is not dispositive of Appellant’s sufficiency of the evidence
claim.
In any event, the testimony at the adjudication hearing established
that Appellant challenged Victim to a fight and threatened to find Victim
alone if Victim refused to fight. Additionally, Victim and Victim’s mother
both testified that Appellant repeatedly smashed Victim’s head into the
ground during the fight. Both parties also testified that Appellant’s actions
knocked Victim unconscious and Victim required hospitalization as a result.
Victim’s mother further stated that it took three adults to pull Appellant off
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Victim, even though Victim was unconscious. The court determined these
circumstances established Appellant’s intent to inflict serious bodily injury to
Victim. Thus, sufficient evidence existed to support Appellant’s adjudication
of delinquency for aggravated assault—F1, and Appellant’s issues on appeal
merit no relief. See 18 Pa.C.S.A. § 2702(a)(1). Accordingly, we affirm.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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In Re: N.G., a Minor
Combined Opinion