J-S62037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER LEE SIRMONS
Appellant No. 261 MDA 2016
Appeal from the Judgment of Sentence December 17, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001770-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2016
Appellant Christopher Lee Sirmons, appeals from the judgment of
sentence entered in the Centre County Court of Common Pleas, following his
jury trial convictions for two counts each of aggravated assault and simple
assault.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On July 11, 2014, Appellant was incarcerated at SCI-Rockview. At
approximately 7:45 p.m., the inmates were in a “blackout” period, which is a
recess-like time when inmates can play cards, board games, etc.
Corrections Officer (“CO”) Garrett Dixon was on duty performing security
rounds and his normal responsibilities with respect to the care, custody, and
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1
18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), respectively.
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control of inmates. CO Dixon observed Appellant standing in an
unauthorized area, near a divider gate that separates the Restricted Housing
Unit (“RHU”). Inmates are not permitted to stand near the divider because
contraband is often passed into the RHU. CO Dixon asked Appellant what he
was doing by the gate; Appellant did not respond. CO Dixon then ordered
Appellant to remove the gloves he was wearing and informed Appellant that
CO Dixon was going to perform a pat-down due to Appellant’s suspicious
behavior. Appellant initially argued about removing his gloves, but he
eventually complied. During the pat-down, Appellant became
argumentative. CO Dixon completed the pat-down and found no contraband
on Appellant’s person.
CO Dixon directed Appellant to return to his cell. Appellant did not
comply. Instead, Appellant began walking in a different direction. CO Dixon
again ordered Appellant to return to his cell. Appellant failed to comply and
laughed at the officer. At that point, CO Dixon commanded Appellant to
“cuff up,” meaning Appellant must put his hands behind his back so CO
Dixon could handcuff him. Appellant put his hands behind his back and
while CO Dixon was reaching for handcuffs, Appellant turned around and
punched CO Dixon in the face with a closed fist. Appellant hit CO Dixon
again in the jaw. Appellant continued swinging punches as CO Dixon
attempted to regain control of Appellant.
CO Daniel Sayers was on duty during the incident and observed the
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assault and the events leading up to it. Specifically, CO Sayers heard CO
Dixon command Appellant to go to his cell. When CO Dixon ordered
Appellant to “cuff up,” CO Sayers saw Appellant stand with his back toward
CO Dixon and then shift as if he was ready to strike. CO Sayers then
watched Appellant strike CO Dixon. CO Sayers responded to the scene to
aid CO Dixon in controlling Appellant. When CO Sayers tried to restrain
Appellant, Appellant struck CO Sayers in the face with a closed fist.
Appellant got on top of CO Sayers and continued to fight with him.
Lieutenant Lynn Smith was on duty during the incident and received a
transmission over the radio regarding a fight, so he responded to the scene.
Lieutenant Smith observed Appellant on top of CO Sayers. Appellant
disobeyed multiple orders to put his hands behind his back. CO Kevin Falls
also heard a fight occurring and saw an officer and an inmate rolling around
on the ground. CO Falls responded to the scene and Lieutenant Smith
directed him to secure Appellant, along with another officer. The officers
eventually restrained Appellant. Shortly thereafter, Appellant said to CO
Falls: “Falls, man, they got me. It was a fair fight. I deserved it, but they
fucking got me.” (N.T. Jury Trial, 11/6/15, at 16-17). CO Dixon was
swollen and sore for a few days following the assault, had difficulty chewing
and opening his mouth, and took Motrin for pain. CO Dixon also described
the pain felt from Appellant’s initial blow as a seven or eight on a scale from
one to ten. CO Sayers was in pain for about a week following the assault.
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The Commonwealth charged Appellant with aggravated assault and
simple assault. Appellant’s jury trial began on November 6, 2015.2 At the
conclusion of evidence, defense counsel asked the court to accept her
proposed point for charge No. 16, supplying an expansive definition of
“bodily injury.” The Commonwealth requested the court use only the
standard jury instruction regarding “bodily injury.” The court rejected
defense counsel’s proposed point for charge and used the standard jury
instruction for that definition. Defense counsel objected to the court’s ruling.
Following deliberations, the jury convicted Appellant of two counts each of
aggravated assault and simple assault.
On December 17, 2015, the court sentenced Appellant to consecutive
terms of two to four years’ imprisonment for each aggravated assault
conviction, consecutive to the sentence Appellant was already serving. The
simple assault convictions merged for sentencing purposes. Appellant timely
filed a post-sentence motion on December 18, 2015, challenging the court’s
refusal to issue his proposed point for charge regarding the definition of
“bodily injury.” Following a hearing on February 8, 2016, the court denied
the post-sentence motion. Appellant timely filed a notice of appeal on
February 10, 2016. The next day, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
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2
Appellant waived his right to attend or participate in his trial.
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1925(b). Appellant timely complied on February 26, 2016.
Appellant raises one issue for our review:
DID THE TRIAL COURT ERRONEOUSLY REFUSE TO GIVE
APPELLANT’S REQUESTED POINT FOR CHARGE NUMBER
16, AN EXPANDED DEFINITION OF “IMPAIRMENT OF
PHYSICAL CONDITION OR SUBSTANTIAL PAIN?”
(Appellant’s Brief at 10).
Appellant asserts the Crimes Code defines “bodily injury” as
“impairment of physical condition or substantial pain.” Appellant argues
Pennsylvania case law has expanded on this definition to define “bodily
injury” as “a physical event unlike those commonly occurring in normal life
which, although unpleasant and somewhat painful, do not seriously interrupt
one’s daily life.” Appellant contends this expansive definition demonstrates
the legislature’s intent to protect and preserve one’s physical wellbeing but
not to prevent temporary pain resulting from trivial contacts which are part
of modern day living. Appellant claims his proposed point for charge recited
language from case law concerning the definition for “bodily injury.” Under
Appellant’s proffered definition, Appellant maintains he did not cause “bodily
injury” to CO Dixon or CO Sayers because they sustained only minor
abrasions. Appellant avers the court failed to give the jury sufficient
guidance about the level of impairment or pain necessary to cause “bodily
injury” for purposes of simple assault and aggravated assault. Appellant
insists his was a “close case,” so any ambiguity regarding the definition of
“bodily injury” would not amount to harmless error. Appellant concludes the
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court erred by refusing to give his proposed point for charge on “bodily
injury,” and this Court must grant Appellant a new trial. We disagree.
The Crimes Code defines the offenses of simple assault and
aggravated assault, in pertinent part, as follows:
§ 2701. Simple assault
(a) Offense defined.—Except as provided under
section 2702 (relating to aggravated assault), a person is
guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
* * *
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of
aggravated assault if he:
* * *
(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[.]
* * *
(c) Officers, employees, etc., enumerated.—The
officers, agents, employees and other persons referred to
in subsection (a) shall be as follows:
* * *
(9) Officer or employee of a correctional institution,
county jail or prison, juvenile detention center or any other
facility to which the person has been ordered by the court
pursuant to a petition alleging delinquency under 42
Pa.C.S. Ch. 63 (relating to juvenile matters).
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* * *
18 Pa.C.S.A. §§ 2701(a)(1), 2702(a)(3), (c)(9). The Crimes Code defines
“bodily injury” as “[i]mpairment of physical condition or substantial pain.”
18 Pa.C.S.A. § 2301 (definitions). Likewise, the Pennsylvania Suggested
Standard Criminal Jury Instructions for “Simple Assault—Bodily Injury
Attempted,” “Simple Assault—Bodily Injury Caused,” “Aggravated Assault—
Attempt to Cause Bodily Injury to an Enumerated Person,” and “Aggravated
Assault—Causing Bodily Injury to an Enumerated Person” define “bodily
injury” as “impairment of physical condition or substantial pain.” See
Pa.SSJI (Crim), § 15.2701A (2016); Pa.SSJI (Crim), § 15.2701B (2016);
Pa.SSJI (Crim), § 15.2702C.1 (2016); Pa.SSJI (Crim), § 15.2702D.1 (2016).
“Our standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when [the court] abused its discretion or committed an error of
law.” Commonwealth v. Janda, 14 A.3d 147, 163 (Pa.Super. 2011).
Additionally:
[W]e must review the jury charge as a whole to determine
if it is fair and complete. A trial court has wide discretion
in phrasing its jury instructions, and can choose its own
words as long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. The
trial court commits an abuse of discretion only when there
is an inaccurate statement of the law.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal
denied, 606 Pa. 644, 992 A.2d 885 (2010) (quoting Commonwealth v.
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Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal denied, 599 Pa. 708,
962 A.2d 1196 (2008)). Further:
A jury charge will be deemed erroneous only if the charge
as a whole is inadequate, not clear or has a tendency to
mislead or confuse, rather than clarify, a material issue. A
charge is considered adequate unless the jury was
palpably misled by what the trial judge said or there is an
omission which is tantamount to fundamental error.
Consequently, the trial court has wide discretion in
fashioning jury instructions. The trial court is not required
to give every charge that is requested by the parties and
its refusal to give a requested charge does not require
reversal unless the appellant was prejudiced by that
refusal.
Baker, supra at 507 (quoting Commonwealth v. Brown, 911 A.2d 576,
582-83 (Pa.Super. 2006), appeal denied, 591 Pa. 722, 920 A.2d 830
(2007)). See also Commonwealth v. Towles, ___ Pa. ___, 106 A.3d 591
(2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1494, 191 L.Ed.2d 435 (2015)
(holding jury instruction on “premeditation” thoroughly and accurately
represented law on first-degree murder; trial court’s instructions were
largely based on standard jury instructions; trial court was free to reject
appellant’s expansive definitions of “premeditation” and “deliberation” based
on descriptions found in case law, legal treatises, and dictionaries; appellant
does not assert that standard jury instructions impinge upon his
constitutional or other legal rights; insofar as appellant asks this Court to
critique subtleties of language in Pennsylvania Suggested Standard Jury
Instructions, Court declines his invitation).
Instantly, Appellant submitted the following proposed point for charge
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regarding the definition of “bodily injury”:
16. Impairment of Physical Condition and
Substantial Pain Defined:
As I have already indicated, in order for [Appellant] to be
guilty of Aggravated Assault or Simple Assault, you must
find that he caused or intended to cause bodily injury to
Garrett Dixon and/or Daniel Sayers. The term “bodily
injury” means a physical event unlike those commonly
occurring in normal life which, although unpleasant and
somewhat painful, do not seriously interrupt one’s daily
life. For example, if one cuts oneself shaving the average
person does not think that he has suffered an injury even
though such an event could be accompanied by some pain
and bloodshed. Similarly, if one stubbed a toe or dropped
something on it, even though it could elicit a fair amount
of pain and might even result in some limping and the
ultimate loss of a toenail, one would not think of himself as
injured. The same could be said if one bumped an elbow
against the wall or one’s head on a low ceiling beam.
Accordingly, it is not enough for the Commonwealth to
demonstrate temporary hurts resulting from trivial
contacts. Rather, in order to prove that the defendant
caused “bodily injury,” the Commonwealth must prove that
Garrett Dixon and/or Daniel Sayers suffered either
“physical impairment” or “substantial pain.” In order to
demonstrate, beyond a reasonable doubt, that Garrett
Dixon and/or Daniel Sayers suffered “physical
impairment,” the Commonwealth must demonstrate more
than minor redness, bruises, or slight cuts. Similarly, in
order to demonstrate that Garrett Dixon and/or Daniel
Sayers suffered “substantial pain,” the Commonwealth
must demonstrate that they experienced more pain than
mere temporary aches or soreness. In deciding whether
they actually suffered “bodily injury,” you can consider
such relevant factors as whether they missed work or saw
a physician due to bodily injury.
With respect to the Commonwealth’s alternative theory
that [Appellant] attempted to cause bodily injury by his
actions, you must be convinced beyond a reasonable doubt
that it was [Appellant’s] conscious objective to cause this
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amount of pain or physical impairment.
(Appellant’s Proposed Points for Charge, 11/5/15, at 4-5). The court
rejected Appellant’s proposed point for charge No. 16, in favor of the
standard jury instruction defining “bodily injury” as “the impairment of
physical condition or substantial pain.” (N.T., 11/6/15, at 200-01).
At the conclusion of the hearing on Appellant’s post-sentence motion,
the court explained its rationale for rejecting Appellant’s proposed point for
charge:
Thank you. Well, the [c]ourt has on occasion found that
some of the standard instructions are maybe way too
complicated or maybe way too detailed, and has
attempted to try to simplify them. I believe that the
standard instruction as it relates to the definition of bodily
injury and the definition for serious bodily injury[3] are
succinct; they’re clear; they’re understandable. The
[c]ourt declined to read the instruction that [defense
counsel gave], that although it supplements in some
fashion or another, the [c]ourt is always mindful of not
extending the instructions to the jury longer than need be,
not diluting the instructions with countless other
amplifications, and so the [c]ourt believes that it was
proper to give the standard instruction, but does not
believe that it erred in failing to give the supplemental
instruction requested by [defense counsel]. As such, the
post-sentence motion is denied.
(N.T. Post-Sentence Motion Hearing, 2/8/16, at 7).
In its Rule 1925(a) opinion, the court added:
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3
The court did not issue a jury instruction on “serious bodily injury” in this
case, as the crimes at issue do not require serious bodily injury. See 18
Pa.C.S.A. §§ 2701(a)(1), 2702(a)(3).
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In the instant case, the [c]ourt used the standard jury
instructions, and found that the definitions contained
therein were sufficient to explain the charges of
Aggravated Assault and Simple Assault. This [c]ourt
respectfully submits that it did not abuse its discretion in
denying [Appellant’s] request to give a specific case law
based instruction, and that our Orders of December 17,
[2015] and February 8, 2016 should remain undisturbed.
(Trial Court Opinion, filed March 1, 2016, at 1-2). We see no reason to
disrupt the court’s decision to deny Appellant’s proposed point for charge on
“bodily injury.” See Janda, supra; Baker, supra.
The standard jury instruction on “bodily injury” mirrors the definition
supplied in the Crimes Code. Compare 18 Pa.C.S.A. § 2301 with Pa.SSJI
(Crim), § 15.2701A (2016); Pa.SSJI (Crim), § 15.2701B (2016); Pa.SSJI
(Crim), § 15.2702C.1 (2016); Pa.SSJI (Crim), § 15.2702D.1 (2016).
Consequently, the court’s instruction on “bodily injury” accurately reflects
the law. See Towles, supra; Baker, supra. Appellant does not claim that
the Pennsylvania Suggested Standard Jury Instructions impinge upon his
constitutional or other legal rights. See Towles, supra.
Additionally, the cases on which Appellant relies do not involve a
court’s failure to issue a requested jury instruction and are factually
distinguishable from this case. See, e.g., Commonwealth v. Wertelet,
696 A.2d 206, 210-13 (Pa.Super. 1997) (holding evidence was insufficient to
support appellant’s conviction for aggravated assault where appellant kicked
trooper twice in left shin during unlawful arrest; stating: “Although not
necessarily controlling, the connotation of bodily injury, a sort of common
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person understanding of the term, suggests a physical event unlike those
commonly occurring in normal life which, although unpleasant and
somewhat painful, do not seriously interrupt one’s daily life”; evidence
showed appellant did not kick trooper as hard as she could but merely
kicked trooper with back of her heel as she was flailing about and squirming
while police attempted to handcuff her; trooper testified pain he experienced
was “similar to bumping your shin on a coffee table in the dark when you’re
walking through the house”; trooper’s description of pain did not fall within
general connotation of term “injury”; thus, evidence was insufficient to
prove trooper experienced “bodily injury” necessary for aggravated assault
conviction) (emphasis added); Commonwealth v. Kirkwood, 520 A.2d
451 (Pa.Super. 1987) (holding evidence was insufficient to support
appellant’s conviction for simple assault where appellant swung his dance
partner violently about dance floor, as result of which dance partner
sustained bruises and fingernail marks on her arms; temporary aches and
pains brought about by strenuous, even violent, dancing are inadequate
basis for imposing criminal liability upon appellant for assault).
Further, we disagree with Appellant’s position that his was a “close
case.” See, e.g., Commonwealth v. Brown, 23 A.3d 544 (Pa.Super.
2011) (en banc) (affirming appellant’s conviction for aggravated assault
where appellant threw officer to ground when officer attempted to handcuff
appellant; during struggle, appellant struck officer repeatedly on arm,
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shoulder and mouth, causing officer to sustain swollen lip; rejecting
appellant’s reliance on Wertelet as distinguishable); Commonwealth v.
Marti, 779 A.2d 1177, 1181 (Pa.Super. 2001) (reversing dismissal of
aggravated assault charge for failure to set forth prima facie evidence of
“bodily injury,” and remanding for trial, where appellee struck sergeant in
jaw with closed fist resulting in “slight swelling and pain”; we refuse to
equate deliberate punch in face causing swelling and pain with facts in
Wertelet, where appellant had delivered mild kick to trooper’s shins while
resisting arrest, which trooper described as similar to bumping into coffee
table); Commonwealth v. Richardson, 636 A.2d 1195 (Pa.Super. 1994)
(affirming appellant’s assault conviction where appellant punched officer in
face with fist; appellant’s punch broke officer’s eyeglasses, caused officer to
stumble backwards, and caused pain for next few days; appellant’s
argument that officer did not suffer bodily injury because he did not receive
medical treatment or miss work as result of blow to face is frivolous;
appellant’s conduct in striking officer cannot be equated to violent dancing
as in facts of Kirkwood). Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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