J-S84020-16
2017 PA Super 36
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRITTANY MCFADDEN
Appellant No. 635 EDA 2014
Appeal from the Judgment of Sentence Dated January 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009375-2013
MC-51-CR-0025869-2013
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
OPINION BY SOLANO, J.: FILED FEBRUARY 15, 2017
Appellant Brittany McFadden appeals from the judgment of sentence
following a bench trial and convictions for aggravated assault, conspiracy to
commit aggravated assault, simple assault, recklessly endangering another
person, and criminal mischief. Trial Ct. Op. at 1.1 We affirm.
At a bench trial held on December 5, 2013, the victim, Michelle
Tolbert, testified that on the afternoon of June 21, 2013, the last day of the
school year, she was working for the City of Philadelphia as a crossing
guard. N.T., 12/5/13, at 13, 28. While she was at her designated street
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702(a)(3), 903(c), 2701(a), 2705, and 3304(a)(2),
respectively.
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corner, a car pulled up and Sharday McFadden, a relative of Appellant
Brittany McFadden, exited the car. Id. at 17, 111. Ms. Tolbert did not know
Sharday McFadden. Id. at 17. After a heated discussion, Sharday McFadden
punched Ms. Tolbert in the face. Id. at 18-20.2 A fray ensued, which ended
after the two women fell to the ground. Id. Ms. Tolbert resumed helping
children cross the street. Id. at 20, 26. Ms. Tolbert’s husband, Torrey
Caldwell, who normally accompanies Ms. Tolbert on her work shift but was
running late that day, arrived and called the police. Id. at 24-25.
Meanwhile, Sharday McFadden made a phone call. N.T. at 20. Within
two or three minutes, a group of people arrived, including Appellant, who
was also unknown to Ms. Tolbert. Id. at 21-22, 36. Sharday McFadden again
approached Ms. Tolbert, who was standing against her truck. Id. at 39. 3
Meanwhile, a group of children from a nearby daycare had stopped by to
give Ms. Tolbert a card to thank her for her help during the school year. Id.
____________________________________________
2
The subject of the conversation and the motivation for the subsequent fight
were excluded from Ms. Tolbert’s testimony as hearsay. See N.T. at 14-16.
According to police documents, it had something to do with Ms. Tolbert’s
intervention to stop a fight among schoolchildren, including a McFadden
relative. See Ex. C-5 (Ms. Tolbert’s statement to the police); Ex. C-7 (police
incident report); N.T. at 14 (there was an incident between some children),
93 (testimony that some schoolgirls were going to fight), 110-14 (testimony
that Sharday McFadden came to the corner because some schoolgirls wanted
to fight her cousin).
3
Ms. Tolbert refers to her vehicle as both her “truck” and her “car”; her
husband testified that she drove a Jeep to work that day. See N.T. at 38,
39, 57.
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at 39. Shortly after Ms. Tolbert placed the card inside her vehicle, Sharday
McFadden again began punching her. Id. at 22, 38-39. As the two fell to the
ground, Appellant approached and joined in the fray. Id. Ms. Tolbert was on
top of Sharday McFadden, and Appellant “on top of [Ms. Tolbert] from the
back.” Id. at 22. Appellant struck Ms. Tolbert on the back of her head and
scratched the sides of her face. Id. at 22-23. Mr. Caldwell then pulled
Sharday McFadden and Appellant off of his wife, and he and his wife drove
away. Id. at 24-25.4
Mr. Caldwell testified that when he first arrived, he noticed that Ms.
Tolbert’s shirt was ripped, her vest was off, and her hat was missing. N.T. at
53-54. There was a car parked at the corner, and he saw a person later
identified as Sharday McFadden5 exit and punch Ms. Tolbert. Id. at 54. He
testified that he tried to break up the fight while Ms. Tolbert defended
herself. Id. As he was trying to end the fight, another car arrived and three
or four men surrounded him and began pulling him. Id. at 54-55, 57. Mr.
____________________________________________
4
On cross-examination, Appellant confronted Ms. Tolbert with a statement
that she gave to the police on the day of the incident. See N.T. at 41-43. In
that statement, Ms. Tolbert said that Sharday McFadden, not Appellant, had
been the one to scratch her face, and that she was knocked to the ground
because Appellant jumped on top of her. Id. Appellant also presented the
transcript of the preliminary hearing, where Ms. Tolbert testified that
Appellant was not only hitting her, but also pulling on her and trying to get
her off of Sharday McFadden. Id. at 45-46.
5
Mr. Caldwell did not identify the assailant as Sharday McFadden, but as a
thin, light-skinned woman who was not present in the courtroom. N.T. at 54,
57.
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Caldwell then called the police. Id. at 57. His wife had stopped fighting and
was leaning against her Jeep, where he saw some children give her a thank
you card. Id. at 57-58.
Mr. Caldwell testified that, as Ms. Tolbert was facing her car and Mr.
Caldwell was distracted by the new arrivals, Appellant approached and
punched Ms. Tolbert twice in the head. N.T. at 58-59. Mr. Caldwell pushed
Appellant away, and she “might have tripped over one of the guys that were
there.” Id. at 61. He did not see Ms. Tolbert hit Appellant at any point. Id.
at 62. Sharday McFadden returned and again began to hit Ms. Tolbert. Id. at
59-60. 6 Mr. Caldwell testified that the fight ended after his wife “grabbed
[Sharday McFadden] and choke-slammed her on the ground” and when he
became fearful due to the number of people from the neighborhood who had
arrived to watch the fight. Id. at 63.
Barbara Kener lives in the area of the incident, is Appellant’s neighbor,
and has known Appellant since birth. N.T. at 83-84. Ms. Kener testified she
was at home on the day of the incident, but went out to the street when she
noticed her granddaughter’s book bag lying on her steps. Id. at 92. She ran
to the corner at the same time as Appellant arrived. Id. at 96. When they
got there, Sharday McFadden and Ms. Tolbert were fighting. Id. at 85-86.
____________________________________________
6
Appellant questioned Mr. Caldwell on cross-examination regarding the
statement he made to the police after the incident, in which he stated that
at the beginning of the third fight he had intercepted a punch from Sharday
McFadden. N.T. at 66-69.
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Ms. Kener testified that Appellant tried to stop the fight, but Mr. Caldwell
grabbed Appellant’s arm and threw her to the ground. Id. at 86-87, 94. Ms.
Kener said she never saw Appellant hit Ms. Tolbert. Id. at 87. She testified
that Appellant has a reputation for being “a very quiet person” who “doesn’t
bother anybody” and who is not the type of person to initiate conflict. Id. at
90-91.
Sameerah Chamberlain, Ms. Kener’s ten-year-old granddaughter (and
Sharday McFadden’s cousin), testified that after walking home from school
7
that day she saw the fight start when Ms. Tolbert “snuck” Sharday
McFadden. N.T. 102-103. She later saw Appellant approach the corner with
Ms. Kener. Id. at 103. Miss Chamberlain said she did not observe Appellant
ever strike Ms. Tolbert. Id. at 105. Rather, according to Miss Chamberlain,
Appellant tried to separate the two fighters, until Mr. Caldwell “slammed her
on the ground.” Id. at 104.
Appellant testified that she went to the corner that day to retrieve
Sharday McFadden’s five-year-old daughter, who was watching the fight
between her mother and Ms. Tolbert. N.T. at 121. When she arrived at the
corner, the women had already begun fighting, and none of the onlookers
were trying to stop them. Id. at 118-19, 123. Appellant testified that she
attempted to break up the fight, but was slammed on the ground by Mr.
____________________________________________
7
Miss Chamberlain explained that she meant that “[Ms. Tolbert] hit
[Sharday McFadden] when she wasn’t looking at her.” N.T. at 115.
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Caldwell. Id. at 119-20, 123. Appellant testified that she tried to pull
Sharday McFadden out from underneath of Ms. Tolbert, and did not put her
hands on or strike Ms. Tolbert. Id. at 119-20.8 Appellant was pregnant at
the time of the altercation, but the trial court sustained the Commonwealth’s
objections to testimony about that fact. Id. at 70, 84, and 120.
On January 27, 2014, after finding Appellant guilty of the crimes listed
above, the trial court sentenced Appellant to a total of six to twelve months
of incarceration followed by two years’ probation. Trial Ct. Op. at 1. On
February 26, 2014, Appellant filed a timely notice of appeal to this Court. Id.
After significant delays regarding assembly of the record, the trial court filed
a Rule 1925(a) opinion on January 21, 2016. Trial Ct. Op. at 1.9
____________________________________________
8
The trial court did not find Appellant’s testimony to be credible. Trial Ct.
Op. at 4.
9
In June 2014, this Court sent a notice to the trial court about its
delinquency in assembling the record. Ultimately, the record that was
assembled did not contain critical transcripts of the trial court proceedings.
On June 3, 2015, one year after our delinquency notice, we granted a
motion by Appellant to remand this case to the trial court for inclusion of the
necessary transcripts. Meanwhile, Appellant suffered a failure by her counsel
to comply with the trial court’s order to file a Rule 1925(b) statement of
errors complained of on appeal, resulting in the trial court’s issuance of an
opinion asserting that all issues had been waived. Failure to file a Rule
1925(b) statement constitutes such ineffective assistance of counsel that it
entitles the represented criminal defendant to restoration of her waived
appellate rights, Commonwealth v. Halley, 870 A.2d 795, 800-01 (Pa.
2005), a fact Appellant noted in her remand motion. Accordingly, our June 3,
2015 remand order directed Appellant’s counsel to file a Rule 1925(b)
statement and directed the trial court to issue a supplemental Rule 1925(a)
opinion 30 days thereafter. Although Appellant filed a Rule 1925(b)
(Footnote Continued Next Page)
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Appellant presents the following issues for our review:
[1.] WAS THE EVIDENCE INSUFFICIENT, AS A MATTER OF LAW,
TO SUSTAIN APPELLANT’S CONVICTION AND [JUDGMENT] OF
SENTENCE FOR AGGRAVATED ASSAULT, F-2 [(]18 PA. C.S.A. [§]
2702(A)(3)[)], SINCE THERE WAS NO EVIDENCE THAT THE
COMPLAINANT, A SCHOOL CROSSING GUARD, IS WITHIN THE
PROTECTED CLASS OF PERSONS SPECIFIED IN 18 PA. C.S.A [§]
2702(C)?
[2.] DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION IN
SUSTAINING AS “NOT RELEVANT” TESTIMONY REGARDING
APPELLANT’S BEING PREGNANT AT THE TIME OF THE INCIDENT?
Appellant’s Brief at 2.
Sufficiency of the Evidence
Our standard of review for a sufficiency of the evidence challenge is
well established:
A claim challenging the sufficiency of the evidence presents a
question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and
accept as true all evidence and all reasonable inferences
therefrom upon which, if believed, the fact finder properly could
have based its verdict.
Commonwealth v. Fortune, 68 A.3d 980, 983 (Pa. Super. 2013) (en banc)
(internal quotation marks and citations omitted), appeal denied, 78 A.3d
1089 (Pa. 2013).
_______________________
(Footnote Continued)
statement on June 24, 2015, the trial court did not file its Rule 1925(a)
opinion until nearly seven months later. We admonish the trial court and
appellate counsel that they are required to comply with this Court’s rules,
deadlines, and orders. Their failures to do so in this case are unacceptable.
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Appellant was convicted of aggravated assault pursuant to 18 Pa.C.S
§ 2702(a)(3), which states that “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.” Subsection (c) lists 38 groups of
persons, including “police officers . . . firefighters, probation/parole officers,
sheriffs, prison authorities, judges, and numerous other public servants.”
Commonwealth v. Rahman, 75 A.3d 497, 501 n.7 (Pa. Super. 2013).10
____________________________________________
10
Section 2702(c) reads:
The officers, agents, employees and other persons referred to in
subsection (a) shall be as follows:
(1) Police officer.
(2) Firefighter.
(3) County adult probation or parole officer.
(4) County juvenile probation or parole officer.
(5) An agent of the Pennsylvania Board of Probation and Parole.
(6) Sheriff.
(7) Deputy sheriff.
(8) Liquor control enforcement agent.
(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).
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(10) Judge of any court in the unified judicial system.
(11) The Attorney General.
(12) A deputy attorney general.
(13) A district attorney.
(14) An assistant district attorney.
(15) A public defender.
(16) An assistant public defender.
(17) A Federal law enforcement official.
(18) A State law enforcement official.
(19) A local law enforcement official.
(20) Any person employed to assist or who assists any Federal,
State or local law enforcement official.
(21) Emergency medical services personnel.
(22) Parking enforcement officer.
(23) A magisterial district judge.
(24) A constable.
(25) A deputy constable.
(26) A psychiatric aide.
(27) A teaching staff member, a 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.
(28) Governor.
(Footnote Continued Next Page)
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The trial court found that the victim of the assault, Ms. Tolbert, was
within the classes of persons identified under Subsections 27 and 20 of
Section 2702(c). Trial Ct. Op. at 6. Section 2702(c)(27) lists a teacher,
school board member, or “other 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
_______________________
(Footnote Continued)
(29) Lieutenant Governor.
(30) Auditor General.
(31) State Treasurer.
(32) Member of the General Assembly.
(33) An employee of the Department of Environmental
Protection.
(34) An individual engaged in the private detective business as
defined in section 2(a) and (b) of the act of August 21, 1953
(P.L.1273, No.361), known as The Private Detective Act of 1953.
(35) An employee or agent of a county children and youth social
service agency or of the legal representative of such agency.
(36) A public utility employee or an employee of an electric
cooperative.
(37) A wildlife conservation officer or deputy wildlife
conservation officer of the Pennsylvania Game Commission.
(38) A waterways conservation officer or deputy waterways
conservation officer of the Pennsylvania Fish and Boat
Commission.
18 Pa.C.S. § 2702(c).
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her employment or because of his or her employment relationship to the
school.” 18 Pa.C.S. § 2702(c)(27). Section 2702(c)(20) includes, “[a]ny
person employed to assist or who assists any Federal, State or local law
enforcement official.” Id. § 2702(c)(20). The trial court stated:
The circumstantial evidence clearly proves Miss Tolbert falls
within either the “other employee” category as a crossing guard,
due to her relationship with the school by crossing students to
the other side of public streets, or that working in her capacity
as a crossing guard, Miss Tolbert was doing her duty to serve the
community to safely escort children across busy streets, similarly
to local police officers.
Trial Ct. Op. at 6.
Appellant argues that Ms. Tolbert did not fall under either subsection.
Appellant’s Brief at 7-9. According to Appellant, not only does the
aggravated assault statute not specifically list “crossing guards” anywhere in
Subsection (c), but Ms. Tolbert testified that she was employed by the City
of Philadelphia, not by a school, making her ineligible for inclusion under the
plain text of Subsection (c)(27). Id. at 7-9 (citing N.T., 12/5/13, at 13).
Appellant adds that because no evidence was presented regarding Ms.
Tolbert’s employment or the city department in which she worked (“[p]olice,
school district, streets, recreation, etc.”), she should also not have been
deemed included under Subsection (c)(20). Id. at 7-9 (citing N.T. at 13).
The Commonwealth counters that “[t]he aggravated assault statute is
broadly drawn when it comes to school-related actors, and extends its
protection to anyone acting in the scope of his or her employment or
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because of his or her employment relationship to the school.”
Commonwealth’s Brief at 6 (footnote omitted). While admitting that Ms.
Tolbert was employed by the City of Philadelphia and thus was not a school
employee, the Commonwealth claims that the broad wording of Section
2702(c)(27) is sufficient to encompass school crossing guards. Id. The
Commonwealth makes no separate argument regarding Subsection (c)(20).
Whether assaulting a school crossing guard is encompassed within
Section 2702 is a question of first impression for a Pennsylvania appellate
court. Its resolution requires construction of Section 2702. “In evaluating a
trial court’s application of a statute, our standard of review is plenary and is
limited to determining whether the trial court committed an error of law.”
Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004)
(en banc) (citation omitted). In making this determination, we are guided by
the Statutory Construction Act, Commonwealth v. Merolla, 909 A.2d 337,
345 (Pa. Super. 2006), which dictates:
§ 1921. Legislative intent controls
(a) The object of all interpretation and construction of statutes is
to ascertain and effectuate the intention of the General
Assembly. Every statute shall be construed, if possible, to give
effect to all its provisions.
(b) When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.
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1 Pa.C.S. § 1921. “As a general rule, the best indication of legislative intent
is the plain language of a statute.” Commonwealth v. Bradley, 834 A.2d
1127, 1132 (Pa. 2003).
Because the Commonwealth places primary reliance on Section
2702(c)(27), we first examine whether a crossing guard like Ms. Tolbert is
included under that provision. We conclude that she is not. The clear and
unambiguous language of this provision, which we are beholden to uphold,
see 1 Pa.C.S. § 1921(b); Bradley, 834 A.2d at 1132, states that, to be
covered, Ms. Tolbert had to be an “employee” of a publicly-funded, private,
or parochial school who was “acting in the scope of his or her employment or
because of his or her employment relationship to the school.” 18 Pa.C.S. §
2702(c)(27).11 Ms. Tolbert was not such an employee. Rather, Ms. Tolbert
testified that she was employed as a crossing guard by the City of
Philadelphia. See N.T. at 13. The Commonwealth concedes that crossing
guards in Philadelphia are employed by the City, and not by the School
District of Philadelphia, a separate legal entity. See Appellee’s Brief at 6 n.1.
Therefore, Section 2702(c)(27) does not apply to Ms. Tolbert.
The Commonwealth observes that Section 2702(c)(27) applies both to
a person “acting in the scope of his or her employment” and to someone
____________________________________________
11
The statute applies to “[a] teaching staff member, a school board member
or other employee, including a student employee.” Ms. Tolbert was not a
teacher, school board member, or student. Therefore, the only applicable
term is “other employee.”
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acting “because of his or her employment relationship to the school.” It
declares that Ms. Tolbert “was acting in an employment ‘relationship’ to the
school, regardless of her actual employer,” adding: “In Philadelphia, school
crossing guards are employed by the police department; nevertheless they
have an obvious ‘employment relationship’ with the school system.”
Commonwealth Brief at 6, 6 n.1. The Commonwealth continues:
[H]ad the General Assembly sought to impose liability for
aggravated assaults perpetrated only against school employees,
the broader words “employment relationship” would serve no
purpose. Giving effect to every word of the statute, it is
presumed that the legislature intended to protect school crossing
guards under subsection (c)(27) even if they are not direct
employees of the school. Ms. Tolbert was clearly within the
statutory definition because the statute includes anyone with an
“employment relationship to the school.” 18 Pa.C.S.
§ 2702(c)(27).
Id. at 6-7. We disagree.
While the scope of Ms. Tolbert’s employment as a school crossing
guard certainly related to a school or schools, the statute still requires that
she be a school “employee” to fall under Section 2702(c)(27). The clause
stating that the provision applies to an employee while acting within the
scope of employment or “because of his or her employment relationship with
the school” merely clarifies that whether the employee is acting within the
scope of his or her employment is not determinative of whether Section
2702(c)(27) applies. But it does not remove the requirement of employment
altogether. The Commonwealth’s declaration that Ms. Tolbert had an
“obvious ‘employment relationship’ with the school system” adds nothing to
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this analysis. She may indeed have had a “relationship” to the school system
by virtue of her work as a school crossing guard, but that did not establish
that she had an employment relationship with it.
The clear wording of the statute compels this interpretation, but even
if the statute were not explicit, we would reach the same result. We are
supported in our interpretation by Section 2702’s legislative history. See
Statutory Construction Act, 1 Pa.C.S. § 1921(c)(7) (if words of statute are
not explicit, Legislature’s intention may be ascertained by considering
“contemporaneous legislative history”).
Subsection (c)(27) was added to the aggravated assault statute in
December 1998. See Act No. 1998-159, § 1, P.L. 1245 (Dec. 21, 1998).
Before that amendment, Section 2702 addressed schools in its Subsection
(a)(5), which made a person guilty of aggravated assault if he —
attempts to cause or intentionally or knowingly causes bodily
injury to a teaching staff member, school board member, other
employee or student 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.
Act No. 1996-75, § 1, P.L. 478 (Jul. 2, 1996). In July 1998, we interpreted
that provision in Commonwealth v. Scott, 546 A.2d 96 (Pa. Super. 1998),
appeal denied, 563 A.2d 497 (Pa. 1989), to mean that the statute applied
to an assault on any student, regardless of whether the student was an
employee of the school. We reasoned that the provision referred to an “other
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employee or student,” which suggested that the student did not have to be
an employee, and we relied on legislative history showing that the words “or
student” had been added in 1980 because of a concern with assaults on
students in schools. Scott, 546 A.2d at 98-100 (emphasis added). The
Legislature’s December 1998 amendment overturned this interpretation by
changing the phrase “other employee or student” in Section 2702(a)(5) to
“or other employee, including a student employee.” That change made it
clear that only an “employee” was intended to be covered under that clause
and that a student was covered only if he or she was a “student employee.”
At the same time, the Legislature enacted Section 2702(c)(27) and
employed identical wording in that provision to that in amended subsection
(a)(5).12 We therefore conclude that the limitation to school “employees” in
subsection (c)(27) was deliberate.
Because we conclude that the trial court erred in holding that Ms.
Tolbert fell within the ambit of Section 2702(c)(27), we hold that Appellant
could not be convicted of aggravated assault on that basis. We therefore
turn to whether Ms. Tolbert could be convicted under Section 2702(c)(20),
which applies to assaults on “[a]ny person employed to assist or who assists
____________________________________________
12
Coverage of some student non-employees was restored by 2013
amendments that added protection for children under 6 years of age and
children under 13 years of age. Those new subsections cover all children, not
just students. See Act No. 2014-118, § 2, P.L. 1198 (Dec. 18, 2013) (adding
Section 2702(a)(8) and (9)).
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any Federal, State or local law enforcement official.” 18 Pa.C.S. § 2702
(c)(20). We note that, unlike subsection (c)(27), this subsection does not
require an employer–employee relationship; it applies to all who assist law
enforcement and who are assaulted “in the performance of duty.” See id. §
2702(a)(3), (c)(20).
It is undisputed that the altercation at issue here occurred while Ms.
Tolbert was acting as a crossing guard pursuant to her employment with the
City. The assault occurred during the victim’s shift while she was standing on
her assigned street corner, performing her job tasks, and wearing a uniform.
See N.T. 13-14, 20, 26. Ms. Tolbert’s assigned job was to help students to
cross the street, and she was positioned somewhere near a daycare center
as she did so. See id. 25, 39, 58. As the trial court observed: Ms. Tolbert’s
“job is to help school children cross the street. Her hours are during the
dismissal time when the children are coming and going to school. She has a
uniform pertaining [to her job].” Id. at 180.
We conclude that there was sufficient evidence presented at trial to
include Ms. Tolbert under Section 2702(c)(20). As noted by the trial court,
while “working in her capacity as a crossing guard, Miss Tolbert was doing
her duty to serve the community to safely escort children across busy
streets, similarly to local police officers.” Trial Ct. Op. at 6. While the
Commonwealth failed to present evidence at trial that the victim’s
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employment by the City was through its police department,13 Ms. Tolbert’s
job tasks may easily be characterized as providing assistance to local law
enforcement. Indeed, for this reason, the Commonwealth Court has held
that school crossing guards in Philadelphia may be subject to the same rules
of conduct applicable to City police officers. Civil Serv. Comm’n of Phila.
v. Wiseman, 501 A.2d 350, 353 (Pa. Cmwlth. 1985), appeal denied, 538
A.2d 880 (Pa. 1987).14
Appellant argues that several Pennsylvania statutes suggest that
school crossing guards do not qualify as law enforcement officers. See
Appellant’s Brief at 8-9 (citing Borough Code, 8 Pa.C.S. § 1127; Third Class
City Code, 11 Pa.C.S. § 12010; First Class Township Code, 53 P.S. § 56416;
and Second Class Township Code, 53 P.S. § 66915). Notably, none of these
statutes applies to crossing guards in Philadelphia, a city of the first class.
See City Classification Law § 1, 53 P.S. § 101 (classifying cities with
populations of one million or more as cities of the first class). The statutes
state that school crossing guards are ineligible for the employment benefits,
____________________________________________
13
Although the Commonwealth states in its brief that Ms. Tolbert is
employed by the Philadelphia Police Department, Commonwealth Brief at 6
n.1, there is no support for that statement in the evidence presented at trial.
14
Although the Commonwealth Court’s decisions are not binding on this
Court, see NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296,
308 n.7 (Pa. Super. 2012), the court’s decision in Wiseman is informative
when we consider whether a crossing guard is someone who assists local law
enforcement for purposes of Section 2702(c)(20).
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unemployment benefits, pensions, or collective bargaining rights that pertain
to policemen, but those stipulations do not show that crossing guards are
not employed to assist law enforcement — the pertinent requirement under
Section 2702(c)(20). More to the point, the statutes uniformly define
crossing guards’ duties as management of traffic and pedestrians in areas
identified by the municipal police force, and they call for training and
assistance to be provided to the crossing guards by the local police
department. See 8 Pa.C.S. § 1127(b)(2), (3); 11 Pa.C.S. § 12010(b)(1),
(c)(1); 53 P.S. §§ 56416(b), 66915(c). To the extent Appellant argues that
these statutes are relevant to assessment of crossing guards’ duties and
responsibilities, Appellant’s argument bolsters the conclusion that crossing
guards are persons who assist local law enforcement. Appellant makes no
suggestion that the duties of crossing guards in Philadelphia are different
from those in these other classes of municipalities, and, indeed, her
argument presupposes that they are similar.
We conclude that Philadelphia school crossing guards like Ms. Tolbert
are persons who assist local law enforcement and therefore are within the
category of persons listed under 18 Pa. C.S. § 2702(c)(20). We therefore
hold that there was sufficient evidence for the trial court to find Appellant
guilty of aggravated assault pursuant to 18 Pa.C.S § 2702(a)(3).
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Admission of Evidence
In her second issue, Appellant complains that the trial court erred by
sustaining the Commonwealth’s objections to testimony that Appellant was
pregnant at the time of the assault. Appellant’s Brief at 10 (citing N.T. at 70,
84, and 120). According to Appellant, the testimony was relevant “to show
the extent of her involvement in the fight.” Id. Appellant asserts that it is
the purview of the fact-finder to determine whether Appellant’s pregnant
status actually affected her involvement in the incident. Id.
The trial court excluded this testimony as irrelevant because “[t]here
is no rational relationship between pregnancy and the propensity to engage
in an altercation. There is no reason to believe that a woman would avoid
fighting merely because she is pregnant.” Trial Ct. Op. at 7. The trial court
also found that the testimony was more prejudicial than probative: “The
admission of the defendant being pregnant would interfere with the fact-
finder being impartial, as it would likely cause the fact-finder to sympathize
with the defendant based on emotions and not facts.” Id. at 7-8.
“The admission of evidence is committed to the sound discretion of the
trial court and an appellate court may reverse only upon a showing that the
trial court clearly abused its discretion.” Commonwealth v. Bardo, 709
A.2d 871, 877 (Pa.), cert. denied, 525 U.S. 936 (1998).
Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or presumption
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regarding a material fact. Once evidence is found to be relevant,
it will be inadmissible only if its probative value is substantially
outweighed by the danger of unfair prejudice or confusion.
Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super. 1999)
(quotation marks and citations omitted), appeal denied, 795 A.2d 972 (Pa.
2000). “Unfair prejudice” is “a tendency to suggest a decision on an
improper basis or to divert the jury’s attention away from its duty of
weighing the evidence impartially.” Pa.R.Evid. 403 cmt.
The trial court will be reversed only if an error in the admission of
evidence contributed to the verdict. Commonwealth v. Konias, 136 A.3d
1014, 1022 (Pa. Super.), appeal denied, 145 A.3d 724 (Pa. 2016). This
was a bench trial, and a trial court acting as the fact-finder “is presumed to
know the law, ignore prejudicial statements, and disregard inadmissible
evidence.” Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014).
Viewed under these standards, this issue merits no relief. While a
person’s medical condition may be slightly probative as to whether and the
extent to which that person would be involved in a brawl, the trial court was
well within its discretion to find that potential prejudice from testimony
about Appellant’s pregnancy would substantially outweigh any probative
value provided by that fact. See Pa.R.Evid. 403.
Furthermore, although some testimony directly discussing Appellant’s
pregnancy was excluded, other testimony referencing Appellant’s pregnancy
was admitted several times during the course of the trial. See N.T. at 38-39,
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62, 87, 89, 121. This included testimony elicited by the prosecutor, see id.
at 125, and language contained within a police incident report that was
introduced into evidence upon stipulation by both parties, id. at 126.
Therefore, the occasions on which the Commonwealth’s objections were
sustained by the court could not logically have contributed to the verdict.
Konias, 136 A.3d at 1022.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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