J-A05028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WILLIAM DUNKEL, JR.,
Appellant No. 563 WDA 2016
Appeal from the Judgment of Sentence Entered March 24, 2016
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000631-2015
BEFORE: BENDER, P.J.E., SHOGAN, J. and MOULTON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 16, 2017
Appellant, Robert William Dunkel, Jr., appeals from the judgment of
sentence of 1 year less 1 day to 2 years less one day of incarceration,
followed by 24 months’ probation, imposed after he was convicted of
aggravated assault, simple assault, obstructing administration of law, and
resisting arrest. On appeal, Appellant challenges the sufficiency of the
evidence to sustain two of his convictions. After careful review, we affirm.
Following a jury trial in February of 2016, Appellant was convicted of
the above-stated offenses based on evidence that he was disruptive and
violent during a sentencing hearing in an unrelated case, which culminated
in Appellant’s fighting with several sheriffs as they attempted to subdue him
and place him under arrest. One of the sheriffs involved in the confrontation
with Appellant sustained a cut to her finger.
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On March 24, 2016, the court sentenced Appellant to the above-stated
term of incarceration for his aggravated assault conviction, as well as a
consecutive term of 24 months’ probation for simple assault, and concurrent
terms of 24 months’ probation for his obstructing administration of law and
resisting arrest convictions. Appellant filed a timely post-sentence motion,
which the court granted to the extent that it vacated Appellant’s sentence
for simple assault, which should have merged with his aggravated assault
conviction for sentencing purposes. The court also modified Appellant’s
sentence of probation for resisting arrest, directing that it run consecutively
to his term of incarceration, thus resulting in the same aggregate sentence
as the court initially imposed.
Appellant filed a timely notice of appeal, and he also timely complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Herein, he raises the following two claims
for our review:
[I.] Whether [Appellant] can be convicted of 18 Pa.C.S.A. § 2701
(a) (3) Aggravated Assault[?]
[II.] Whether [Appellant] can be convicted of 18 Pa.C.S.A. §
5101 Obstruction of the Administration of Justice[?]
Appellant’s Brief at 3.
In both of his issues, Appellant challenges the sufficiency of the
evidence to sustain his convictions.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
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most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant first states that he is attacking his conviction for
aggravated assault; however, he then discusses the elements of simple
assault. See Appellant’s Brief at 10. Even more problematically,
Appellant’s entire argument is premised on discussing the elements of
simple assault as defined in section 2701(a)(3), while he was actually
convicted of simple assault as defined in section 2701(a)(1).1 The
difference between these two provisions is significant: section 2701(a)(3)
requires an “attempt[] by physical menace to put another in fear of
imminent serious bodily injury[,]” while section 2701(a)(1) requires an
“attempt[] to cause or intentionally, knowingly, or recklessly caus[ing]
bodily injury to another[.]” 18 Pa.C.S. §§ 2701(a)(1), (a)(3). Again, the
entirety of Appellant’s argument pertains to the elements of section
2701(a)(3). See Appellant’s Brief at 11 (arguing that “[t]he element of
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1
We recognize that Appellant was charged with simple assault under
section 2701(a)(3), but at trial, the Commonwealth moved for that charge to
be amended to section 2701(a)(1). See N.T. Trial, 2/10/16, at 62. The
court granted that amendment without objection from Appellant. Id. at 63.
Therefore, the jury was charged with simple assault as defined in section
2701(a)(1), id. at 101-02, and it convicted Appellant of that offense.
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physical menace cannot be satisfied[,]” and he “did not put anyone in fear of
imminent serious bodily injury”); id. at 12 (arguing that a cut to a finger
does constitute serious bodily injury). Because Appellant does not present
any meaningful argument regarding the elements of simple assault as
defined in section 2701(a)(1), his first issue is meritless.
In Appellant’s next issue, he challenges the sufficiency of the evidence
to sustain his conviction for obstructing administration of justice, an offense
which is defined as follows:
A person commits a misdemeanor of the second degree if he
intentionally obstructs, impairs or perverts the administration of
law or other governmental function by force, violence, physical
interference or obstacle, breach of official duty, or any other
unlawful act, except that this section does not apply to flight by
a person charged with crime, refusal to submit to arrest, failure
to perform a legal duty other than an official duty, or any other
means of avoiding compliance with law without affirmative
interference with governmental functions.
18 Pa.C.S. § 5101.
In this case, the thrust of Appellant’s argument is that he was not the
aggressor of the physical confrontation with the deputy sheriffs in the
courtroom. According to Appellant, he merely made verbal comments that
did not disrupt the sentencing proceeding, and he was then attacked by the
deputies. He maintains that he did not commit any “affirmative act[,]” and
that “[t]he Commonwealth cannot prove intent to obstruct because
[Appellant] was obnoxious and noisy.” Appellant’s Brief at 16. Appellant
also contends that his physical confrontation with the deputies began after
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the court announced a recess for an unrelated reason and, therefore,
“[t]here were no ongoing proceedings” that were obstructed. Id. at 8, 17.
Appellant’s version of his conflict with the deputy sheriffs is completely
contradicted by the evidence presented at his trial. There, Deputy Sheriff
Eric McLafferty testified that he was working in courtroom number two on
February 24, 2015, when Appellant was called before the court for a
sentencing hearing in an unrelated case. N.T. Trial, 2/10/16, at 6-7.
Deputy McLafferty explained that the victim in that case came forward to
read a statement to the court and, as she did, Appellant “began sighing
heavily[,]” making “snorts of derision[,]” and other “short utterances … that
would interrupt … her speaking where she would have to stop, … and then …
pick back up and resume…, which was interrupting the proceeding.” Id. at
10-11. Deputy McLafferty moved “within an arm’s distance” of Appellant “in
an attempt … to dissuade him from that type of behavior.” Id. at 11, 13.
Nevertheless, Appellant’s “behavior did not stop” but, instead, he “continued
to escalate[,]” becoming “a little bit louder” and “more frequent” in his
comments and noises. Id. at 15.
At that point, Deputy McLafferty told Appellant that “he need[ed] to
calm down[,]” but that verbal command “really had no effect….” Id. at 16.
The deputy then decided to “remove [Appellant] temporarily … to the side”
of the courtroom in order to calm him down so the proceeding could finish.
Id. Deputy McLafferty testified that he placed “an open hand on
[Appellant’s] elbow” and “said, [‘]come on have a seat over here at the
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bench[’].” Id. at 16, 17. Appellant’s counsel followed the deputy and
Appellant to the bench on the side of the courtroom where Appellant sat
down, and counsel spoke softly to Appellant, trying to get him to calm down
because court was still in session. Id. at 18-19.
However, Appellant’s behavior continued to escalate, with his
“outbursts … getting louder” and “more frequent.” Id. at 19-20. Deputy
McLafferty testified that at that point, the judge had “to call for a recess” so
“matters could be brought back under control.” Id. at 21-22. The deputy
explained that as the judge began “to walk off the bench” toward his
chambers, Appellant “got up out of his seat” and moved “right into [Deputy
McLafferty] knocking [him] back … a couple of steps.” Id. at 22. The
deputy then decided to take Appellant into custody, but Appellant began
shoving Deputy McLafferty, seemingly “trying to get [the deputy] … out of
[the] way or go directly through [him]….” Id. at 23. Ultimately, it took two
other deputies, and Deputy McLafferty, to restrain Appellant and handcuff
him. Id. at 24-25.
In sum, the testimony of Deputy McLafferty sufficiently established
that Appellant intended to - and did - obstruct the court proceeding that was
taking place. Appellant ignored repeated requests from Deputy McLafferty
and his attorney to calm down, and he escalated the situation into a physical
confrontation that took several deputies to quell. Appellant’s conduct
resulted in the court’s “adjourn[ing] the … hearing” until the deputies “could
bring the courtroom back under control.” N.T. Trial, 2/10/16, at 27.
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Clearly, this evidence was sufficient to sustain Appellant’s conviction for
obstructing administration of law.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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