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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
STEVE LEVENGOOD, : No. 1365 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, August 23, 2017,
in the Court of Common Pleas of Lebanon County
Criminal Division at No. CP-38-CR-0001566-2016
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2018
Steve Levengood appeals from the August 23, 2017 aggregate
judgment of sentence of 3 to 7 years’ imprisonment imposed after a jury
found him guilty of aggravated assault and simple assault.1 After careful
review, we affirm the judgment of sentence.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On the night of June 27, 2016, after months of
a strained and often hostile relationship, [appellant]
and his next-door neighbor, Darnell Pemberton
(hereinafter “the victim”), stood at their respective
property lines engaged in a heated argument.
Within minutes of the face to face encounter,
[a]ppellant suddenly punched the victim in the jaw.
The victim fell backward from the force of the blow
and his head impacted against the asphalt driveway
1 18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1), respectively.
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whereupon he sustained traumatic brain injury.
Shortly thereafter, law enforcement and emergency
medical personnel responded and the victim was
transported to the hospital for treatment.
Appellant was charged with Aggravated Assault
and Simple Assault in relation to the above-described
incident. After a three day jury trial, [a]ppellant was
found guilty on both counts and on August 23, 2017,
th[e trial c]ourt sentenced [a]ppellant to a minimum
of three years and a maximum of seven years in a
state correctional facility, along with fines, restitution
and costs of prosecution. At sentencing, counsel for
[a]ppellant made an oral motion for bail pending
appeal, which th[e trial c]ourt denied. Appellant did
not file any other post-sentence motions.
Trial court opinion, 10/13/17 at 1-2 (footnotes omitted).
On August 25, 2017, appellant filed a timely notice of appeal. That
same day, the trial court directed appellant to file a concise statement of
errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on September 11, 2017, and
the trial court filed its Rule 1925(a) opinion on October 13, 2017. See id.
Appellant raises the following issues for our review:
1. Whether there was sufficient evidence to
support the jury’s verdict as to aggravated
assault as the Commonwealth failed to prove
that [a]ppellant’s action in punching the victim
one time in the face established that
[a]ppellant intentionally, knowingly or
recklessly caused serious bodily injury?
2. Whether the trial court erred in allowing the
Commonwealth to present a slow-motion video
of the incident that captured [a]ppellant
punching the victim in the face since such
evidence did not establish any probative value
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as to [a]ppellant’s specific intent and only
prejudiced [a]ppellant by demonstrating the
incident as neither [a]ppellant nor the victim
observed the altercation in real time?
Appellant’s brief at 6.
We begin by addressing appellant’s claim that there is insufficient
evidence to sustain his conviction for aggravated assault. In support of this
contention, appellant avers that “the Commonwealth failed to prove that
[his] action in punching the victim one time in the face established that [he]
intentionally, knowingly, or recklessly caused serious bodily injury.” (Id. at
14.) For the following reasons, we disagree.
Our standard of review in assessing whether there was sufficient
evidence to sustain appellant’s conviction for aggravated assault is well
settled.
In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for 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.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).
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A person will be found guilty of aggravated assault if he “attempts to
cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). The
term “serious bodily injury” is defined by statute 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. “When a victim actually sustains
serious bodily injury, the Commonwealth can, but does not necessarily have
to, establish specific intent to cause such harm . . . the statute’s intent
requirement can be met if the defendant acts recklessly under circumstances
manifesting an extreme indifference to human life.” Commonwealth v.
Burton, 2 A.3d 598, 602 (Pa.Super. 2010) (en banc) (internal citation
omitted), appeal denied, 32 A.3d 1275 (Pa. 2011).
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there was sufficient
evidence from which the jury could conclude that appellant recklessly caused
serious bodily injury to the victim. The Crimes Code defines reckless
conduct as follows:
A person acts recklessly with respect to a material
element of an offense when he consciously
disregards a substantial and unjustifiable risk that
the material element exists or will result from his
conduct. The risk must be of such a nature and
degree that, considering the nature and intent of the
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actor’s conduct and the circumstances known to him,
its disregard involves a gross deviation from the
standard of conduct that a reasonable person would
observe in the actor's situation.
18 Pa.C.S.A § 302(b)(3).
In Commonwealth v. Smith, 956 A.2d 1029 (Pa.Super. 2008),
appeal denied, 989 A.2d 917 (Pa. 2010), this court recognized that a
heightened degree of recklessness, akin to malice in a murder case, is
required for aggravated assault convictions:
To prevail on a theory of recklessness [in an
aggravated assault prosecution], the Commonwealth
must show an assailant’s recklessness rose to the
level of malice, a crucial element to sustain a
conviction for aggravated assault.
Malice exists where there is a wickedness of
disposition, hardness of heart, cruelty, recklessness
of consequences, and a mind regardless of social
duty, although a particular person may not be
intended to be injured. Where malice is based on a
reckless disregard of consequences, it is not
sufficient to show mere recklessness; rather, it
must be shown the defendant consciously
disregarded an unjustified and extremely high
risk that his actions might cause death or
serious bodily injury. A defendant must display a
conscious disregard for almost certain death or injury
such that it is tantamount to an actual desire to
injure or kill; at the very least, the conduct must be
such that one could reasonably anticipate death or
serious bodily injury would likely and logically result.
The circumstances showing intent to cause serious
bodily injury apply with equal force to prove
recklessness to a degree that one would reasonably
anticipate serious bodily injury as a likely and logical
result.
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Id. at 1036-1037 (internal citations omitted; emphasis added).
This court has previously addressed similar situation in Burton. In
Burton, an en banc panel of this court was faced with determining whether
the Commonwealth presented sufficient evidence to support a conviction for
aggravated assault where defendant provoked an altercation with the
smaller, older victim and landed a single punch to the victim’s head.
Burton, 2 A.3d at 599-601. The victim in Burton sustained serious and
permanent injuries to his brain and spine as a result of this assault. Id. The
Burton court found that there was sufficient evidence that defendant
intentionally or knowingly proceeded in a manner that manifested an
extreme indifference to the value of the victim’s life, thus supporting his
conviction for aggravated assault. Id. at 602-603. The Burton court based
this decision, in part, on the fact that defendant was much larger and
stronger than the victim; that “the victim was caught unaware” by
defendant’s single blow to his head; and defendant demonstrated an utter
lack of remorse or concern for the victim as he lay unconscious in the street
by making several “gloating remarks.” Id. at 603-604.
Similarly, the testimonial and video evidence presented in this matter
established that during the course of a verbal argument, appellant blindsided
the victim with a punch to the jaw after shining a flashlight “in [his] eyes”
“less than an inch from [his] face[,]” ostensibly blinding him. (Notes of
testimony, 6/12/17 at 34-35, 40-42; 6/13/17 at 221-222.) As the trial
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court recognized in its opinion, “[t]he fact that [a]ppellant was shining a
flashlight in the victim’s face provides support for the inference that the
victim was caught unaware and unprepared for the blow to the head . . . .”
(See trial court opinion, 10/13/17 at 9 (citation omitted).) This assault
rendered the victim unconscious and caused him to fall back and strike his
head on the asphalt driveway. (Notes of testimony, 6/12/17 at 35-36;
6/13/17 at 221-222.)
The Commonwealth introduced video footage at trial that was taken by
both appellant’s wife (hereinafter, “Levengood Video”) and the victim’s
security camera (hereinafter, “Pemberton Video”) depicting this assault.
(See notes of testimony, 6/12/17 at 37, 46, 48.) Appellant testified at trial
that the Levengood Video depicts him shining a light in the victim’s face,
hitting him in the face, and then immediately turning around and telling his
wife to call 911 “to get the police there.” (Notes of testimony, 6/13/17 at
221-222, 246.) Likewise, the record establishes that the Pemberton Video
depicts appellant walking toward the victim, initiating a verbal argument,
and shining a flashlight very close to the victim’s face. (See notes of
testimony, 6/12/17 at 39-40.) This video further demonstrates that after
the victim admittedly attempted to swat the flashlight out of his face with an
open hand, appellant shifted the flashlight to his left hand and immediately
struck the victim with his dominant right fist. (Id. at 42, 108; notes of
testimony, 6/13/17 at 221, 247-248.)
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Additionally, like in Burton, the evidence establishes that there was a
significant size difference between appellant and the victim in this matter.
Lebanon City Police Chief Daniel Wright testified that appellant specifically
denied feeling afraid or threatened by the victim and that according to
PennDOT information, appellant is 5 inches taller than the victim and, in
Chief Wright’s estimation, 40 to 50 pounds heavier. (Notes of testimony,
6/13/17 at 155-156.) Appellant, in turn, testified that he is 5-feet,
11-inches tall, weighed approximately 195 pounds at the time of the assault,
and admitted that he is significantly larger than the victim. (Id. at
249-250.) Appellant also acknowledged that he did not render aid to the
victim as he lay unconscious on the driveway because they “were on bad
terms” and that “he figured he would have been up by now.” (Id. at 221-
222.) The record further establishes that no ambulance was called to the
scene until after Officer Sean McCarrick arrived and determined that the
victim was bleeding from his head, was incoherent, and could not speak or
walk properly. (Id. at 85-90.)
The evidence further establishes that the victim did, in fact, sustain
serious bodily injury as a result of this assault. The victim was hospitalized
for “almost two weeks” following this assault and had to undergo speech and
physical therapy in order to learn how to speak properly and walk again.
(Notes of testimony, 6/12/17 at 86-87.) The victim testified that he
continues to suffer from severe migraines due to light sensitivity and that
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this condition caused him to lose his job. (Id. at 88-93.) Dr. Justin
Chandler, the victim’s supervising physician, testified that the victim
remained in the Intensive Care Unit at Milton S. Hershey Medical Center for
two days and suffered multiple traumatic brain injuries as a result of this
assault, including a subarachnoid hemorrhage and a smaller contusion, or
bruising of the brain. (Id. at 126-127.) Dr. Chandler opined that
appellant’s injuries are consistent with the victim’s receiving a blow to the
head and then falling backwards, striking his head on the asphalt. (Id. at
128-129). Dr. Chandler further noted that, in his professional opinion, the
victim’s injuries constituted a serious bodily injury in that they caused
protracted loss or impairment of bodily function. (Id. at 136-137).
Based on the foregoing, we find no error on the part of the trial court
in concluding that appellant recklessly caused serious bodily injury to the
victim under circumstances manifesting extreme indifference to the value of
human life. Accordingly, appellant’s claim that there was insufficient
evidence to sustain his conviction for aggravated assault must fail. See,
e.g., Burton, 2 A.3d at 599.
Appellant next argues that the trial court abused its discretion in
allowing the Commonwealth to introduce a slow-motion video of the assault
to the jury. (Appellant’s brief at 35.) Appellant maintains that the probative
value of this video was outweighed by its prejudicial impact in that the video
had no bearing as to his intent and only served to distort the events of this
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incident “by demonstrating the incident as neither [a]ppellant nor the victim
observed the altercation in real time.” (Id.) We disagree.
“[T]he admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation
omitted). “An abuse of discretion is not merely an error of judgment; rather
discretion is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the record.”
Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
This court has long recognized that,
[t]he threshold inquiry with admission of evidence is
whether the evidence is relevant. 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 regarding the existence of a material
fact. In addition, evidence is only admissible where
the probative value of the evidence outweighs its
prejudicial impact.
Id. at 750 (citations and internal quotation marks omitted).
“With respect to the admissibility of slow motion video into evidence,
[our supreme court] has held that such representations are not prohibited,
and that the standard to be applied by the trial court is the same as it is for
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the admission of other evidence.” Commonwealth v. Cash, 137 A.3d
1262, 1276 (Pa. 2016) (citation omitted), cert. denied, 137 S.Ct. 1202
(2017). “If the judge concludes that the jury’s understanding will be
enhanced and that the slow motion or freeze frame is more probative than
prejudicial, then the judge should admit the evidence.” Commonwealth v.
Jordan, 65 A.3d 318, 329 (Pa. 2013) (citation omitted), cert. denied, 134
S.Ct. 1275 (2014).
Upon review, we cannot conclude that the trial court abused its
discretion by admitting the slow-motion video footage in this case. We find
that the trial court’s opinion comprehensively discusses and disposes of this
claim. Accordingly, we adopt the following rationale of the trial court as our
own for purposes of appellate review of this claim:
When the Commonwealth was preparing to
present portions of the Pemberton Video in slow
motion, counsel for [a]ppellant objected to
presentation of the slow[-]motion video on the basis
that its probative value is outweighed by its
prejudicial effect against [a]ppellant in the issue of
self-defense and his reasonable state of mind.
([Notes of testimony, 6/13/17, at 145.]) The
Commonwealth argued that, since [a]ppellant raised
the issue of self-defense, allowing the jury to view
the portion of the Pemberton Video in slow motion
provides the opportunity for the jury to determine
whether the victim actually took a swing at
[a]ppellant or whether he was merely swatting the
flashlight away, as he had testified. [(Id.)] The trial
c]ourt overruled the objection and allowed the slow-
motion portion of the Pemberton Video to be played
with a cautionary instruction provided to the jury.
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The Pemberton Video is recorded at a slight
distance from where the assault occurred. While
[a]ppellant’s concerns regarding the real-time effect
of reasonableness upon his actions are given
consideration, it must also be of concern that the
jury is not afforded a closer view of the events that
occurred leading to the assault, whereas [a]ppellant
was obviously within striking distance of the victim.
Allowing a portion of the video to be played in
slow[]motion gives the jury the ability to mitigate
the effect of distance. Therefore, the probative value
of the slow-motion portion of the Pemberton Video
outweighed its prejudicial effect in that it allowed the
jury to determine whether the victim did indeed
swing at the [a]ppellant as he had alleged.
Trial court opinion, 10/13/17 at 12 (citation to notes of testimony
reformatted).
Moreover, we emphasize that our supreme court has repeatedly
recognized that “when examining the potential for undue prejudice, a
cautionary jury instruction may ameliorate the prejudicial effect of the
proffered evidence.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.
2014) (citations omitted), cert. denied, 135 S.Ct. 164 (2014); see also
Commonwealth v. Sherwood, 982 A.2d 483, 497-498 (Pa. 2009) (finding
that cautionary instructions were sufficient to overcome the prejudicial effect
of prior bad acts evidence), cert. denied, 559 U.S. 1111 (2010). Jurors are
presumed to follow the trial court’s instructions. Commonwealth v.
Elliott, 80 A.3d 415, 445 (Pa. 2013), cert. denied, 135 S.Ct. 50 (2014).
Thus, any potential prejudice that may have resulted from the introduction
of this slow-motion video footage at trial was cured by the trial court’s
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cautionary instruction to the jury. (See notes of testimony, 6/13/17 at
146-147.)
For the foregoing reasons, we affirm appellant’s August 23, 2017
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2018
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