J-S49016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.B., A MINOR :
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: No. 493 WDA 2020
Appeal from the Dispositional Order Entered March 17, 2020
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-JV-0000406-2020
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 07, 2020
Appellant, A.B., appeals from the March 17, 2020 Dispositional Order
entered in the Allegheny County Court of Common Pleas, which adjudicated
her delinquent for Aggravated Assault of a teaching staff member1 and found
her in need of treatment, rehabilitation, or supervision. Upon review, we
affirm.
The relevant factual and procedural history is as follows. On February
28, 2020, Appellant, who was a resident at New Outlook Academy, a juvenile
rehabilitative facility and school, got into a verbal and physical altercation with
teachers at the school.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2705(a)(5).
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On the afternoon in question, Appellant was a student in Glenn
Gutierrez’s class. At the end of the period, Mr. Gutierrez asked Appellant to
move her desk back to its original location before leaving the classroom.
Appellant became agitated and began cursing at Mr. Gutierrez and threatening
to “slap his bitch ass.” N.T. Hearing, 3/17/20, at 7. Mr. Gutierrez informed
Appellant that she was not allowed to speak to him that way, and that her
language was going to result in a behavior report. Appellant responded that
she did not care, threatened Mr. Gutierrez again, and became “enraged.” Id.
at 8. Appellant attempted to exit the classroom prior to dismissal, and Mr.
Gutierrez stood in the classroom doorway blocking the exit. Appellant
proceeded to push Mr. Gutierrez out of the way. When Mr. Gutierrez
attempted to block Appellant’s path a second time, Appellant pushed him
again, and he allowed her to pass by.
Michael Snider, who is a teacher and school supervisor, was standing in
the hallway and attempted to intervene. Mr. Snider tried to stop Appellant
from leaving the floor by putting up his arms. Appellant, who was screaming,
used her right closed fist to hit Mr. Snider on the left side of the head. Mr.
Snider used his arms to block his face. Appellant proceeded to use her right
closed fist to hit Mr. Snider on the left side of the head a second time. Mr.
Gutierrez observed the altercation, which, according to him, “looked
intentional[.]” Id. at 11. Other staff members intervened and Appellant
agreed to walk to a different floor to calm down.
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On the same day, police officers arrested Appellant and the
Commonwealth charged her with one count of Aggravated Assault. The
Commonwealth filed a delinquency petition and, on March 17, 2020, the
juvenile court held an adjudicatory hearing on the petition. The
Commonwealth presented testimony from Mr. Gutierrez and Mr. Snider, who
testified to the events as stated above.
Appellant testified on her own behalf and presented a different version
of events. In sum, Appellant testified that, on the day in question, she was
completing her work in Mr. Gutierrez’s class when she heard an announcement
for the “second floor kids” to be dismissed.2 Id. at 38. Appellant stated that
she heard Mr. Gutierrez tell the dismissed students to move their desks back,
but he would not let those students leave the classroom because Appellant
had not yet moved her desk back. Id. Appellant testified that she informed
Mr. Gutierrez that he had not asked her, specifically, to move her desk back
and when Mr. Gutierrez finally requested that she do so, Appellant complied.
Id. at 39. Appellant stated that she gathered her classwork in both hands
and walked out of the classroom without Mr. Gutierrez trying to stop her. Id.
Appellant denied pushing Mr. Gutierrez. Id.
Appellant testified that when she got into the hallway, Mr. Gutierrez
informed Mr. Snider that she “just walked out of the classroom.” Id. at 40.
Appellant testified that Mr. Snider tried to stop her, she tried to go past him,
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2 Students were dismissed by floor, and Appellant was a “third floor kid.”
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and Mr. Snider pushed her. Id. Appellant further testified that she asked Mr.
Snider to stop pushing her, he pushed her again, and she became “irritated”
and started crying. Id. at 41. Appellant testified:
So after that he pushed me again. I just started getting more
mad and agitated because he kept putting his hands on me. And
I wasn’t hitting him, I was just trying to get away from something
else that was going to become bigger. So after that he pushed
me again. I’m crying. At this point I said [k]eep your fucking
hands off me, stop fucking hitting me and pushing me. He pushed
me again.
Id. Appellant further testified that Mr. Snider “smacked” her and left a red
mark under her eye. Id. at 44. Appellant denied punching Mr. Snider. Id.
Finally, Appellant stated that when she went to a different floor to calm down,
she went into the bathroom, punched the wall, and banged her head. Id. at
49.
At the conclusion of the hearing, the trial court adjudicated Appellant
delinquent for Aggravated Assault of a teaching staff member, and found
Appellant to be in need of treatment, supervision, or rehabilitation.
Appellant timely appealed. Appellant and the trial court both complied
with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
Is the adjudication of delinquency related to the charge of
Aggravated Assault not supported by sufficient evidence in that
there was no harm or injury to any teacher or student at the
school, and this was a [de minimis] infraction[,] which should
have been dismissed as such?
Appellant’s Br. at 6.
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Appellant raises a challenge to the sufficiency of the evidence. When
the Commonwealth charges a juvenile with an act that would constitute a
crime if committed by an adult, the Commonwealth must prove the elements
of that crime beyond a reasonable doubt. In Interest of P.S., 158 A.3d 643,
650 (Pa. Super. 2017). “When considering a challenge to the sufficiency of
the evidence following an adjudication of delinquency, we must review the
entire record and view the evidence in the light most favorable to the
Commonwealth.” In Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super.
2016) (citations omitted). Further, “the test to be applied is whether, viewing
the evidence in the light most favorable to the Commonwealth and drawing
all reasonable inferences therefrom, there is sufficient evidence to find every
element of the crime charged.” Id. (citations omitted). The Commonwealth
may sustain its burden by wholly circumstantial evidence. In re V.C., 66 A.3d
341, 349 (Pa. Super. 2013). “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.” In re K.A.T., Jr., 69 A.3d 691, 696 (Pa. Super. 2013)
(citation omitted). ”The fact-finder is free to believe all, part, or none of the
evidence presented at trial.” Id. (citation omitted).
The Commonwealth satisfies its burden of proof for Aggravated Assault
of a teaching staff member where it proves beyond a reasonable doubt that
the defendant “attempts to cause or intentionally or knowingly causes bodily
injury to a teaching staff member . . . acting in the scope of his or her
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employment or because of his or her employment relationship to the school.”
18 Pa.C.S. § 2702(a)(5). “Bodily injury” is defined as “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S. § 2301. “Substantial pain
may be inferred from the circumstances surrounding the physical force used.”
Commonwealth v. Duck, 171 A.3d 830, 836 (Pa. Super. 2017).
Notably, to sustain a conviction for assault it is not essential that the
victim endure actual injury, rather, “[i]t is enough if the actor attempted to
inflict bodily injury. In Interest of J.L., 475 A.2d 156, 157 (Pa. Super. 1984)
(emphasis in original). To demonstrate an “attempt” to inflict bodily injury,
the Commonwealth must show that the actor had a specific intent to cause
bodily injury. Id. Although the Commonwealth may prove this intent by
circumstantial evidence, “the circumstances must be such that an intent to
cause bodily injury may reasonably be inferred therefrom.” Id.
Appellant first argues that the Commonwealth did not meet its burden
to prove Aggravated Assault because it failed to present evidence that Mr.
Snider suffered impairment or serious pain. Appellant’s Br. at 12. Appellant
further contends that she did not intend to cause bodily injury to Mr. Snider.
Id. These arguments lack merit.
As an initial matter, the trial court found Mr. Gutierrez’s and Mr. Snider’s
testimony that Appellant used a closed fist to hit Mr. Snider on the side of the
head twice to be wholly credible. Trial Ct. Op., dated 5/29/20, at 10. The
trial court made findings—which are supported by the record—that Appellant
had a history of fighting and aggression, was extremely agitated on the day
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in question, walked out of Mr. Gutierrez’s classroom without permission, and
assaulted Mr. Snider when he confronted her in the hallway. Id. Moreover,
the trial court credited Mr. Gutierrez’s testimony that Appellant’s hit “looked
intentional.” Id. at 4 (citing N.T. Hearing at 11).
Under the totality of the circumstances, viewing the evidence in the light
most favorable to the Commonwealth, it was reasonable for the trial court to
infer that Appellant intentionally attempted to cause Mr. Snider bodily injury
when she punched him twice on the side of the head. Accordingly, Appellant’s
claim that the Commonwealth did not present sufficient evidence to prove
Aggravated Assault of a teaching staff member fails.
Appellant next argues that she did not intend to cause bodily harm, and
cites J.L., supra, to support her argument. Appellant’s Br. at 17. Appellant
avers that, like the juvenile in J.L., she was just angry and did not intend to
cause bodily injury. Rather, she argues, she was trying to remove herself
from the situation to calm down. Id. at 17-22. Appellant’s argument fails as
Appellant’s case is easily distinguished from J.L.
In J.L., this Court reversed the adjudication of a sixteen-year-old for
simple assault for elbowing her two-year-old nephew on the couch while
refusing to give him candy. 475 A.2d at 158. This Court concluded that anger,
alone, does not translate to intent to cause bodily injury and was reluctant to
“attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling,
perhaps even punching and kicking, that not infrequently occur between
siblings or other members of the same family.” Id. at 157. This Court
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characterized the juvenile’s actions as “inconsiderate,” but not rising to the
level of assault. Id. at 158.
Here, unlike the juvenile in J.L., Appellant did not elbow her victim once.
Rather, she punched Mr. Snider twice on the side of the head with a closed
fist. Moreover, Appellant was not in an intra-family relationship with either
Mr. Gutierrez or Mr. Snider, but, instead, was in a student-teacher
relationship.
In similar situations, this Court has concluded that the fact that a
juvenile actor “was a student and [the victim was] an educational aide . . .
only serves to highlight the assaultive nature of the contact.” In re M.H.,
758 A.2d 1249, 1252 (Pa. Super. 2000). Further, this Court has observed
that, unlike roughhousing between siblings or family members, “[v]iolence in
our public schools is an ever increasing problem which presents a troubling
challenge to teachers and aides who are charged with the weighty
responsibility of educating our Commonwealth's children.” Id. Appellant’s
reliance on J.L. is misplaced and her argument is unpersuasive.
Finally, Appellant argues that the adjudication of delinquency should be
reversed because it was a de minimis infraction under Section 312 of the
Crimes Code. Appellant’s Br. at 26-27 (citing 18 Pa.C.S. § 312). Appellant
asserts that the incident was trivial, inconsequential, and is a part of the
normal course of business in a school setting for juveniles. Id. at 32-33.
Therefore, Appellant contends that the trial court should have applied Section
312, which allows a court to dismiss a prosecution if it finds the conduct of the
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defendant to be de minimis in nature. Id. at 26-27 (citing 18 Pa.C.S. § 312).
We disagree.
This Court reviews a claim that the trial court erred by not dismissing
an infraction as de minimis for an abuse of discretion. Commonwealth v.
Lutes, 793 A.2d 949, 963 (Pa. Super. 2002). Section 312 provides, in
relevant part, that a trial court shall dismiss a prosecution if it finds that the
conduct of the accused was “within a customary license or tolerance,” or “did
not actually cause or threaten the harm or evil sought to be prevented by the
law defining the offense or did so only to an extent too trivial to warrant the
condemnation of conviction[.]” 18 Pa.C.S. 312(a)(1)(2). “The purpose of
Section 312 is to remove petty infractions from the reach of the criminal law.”
In re R.W., 855 A.2d 107, 109 (Pa. Super. 2004) (citation and internal
quotation marks omitted). A trial court should not dismiss an offense as de
minimis in nature where harm to either the victim or society occurs. Lutes,
793 A.2d at 963.
Instantly, the trial court found testimony to be credible that Appellant
intentionally used a closed fist to punch her teacher, Mr. Snider, twice on the
side of the head during the school day. This Court perceives no basis for
classifying Appellant’s conduct as merely de minimis in nature. Appellant’s
conduct is neither customary, trivial, petty, nor normal conduct tolerated in a
school setting. As discussed above, the fact that Appellant was a student and
Mr. Snider was her teacher “only serves to highlight the assaultive nature
of the contact.” M.H., 758 A.2d at 1252 (emphasis added). Accordingly, the
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trial court did not abuse its discretion when it failed to conclude that
Appellant’s actions were de minimis in nature pursuant to Section 312 and
dismiss the delinquency petition.3
In conclusion, our review of the record in the light most favorable to the
Commonwealth indicates that the Commonwealth presented sufficient
evidence for the trial court to find that Appellant’s actions constituted an
intentional attempt to inflict bodily harm. We, thus, affirm the Order
adjudicating Appellant delinquent for Aggravated Assault of a teaching staff
member.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2020
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3 We further note that Appellant raises this issue for the first time on appeal,
in her Pa.R.A.P. 1925(b) Statement. We decline to find the issue waived “as
neither the statute nor case law requires a defendant to preserve the issue of
[de minimis] infractions by means of inclusion in an omnibus motion. On the
contrary, the language of the statute requires the trial court to dismiss the
prosecution on its own accord, upon a determination that the defendant’s
conduct involved [de minimis] infractions.” Commonwealth v. Gemelli, 474
A.2d 294, 300 (Pa. Super. 1984).
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In the Interest of: A.B., Appeal of: A.B.
Combined Opinion