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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD J. SCRUGGS :
:
Appellant : No. 3116 EDA 2019
Appeal from the Judgment of Sentence Entered September 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006566-2018
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED: May 10, 2021
Although the Majority accurately discusses the law applicable to
Scruggs’ sufficiency challenge predicated on the trial court’s improper reliance
on the transcription error, see Majority Memorandum, at 2 n.2, my review of
the trial transcript reveals that the evidence was, nevertheless, sufficient to
establish Scruggs’ simple assault and REAP convictions. Therefore, I
respectfully dissent.
In In the Interest of M.H., 758 A.2d 1249 (Pa. Super. 2000), this
Court considered the “spectrum of assaultive behavior” by analyzing three
cases: (1) Commonwealth v. Wertelet, 696 A.2d 206, 212-13 (Pa. Super.
1997) (finding evidence insufficient to sustain simple assault where defendant
kicked officer to hamper official police activity, because no evidence adduced
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* Retired Senior Judge assigned to the Superior Court.
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defendant reared back and kicked as hard as she could, and officer testimony
characterized injury as similar to “bumping your shin on a coffee table”); (2)
Commonwealth v. Kirkwood, 520 A.2d 451, 454 (Pa. Super. 1987) (finding
evidence insufficient to sustain simple assault, where defendant, while dancing
fast and grabbing victim by arm, swung her violently around dance floor and
caused cuts and bruising to victim’s arm, because “the assault section of the
Crimes Code was intended to protect and preserve one’s physical well-being
and was not intended to prevent temporary hurts resulting from trivial
contacts which are a customary part of modern day living”); and (3) In
Interest of J.L., 475 A.2d 156, 157 (Pa. Super. 1984) (evidence that 16-
year-old defendant elbowed 2-year-old nephew to push him away was
insufficient to sustain simple assault because, in family situations, there is no
criminal intent attendant 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”). Interest of M.H.,
supra at 1251-53.
Following our analysis, this Court concluded that evidence that M.H.
grabbed and shoved a teacher’s aide, which resulted in bruises on the aide’s
arm, was sufficient to sustain M.H.’s adjudication of delinquency for simple
assault. Id. at 1253. We distinguished M.H.’s behavior from the defendants’
behaviors in Wertelet, Kirkwood, and J.L., because the incident was not a
“temporary hurt” resulting from “trivial contact,” see Wertelet, supra at 214,
could not be viewed in any sense as “social contact,” as in Kirkwood, see
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M.H., supra at 1252, and did not result from family stress and rivalries. See
J.L., supra.
Here, the trial transcript reveals that Scruggs pulled the victim’s pants
down to her knees and groped her repeatedly as she entered the building on
Market Street to attend her class. N.T. Nonjury Trial, 6/17/19, at 13. The
victim testified that, after Scruggs pulled her pants “halfway down” for the
first time, she “was so scared so I was just trying to get away. I didn’t care
about pulling up my pants.” Id. As Scruggs continued to harass the victim
by attempting to pull down her pants, she attempted to fight back by “pushing
[Scruggs] off,” id. at 11, but she was unsuccessful because Scruggs was
stronger than she was, and he continued to chase after her, to harass her,
and grope her breasts. Id. at 11-12.
As in In the Interest of M.H., Scruggs’ behavior, here, of repeatedly
grabbing and pulling the victim, can be viewed neither as a “temporary hurt”
resulting from “trivial contact,” see Wertelet, supra, nor as social contact
that is a “customary part of modern day living.” Id. at 1252; cf. Kirkwood,
supra. Indeed, Scruggs was unknown to the victim, yet he continued to grope
her and pull at her clothes, which exposed her publicly—while he chased her
from the sidewalk into a building—all while he continued to pull down the
victim’s pants and grope her, and refused to immediately leave her alone when
others confronted him. See Commonwealth v. Jorgenson, 492 A.2d 2, 6
(Pa. Super. 1985) (evidence of simple assault sufficient where defendant
struck victim across face twice after victim refused defendant’s sexual
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advances); see also Commonwealth v. Vitacolonna, 443 A.2d 838, 841
(Pa. Super. 1982) (evidence of simple assault sufficient where defendant
threatened victim with physical harm and restrained her movement on public
street by grabbing her arm after she refused his request).
Moreover, although she did not testify regarding any specific injury, we
may infer the victim suffered substantial pain from the circumstances. See
Vitacolonna, supra at 841. Indeed, Scruggs’ actions were far worse than
simply holding the victim in place, see Majority Memorandum, at n.8, rather
the force required to grope1 and pull at the victim, while she was
intentionally moving away from him from the sidewalk into the
building, supports a finding she suffered substantial pain. Vitacolonna,
supra; see also Commonwealth v. Smith, 848 A.2d 973, 976-77 (Pa.
Super. 2004) (affirming sufficiency of evidence for simple assault and finding
that jury could infer 10-year-old victim endured substantial pain because
frustrated 26-year-old defendant was larger and stronger and struck victim in
chest with closed fist, which left red mark). Here, the victim testified that she
tried to push Scruggs away during the attack, but that Scruggs was stronger
than she was, and he continued to grope her and pull at her clothes. Even
after she broke free and entered the Market Street building, Scruggs continued
to chase after her, pull down her pants, and grope her. Therefore, it was
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1 The factfinder was permitted to infer that Scruggs intended to cause bodily
injury to the victim from his assaultive gropes of her breasts, just as it could
from a closed-fist strike, or from a grab of the victim’s arm. See e.g.
Vitacolonna, supra at 841.
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reasonable for the factfinder to infer from these circumstances that Scruggs,
out of frustration of the victim’s rebuffing of his sexual advances, intended to
cause her bodily injury, when, in overcoming her strength, groped her, and
pulled her pants down her legs.2 18 Pa.C.S. § 2701(a)(1); see also
Vitacolonna, supra at 841.
Additionally, I would find this evidence sufficient to sustain Scruggs’
conviction for REAP.
A person commits REAP “if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705. “Serious bodily injury” is “bodily injury which
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2 The Majority concludes that Scruggs acted with the intent to achieve sexual
gratification, rather than with the intent to cause bodily injury. See Majority
Memorandum, supra at n.8. Nevertheless, in Jorgenson, supra, we
previously found that the factfinder was permitted to infer that the defendant
caused pain to the victim where his assaultive behavior towards the victim
followed rebuffed sexual advances. Id. at 6. Moreover, we have permitted
the factfinder to consider a defendant’s “frustration” at the time of his act to
infer criminality. See Smith supra, at 977; see also Vitacolonna, supra
at 841. Here, the factfinder was permitted to infer Scruggs’ intent to cause
the victim bodily injury by groping and pulling at her clothes because the
victim testified that she tried to push him away but that she could not do so
because he was stronger than she was. Moreover, the victim testified that
she was more concerned with getting away from Scruggs’ assault than with
pulling her own pants back around her waist, suggesting the urgency with
which she attempted to retreat to safety. As the victim attempted to escape
with her pants at her knees, Scruggs continued to grope her and pull at her
clothes. Indeed, even after Scruggs disengaged when he was confronted by
the victim’s teacher, Scruggs did not immediately leave the building, but
instead, he walked towards the exit, before turning around to return back to
the victim, at which point he was warned that he was being recorded on
security cameras and again told to leave. Only then, did Scruggs finally leave
the victim alone. The factfinder was permitted to infer Scruggs’ frustration
with the victim’s rebuffing of his sexual advances under these circumstances.
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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. § 2301.
Here, Scruggs pulled the victim’s pants halfway down her legs and then
physically groped and pulled at her body and clothing as she attempted
unsuccessfully to push him away. She could have easily fallen over and
injured herself in any number of ways under such circumstances, especially
where she testified that she was more concerned with getting away than with
pulling her pants back up. We have previously upheld a REAP conviction
where the victim was placed in peril of losing his footing and sustaining an
injury because of the defendant’s assaultive physical contact. See
Commonwealth v. Rahman, 75 A.3d 479, 502-03 (Pa. Super. 2013)
(affirming REAP conviction where defendant’s physical aggression could have
caused victim to lose his footing and fall down stairs). Here, Scruggs created
more than the apprehension of danger; he pulled the victim’s pants halfway
down and then continued to grope and pull at her—chasing her from the
public sidewalk into a building protected by private security—all as she
attempted to push him away and move away, herself, but she could not
overcome his strength. Commonwealth v. Headley, 242 A.3d 940, 944 (Pa.
Super. 2020); see Majority Memorandum, supra at 8. It was, therefore,
reasonable to infer that Scruggs’ actions during the physical struggle placed
the victim in danger of serious bodily injury. See Rahman, supra; 18 Pa.C.S.
§ 2705. Consequently, I would also affirm Scruggs’ conviction for REAP.
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