J. S12036/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 slowmotion 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