J-A30014-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

VONDA KAY BROWN

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 615 WDA 2017

Appeal from the Judgment of Sentence Entered March 9, 2017

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0004011-2015

BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 5, 2019

Appellant Vonda Kay Brown appeals from the judgment of sentence

entered on March 9, 2017, following her conviction for, inter alia, aggravated

assault, 18 Pa.C.S. § 2702(a)(1).1 After careful review, we affirm.

The trial court set forth the following factual history:

This matter arises out of the . . . charges being filed against

[Appellant] when her severely disabled son was found to have

second degree burns to his right hand while under the care of

[Appellant]. The Commonwealth established that on October 13,

2014[,] the victim was brought by [Appellant] to the emergency

room of Ohio Valley Hospital at 7:29 p.m. with a complaint of right

hand swelling. The triage nurse described the victim’s right hand

as being swollen with multiple areas of large serosanguineousfilled blisters. [Appellant] stated her son woke up with his hand

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1 Appellant also plead guilty to one count of false/fraudulent medical

assistance claim, 62 P.S. § 1407(a)(1), and one count of unentitled

reimbursement, 62 P.S. § 1407(a)(12), at a separate docket and was

sentenced for those convictions on February 7, 2017. Those convictions are

not implicated in the instant appeal.
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in that condition and that for the past few days the victim had

been hitting himself in the mouth with his right hand and that she

had put a sock on his hand to protect it and that when she

removed the sock that morning his hand was swollen. The triage

nurse believed that based on the appearance of his hand that it

had been burned. She testified that after she conducted her

examination she notified the [hospital physician that] victim’s

hand was burned.

The Commonwealth offered photographs of the victim’s

hand taken at the time of his presentation to the hospital which

showed the swelling and blistering of the hand as well as a clear

straight line of demarcation of the injury in the area of the wrist.

As a result of his disability, the victim was described as being non- verbal with his arms, wrists and legs being severely contracted. Although [Appellant] informed the nursing personnel that the

victim had been hitting his hand on his face, there was no bruising

or injuries to his face.

The Commonwealth called Officer Greg Boss of the City of

Pittsburgh Police Sex Assault and Family Crisis Unit who testified

that during his investigation he interviewed [Appellant] and that:

She told me that sometime between the 10th and

13th her son [hit] himself in the mouth with his right

hand, which caused a cut to his hand. At that time

she covered it to protect [it] with a sock, and a few

days later she noticed after she took the sock off that

it was badly infected at the time.

Boss also testified that [Appellant] was “very clear” during

their interview “that she was the sole provider and caretaker for

her son, nobody else cared for him but her.” On cross examination Boss acknowledged he initially

interviewed the victim’s primary care physician who wasn’t able

to conclusively say how the injury happened and, therefore,

determined that the charges were “unfounded.” He also testified,

however, that at that time he had not yet reviewed the

photographs of the victim’s hand or obtained the medical records.

He further testified that: “So when I got the pictures and I saw

how severe they were, I felt that it needed to be investigated more

thoroughly.” He also spoke with physicians, including Dr. Stacy

Lane, who informed him that the injury to the victim’s hand was

a submersion burn.
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The Commonwealth also called Dr. Stacy Lane, an infectious

disease specialist. Dr. Lane testified that she examined the victim

on October 14, 2014 to determine if his injury was the result of

an infection. She indicated that her examination showed that the

victim had “marked bulbous lesions of his hand with splitting.” She testified on her examinations he did not have any of the signs

of a primary infection, including white blood cell count elevation,

fever, elevated C-reactive protein or elevated sedimentation rate

and his blood cultures were normal. She testified that there were

no bite marks or cuts on the hand and that there was no

purulence, puss or induration which would be consistent with an

infection from a bite or infectious injury to the hand. She indicated

that if the injury was the result of a bite which is then covered

with a sock for an extended period there would be significant

purulence, a foul smell, necrosis and disfigurement. It was her

opinion the injury was a burn with resulting cellulitis. She testified

on cross-examination that she believed the injuries were caused

when the hand was “dunked in something hot,” but acknowledged

that she could not determine whether it was something hot or

something chemical.

The Commonwealth also called Dr. Michael Lally, a general

and vascular surgeon, who testified that he examined the victim

on October 14, 2014 and found that his hand was covered with

water blisters which he believed were from a burn from

immersion. Due to the appearance of the injury he ordered that

photographs be taken. He testified that all the melanin in the skin

was burn[ed] and lifted off and water blisters were uniformly

distributed across the entire hand all the way up from the nails to

the transition area of the wrist leaving [a] pink area of underlying

dermis. Dr. Lally testified that in a thermal or scald injury the first

thing that happens is that water blisters occur over the first 5 to

7 days after a burn. The blisters then drain and over the course

of the next weeks the area is repopulated with epidermal cells and

new skin. Dr. Lally testified that he was informed that the alleged

cause of the injury was a sock or glove being placed over a bite

or other injury to the hand, however, the wound or injury to the

victim’s hand was not consistent with that mechanism of injury.

Dr. Lally testified that if there was infection there would be a

central area of death of the skin and the subcutaneous tissue

would be liquefied and it would spread out in a starburst pattern

and work its way up the limb. He testified that the victim’s hand

did not have any of the characteristics of an infection. He testified

the injury was equally distributed over the entire hand both on the
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palmer and dorsal sides and even in the webs between the fingers

with a sharp demarcation line of the injury at the level of the

[wrist]. Dr. Lally further testified that the victim did not have any

of the signs of infection which would have included redness

spreading up his entire arm, swollen lymph nodes in the armpit,

elevated white count, fever, or other signs of toxicity. Dr. Lally

testified that the victim proceeded through the expected stages of

recovery of a scald burn. Dr. Lally testified that it was his opinion

that the injury was either a thermal or chemical burn.

The Commonwealth also called Dr. Ariel Aballay, a board- certified general surgeon who practiced burn surgery for 10 years

and was director of the West Penn burn unit for three years.

Dr. Aballay testified that he reviewed the medical records and the

pictures of the victim’s hand and interviewed the individuals

involved in his care. He testified that based on his review of

materials the victim’s injuries were consistent with a second

degree burn. The characteristics of the injuries were the presence

of blisters on the entire hand and a clear line of demarcation

between burned and normal skin which was consistent with an

injury caused by the submersion of the hand into a hot liquid.

Dr. Aballay also testified there [were] no splattering burns

above the demarcation line which would be consistent with

someone accidently placing their hand in a hot liquid and then

attempting to remove it quickly. In addition, based on the victim

having severe contraction of the hips, knees, elbows and wrists it

was unlikely that the victim would extend the hand and put it [in]

a container with water by himself. He also testified that the

appearance of the blisters from a burn would be within 24 to 72

hours depending on the temperature of the water and the time of

exposure.

Dr. Aballay testified that the description of the injury

occurring from either a bite or blow to the hand which was then

covered by a sock, which then resulted in infection, was

inconsistent with the demarcation line of the injury at the wrist

and the involvement of the palmer aspect of the hand. On cross

examination Dr. Aballay testified that the injury was not consistent

with a chemical burn due to the uniformity of the injury between

the fingers, which was consistent with hot water. He testified that

in order to have a second degree burn of the nature shown by the

victim the hand would have to be submerged in hot water at 120°F

for several minutes but as the temperature increases the length

of time necessary to cause the burn decreases.
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The Commonwealth called Jennifer Sneer, an agent for the

Medicaid Fraud Control Section of the office of the Attorney

General who testified that she interviewed [Appellant] concerning

the victim’s hospitalization and that [Appellant] informed her that

in June 2014 the victim had become increasingly combative and

that he had been hitting himself in the face with his right hand to

the point that he made a cut on his knuckles. [Appellant] further

stated that shortly after she had taken the victim to his primary

care physician and when she came home she put Neosporin on

the cut and put a sock on his hand. [Appellant] also stated that

very shortly after the sock became wet with saliva and she

replaced the sock in June 2014 and that it stayed on his hand until

October 13, 2014 when she removed it.

[Appellant] testified that her son, who was born on June 20,

1990, suffered from cerebral palsy, muscular dystrophy, scoliosis

and a seizure disorder. As a result of these conditions he was

unable to speak, walk, feed or clothe himself or take care of his

personal needs and his arms, legs and hands were severely

contracted. She testified that when he would become agitated or

would be in pain he would hit himself in the mouth with his fist or

put his fist in his mouth and bite it causing cuts or bruises to his

hand. She testified that he has been biting his hands since he has

been about five years old. [Appellant] testified that in May of

2014 her son was becoming more combative and agitated and in

order to protect her son’s hand and his teeth she put a sock on

his right hand to keep him from biting it and to keep him from

knocking his teeth out. She denied that she ever told

investigators that she did not remove the sock for an extended

period but instead that she changed [it] regularly.

She testified that on October 13, 2014[,] when she removed

the sock, which she stated had been on overnight, she noted that

his right hand was swollen and had blisters. She testified she

called Dr. McKnight’s office and talked to her secretary on four

occasions and was told to put an ice pack on his hand. She

testified that she followed those instructions but wasn’t satisfied

so she took him to [the] hospital. She testified that she was never

told that her son was being treated for a burn but that she saw on

one of the reports that he had cellulites. [Appellant] testified she

cared for her son throughout his life and denied submerging his

hand in water or otherwise burning his hand.

On cross examination she acknowledged that when she

arrived at the hospital she told the staff he had been biting
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himself, that she had placed a sock on his hand and when she

removed the sock that morning his hand was swollen and covered

with blisters as shown in the photographs. She denied giving

inconsistent statements about the period of time that the sock was

on his hand, indicating [that] she had always denied that the sock

was on his hand continuously from July to October. She

contended that he had an open wound that had become infected

which resulted in the appearance of his hand.

[Appellant’s] daughter, Breanna McGee, also testified that

while she lived with her mother and her brother, [she had never

witnessed Appellant act aggressively towards the victim] and that

she had a reputation as a good and caring person. Upon

consideration of all testimony [Appellant] was found guilty of

aggravated assault.

Trial Court Opinion, 6/25/18, at 2–8 (citations omitted). Appellant was initially sentenced to thirty-six to seventy-two months of

incarceration for the aggravated assault conviction under 18 Pa.C.S.

§ 2702(a)(1).2 Order, 2/7/17. Appellant filed a post-sentence motion on

February 13, 2017. Following a March 9, 2017 hearing on the post-sentence

motion, the trial court re-sentenced Appellant to twenty-six to fifty-two

months of incarceration. Order, 3/9/17. The trial court re-sentenced

Appellant because it found that she was subject to a lower offense gravity

score on the grounds that the evidence was not sufficient to establish that the

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2 Pursuant to 18 Pa.C.S. § 2702(a)(1),

(a) Offense defined.--A person is guilty of aggravated assault if he:

(1) 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;
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victim suffered serious bodily injury due to the lack of testimony about the

victim’s current condition, including whether he suffered any permanent

scarring from the burns. N.T. (Post-Sentence Motion Hearing), 3/9/17, at 7. Appellant filed a second post-sentence motion, which the trial court denied.

This appeal followed. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

Appellant presents the following question for our review:

1. Was the evidence insufficient to convict [Appellant] of

aggravated assault (18 Pa.C.S. § 2702(a)(1)) as the

evidence failed to establish that the victim suffered serious

bodily injury or that she acted with the requisite mens rea?

Appellant’s Brief at unnumbered 5. Our standard for review of a sufficiency of the evidence claim is as

follows:

When presented with a claim that the evidence was insufficient to

sustain a conviction, an appellate court, viewing all of the evidence

and reasonable inferences therefrom in the light most favorable

to the Commonwealth as the verdict winner, must determine

whether the evidence was sufficient to enable the fact-finder to

find that all elements of the offense were established beyond a

reasonable doubt.

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation

omitted). “Furthermore, ‘[t]he Commonwealth may sustain its burden by

proving the crime’s elements with evidence which is entirely circumstantial

and the trier of fact, who determines credibility of witnesses and the weight

to give the evidence produced, is free to believe all, part, or none of the

evidence.’” Id. at 361–362 (quoting Commonwealth v. Brown, 701 A.2d
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252, 254 (Pa. Super. 1997)). “As an appellate court, we do not assess

credibility nor do we assign weight to any of the testimony of record.” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).

Further, “circumstantial evidence is reviewed by the same standard as direct

evidence—a decision by the trial court will be affirmed so long as the

combination of the evidence links the accused to the crime beyond a

reasonable doubt.” Commonwealth v. Bricker, 1014 (Pa. Super. 2005)

(quotation omitted). “Additionally[,] we may not reweigh the evidence or

substitute our own judgment for that of the factfinder.” Commonwealth v.

Walker, 139 A.3d 225, 229 (Pa. Super. 2016).

Under 18 Pa.C.S. § 2702 (a)(1), “[a] person is 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 an extreme indifference to the value of human life.” 18 Pa.C.S.

§ 2702(a)(1). As noted by Appellant, the term “serious bodily injury” is

defined by statute as “bodily 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.” Appellant’s Brief

at unnumbered 14 (quoting 18 Pa.C.S. § 2301).

Appellant asserts that intent is a fact-specific inquiry. Appellant’s Brief

at unnumbered 19. She argues that the Commonwealth failed to produce any

witnesses who observed Appellant abuse the victim, and relied instead upon
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“medical witnesses,” who testified that the victim’s injuries could not have

occurred as Appellant claimed they did. Id. Specifically, Appellant avers that

there was “no evidence as to how [the victim’s] injuries occurred,” and that “there is a complete lack of evidence as to [Appellant’s] actual conduct, which

would support a finding of recklessness.” Id. at 22. Ultimately, Appellant

argues that the Commonwealth failed to prove that she “attempted to cause

serious bodily injury to her son, intentionally, knowingly, or recklessly.” Id. at 21.

In its Pa.R.A.P. (a) 1925 opinion, the trial court reviewed the evidence

presented at trial and held that the following established that Appellant did

have the specific intent to cause bodily injury:

Based on the totality of the evidence, it is clear that the

Commonwealth established that [Appellant], who was the sole

person in custody and control of the victim, submerged the

victim’s hand into hot water or other liquid for a sufficient period

of time to cause second degree burns to his hand. Based on the

victim’s physical conditions and abilities, the Commonwealth

established that the victim did not accidently or inadvertently

place his own hand into the water. The evidence established that

a third person would have been required to place his hand into the

hot water and submerge it to his wrist for a period of time

necessary to cause the burns. It is clear that specific intent to

cause serious bodily injury can be inferred from the evidence. The

evidence establishes that this was not an inadvertent act in which

his hand fell or was placed into hot water and then was quickly

pulled away but instead that it was done purposefully and with the

intent to cause a serious injury to the hand. Therefore,

[Appellant] was appropriately found guilty of aggravated assault.

Trial Court Opinion, 6/25/18, at 10–11.
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“For aggravated assault purposes, an ‘attempt’ is found where the

accused, with the required specific intent, acts in a manner which constitutes

a substantial step toward perpetrating a serious bodily injury upon another.” Commonwealth v. Alford, 880 A.2d 666, 670 (Pa. Super. 2005). In order

to determine whether an appellant possessed the requisite intent, this Court

will look at both direct and circumstantial evidence. Id. at 670–671. “In

determining whether intent was proven from such circumstances, the fact

finder is free to conclude the accused intended the natural and probable

consequences of his actions to result therefrom.” Commonwealth v.

Bradley, 69 A.3d 253, 257 (Pa. Super. 2013) (quoting trial court’s 1925(a)

opinion, 6/21/12, at 4–6) (finding the requisite intent where defendant, an

adult male, twisted the arm of small child and fractured child’s arm because

the “natural consequence of an adult twisting the arm of a small child this

hard was a fractured bone.”)). Because direct evidence of intent is often unavailable, intent to

cause serious bodily injury may be shown by the circumstances

surrounding the attack. In determining whether intent was

proven from such circumstances, the fact finder is free to conclude

the accused intended the natural and probable consequences of

his actions to result therefrom.

Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citations

and quotations omitted). As the trial court noted in its Rule 1925(a) opinion, Appellant was the

only person who provided care for the victim, who is disabled and dependent

upon Appellant for all of his needs. Trial Court Opinion, 6/25/18, at 10.
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Moreover, the victim’s upper extremities were contracted such that he would

have been unable to voluntarily or accidentally extend his hands to place them

in hot water. Id. Additionally, three doctors, an infectious disease specialist,

a general/vascular surgeon, and a burn specialist, testified that the injuries to

the victim were not due to an infection but were the result of the victim’s hand

being submerged in a hot liquid. Id. This finding was based upon the fact

that the victim showed no clinical signs of having an infection; there was a

demarcation line between burned and normal skin; and the victim’s entire

hand was involved. Id. Finally, Dr. Aballay, the burn specialist, testified that

the “lack of any splatter burns above the line of demarcation was inconsistent

with the hand being inadvertently placed in hot water and being immediately

pulled out.” Id. Given our standard of review and the evidence put forth by

the Commonwealth and accepted by the trier of fact, we are constrained to

find that the evidence is sufficient to support Appellant’s conviction for

aggravated assault pursuant to 18 Pa.C.S. § 2702 (a)(1). Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/5/2019