J-S49008-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES COTTLE

Appellant No. 3475 EDA 2015

Appeal from the Judgment of Sentence October 21, 2015

In the Court of Common Pleas of Delaware County

Criminal Division, at No(s): CP-23-CR-0006306-2014

BEFORE: PANELLA, J., and OLSON, J., STEVENS, P.J.E.,*

MEMORANDUM BY PANELLA, J. FILED AUGUST 04, 2016

James Cottle (“Appellant”) appeals from the judgment of sentence 

imposed after he was convicted of aggravated assault.1 We affirm.

The trial court summarized the pertinent facts as follows.

On July 23, 2014, the victim, Joseph Hans, took the 

Market-Frankford Line SEPTA bus home from work. Mr. Hans 

worked a night shift. He was sitting in the front of the bus at 

about 4:30 a.m. when he heard some “commotion” coming from 

the back of the bus. See N.T. 8/14/15 [at] 6-18. [Appellant] was 

in the rear of the bus arguing with two women. The argument 

went on for about ten minutes and during its course [Appellant] 

used profanity and threatened to punch the women. See id. at 

8-15. Mr. Hans spoke to a fellow passenger at the front of the 

bus and said, “He ain’t going to hit a lady. . . I’ll knock him 

out.[”] Id. at 11, 27. [Appellant] told Mr. Hans that he had 

heard him and asked him where he “got off” the bus. Mr. Hans 

____________________________________________

1 18 Pa.C.S.A. § 2702(a).
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replied, “69th Street” and [Appellant] said, “I got you.” Id. at 11-

12. The conversation took about ten seconds. Mr. Hans did not 

engage in further conversation with [Appellant] and he never 

threatened him. [Appellant] returned to harassing the women.

The women left the bus at 52nd Street. The bus continued 

on to the 69th Street Terminal and Mr. Hans rose from his seat to 

exit. He carried a cup of coffee in his left hand and headed 

toward the rear of the bus to exit. Id. at 19-21. [Appellant] was 

still in his seat. After alighting, Mr. Hans walked toward the front 

of the bus. [Appellant] rose from his seat and followed Mr. Hans 

off the bus. He continued to follow him on the sidewalk and then 

came up behind Mr. Hans and “sucker punched” him from the 

rear. [Appellant] struck Mr. Hans’s jaw and knocked him 

unconscious. Id. at 20-25. Mr. Hans never saw [Appellant] 

coming. He went down, hitting his head on the curb and “split 

[his] skull wide open.” See id. at 20-23. The assault was 

captured on video tape. It was viewed by the trial court and 

admitted into evidence at trial. Exhibit C-1. After Mr. Han[s] fell 

to the pavement unconscious, [Appellant] ran. He was arrested 

eight days later after he was identified in a photo array. N.T. 

8/20/15 [at] 7.

Mr. Hans suffered serious bodily injury. Detective Edward 

Silverstein responded to the scene but found only a pool of blood 

and Mr. Hans’s possessions because Mr. Hans had been 

transported to the University of Pennsylvania Hospital Trauma 

Center. [Id. at] 4-5. Eighteen hours later he woke up with 

thirty-two staples in his head, a concussion and fractures 

through his jaw line. N.T. 8/14/15 [at] 23. He suffered from 

Vertigo, was out of work for two weeks[,] and thirteen months 

later, at the time of trial, he was still experiencing residual 

headaches. Id. at 23-26.

[Appellant] testified at trial. He stated that during their 

brief interaction on the bus Mr. Hans told him that he “was going 

to get laid the ‘f’ out if he hit [the women].” N.T. 8/20/15 [at] 

17. He claimed that Mr. Hans gave him a “dirty look” as Hans 

left the bus and that he felt threatened. On cross-examination 

[Appellant] admitted that he prepared for a fight. He took his 

jacket off before he left the bus and as Mr. Hans walked away 

from the bus and away from [Appellant] he chased him down. 

Mr. Hans never turned around and never threatened or 

confronted [Appellant]. Id. at 17-24.
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Trial Court Opinion, 12/15/15, at 4-5.

At the conclusion of a bench trial, the trial court, in rendering its guilty 

verdict, credited the testimony of Mr. Hans, while finding Appellant’s 

testimony “totally incredible.” N.T., 8/20/15, at 36. The court further 

expressed its belief that Appellant not only intended to assault Mr. Hans, but 

that it was a premeditated attack. The trial court stated:

This is something that didn’t arise out of the course of a - – the 

heat of an instance. This was premeditated. [Appellant] had 

sufficient time to understand what was about to take place. 

What the video shows and what the victim testified are one and 

the same; that he [the victim] was leaving the bus and he has a 

cup of coffee or some type of liquid. He’s obviously not expecting 

to have a fight in this particular instance. [Appellant] comes up 

behind him and it’s a sucker punch clearly. It’s thrown with 

enough force to not only knock [Mr. Hans] off his feet [but also 

to] break his jaw when he’s thrown to the ground. This could 

have easily resulted in a murder case if he had struck his head in 

a different fashion. [Mr. Hans] did in fact sustain serious bodily 

injury in this particular case.

Id. at 36-37.

The trial court sentenced Appellant to a term of four to eight years of 

imprisonment, and a consecutive three-year probationary term. This timely 

appeal follows. 

Appellant raises the following issue: “Did the [t]rial [c]ourt err in 

convicting [Appellant] of the offense of Aggravated Assault because the 

Commonwealth failed to prove beyond a reasonable doubt that he possessed 

the requisite intent at the time of the encounter?” Appellant’s Brief at 5.

Our standard of review is well settled.
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The standard we apply in reviewing the sufficiency of the 

evidence is whether[,] viewing all the evidence admitted at trial 

in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying the 

above test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. In addition, we note that the facts 

and circumstances established by the Commonwealth need not 

preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

finder of fact[,] while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe all, 

part or none of the evidence. 

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation 

omitted).

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 extreme 

indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). 

Serious bodily injury is defined 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 organ.” 

18 Pa.C.S.A. § 2301.
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When, as here, a victim suffers serious bodily injury, the 

Commonwealth is not required to prove specific intent. See 

Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en 

banc). Instead, the Commonwealth need only prove that the defendant 

acted with malice, which is defined as acting recklessly under circumstances 

manifesting an extreme indifference to the value of human life. See id. To 

rise to the level of malice, an offensive act must be performed under 

circumstances that “almost assure that injury or death will ensue.” 

Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995). 

Here, in rejecting Appellant’s sufficiency challenge, the trial court 

likened the facts before it to a more recent en banc decision from this Court, 

and similarly concluded that Appellant’s actions in this case demonstrated 

malice.

In Commonwealth v. Burton, 2 A.3d 598 (Pa. Super. 

2010) [(en banc)] the Superior Court considered “whether the 

delivery of a single punch is sufficient to sustain a conviction for 

aggravated assault.[”] Id. at 601. As in this case, the victim in 

Burton suffered serious bodily injury. The Superior Court looked 

to the surrounding circumstances to determine whether 

“[Burton] intentionally or knowingly caused [serious bodily 

harm] or if he proceeded in such a manner that manifested an 

extreme indifference to the value of [the victim’s] life. Id. at 

603. The surrounding circumstances included a disparity in 

weight between [Burton] and the victim, [Burton’s] celebratory 

behavior after the fact while the victim lay unconscious, the fact 

that [Burton] prepared to fight and hit the victim when the 

victim had his hands behind his back and was unprepared for the 

blow. Similarly, in this case [Appellant] delivered a blow to the 

head, a vital body part, with such force that he fractured Mr. 

Hans’s jaw and knocked him to the ground, splitting his head 

open. The blow was unprovoked and unexpected. Mr. Hans was 
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walking away from [Appellant] holding a cup of coffee in his 

hand. He was in a vulnerable position and defenseless under the 

circumstances. [Appellant’s] behavior leading up to the assault 

demonstrated his intent to engage in a fight and the means he 

employed, a “sucker punch” to the head from behind[,] 

manifested an extreme indifference to the value of Mr. Hans’s 

life. Afterward, when Mr. Hans lay bleeding and unconscious on 

the pavement, [Appellant] ran. See also Commonwealth v. 

Patrick, 933 A.2d 1043 (Pa. Super 2007) (reckless indifference 

to human life was substantiated where defendant caused serious 

bodily injury with a single punch to the side of the unsuspecting

victim’s head, causing the victim to fall “without reflexive 

protection”); Commonwealth v. Bruce, [916 A.2d 657 (Pa. 

Super. 2007) (the manner of the attack may reflect intent to 

inflict serious bodily harm[)]. 

Trial Court Opinion, 12/15/15, at 6-7. Our review of the record amply 

supports the trial court’s conclusion that the Commonwealth presented 

sufficient evidence to convict Appellant of aggravated assault.

Appellant’s claims to the contrary are unavailing. Initially, we note 

that, in making his arguments, Appellant does not acknowledge this Court’s 

holdings in Burton and Patrick. Instead, he cites to two significantly older 

cases, neither of which involved the “single punch” scenario. See Appellant’s 

Brief at 13-14 (citing Commonwealth v. Magnelli, 502 A.2d 241 (Pa. 

Super. 1985), and Commonwealth v. Rockwell, 340 A.2d 553 (Pa. Super. 

1975)). Both cases are plainly inapposite. 

Appellant also refers to his trial testimony that he believed he was 

about to be attacked. Although he acknowledges that the trial court found 

this testimony unworthy of belief, he refers to subsequent testimony and 

medical evaluations regarding his mental health presented at the time of 
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sentencing to challenge the trial court’s credibility determination. According 

to Appellant, the trial court’s finding as to his credibility “leaves unaddressed 

his medical history and psychological assessment which lend credence to his 

[trial] testimony and cast grave doubt that he could have possessed the 

requisite intent to commit the crime of Aggravated Assault.” Appellant’s Brief 

at 15.

Appellant cites no case law that permits the trial court to disturb its 

credibility determinations based up on trial testimony with information 

gained subsequent to Appellant’s convictions. Thus, we do not consider this 

claim further. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 

2007) (holding that undeveloped claims will not be considered on appeal).

Judgment of sentence affirmed.

 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2016

 
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