Com. v. Stevenson, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES STEVENSON, :
:
Appellant : No. 173 WDA 2016
Appeal from the Judgment of Sentence January 20, 2016
in the Court of Common Pleas of Fayette County,
Criminal Division, No(s): CP-26-CR-0000218-2015
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 04, 2016
James Stevenson (“Stevenson”) appeals from the judgment of
sentence imposed following his convictions of six counts of recklessly
endangering another person (“REAP”); and one count each of criminal
attempt (homicide), aggravated assault, possession of a firearm prohibited,
firearms carried without a license, discharge of a firearm into an occupied
structure, terroristic threats, criminal mischief, and driving while operating
privilege suspended.1 We affirm.
On January 4, 2015, around 2:00 a.m., Stevenson went to the
apartment of Darla Bryan (“Bryan”) and Blaine Sullenberger
(“Sullenberger”), located at 121 Main Street in Belle Vernon. Bryan and
Sullenberger had been caring for Stevenson’s dog in their apartment for a
week. However, earlier that day, the dog escaped and ran away. Upon
1
See 18 Pa.C.S.A. §§ 2705, 901(a), 2501, 2702(a)(1), 6105(a)(1),
6105(a)(1), 2707.1(a), 2706(a)(1), 3304; 75 Pa.C.S.A. § 1543(a).
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learning this, Stevenson became angry and an argument ensued. The
argument escalated into a physical altercation between Stevenson and
Sullenberger. After the tussle ended, Stevenson left the apartment,
informing Bryan and Sullenberger that he would be back. Bryan then
instructed her neighbor, Arthur Cicchitto (“Cicchitto”), to call the police.2
Approximately one minute after Stevenson left the apartment, Bryan,
while standing on the porch, saw Stevenson walking toward her, armed with
a gun. Stevenson approached Bryan, placed the gun barrel to her temple,
and stated, “have a nice death, bitch.” However, Stevenson became
distracted when Sullenberger opened the front door to the apartment
building, armed with a bat. Stevenson then fired four or five shots towards
the front door. Fortunately, however, none of the bullets struck anyone.
Stevenson then fled in his truck, stating that he would be back to “finish the
job.” Later, while the police were at the scene, Sullenberger saw Stevenson
in his truck on the street. Sullenberger informed the police as to
Stevenson’s presence, but the truck then “took off.” Later, the police
arrested Stevenson.
Following trial, the jury found Stevenson guilty of the above-
mentioned crimes. The trial court sentenced Stevenson to an aggregate
sentence of fifteen to thirty years in prison. Stevenson filed a Post-Sentence
2
Cicchitto and Bryan’s apartments were located in the same building, on
separate floors. Additionally, three of Cicchitto’s children were inside of the
building at the time.
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Motion and a Motion for New Trial. The trial court denied the Motions.
Stevenson filed a timely Notice of Appeal. Thereafter, Stevenson filed a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of
on Appeal.
On appeal, Stevenson raises the following issues:
[1.] [Did] the Commonwealth fail[] to present evidence
demonstrating [Stevenson’s] intent to [cause] [] death or
serious bodily injury to [] Sullenberger[?]
[2.] [Did] the Commonwealth fail[] to present evidence
demonstrating that [Stevenson] carried or possessed a firearm
or that he intentionally, knowingly or recklessly discharged a
firearm into an occupied structure on January 4, 2015[?]
[3.] [Did] the Commonwealth fail[] to present evidence
demonstrating that [Stevenson] communicated a threat to
commit a crime of violence with the intent to terrorize []
Bryan[?]
[4.] [Did] the Commonwealth fail[] to present evidence
demonstrating that [Stevenson’s] conduct placed any of the
residents of 121 Main Street in danger of death or serious bodily
injury on January 4, 2015[?]
[5.] [Was] the jury verdict [] against the weight of the
evidence[?]
[6.] Whether the trial court erred in overruling defense counsel’s
[M]otion for mistrial[,] when the officer testified that
[Stevenson] refused to make a statement at the time of his
arrest in violation of [Stevenson’s] right to remain silent[?]
Brief for Appellant at 7 (some capitalization omitted).
In his first four claims, Stevenson alleges that the evidence was
insufficient to sustain his convictions. Id. at 11-16. The standard of review
for a sufficiency of the evidence claim is as follows:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial the
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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation and brackets omitted).
In his first claim, Stevenson contends that the evidence was
insufficient to support his criminal attempt and aggravated assault
convictions. See Brief for Appellant at 10-12. Stevenson argues that the
Commonwealth failed to present evidence that he attempted to cause death
or serious bodily injury to Sullenberger. Id. at 10. Stevenson asserts that
the gun matching the slugs and shell casing found at the scene were never
recovered, and that there were no fingerprints or DNA to connect him to the
crime scene. Id. at 11. Stevenson claims that the swabs taken from the
steering wheel and door handle of his vehicle were never tested for gunshot
residue. Id. at 12. Stevenson additionally asserts that the investigation of
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the crime scene did not take place until more than 24 hours after the
incident occurred. Id.
“[A] person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial step toward
the commission of that crime.” 18 Pa.C.S.A. § 901(a). “For the
Commonwealth to prevail in a conviction of criminal attempt to commit
homicide, it must prove beyond a reasonable doubt that the accused[,] with
a specific intent to kill[,] took a substantial step towards that goal.”
Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super. 2005).
“[A] specific intent to kill can be inferred from the fact that the accused used
a deadly weapon to inflict injury to a vital part of the victim’s body.” Id.
(emphasis 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 “[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.” Id. § 2301. Further,
where the victim does not sustain serious bodily injury, the
Commonwealth must prove that the appellant acted with specific
intent to cause serious bodily injury. The Commonwealth may
prove intent to cause serious bodily injury by circumstantial
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evidence. In determining whether the Commonwealth proved
the Appellant had the requisite specific intent, the fact-finder is
free to conclude the accused intended the natural and probable
consequences of his actions to result therefrom. A
determination of whether an appellant acted with intent to cause
serious bodily injury must be determined on a case-by-case
basis.
Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (citation
and brackets omitted).
Here, Stevenson became angry at Sullenberger after Stevenson’s dog
escaped while in Sullenberger’s care. N.T., 1/12/16, at 14-17. Stevenson
and Sullenberger engaged in a scuffle, during which Stevenson punched
Sullenberger in the face. Id. at 106. After hitting Sullenberger, Stevenson
informed Sullenberger that he had “something” for him and left to retrieve a
gun. Id. at 18, 107. After he returned, Stevenson approached Bryan, put
the gun to her head, and stated “have a nice death, bitch.” Id. at 22.
Thereafter, Stevenson fired multiple shots in the direction on Sullenberger.
Id. at 23, 87, 111-12.
The evidence, viewed in a light most favorable to the Commonwealth,
demonstrated that Stevenson took a substantial step in attempting to kill
and/or cause the serious bodily injury of another, when he fired the gun at
the victims. See Holley, 945 A.2d at 249 (concluding that the evidence was
sufficient to support the defendant’s convictions for attempted murder and
aggravated assault where he, while wrestling with a police officer, took the
officer’s gun and fired a shot, even though the officer was not shot); see
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also Commonwealth v. Lopez, 654 A.2d 1150, 1155 (Pa. Super. 1995)
(stating that evidence that defendant, who had an altercation with the
victim, returned to the home and fired eight shots into a residence
established a prima facie case of aggravated assault even though the
residence was vacant when the shooting took place). Based on the evidence
of the record, there is sufficient evidence to sustain Stevenson’s convictions
of criminal attempt and aggravated assault.
In his second claim, Stevenson contends that the Commonwealth
failed to present evidence demonstrating that he carried or possessed a
firearm or that he intentionally, knowingly or recklessly discharged a firearm
into an occupied structure.3 Brief for Appellant at 13. Stevenson contends
that the firearm was never recovered and that the investigation did not
reveal any forensic evidence that linked him to the shooting, as gunshot
residue swab results were never obtained. Id. at 14.
Here, the Commonwealth presented undisputed evidence that
Stevenson is a “person prohibited by law from possessing, using, controlling,
selling, transferring, manufacturing, or obtaining a license to possess, use,
3
The Crimes Code defines “discharge of firearm into an occupied structure”
as follows: “a person commits an offense if he knowingly, intentionally, or
recklessly discharges a firearm from any location into an occupied
structure.“ 18 Pa.C.S.A. § 2707.1(a). An “occupied structure” is “any
structure, vehicle, or place adapted for overnight accommodation of persons
or for carrying on business therein, whether or not a person is actually
present.” Id. § 2707.1(d). The only limitation on the location requirement
is that the person discharging the gun must be outside of the occupied
structure. Commonwealth v. McCoy, 962 A.2d 1160, 1169 (Pa. 2009).
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control, sell, transfer or manufacture a firearm in the State of Pennsylvania.”
N.T., 01/12/16, at 10-11. Additionally, Bryan, Cicchitto and Sullenberger
testified that Stevenson, while outside, possessed a firearm and fired
multiple shots towards the victims and into their residence. Id. at 23, 87,
111-12.
This evidence, viewed in the light most favorable to the
Commonwealth, demonstrates that Stevenson was in possession of the gun.
See Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014)
(concluding that testimony of a single witness was sufficient to sustain
persons not to possess firearms conviction); Commonwealth v. Galindas,
786 A.2d 1004, 1011 (Pa. Super. 2001) (concluding that the evidence was
sufficient to support firearms convictions, despite the fact that the police
never recovered a firearm, where witness testimony indicated that the
defendant possessed a firearm). The evidence is sufficient to support
Stevenson’s convictions of possession of firearm prohibited, firearms not to
be carried without a license and discharge of firearm into an occupied
structure.
In Stevenson’s third claim, he contends that the evidence was
insufficient to support his terroristic threats conviction. Brief for Appellant at
15. Stevenson argues that the Commonwealth failed to present evidence
that Stevenson communicated a threat to commit a crime of violence with
the intent to terrorize Bryan. Id.
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“A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to … commit any crime
of violence with intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1).
Here, Bryan testified that Stevenson approached her, held a gun to her
head and stated, “have a nice death, bitch.” N.T., 01/12/16 at 21, 22.
Bryan states that Stevenson’s actions scared her and put her in fear for her
life. Id. at 22-23. Bryan’s testimony is sufficient to support Stevenson’s
terroristic threats conviction. See Commonwealth v. Kelley, 664 A.2d
123, 128 (Pa. Super. 1995) (concluding that the defendant’s threats to “kill”
the victim demonstrated that the defendant intended to terrorize the
victim); Commonwealth v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super.
1990) (holding that the evidence was sufficient to support intent to terrorize
victim where the defendant threatened to “stick the victim with the sword”
that he was holding in his hand).
In his fourth claim, Stevenson contends that the evidence was
insufficient to support his REAP convictions. Brief for Appellant at 16.
Stevenson argues that his conduct did not place any of the residents of 121
Main Street in danger. Id. Stevenson further asserts that the firearm was
never discovered and DNA was never tested. Id.
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.A. § 2705. “[T]he Crimes Code requires (1) a mens rea
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of recklessness, (2) an actus reus, (3) causation, and (4) the achievement of
a particular result, namely danger to another person of death or serious
bodily injury.” Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.
Super. 2003) (citation omitted).
Here, Stevenson fired his gun four times in the direction of Bryan,
Sullenberger, Cicchitto, and Cicchitto’s three children. See N.T., 01/12/16,
at 24, 38, 40, 43, 45, 48, 87, 111-12, 114-16. The evidence is amply
sufficient to support Stevenson’s six REAP convictions. See Reynolds, 835
A.2d at 729 (holding that pointing a loaded gun at victim created the danger
of death of serious bodily injury and was thus sufficient to support REAP
convictions); see also Commonwealth v. Peer, 684 A.2d 1077, 1080 (Pa.
Super. 1996) (holding that pointing a loaded gun at a victim was sufficient
to support REAP conviction).
In his fifth claim, Stevenson contends that the jury’s verdict was
against the weight of the evidence because the police did not locate the
firearm; the samples taken from Stevenson and his vehicle were never
tested; and Stevenson did not arrive at the location of the incident until the
morning after the shooting. Brief for Appellant at 17-18.4
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the
4
Contrary to the Commonwealth’s claim that Stevenson waived this claim
for failing to preserve it pursuant to Pennsylvania Rule of Criminal Procedure
607(A), the record reveals that Stevenson raised the weight of the evidence
claim in his Motion for New Trial.
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trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court's determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of
justice.
In order for a defendant to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague
and uncertain that the verdict shocks the conscience of the
court.
Talbert, 129 A.3d at 545-46 (citations and quotation marks omitted). “The
weight of the evidence is exclusively for the finder of fact, who is free to
believe all, none or some of the evidence and to determine the credibility of
the witnesses.” Id. at 545 (citation and brackets omitted).
Stevenson essentially asks us to reassess the credibility of the
witnesses and reweigh the testimony and evidence presented at trial.
However, it is well settled that we cannot substitute our judgment for that of
the trier of fact. See id. Here, the jury found the credible evidence
demonstrated that Stevenson possessed a firearm and fired the firearm four
times at the residence. Thus, the verdict was not so contrary to the
evidence as to shock the conscience, and the trial court properly denied
Stevenson’s weight of the evidence claim. See id. at 546 (stating that the
jury found credible evidence that the appellant was the shooter and thus,
the verdict did not shock the conscience).
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In Stevenson’s final claim, he argues that the trial court erred in
overruling his oral motion for mistrial made when the prosecutor questioned
Stevenson as to whether he made a statement at the time of his arrest.
Brief for Appellant at 19. However, Stevenson failed to raise this claim in his
Rule 1925(b) Concise Statement; thus the claim is waived. See
Commonwealth v. Johnson, 107 A.3d 52, 69 (Pa. 2014) (stating that an
issue not raised in Pa.R.A.P. 1925(b) concise statement is waived).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2016
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