Com. v. Adams, G. ( 2019 )

J-S23010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
GREGORY D. ADAMS,
Appellant No. 930 WDA 2018
Appeal from the Judgment of Sentence Entered November 16, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000854-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 12, 2019
Appellant, Gregory D. Adams, appeals nunc pro tunc from the judgment
of sentence of an aggregate term of 10 to 20 years’ incarceration, imposed
after a jury convicted him of one count of aggravated assault, three counts of
recklessly endangering another person, and one count of possessing an
instrument of crime. Appellant also entered a guilty plea to a single count of
possession of a firearm by a person prohibited, which had been severed from
his other charges. After careful review, we affirm.
On appeal, Appellant presents three issues for our review:
A. Whether there was insufficient evidence as a matter of law to
sustain the guilty verdicts of aggravated assault and reckless
endangerment[,] in that none of the occupants of the vehicle
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S23010-19
were injured[,] nor did [Appellant] form the specific intent to
cause injury to any of said occupants of the vehicle?
B. Whether there was insufficient legal and factual predicate to
grade the aggravated assault charges in the first degree[,]
given the absence of specific intent of [Appellant] to injure any
of the occupants of the vehicle and his voluntary intoxicat[ion]
… at the time of the incident?
C. Whether it was an abuse of discretion and legal error to permit
the possession of a prohibited firearm charge to be severed and
then reinstated by the Commonwealth[,] thereby resulting in
[Appellant’s] entry of a guilty plea subsequent[] to the
reinstated and severed charge?
Appellant’s Brief at 2.
Initially, we conclude that Appellant has waived his issues for our
review. Appellant combines his first two issues into one argument and cites
no relevant legal authority to support those sufficiency claims. Indeed,
Appellant does not even set forth the elements of the offenses for which he is
claiming the Commonwealth’s evidence was insufficient, or provide any law
regarding the voluntary intoxication defense that he insists was proven in this
case. See Appellant’s Brief at 4-6. Additionally, Appellant’s entire analysis
for his third issue consists of two sentences. See id. at 6. Based on
Appellant’s undeveloped arguments, we deem his issues waived. See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When
briefing the various issues that have been preserved, it is an appellant’s duty
to present arguments that are sufficiently developed for our review. The brief
must support the claims with pertinent discussion, with references to the
record and with citations to legal authorities. … [W]hen defects in a brief
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J-S23010-19
impede our ability to conduct meaningful appellate review, we may dismiss
the appeal entirely or find certain issues to be waived.”).
Notwithstanding waiver, we would conclude that Appellant’s issues are
meritless. We have reviewed the certified record, the briefs of the parties,
and the applicable law. Additionally, we have reviewed the thorough and well-
crafted opinion of the Honorable William R. Cunningham of the Court of
Common Pleas of Erie County. We would conclude that Judge Cunningham’s
well-reasoned opinion accurately disposes of the issues presented by
Appellant. Accordingly, had Appellant preserved his issues for our review, we
would adopt Judge Cunningham’s opinion as our own and affirm Appellant’s
judgment of sentence for the reasons set forth therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2019
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Circulated 05/13/2019 12:43 PM
COMMONWEALTH OF PEf'™SYLVANIA : IN THE COURT OF COMMON PLEAS
: OF ERIE COUNTY, PENNSYLVANIA
v. I : CRIMINAL DlVISiON
I
GREGORY D. ADAMS, ,PELLANT : NO. 854 OF 2015
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Appellant, Gregory tdams, filed an Appeal Nunc Pro Tune on June 26, 2018
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judgment of sentence enter d November 16, 2015. This Opinion is in response to the 'd"f 7,i '
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Statement of Matters Complained of on Appeal filed July 16, 2018. ';?,j � cf,
BACKGROUND
Appellant was convicted by a jury on July 22, 2015 of one count of Aggravated Assault,
three count� of Recklessly Endangering Another Person, and one count of Possessing Instrument
of Crime.1 Three counts of Criminal Attempt were withdrawn. Count 1 O - Possession of
Firearm, 18 Pa.C.S.A. §6105(a)(l), was severed from the trial sub judice and Appellant
subsequently entered a guilty plea to the charge on November 9, 2015.
The charges arose in the late evening and early morning hours of December 25, 2014 and
December 26, 2014, when Appellant fired a revolver multiple times into an occupied vehicle in ·
the driveway at 557 Conti Drive in Millcreek Township, Erie, Pennsylvania. Trial Transcript
. . .
(f.T.), July 21: 2015, pp. 36-40. Present in the vehicle wereShannon Jones, Jamal Page and
Tammy Page. T. T. pp. 76-77, 79. Appellant was related to Shannon Jones, Jamal Page and his
wife, Tammy Page. T.T. pp. 72, 75-76.
The parties had been at a family Christmas party at the Page's home where Appellant had
been drinking. T. T. pp. 93-94. At the end of the party, Tammy and Jamal Page gave Appellant a
1 18 Pa.C.S.A. §2702(a)(l); 18 Pa.C.S.A. §2705; and 18 Pa.C.S.A. §907(a), respectively.
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ride home to his trailer on Conti Drive. T. T. p. 94. Tammy Jones was driving, Jamal Jones was
in the front passenger seat, Shannon Jones and Appellant were in the back seat of the vehicle.
T.T. pp. 59, 95. An argument arose between Appellant and Jamal Jones on the way to
Appellant's home. T. T. pp. 107, 143, 144.
Upon arrival at Appellant's trailer, Appellant exited the vehicle and entered his home.
Shannon Jones carried some bags to Appellant's door and then returned to the vehicle. T.T. pp.
97-98. Shannon Jones laid down on the back seat of the vehicle. T.T. pp. 62-63. With the
vehicle still in Appellant's driveway, Appellant come out of his trailer waving a gun. T. T. pp.
99, 141-43. Appellant shot at the windshield and rear passenger window of the vehicle. T.T. p.
100. The front windshield had two gunshot holes, and the rear passenger window had one
gunshot hole. T. T. p. I 00. Tammy Jones and the two passengers left the trailer park and went to
a nearby plaza where they called the police. T. T. p. · 103. The police found shattered car glass
on the ground in Appellant's·driveway and spent shell casings in his trailer. T.T. pp. 117, 120,
125. None of the occupants of the vehicle was injured.
At trial, Appellant proffered a voluntary intoxication defense in mitigation of the
recklessness of his actions. Appellant claimed his intent was merely to scare his nephew, Jamal
Jones. Appellant admitted he was drunk, he was recklessly waving the gun about and he fired
the shots which hit the occupied vehicle:
THE COMMONWEALTH: ... You were recklessly waving your hand with a
gun and you put two shots through the window. And you can see right behind
those bullet holes. .:. - or those bullet strikes that seats are right there and headrests
are right there: Can you agree with me that's what that photo shows? Is that what
that photo shows? ·
THE DEFENDANT: Sit, I was drunk and under the influence of medication at
the time. I did not intend to - - want to hurt anybody. I wanted to scare the hell
out of my nephew [Jamal Jones] for what he said (unintelligible)... I just wanted
to scare the hell out of my nephew and I didn't want to hurt - - I was drunk. We
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were all drunk and under the influence. And I was on medication from the doctor
from Health Net. I couldn't hurt anybody ifl tried (unintelligible).
***
THE COMMONWEALTH: You would agree with me that after - � after the
bullet went off twice and went into the, you know struck the windshield, that's
« -
going to scare people, right? ·
THE DEFENDANT: I didn't - -
THE COMMONWEALTH: Yes or no? Would that be scary, two bullets
striking the windshield?
THE DEFENDANT: No, I didn't intend to strike the windshield.
THE COMMONWEALTH: You didn't intend to strike the windshield?
THE DEFENDANT: No.
THE COMMONWEALTH: Okay. You didn't intend to shoot out this window
[rear passenger] either, did you?
THE DEFENDANT: No, sir, I didn't. I didn't attempt to shoot it. I was just
waving.
THE COMMONWEALTH: Now, you didn't attempt to shoot?
THE DEFENDANT: I was waving - - recklessly just shooting.
THE COMMONWEALTH: You were just waving the gun?
THE DEFENDANT: Yes. And I fired it.
Tim COMMONWEALTH: It just went off?
THE DEFENDANT: I admit to it, Lfired it.
THE COMMONWEALTH: You pulled the trigger, right?
THE DEFENDANT: Yes.
THE COMMONWEALTH: You know what a gun does, right?
THE DEFENDANT: Yes, I know what it can do.
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THE COMl\.'IONWEALTH: Okay. And you pulled the trigger and you shot out
this back window;
.
is that right?
.
THE DEFENDANT: That's what it appears that's what happened.
T. T. pp. 141-143 (Emphasis added).
On November 16, 2015, Appellant was sentenced to an aggregate-term of 10 - 20 years
of incarceration.'as follows:
Count 4: Aggravated Assault (JamalPagejff'-I): 7 to 14 years of incarceration;
Count 7: Recklessly Endangering Another Person (Jamal Page): Merges with Count 4;
Count 8: Recklessly Endangering Another·Person (Tammy Page): l to 2 years of
incarceration consecutive to Count4;
Count 9: Recklessly Endangering AnotherPerson (Shannon Jones): 1 to 2 years of
incarceration consecutive to Count 8;
Count 10: Person not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms:
4 to 8 years of incarceration concurrentwith Count 4; and ·
Count U: Possessing Instruments of Crime: 1 to 2 years of incarceration consecutive to.
Count 9. · ·
Appellant filed a Motion for New Trial and /or Arrest of Judgment Nunc Pro Tune on
May 29, 2018. Appellant raised the following claims in the post-sentence motion:
A. The evidence was insufficient to sustain the guilty verdicts of aggravated
assault and reckless endangerment in that none of the occupants of the vehicle
were injured nor did the Defendant form the specific intent to cause injury to
the occupants of the vehicle.
B. There was an insufficient legal and factual predicate to grade the aggravated
assault charge in the first degree given the absence of specific· intent of the
Defendant to. injure any of the occupants of the vehicle and his voluntary
intoxicated state at the time of the incident. ·
C. It was an abuse of discretion and legal error to permit the possession of a
prohibited firearm charge to be severed and then reinstated by the
Commonwealth thereby resulting in the Defendant's entry of a guilty plea
subsequently to the reinstated and severed charge.
Motion for New Trial and/or Arrest ofJudgment Nunc Pro Tune, May 29, 2018, p. 2.
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The post-sentence motion nunc pro tune was denied May 30, 2018. Appellant timely
filed a direct appeal with the Superior Court of Pennsylvania on June 28, 2018 at Superior Court
Docket Number 930 WDA 2018, and a Concise Statement of Matters Complained of on Appeal
on July 16, 2018. The Concise Statement reiterates the post-sentence claims for appellate
review. Appellant's claims will be analyzed seriatim.
SUFFICIENCY OF THE EVIDENCE
When evaluating a challenge to the sufficiency of the evidence, the evidence must be
viewed in the light most favorable to the Commonwealth as the verdict winner. Com. v.
Hargrave, 745 A.2d 20, 22 (Pa. Super. 2000), appeal denied, 563 Pa 683� 760 A.2d 851 (2000) ·
(internal citations omitted). Evidence will be deemed sufficient when it establishes each material
element of the crime charged, and the commission thereof by the accused, beyond a reasonable
doubt Com. v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005).
First, Appellant challenges the sufficiency of the evidence to sustain the guilty verdicts of
Aggravated Assault and Recklessly Endangering Another Person as none of the occupants of the
vehicle was injured. This contention is without merit. Neither the crime of Aggravated Assault
nor Recklessly Endangering Another · Person requires proof that serious bodily injury was
inflicted but only that an attempt was made to cause such an injury. See 18 Pa.C.S.A.
§2702(a)(l); 18 PaC.S.A. §2705. ·
An intent to cause serious bodily injury may be shown by the circumstances surrounding
the incident. Com. v. Elrod, 572 A.2d 1229 (1990); In this case, the intent to do serious bodily
harm can be inferred by the act of Appellant discharging a loaded firearm into a vehicle he knew
to be occupied. See Com. v. Hunter, 644 A.2d 763 (Pa. Super. 1994). The evidence was
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sufficient to sustain the convictions though the occupants of the vehicle did not sustain bodily
injury. Appellant placed the occupants of the vehicle in danger of death or serious bodily injury
by firing a loaded gun into the occupied vehicle for purposes of Aggravated Assault and
Recklessly Endangering Another Person.
Next, Appellant claims he was too intoxicated to form the specific intent to cause injury
to the occupants of the vehicle. The defense of voluntary intoxication is a limited defense which
does not exculpate the defendant from criminal liability entirely, but instead negates the element
of specific intent Com. v. Taylor, 876 A.2d 916 (Pa. 2005). A defendant asserting the defense
of voluntary intoxication admits responsibility for the underlyingaction, but contests the degree
of culpability based on his inability to formulate the requisite mental state. Com. v. Jones, 651
A.2d 1101, 1109 (Pa. 1994). In this case, Appellant admits the underlying action and contests
the degree of culpability based on his degree of voluntary intoxication. Appellant's argument is
unpersuasive.
18 Pa.C.S.A. §308 provides:
Neither voluntary intoxication nor voluntary drugged condition is a defense to a
criminal charge, nor may evidence of such conditions be introduced to negative
the element of intent of the offense, except that evidence of such intoxication or
drugged condition of the defendant may be offered by the defendant whenever it
is relevant to reduce murder from a higher degree to a lower degree of
murder.
(Emphasis added.)
Here, Appellant's reliance on the defense of voluntary intoxication is misplaced as
Appellant was not convicted of any degree of murder.
Assuming arguendo that the defense of voluntary intoxication could apply to Appellant's
convictions, the jury nonetheless found this assertion to be unpersuasive.
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The mere fact of voluntary intoxication does not give rise to a diminished capacity
defense. In order ·to prove diminished capacity due to voluntary intoxication, a defendant must
. .
show that he was overwhelmed to the point of losing his faculties and sensibilities. Com. v.
Padilla, 80 A.3d 1238, 1263 (Pa. 2013). Though Appellant testified he had voluntarily
consumed alcohol and medication, the jury concluded Appellant had not been overwhelmed or
overpowered by alcohol and medication sufficient to establish diminished capacity to the point
he could not form the element of intent.
It is the province of the trier of fact to pass upon the credibility of witnesses and the
weight to be accorded the evidence adduced. Com. v. Williams, 176 A.3d 298. (Pa. Super. 2017).
The jury, as the factfinders, is free to· accept all, part, or none of the evidence, including the
testimony of each witness. Com. v. Johnson, 542 Pa. 384, 668 A.2d 97, 101 (1995). Credibility
determinations are reserved exclusively for the jury. Com. v. Davis, 518 Pa. 77, 82, �41 A.2d
315,317 (1988). In this case, the jury found Appellant failed to prove a defense of diminished
capacity based on voluntary intoxication.
SUFFICIENCY OF THE CRIMES
I. AGGRAVATED ASSAULT
Aggravated Assault, 18 Pa.C.S.A. §2701(a)(l), is defined and graded as:
(a}Offense defined.c-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. . ... Aggravated assault under subsection
(a)(l ), (2) and· (9) is a felony of the first degree.
Appellant asserts he did not possess a specific intent to harm Jamal Jones but only
intended to scare him. This assertion is more properly an argument of factual inference which
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was addressed to the jury. The jury was also free to believe or disbelieve the evidence presented
regarding the defendant's level of intoxication at the time of the offense. Com. v. Tucker, 406
A.2d 785 (Pa. Super. 1979). The jury chose not to find Appellant was intoxicated to the point of
negating the specific intent of the crime.
In Com. v. Hunter, 434 Pa.Super. 583, ·644 A.2d 763 (1994), the Superior Court made
clear that a specific intent to injure can be inferred from the circumstances of firing a gun into an
occupied house where no bodily injury occurred. The same rule of law applies to the firing of a
weapon into an occupied vehicle. Com. v. Woods, 710 A.2d 626 (Pa.Super. 1998). There is
even greater reason to reach a similar result herein. Unlike Hunter, to the Appellant's knowledge
he shot a gun at close range toward three·people seated in a vehicle he just departed. Aggravated
assault does not require proof that serious bodily injury was inflicted but only that an attempt
was made to cause such injury.
The jury could find the necessary interit to support an aggravated assault charge from
Appellant's admission he fired his weapon into a vehicle he knew was occupied. As such,
Appellant's challenge to the sufficiency of the evidence is .without merit.
n. RECKLESSLY. ENDANGERING ANOTHER PERSON
The elements of Recklessly Endangering Another Person are: "A person commits a
misdemeanor of the second degree 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. "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." 18 Pa.C.S.A. §2301.
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To sustain a conviction, the Commonwealth must prove that the defendant had an actual
present ability to inflict harm and not merely the apparent ability to do so. Com. v. Thomas, 879
A.2d 246 (Pa. Super. 2005). Danger, not merely the apprehension of danger, must be created.
Com v. Cianci, 130 A.3d 349 (Pa. Super. 2015). The mens rea for Recklessly Endangering
Another Person is a conscious disregard of a known risk of death or great bodily harm to another
person. Com. v. Hopkins, 747 A.2d 910, 915-16 (Pa Super. 2000) (citations and quotations
omitted).
In this case, Appellant testified he had a gun and he fired the gun at an occupied vehicle
where Jamal Page was seated in the front passenger seat. Appellant had the present ability to
inflict harm and created a dangerous situation by recklessly waving arourid a loaded weapon. As
a matter of common sense, a fired gun can kill, maim, impair or permanently disfigure a person.
Without question, Appellant created a dangerous situation for Jamal Page. Jamal Page
apprehended the dangerous situation he was in after the first shot hit the windshield. T. T. p. 80.
After the first shot, Tammy Page immediately backed out of Appellant's driveway to escape the
dangerous situation caused by Appellant. T. T. p. 80, 103. That is when Appellant shot at the
rear passenger window. T. T. p. 81. Accordingly, Appellant acted with a conscious disregard of
a known risk of death or great bodily harm to the occupants in the vehicle.
As noted above, the ·def�nse· of voluntary· .hltoxication does· not apply to mitigate the
degree of Recklessly Endangering Another Person. Even still, the jury rejected Appellant's
proffered defense of voluntary intoxication in mitigation of the required mens rea of Recklessly
Endangering Another Person. The elements of the crime were proved beyond a reasonable
doubt.
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WHETHER THE AGGRAVATED ASSAULT CHARGE WAS PROPERLY GRADED
The evidence was sufficient to prove the crime of Aggravated· Assault as a first degree
felony pursuant to 18 Pa.C.S.A. § 2702(a)(l). The Commonwealth proved and the jury found
Appellant acted recklessly under circumstances manifesting extreme indifference to the value of
human life by firing a loaded gun at an occupied vehicle. The statute provides that Aggravated
Assault under section 2702(a)(l) is a first degree felony. Therefore, the crime was properly
graded.
THE SEVERED FIREARMS CHARGE
Appellant claims it was error or an abuse of discretion to permit the possession of a
prohibited firearm charge . to be severed 'and then reinstated by the Commonwealth thereby
resulting in the Defendant's entry of a guilty plea subsequent to the reinstated and severed
charge.
The claim is unclear given the procedural history of the firearms charge. A concise
statement which is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of rio concise statement at all. Com. v. Reeves, 901 A.2d 1, 2 (Pa. Super.
2006), appeal denied, 919 A.2d 956 (Pa. 2007). The court's review and legal analysis can be
fatally impaired when the court has to guess at the issues raised. Id. Thus, if a concise statement
is too vague, the court may find waiver. Id. As the precise issue cannot be discerned, the claim
is waived.
Assuming arguendo the claim is not waived, it appears Appellant misapprehends what
occurred with the firearms charge. The firearms charge was severed. The charge was not
withdrawn and reinstated by the Commonwealth, as misstated by Appellant. The firearms
charge was properly severed from the trial to avoid prejudice to Appellant. The claim lacks any
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. .
meaningful articulation consistent with the facts of the case. The claim is waived and/or
meritless.
CONCLUSION
For the reas�ns stated herein, App�l.lant's claims are waived and/or are meritless. The
evidence was sufficient to sustain the Appellant' s convictions. Appellant· failed to establish
voluntary intoxication in mitigation of his culpability.
cc: District Attorney's Office .
William J. Hathaway, Esquire, 1903 West 8th Street, PMB #261, Erie, PA 16505
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