Commonwealth v. Landis , 48 A.3d 432 ( 2012 )

DISSENTING OPINION BY

DONOHUE, J.

I respectfully disagree. As noted by the learned Majority, we may reverse the trial court’s decision to grant habeas corpus relief only upon a showing that the trial court has committed “a manifest abuse of discretion.” Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa.Super.2007). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or is the result of partiality, prejudice, bias or ill-will, discretion is abused.” Commonwealth v. Fletcher, 41 A.3d 892, 894 (Pa.Super.2012).

The court below found that the Commonwealth failed to present prima facie evidence that Appellee possessed the requisite mens rea for assault of a law enforcement officer. Trial Court Opinion, 7/27/10, at 5-6. As the Majority observed, there are no appellate cases interpreting Section 2702.1 (relating to assault on a law enforcement officer). However, the mens rea requirement of Section 2702.1(a) is identical, in relevant part, to several subsections of the aggravated assault statute. See 18 Pa.C.S.A. § 2702(a)(l)-(5). As such, I find cases interpreting the aggravated assault statute to be instructive.

To determine whether a defendant intended to commit bodily injury under Section 2702, our Supreme Court has held that we must examine the totality of the circumstances surrounding the incident. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978); see also Commonwealth v. Matthew, 589 Pa. 487, 494, 909 A.2d 1254, 1258 (2006) (reaffirming the totality of the circumstances test pronounced in Alexander). “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.”¹ Commonwealth v. Alford, 880 A.2d 666, 670 (Pa.Super.2005). We look at both direct and circumstantial evidence, including the defendant’s conduct at the time of the incident, in determining whether he or she possessed the requisite intent. Id. at 670-71.

In finding that the Commonwealth failed to satisfy its burden of proof, the trial court found the following:

Throughout the long evening [Appellee] threatened to hurt himself or shoot anyone who tried to descend the stairs. He had several opportunities to attempt to shoot different police officials who stood at the top of the stairs. He did not try to shoot anyone. Instead, he engaged in conversations with them concerning various issues.

After [Appellee] was hit with sponges, he grabbed a gun and retreated away from the police. He did not advance toward the BCERT team. Thus, while the police officers were in his presence, [Appellee] did not threaten to shoot them or discharge his gun. When Officer [Beighley] saw [Appellee] pick up the gun, the officers immediately retreated up the stairs. Officer [Beighley] was the last officer up the stairs. He was past the open stairs when [Appellee] discharged his gun. [ ... ] The discharge of the gun was in the opposite direction to where the police had retreated. [Appellee] did not attempt to shoot an officer.

Trial Court Opinion, 7/27/10, at 5-6. After thoroughly reviewing the totality of the circumstances surrounding the incident as set forth in the record, I find that our standard of review compels us to affirm the trial court’s determination.

The record reflects that Officer Goss testified that Appellee told him not to come downstairs or he would kill him. N.T., 12/10/09, at 46. Officer Goss subsequently began descending the stairs to the basement, and observed Appellee downstairs holding what the officer believed to be a knife. Id. at 50-51; Commonwealth Exhibit 4. Officer Goss stood there looking at Appellee for approximately 30 seconds, during which Appellee made no threats to the officer and did not make a move to harm him. N.T., 12/10/09, at 61, 64.

Detective Brock testified that he was at the top of the stairs with Officer Goss and spoke with Appellee at length. Id. at 120. During their conversation, Appellee likewise threatened to shoot anyone who came downstairs. Id. at 87, 91. Appellee came to the bottom of the stairs multiple times, giving him ample opportunities to shoot the police officers present. Id. at 89-90, 95, 97. Although Appellee pointed his gun at Detective Brock, he took no action to harm anyone. Id. Indeed, at one point Detective Brock indicated that Appellee said: “I don’t want to hurt anybody else. I just want to hurt myself, but if you send anybody down the steps — just don’t send anybody down the steps or I’ll shoot them, but I don’t want to hurt anybody.” Id. at 118.

Officer Beighley testified regarding the actual shot that occurred. He testified that as he came downstairs after he shot Appellee with the taser, he saw Appellee pick up a gun that was located near the bottom of the stairs. Id. at 146-47; Commonwealth’s Exhibit 7. Officer Beighley immediately began retreating back upstairs with the other officers in front of him. N.T., 12/10/09, at 147. He testified that he saw Appellee bringing the gun up in the direction of the officers, but that Appellee was running away from the officers, towards the back of the room. Id. at 149. After Officer Beighley was almost all the way upstairs and was out of view from the basement, he heard a single gunshot. Id. at 152-53; Commonwealth Exhibit 4. He did not see where Appellee was aiming when he shot the gun. N.T., 12/10/09, at 160. The bullet struck a wall adjacent to where Officer Beighley had been when he was coming down the stairs, in the opposite direction of the officers’ retreat. Id. at 157-58; Commonwealth Exhibit 8.

Even viewed in the light most favorable to the Commonwealth, there is no evidence that Appellee pointed the gun in the officers’ direction when he fired the gun or in any way intended to cause them bodily injury by firing the gun. Although the record reflects that Appellee threatened to shoot the police, these were “conditional threats,” which we have previously held does not satisfy the mens rea requirement for specific intent. See Alford, 880 A.2d at 672. In Alford, this Court held that “[s]uch a threat [‘either let me into the house or I may shoot you’], conditioned on the victim’s performance of some act, is insufficient to prove aggravated assault.” Id. The record in the instant case reflects that Appellee’s threats to shoot the police officers were conditioned upon them coming downstairs — either you stay upstairs, or I may shoot you. N.T., 12/10/09, at 46, 87, 91.

The totality of the circumstances surrounding the incident does not support a finding that Appellee intended to cause bodily injury to the law enforcement officers. As the Commonwealth failed to present prima facie evidence of every element of the crime of assault of a law enforcement officer — to wit, the mens rea element — the record supports the trial court’s grant of habeas corpus for the crime of assault of a law enforcement officer. Because the trial court did not override or misapply the law or exercise its judgment in a manifestly unreasonable manner, we have no basis to find the trial court abused its discretion. Therefore, I would affirm the trial court’s order, and I dissent from the Majority’s contrary conclusion.²

1 . Like the Majority, I agree with Appellee that there is no evidence that any law enforcement officer actually suffered bodily injury. I therefore confine my discussion to whether there is adequate evidence that Appellee attempted to cause bodily injury to a law enforcement officer.

2 . As stated by the Majority, the resolution of the Commonwealth's second issue raised on appeal — that the trial court abused its discretion by prohibiting it from introducing evidence that Appellant “shot at’’ a police officer while attempting to take him into custody — is dependent on our resolution of the first issue raised. Based on my conclusion that the trial court did not abuse its discretion by granting habeas corpus relief for the charge of assault of a law enforcement officer, I would further find that the trial court did not abuse its discretion by excluding said evidence.