Com. v. Bentler, E ( 2023 )

J-A13021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD LEE BENTLER :
:
Appellant : No. 558 MDA 2022
Appeal from the Judgment Entered November 24, 2021
In the Court of Common Pleas of Susquehanna County Criminal Division
at No(s): CP-58-CR-0000277-2020
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: JULY 26, 2023
Edward Lee Bentler appeals from the judgment of sentence, entered in
the Court of Common Pleas of Susquehanna County. After careful review, we
affirm on the basis of the opinion authored by the Honorable Jason J. Legg.
The trial court summarized the facts as follows:
On July 20, 2021, Robert Thatcher, the Chief of the Hallstead Fire
Company, was dispatched to a boat launch area off Harmony
Road, adjacent to the Susquehanna River in Great Bend Township,
Susquehanna County, Pennsylvania. Thatcher was dispatched for
a one-vehicle accident involving a vehicle having left the road and
being stuck in a ditch. When Thatcher arrived at the scene, he
observed Bentler sitting on a bucket next to a pickup truck.
Thatcher asked Bentler if he was okay, and Bentler responded by
indicating that he had a lot going on in his life. Bentler was initially
in a hunched-over position but sat up straighter as he spoke and
Thatcher was able to observe a rifle on Bentler’s lap. Because he
had observed a weapon, Thatcher removed himself from the scene
and called for the State Police to intervene. From a distance,
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A13021-23
Thatcher continued to watch Bentler. Bentler remained seated on
the bucket until the first state trooper arrived and then Bentler
stood up.
Trooper [Taylor] Smith, Trooper [Gregory] Yanochko and Corporal
[Nicholas] Nederostek arrived in close proximity to each other—
all in separate vehicles, two marked and one unmarked. Trooper
Smith arrived prior to the other two troopers and discovered
Bentler standing behind the pickup truck such that Trooper Smith
could only see Bentler’s upper body. Trooper Smith had been
informed enroute that Bentler had a rifle. Trooper Smith
instructed Bentler to put his hands up. Bentler would put one
hand up and then the other but never both hands up at the same
time. Bentler made statements that he was seeking help and
Trooper Smith indicated that he would provide help but that
Bentler had to comply with his commands. Trooper Smith
eventually noticed that Bentler was holding a scoped rifle. Bentler
continued to refuse to put down the scoped rifle.
Thereafter, Trooper Yanochko and [Corporal] Nederostek arrived
on the scene. Trooper Smith attempted to switch from his service
handgun to his AR-15 rifle. While positioned behind their vehicles
an approximately 50 yards from Bentler, Trooper Yanochko and
[Corporal] Nederostek pointed AR-15 rifles at Bentler. Bentler
was again ordered to drop the weapon on multiple occasions but
refused to comply and told the troopers to drop their weapons
instead. Bentler never shouldered his rifle, never looked through
the scope or aimed the rifle at the troopers. During the
altercation, Bentler remained in a position where the pickup truck
provided partial cover, then Bentler flicked his cigarette away and
moved suddenly from behind the pickup truck out into the open
with the barrel of the rifle facing in the general direction of the
state troopers. After Bentler moved into the open area and made
a movement to raise the rifle up, he was shot by [Corporal]
Nederostek. Bentler was shot prior to Trooper Smith being able
to switch weapons. [Corporal] Nederostek shot Bentler three
times.
Trial Court Opinion, 3/9/22, at 4-6 (citations omitted).
-2-
J-A13021-23
Bentler was charged with, inter alia, three counts each of terroristic
threats,1 aggravated assault,2 and simple assault,3 and one count of
possession of firearm prohibited.4 A jury convicted Bentler of the
aforementioned charges and the court sentenced him to an aggregate term of
imprisonment of 5-20 years. Bentler filed a timely post-sentence motion for
judgment of acquittal, which the trial court denied. This timely appeal
followed. Both Bentler and the trial court have complied with Pa.R.A.P. 1925.
Bentler raises the following issues for our review:
1. Did the trial court err by denying [Bentler’s] motions for
judgment of acquittal for sufficiency of the evidence for
charges of aggravated assault, terroristic threats, and
simple assault where the evidence presented by the
Commonwealth was uncontradicted [sic] and insufficient as
a matter of law to establish the elements of the crimes?
2. Did the trial court err by denying the [Bentler’s] motions for
judgment of acquittal for sufficiency of the evidence for the
charge of possession of a firearm by a person not to possess
where the Commonwealth’s only “proof” of []Bentler’s prior
enumerated conviction was a docket sheet [that] was
improperly certified, was not the best evidence, and was
____________________________________________
1 18 Pa.C.S.A. § 2706.
2 Id. at § 2702.
3 Id. at § 2701.
4 Id. at § 6105. This count was not initially presented to the jury as the trial
court had granted Bentler’s request to bifurcate so as to avoid prejudice that
might have resulted had the jury learned of Bentler’s prior felony conviction
before reaching a verdict on the other counts. After the verdict, the
Commonwealth presented evidence of Bentler’s prior felony conviction, and
the jury deliberated and convicted him of possession of a firearm prohibited.
See Trial Court Opinion, 3/9/22, at 3 n.1.
-3-
J-A13021-23
only admitted a sidebar without any witness testimony or
presentation?
Appellant’s Brief, at 3-4.
Our standard of review regarding sufficiency of the evidence claims is
well-established: “[W]hether the evidence, viewed in the light most favorable
to the Commonwealth, is sufficient to enable a reasonable jury to find every
element of the crime beyond a reasonable doubt.” Commonwealth v. Laird,
988 A.2d 618, 624 (Pa. 2010), citing Commonwealth v. Watkins, 843 A.2d
1203, 1211 (Pa. 2003). Under this standard, this Court
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 trier 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. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)
(citations omitted). As such, it is within the province of the jury as fact-finder
to make credibility determinations and reasonable inferences from the
evidence presented, believe some, all, or none of the evidence, and ultimately
-4-
J-A13021-23
determine the guilt or innocence of the defendant. Id. See also
Commonwealth v. Gooding, 818 A.2d 546, 549 (Pa. Super. 2003).
After reviewing the parties’ briefs, the relevant case law, and the record
on appeal, we conclude that Judge Legg has properly disposed of Bentler’s
claims, and we rely upon Judge Legg’s opinion to affirm Bentler’s judgment of
sentence. See Trial Court Opinion, 3/9/22, at 7-15. We instruct the parties
to attach a copy of the trial court’s opinion in the event of further proceedings
in the matter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
-5-
Circulated 06/26/2023 02:27 PM
IN THE COURT OF COMMON PLEAS OF
SUSQUEHANNA COUNTY,PENNSYLVANIA
Commonwealth of Pennsylvania •«
vs.
No. 2020 -- 277 C.R.
EDWARD LEE BENTLER, ••
Defendant.
OPINION 5
_?
I. Procedural History
On July 20, 2020, a police criminal complaint was filed on defendant Edward Lee
Bentler (hereinafter referred to as Bentler) for the following criminal acts: (1) three
counts of attempted homicide of a law enforcement officer under 18 Pa. C.S. $ 2507(a);
(2) four counts of aggravated assault on an enumerated person 18 Pa. C.S. §
2702(a)(2); (3) two counts of receiving stolen property under 18 Pa. C.S. § 3925(a); (4)
one count of person not to possess firearm under 18 Pa. C.S. § 6105(a)(1 ); (5) four
counts of terroristic threats under 18 Pa. C.S. $ 2706(a)(1); (6) four counts of simple
assault under 18 Pa. C.S. $ 2701(a)1 ); and (7) four counts of recklessly endangering
another person under 18 Pa. C.S. § 2705. On July 22, 2020, a preliminary arraignment
was conducted, bail was denied and Bentler was remanded to the Susquehanna
County Correctional Facility.
On August 10, 2020, a preliminary hearing was conducted and all of the charges
were bound over to the Court of Common Pleas. Bentler's bail was then modified to
$50,000 unsecured and Bentler was released from the Susquehanna County
Correctional Facility and placed on bail supervision. On August 30, 2021, Bentler filed a
written waiver of his formal arraignment.
1
On September 14, 2020, the Commonwealth filed its criminal information that
contained the same counts as set forth in the criminal complaint, with the exception that
one count of receiving stolen property was eliminated. On May 5, 2021, the probation
department sought to revoke Bentler's bail based upon violations of his bail supervision.
On May 19, 2021, the court denied the request to revoke Bentler's ball supervision. On
June 16, 2021, the probation department filed another petition seeking to revoke bail
and, on June 17, 2021, the court granted the motion, revoked the unsecured bail, and
reset bail in the amount of $5,000 straight monetary bail. On June 17, 2021, Bentler
posted bail and was released from incarceration.
On June 28, 2021, the Commonwealth filed a motion seeking to join this case for
trial with a companion case involving an assault and theft of a firearm, contending that
the evidence in both cases was similar or identical.' On July 7, 2021, the court denied
the Commonwealth's request for joinder.
The matter was scheduled for jury selection on July 12, 2021. Prior to jury
selection, Bentler requested that the court sever the firearms charge from the other
charges in this case so as to avoid any potential prejudice to Bentler from the jury
learning of his prior felony conviction before deliberating on the other charges. On July
12, 2021, the court granted Bentler's motion for severance and the parties agreed to
bifurcate the criminal trial so as to submit the firearms charge only after the jury had
reached a verdict on the other counts. The court also directed the Commonwealth to
limit the testimony of Enos White and Trooper Joshua Oliver to recount the theft of the
z~nether case, it was alleged that Bentler went to the residence of Enos Whaite, assaulted White
and stole his firearm. The next day, Bentler committed the acts th~tformed the basis for this criminal
prosecution, allegedly using the firearm that he had stolen from white on the previous day.
2
firearm without testifying to the assaultive behavior. The court also prohibited the
Commonwealth from presenting evidence of two knives found In a pickup truck and any
reference to a toxicology report related to any substances found in Bentler's system
prior to the incident.
On July 12, 2021, the Commonwealth filed an amended information eliminating
four counts of aggravated assault under 18 Pa. C.S. $2702(a)(2) and replacing those
counts with charges of aggravated assault under 18 Pa. C.S. § 2702(a)(6). The matter
then proceeded to trial. At the conclusion of the Commonwealth's case, Bentler made a
motion for judgment of acquittal. After oral argument on that motion, the court granted
the motion for judgment of acquittal as to the following counts: (1) Counts 1, 2 and 3
(Attempted Homicide); (2) Clount 4 (Receiving Stolen Property); (3) Count 6 (Terroristic
Threats); (4) Counts 10, 11, 12 and 13 (Recklessly Endangering Another Person); (5)
Count 14 (Aggravated Assault); and (6) Count 18 (Simple Assault). Bentler presented
no evidence and the remaining counts were submitted to the jury for their deliberation.?
After closing arguments and instructions, the jury reached a verdict and found Bentler
guilty of the following counts: (1) Counts 7, 8 and 9 (Terroristic Threats); (2) Counts 15,
16 and 17 {Aggravated Assault); and (3) Counts 19, 20 and 21 (Simple Assault). Upon
a motion from the Commonwealth, the court revoked Bentler's bail and remanded him
to the Susquehanna County Correctional Facility.
2 Count5, Possesslon ofFirearm Prohibited under 18 Pa. C.S. $ 6105, was not initially presented
to the jury as the court had, uponBentler's request, bifurcated the trial so as to avoid any prejudice to
Bentler that might have resulted if the jury had learned of Bentler's prior felony conviction before reaching
a verdict on. the other counts. After the initial verdict was received, the Commonwealth then presented
evidence of Bentler's prior felony conviction, the jury proceeded back to deliberate and thereafter
convicted Bentler on Count 5.
·'
On November 24, 2021, the court sentenced Bentler to an aggregate period of
incarceration on all counts of 5 years to 20 years in a state correctional facility. On
December 3, 2021, Bentler filed a post-sentence motion for judgment of acquittal,
renewing arguments previously made at the time of the trial. On February 16, 2022, oral
argument was conducted on those motions and the matter Is now ripe for disposition.
3
II. Statement of Facts
on8r19200.Benfe to apick«orta«Pererats. PigsPh"we.tomthi#
r
residence in NewMilford, Pennsylvania. (N.T., July 13, 2021, morning sessior t44-
:±z.:.z.z
(ld, at47-51.) Therifl ewaslo~dedwith ammunition when Bentler took it from White's
•«@£i
residence! (Id, at 51.) As@result 'sf these incidents,on that same day, criminal
:' · •• > •; '·'', .: . . ·
..>,· !
charges were filed against Bentler and an arrest warrant was obtained. (Id, at 57.)
5 N
On July 20, 2021, Robert Thatcher, tgChief of the Hallstad
e Fire Company,
t 8
was dispatched to a boat launch area off Harmony Road, adjacent to the Susquehanna
a
River in Great Bend Township, Susquehanna County, Pennsylvania. (dat75.)
3· • .. : : .· " , ·'.'
Thatcher was dispatched for a one-vehicleaccident invlving
�
o a vehicle having leftthe
{"· -.- ·._ . :_
road and being stuck in a ditch. (Id,) When Thatcherarrived at the scene, he observed
Bentler sitting on a bucket next to a pickup truck. (Id.) Thatcher asked Bentler if he was
okay, and Bentler responded by indicating that he had a lot going on in his life. (Id. at
. . ..
76.) Bentler was initially in a hunched-over position but sat up straighter as he spoke
-ii w ... . · .· ·
: Phillips initially reportedthat Berter had stolen her pickup truck, (Id., at 56.) Phillips later
recanted her claim that Bentler had stolen her pickup truck and tose
h charges were dismissed. (Id. at
58.)
4
and Thatcher was able to observe a rifle on Bentler's lap. (Id,) Because he had
observed a weapon, Thatcher removed himself from the scene and called for the State
Police to intervene. (Id) From a distance, Thatcher continued to watch Bentler. (Id. at
80.) Bentler remained seated on the bucket until the first state police trooper arrived
and then Bentler stood up. (Id.)
Trooper Smith, Trooper Yanochko and Corporal Nederostek arrived in close
proximity to each other -- all in separate vehicles, two marked and one unmarked. (Id.
at 97.) Trooper Smith arrived prior to the other two troopers and discovered Bentler
standing behind the pickup truck such that Trooper Smith could only see Bentler's upper
body. (Id. at 139.) Trooper Smith had been informed enroute that Bentler had a rifle.
(ld, at 138.) Trooper Smith instructed Bentler to put his hands up. (ld, at 139.) Bentler
would put one hand up and then the other but never both hands up at the same time.
(ld.) Bentler made statements that he was seeking help and Trooper Smith indicated
that he would provide help but that Bentler had to comply with his commands. (Id.)
Trooper Smith eventually noticed that Bentler was holding a scoped rifle. (ld.) Bentler
continued to refuse to put down the scoped rifle. (Id. at 142.)
Thereafter, Trooper Yanochko and Cpl. Nederostek arrived on the scene.
Trooper Smith attempted to switch from his service handgun to his AR-15 rifle. (Id at
143,) While positioned behind their vehicles and approximately 50 yards from Bentler,
Trooper Yanochko and Cpl. Nederostek pointed AR-15 rifles at Bentler. (Id, at 99-100,
102, 105.) Bentler was again ordered to drop the weapon on multiple occasions but
refused to comply and told the troopers to drop their weapons instead. (ld, at 100-01.)
Bentler never shouldered the rifle, never looked through the scope or aimed the rifle at
5
the troopers. (Id. at 105.) During the altercation, Bentler remained in a position where
the pickup truck provided partial cover, then Bentler flicked his cigarette away and
moved suddenly from behind the pickup truck out into the open with the barrel of the
rifle facing in the general direction of the state troopers. (Id. at 106; N.T., July 13, 2021,
afternoon session, at 67-88, 82.) After Bentler moved into the open area and made a
movement to raise the rifle up, he was shot by Cpl. Nederostek. (Id. (morning session)
at 106, 108.) Bentler was shot prior to Trooper Smith being able to switch weapons.
(ld, at 143-44.) Cpl. Nederostek shot Bentler three times. (Id. (afternoon session) at
68.)
Ill. Discussion
a. Standard of Review
"A motion for judgment of acquittal challenges the sufficiency of the evidence to
sustain a conviction on a particular charge, and is granted only in cases in which the
Commonwealth has failed to carry its burden regarding the charge." Commonwealth v.
Foster, 33 A.3d 632, 635 (Pa. Super. 2011) (quoting Commonwealth y. Hutchinson, 947
. .
A.2d 800, 805-06 (Pa. Super. 2008), appeal denied, 980 A.2d 606 (Pa. 2009)). Where
a defendant is challenging the sufficiency of the evidence, the following standard must
- be applied:
The standard we apply in reviewing the sufficiency of the evidence is whether
viewing all the evidence admitted at trial in a light most favorable to the verdict
winner, there is sufficient evidence to enable a 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 established 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
6
of proving every element of a crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying the above test, the entire
rgcord must be evaluated and all evidence rceived
e mustbe considered. Finally,
the trier of fact while passing on
the credibility of witnesses
and the weight of the
' s" .
is
evdi ence produced, free to believe all, part or none of the evidence.
·
y. Que],
Commonwealth _,
27 A.3d 1033, 1037-38 (Pa. Super. 2011).
.. ' .
·$
b. Certified Docket Sheet
Bentler contends that this court erred when it admitted Commonwealth Exhibit 6,
Susquehanna County criminal case number CP-XX-XXXXXXX-2007. (Comm. Ex. 6.)
.:'
".
•1
° • it. · : Ni ¢. :
that~ase on April 7,
..
The docket sheet reflected that Bentler entered a guilty plea in
2008to a felony burglary offense andthat he was sentenced for that offense on May 22,
57 #£ £
2008 to a period of incarceration of 2 years to 6 years. (Comm. Ex. 6.) The docket
sheet was certified by the Susquehanna County Clerk of Courts Margaret Krupinski
-;- ·-: ·. ' . :\�- .i, -� _::·._. . . _. _: .. :-i _-.- - -� ;(
through her deputy, Kathryn Spence. (Comm. Ex. 6.) In addition to the written
certification, the document also bore the raised seal of the Susquehanna County Clerk
of Courts.
Pursuant· to 42 Pa. C.S. $ 6103, an
E
official record·.·..
"may be·..evidenced by...a ·5
copy attested by the officer having the legal custody of the record, or by that officer's
deputy, and accompanied by a certificate that the officer has custody." [d; see42 Pa.
.. . ---
C.S. $ 5328(a) (noting that any public domestic record may be admitted provided it is
authenticated and sealed by the public officer having custody of the record); Rawson v.
PennDOT, 99 A.3d 143, 148 (Pa. Cmwlth. 2014) (holding that certified copy of
"sentencing sheet" was properly admitted as proof of conviction); Commonwealth_v.
Smith, 563 A.2d 905, 909 (Pa. Super. 1989) ("Aopy of an official record which is
7
certified by the legal custodian as true and correct and which bears the seal of his office
authenticates itself."). Commonwealth Exhibit 6 complies with these requirements: (1) it
#t. z .st i
is certified and attested to by tfe Susquehanna County Clerk of Courts; (2) Iisa record
from the Susquehanna County Clerk of Courts; and (3) it bears the raised seal of the
Susquehanna County Clerk of Courts. Courts have recognized that certified docket
sheets are sufficient to demonstrate proof of conviction. See Rawson, 99 A.3d at 143;
State Dental Council & Examining Bd,y.Friedman, 367 A.2d 363, 366 (Pa. Cmwlth.
1976) (finding certified copy of docket entry of nolo contendere plea admissible as proof
. i% s s s
of conviction in administrative hearing); see also US. v, Jones, 70O F.3d 615, 629 (1
Cir. 2012), cert. denied, 568 U.S. 1243 (2013);_U.S. v Loera, 923 F.2d 725, 730 (9"
+>. .'
Cir.), cert, denied, 502 U.S. 854 (1991); US • Si[IS, 692 F.Supp.2d 792, 800 (E.D.
Mich. 2010) (finding certified docket entry of prior conviction admissible as "part of.a ?-
public record recorded by a judicial office"); Duck v. State, 225 So.3d 1, 4 (Miss. Ct.
· : ·: ;
App. 2017), cert. denied, 233 So.2d 822 (Miss. 2018); State v, Troy, 86 A.3d 591, 595
. . :{· ' .·· .:-'· �·
-�·:-. :',··· .:·, . .
��· ·;J�.- ;·: ._.-: .
n.7 (Me. 2014) (notingthat docket entries confirming defendant's incarceration were
1- .... ... '' ' • .,_ •� •••
"admissible under the business records or public records exceptions to the hearsay
rule"); Commonwealth v, McGillivary, 940 N.E.2d 506, 513 (Mass. App. Ct. 2011);
Wright v. State, 709 So.2d 1318, 1320 (Ala. Ct. App. 1997); Stanley v. State, 515
N.E.2d 1117, 1120 (1nd. 1987); Williams y. State, 390 So.2d 310, 312 (Ala. Ct. App.
1980) ("The proper method of proving the prior conviction is not through the testimony
of the circuit clerk, but rather by a certified copy of the minute entry showing the prior
conviction."); Kessler y, State, 355 N.E.2d 262, 265-66 (Ind. Ct. App. 1976); State y
Christensen, 210 P. 376, 377 (Wash. 1922). Significantly, Bentler has never asserted
8
or claimed that the certified record itself is inaccurate. Rather, Bentler contends that the
Commonwealth should have presented the sentencing order itself coupled with the
actual testimony of the Clerk of Courts to authenticate it. As noted, the docket sheet
constituted both a public domestic record and an official record, it was certified as being
a true and accurate copy of the record maintained by the Susquehanna County Clerk of
Courts and the certification and attestation bore the raised seal of the Susquehanna
County Clerk of Courts. The Commonwealth complied with the statutory provisions
relating to this official docket sheet and it was properly admitted. For this reason,
Bentler's motion for judgment of acquittal on this issue will be denied.
c. Terroristic Threats (18 Pa. C.S. § 2706(a)(1))
Bentler contends that judgment of acquittal is necessary as to the three counts of
terroristic threats because the Commonwealth never presented any evidence that
Bentler communicated a threat to the three state troopers. At oral argument, Bentler
argued that the criminal information -- and the amended criminal information -- both
allege that Bentler "did threaten to shoot the victims." Bentler asserts that the
Commonwealth presented no evidence of any verbal threat to shoot the three state
troopers. Bentler also contends that his non-verbal behavior was likewise insufficient to
convey any threat to the three state troopers.
In order to prove that Bentler committed a terroristic threat, the Commonwealth
must demonstrate: (1) that Bentler communicated a threat to perform a crime of
i n occurred with reckless disregard with respect to
violence; and (2) the communicato
the potential that the three troopers would be terrorized. See Commonwealth v.
Jackson, 215 A.3d 972, 981 (Pa. Super. 2019). In this regard, the terroristic threat
9
statute is intended to protect victims from the distress resulting from a sense of loss of
personal security. [d, Significantly, the Commonwealth need not demonstrate that
··,,
I -·_.· ...• ..:. , •
-
Bentler actuallythreatened to commit a specific crime of violence; rather, the violent
acts may be inferred from the totality of the circumstances surrounding Bentler's
In a closely analogous case, Commonwealth v. Kline, 201 A.3d 1288 (Pa. Super.
2019), the Superior Court affirmed a conviction for terroristic threats where the
defendant
�t-_{; - .
never~ctually
- �--:�/=- - -_\..
voiced\t ~. threat
-!�:
of violenc e toward,-: :.the victim.
... .,,-�.•-' .. ,- .
In. that
·.
case,
_· .·-
the
defendant and the victim were neighbors, the defendant would routinely follow the victim
up and down her driveway just staring at her, and, then, on one occasion, the victim
.'f;' er..j as ? ·. $S:.
stepped out in fir~int of thevictim's carand pointed his fingers at the victim as if he were
holding a gun and pretended to shoot the victim. ld, at 1289. The victim reported the
matter to
.
the State
.'ii,
Police and
·
the defendant was arrested for terroristic threats. Id. The
case proceeded to trial and the defendant was convicted and sentenced.to 3,to 23
·.73%.. :75 7 ..·.#kg At ° •.
months imprisonrient. Id, The defendant appealed the conviction &~nitendingth@t his
non-verbal gestures were insufficient to demonstrate that he ever communicated a
threat of violence toward the
.
victim. Id,. at�:. 1290. In rejecting the defendant's argument,
·..
the Superior
. '
Court concluded:
+.. • .
With regard to whether [defendant's] gesture constituted a:communication,
we take note that under section 2706, a communication may be either
direct or indirect and may be conveyed in person or by written.means.
While certain non-verbal gestures may not rise to thelevel-of a
communication as intended under section 2706, here, combining the
menacing gesture of a shooting gun recoiling, while pointed at the victim,
with Kline's past stalking-like behavior in relation to the victim, the jury
could have concluded that he "conveyed" a,threat to comrit a crime of
violence toward the victim.
'3.:· +
10
ld, at 1291.
This case presents a far more egregious non-verbal act than that presented in
Kline. In this case, Bentler actually possessed a rifle - not an imaginary finger weapon.
Bentler refused repetitive attempts to get him to surrender the rifle and surrender
himself peacefully. In response to the demands to disarm, Bentler repeatedly told the
state troopers that they needed to relinquish their weapons. In the MVR recording of
the shooting, Bentler can be seen pacing back and forth behind the cover of the pickup
truck in an agitated manner while smoking a cigarette. (Comm. Ex. 8.) (ld.) Without
any warning, Bentler flicked his cigarette to the ground and stepped from behind the
pickup truck into the open area while holding the rifle with both hands. (Id.) The rifle
was pointed in the general direction of the responding state troopers and when Bentler
attempted to raise the rifle, he was shot by Cpl. Nederostak. (Id.)' In reviewing the
evidence in a light most favorable to the Commonwealth, Bentler engaged in a clear
non-verbal communication which a jury could reasonably conclude conveyed a threat to
commit a crime of violence. Kline, 201 A.3d at 1291; gee Commonwealth v Molina-
Torres, 2019 WL 55866488, at 2 (Pa. Super. 2019) (finding that holding and waiving a
knife and pointing It at victim was enough to support conviction for terroristic threats
even where no threat was verbalized)," For these reasons, Bentler's renewed motion
for a judgment of acquittal will be denied.
4 The court recognizes that Cpl. Nederostak did not specifically testify to observing Bentler raise
the rifle but Trooper Yanochko testified that Bentler did attempt to raise the rifle prior to being shot. In
viewing the evidence in a light most favorable to the Commonwealth as required at this procedural stage,
including the video of the shooting, the evidence supports Trooper Yanochko's testimony that Bentler was
raising the rifle upward just prior to being shot.
s Pursuant to 210 Pa. Code 65.37, the unpublished Malina-Torres decision is considered for its
persuasive authority only.
11
d. Aggravated Assauit (18 Pa. C.s. $ 2702(a)(6))
Bener contendsthathe commonweaienfeetores#nt ometent evidence
that Bentler had the mens res necessary to support a conviction for aggravated assault
.. -· .. . ,.. ., . f;: .(.· .
under 18 Pa. C.S. $ 2702(a)6). Bentler argues that the Commonwealth lacks sufficient
evidence to demonstrate that he had the specific Intent to place the three state troopers
in fear of imminent serious bodily injury as required under 18 Pa. C.S. $ 2702(a)6).
"e9" er tr anoro hame er oraid issnw mi
Bentler's specific int#ii b~sed upon the the
t
totality of evidence presented.
An aggravated assault under S 2702(a)(6) requires proof that a defendant
� ,t:>::_;f�:. _- < - � - -:�- h'{i� · �:-��i·t \��-!.·:· · :· --.�- · ..-- - ·;-:·,: . ·. . --· ·-:·- �----:,�._;. /� . ·- :_ . ··} . -- /··. . �
c menac eto ptu [a police officer] whie in the
"attempt[ed]by physi@/ performance of
y 'is" ·
duty, in fear of imminent serious bodily injury." Id. (emphasis added). "Intent can be
proven . by:circumstantial
.. ,_. :· ·': . ,�·.
ev-�di . .ence
. .- .
-·
and
'.
may. be::'.. inferred .from
.
the defendant's conduct . : '' •, ' .
z
under the attendant circumstances." Coppa/ea\lb¥. Reynolds, 835 A.2d 720, 726
. :: •, •,,A,,::;�•• • •�•:•,•�,•-••, •::;�•\:�., •,. .•. • • •-�•.:,•,: ••
•• ... "' ',, ;, •• • ' :,,,}\:• .� •
(Pa. Super. 2003). Given that Bentler never vocalizedany particular threat, the
question becomes whether there was sufficient evidence presented by the
Commonwealth from which the jury could reasonably infer that Bentler intended to place
the three state troopers
- � fear
.· .
in of imminent.serious bodily injury.
. . .
In Commonwealth y_Repko, 817 A.2d 549 (Pa. Super. 2003), the Superior Court
affirmed a conviction under $ 2702(a)(6) based upon analogous phyically
s menacing
behavior that placed a police officer in fear of imminent serious bodily injury.° In Repko,
s A different portion of the Repko ruling relating to an aggravated assault charge under S
2702(a)(1) was subsequently overruled by an en banc panel of the Superior Court. See Commonwealth
y. Matthews, 870 A.2d 924 (Pa. Super. 2005), aff
d, 900 A.2d 1254 (Pa. 2006). The portion of the Repko
to
decislon related $ 2702(a)6) remains good law.
12
the defendant exited a house holding a hostage around her neck while also carrying a
shotgun in his free hand. Id. at 553. A police officer Identified himself and directed the
defendant
to drop the weapon Id, Th#ijeafter, tfe defendant brougtii#ihotgin q
and pointed it at the police officer. [d, at 554. Based upon these circumstances, the
Superior Court conclude that "the evidence supported a finding that [the defendant]
intended to place the officer in fear of serious bodily injury through the use of menacing
activity when [the defendant] raised his shotgun and pointed it at the officer. Indeed,
there was no evidence. in the record that [the defendant] had any lawful intejitionwhen
sh=
i Ni.£.»Rs#, ?
he raised his weapon in response to the officer's directive to drop it." ld, For this
reason, the Superior Court affirmed the defendant's conviction under 18 Pa. C.S. $
2702(a)(6).
In reaching its decision in Repkg, the Superior Court relied upon Commonwealth
y.Little, 614 A.2d 1146 (Pa. Super.), appeal denied, 618A.2d 399 (Pa. 1992), where
•
the Superior Court affirmed a simple assault conviction under§ 2701 (a)(3), which
i . a wig...
mi~kes
.
a crime attempt
it ·· to ·R ··-"by physical menace to p~t anotherperson in fear of
imminent serious bodily injury." Id. at 1148.7 In recognizing that the pertinent language
in $ 2701(a)(3) and $ 2702(a)(6) is identical, the Superior Court found that Little was
-· . -· �-- . . .:•
instructive as to what type of conduct was sufficient to constitute physically menacing
behavior that would place a person in fear of imminent serious bodily injury. Repko,
7 Section $ 2701(a)(3) has identical language as $ 2702(a)(6) except that $ 2702(a)(6) protects
certain enumerated persons, such as police officers, from suchphysically menacing behaviors and
increases the grading to a felony offense, Thus, the act of physically menacing a regular citizen in a
manner that put that person in fear of imminent serious bodily injury Would be a misdemeanor offense
under $ 2701(a)3) but if the victim is a police officer performing an official duty, then the physlcally
menacing behavior is a felony offense under $ 2702(a)(6).
13
817 A.2d at 554. In Little, the Superior Court noted that the following behavior
constituted a physical menace under $ 2701(a)(3):
• ·t s.@## , 's. s
Insummary, we find that there was sufficient evidence to establish the
elements of simple assault by physic~l menace since [defendant]
erratically emerged from her home carrying a shotgun, shouting and
advancing'on her porch,.In fear ofimminent serious bodily njury,the
deputies radioedforstae
t police back-up.... Vi~wed in.~ htmost
%siisci@iWse ,r``#isinjisiied
herean@more fully e{plained in the trial court opinion, is sufficient to
prove tfre crifie of siriple assault by physical menace beyond a
reasonable doubt.
Little, 614 A.2d
_-
at 1148.°
tiscase presents asimilar scenario as Repko, except thatBentler wasnever
able to actually get the rifle into a firing position prior to Cpl. Nederostak eliminating the
.
threatened conduct.
.
As inRepko, Bentler had no lawful intention whenhe continued to
··•.. ... .., - .-··
.
�-
.
. .
possess the rifle despite repeated commands to discard it nor did Bentler have a lawful
intention when he stepped into the open area holding the rifle in both hands in a manner
. · % ;
that was physically menacing. This case presents nearly an identical scenario as that
presented in Little in thatBentler was pacing and moving in an agitatedand aggressive
manner, Berti~r was demanding that the police disarm themselves while he refused to
discard his weapon and Bentler stepped from behind the pickup truck into the open area
: +
in an aggressive manner
while holding the rifle'in
both hands and attempting to raise it
4
s In a footnote, the Superior Court conceded that the defendant had never pointed or even raised
the gun in any threatening manner:
At trial, the Commonwealth and [the defendant] stipulated that during the incident [the
defendant] was holding the gun "in the:cradle,"or in one armn, visible to onlookers,
Although [the defendant] never pointed the gun at the deputies, we find that her overall
behavior and actions were designed to, and did in fact, put the deputies in fear of
imminent serious bodily injury.
ld. at 1148 n.2.
14
prior to getting shot.° As in Little and Repko, when viewing the evidence in a light most
favorable to the Commonwealth, the evidence was sufficient for a jury to reasonably
conclude that Bentler intended to, and did In fact, place each of the state troopers in
fear of imminent serious bodily injury through physically menacing acts. 10
• In Little, the defendant was merely cradling the shotgun and never held it with two hands in such
a manner that it could be easily ralsed and fired. When Bentler stepped out from behind the truck, unlike
the defendant in Little, he was holding the rifle with both hands in a manner in which it could easily be
raised and fired.
1o During oral argument, Bentler's counsel relied upon a number of decisions to support the position
that there was insufficient evidence to support any inference that Bentler had the specific intent to place
the three troopers in fear of imminent serious bodily injury through physically menacing behavior. See
Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 2006); Commonwealth y. Sheppard, 837 A.2d 555 (Pa.
Super. 2003); Commonwealfh1 v. Stumpo, 452 A.2d 809 (Pa. Super. 1982). The court has reviewed each
of those decisions and finds them to be inapposite to the present case.
As to Matthews, the Pennsylvania Supreme Court considered the sufficiency of the evidence to
sustain a conviction under S 2702(a)(1) based upon an attempt to cause serious bodily injury to another
person. Thus, the question in Matthews was not whether the defendant had a specific intent to create a
fear of imminent serious bodily injury through physical menace under $ 2702(a)(6); rather, the question
the Supreme Court considered was whether the defendant took a substantial step towards causing
serious bodlly injury to the victim and whether the defendant had the specific intent to cause such injury
under $ 2702(a)(1). Matthews, 909 A.2d at 1259. As it relates to this case, however, the Supreme Court
reiterated that intent itself was "necessarily difficult to prove" and thus could be demonstrated by direct or
circumstantial evidence. Id, at 1257. The holding in Matthews was followed by this court when it granted
defendant's motion for judgment of acquittal at the time of trial on the three counts of attempted homicide.
Outside of that context, Matthews does not negate Repko and Little.
As to Sheppard, the Superior Court upheld a conviction for aggravated assault on a police officer
by physical menace under $ 2702(a)(6) where the defendant had actually pointed his firearm at the police
officer. Sheppard, 837 A.2d at 558. In that case, the defendant did not appeal the sufficiency of the
evidence as to his menacing conduct, i.e., pointing a firearm at a police officer; rather, the defendant
challenged the sufficiency of the evidence as it related to the defendant's knowledge that he was pointing
a firearm at a police officer. [d Bentler has not challenged the sufficiency of the evidence related to his
knowledge that he was interacting with three state troopers. Sheppard simply has no applicability to the
circumstances presented in this case nor does Sheppard contradict the holdings in Repko and Little.
As to Stmpg, the defendant was a police officer who physically assaulted a private citizen who
had simply asked the defendant to provide identification proving that he was a police officer, In the
course of the assault, the defendant threw the victim onto the hood of a patrol car. The defendant was
also acting erratically and was unsteady on his feet. Based upon this evidence, the Superior Court
determined that a jury could reasonably infer that the defendant intended to place the victim in fear of
imminent serious bodily injury by physical menace. Stump2, 452 A.2d at 815-16. Stumpq does not
support Bentler's position that there was insufficient evidence as to his intent to cause fear of serious
bodily injury by physical menace. If anything, Stumpo affirms the common law that Bentler's specific
intent to cause such a fear could be inferred from his conduct. Thus, Stumpo likewise aligns with both
Repko and Little.
15
IV. Conclusion
For the reasons set forth herein, Bentler's post-sentence motion for judgment of
acquittal will be denied.
16
Susquehanna County Clerk of Courts Received 4/29/2022 1131 AM
Susquehanna County Clerk of Courts Filed 4/29/2022 1:18 PM
IN THE COURT OF COMMON PLEAS OF SUSQUEHANNA COUNTY
COMMONWEALTH OF PENNSYLVANIA
V. : CP-XX-XXXXXXX-2020
EDWARD LEE BENTLER
DEFENDANTS CONCISE STATEMENT
OF ERRORS COMPLAINED OF ON APPEAL
Pursuant to the trial court's April 8, 2022, Order, defendant Edward
Lee Bentler hereby submits his Concise Statement of Errors Complained of
on Appeal pursuant to Pa.R.A.P. 1925(b).
1. . The trial court erred by allowing the charges to go to the
jury and denying defendant's motions for judgment of acquittal for
sufficiency of the evidence presented to the jury at trial as to the charges of
aggravated assault, terroristic threats, and simple assault. The evidence
presented by the Commonwealth was uncontradicted and insufficient as a
matter of law to establish the elements of the crimes.
2. The trial court erred by allowing the charge to go to the
jury and denying a motion for judgment of acquittal for possession of a
firearm by a person not to possess due to the Commonwealth's improper
use of the criminal docket sheet to be used to prove the necessary element
that Mr. Bentler had a prior enumerated conviction. The trial court erred by
allowing the Commonwealth to admit the exhibit at sidebar, outside of the
eyes and ears of the jury, without laying a proper foundation, providing any
testimony, or ever calling a witness to testify to the document.
Furthermore, even if the Commonwealth had done all of the above, the
document was allowed into evidence even though it was not the best
evidence as the Commonwealth was in possession of the actual
sentencing order for Mr. Bentler's prior conviction and failed to produce it or
enter it into evidence at trial.
3. The trial court erred by denying the defendant's post-
verdict motions outlining the very specific details and case law supporting
the motions that Mr. Bentler made to the Court and presented at the
hearing for these motions, all of which were preserved at the trial and are
the basis for this appeal.
Respectfully submitted,
------�-- - -,_ _
Thero . Sol n, Esq.
_
Tara G. Giarratano, Esq.
Dyller & Solomon, LLC
Gettysburg House
88 North Franklin Street
Wilkes-Barre, PA 18701
(570) 829-4860
CERTIFICATE PURSUANT TO Pa.RAP. 2135(A)(1)
I certify that this brief contains 8,064 words in compliance
with the word count limit set by Pa.R.A.P. 2135(a)(l).
Theron J. Solomon
Attorney No. 319810
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of
the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial
Courts that require filing confidential information and documents differently than' non -
confidential information and documents.
Theron J. Solomon
Attorney No. 319810
4