Com. v. Cooper, A.

J-A01036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW LAWRENCE COOPER :
:
Appellant : No. 1436 EDA 2017
Appeal from the Judgment of Sentence December 9, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006238-2015
BEFORE: LAZARUS, J., OTT, J., and PLATT, J.
MEMORANDUM BY OTT, J.: FILED JULY 24, 2018
Andrew Lawrence Cooper appeals from the judgment of sentence
imposed on December 9, 2016, in the Court of Common Pleas of Montgomery
County, following his non-jury conviction on charges of aggravated assault,
unlawful restraint, simple assault, possession of an instrument of crime (PIC),
recklessly endangering another person (REAP),1 and related charges.2 Cooper
received an aggregate sentence of 120 to 240 months’ incarceration. In this
timely appeal, Cooper challenges the sufficiency of the evidence for the above
listed crimes and argues the trial court imposed a manifestly excessive
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a)(1), (4); 2902(a)(3); 2701(a)(3); 907(a); and 2705,
respectively.
2 “The findings by a judge sitting as the trier of fact are entitled to the same
weight as a jury verdict.” Commonwealth v. Brown, 477 A.2d 1364, 1371
(Pa. Super. 1984).
J-A01036-18
sentence. After a thorough review of the submissions by the parties, the
relevant law, and the certified record, we agree with Cooper that there is
insufficient evidence to sustain his convictions of aggravated assault with
regard to his mother as the victim. In all other respects, our review confirms
there is sufficient evidence to support the convictions. Because our ruling
disturbs the overall sentencing scheme, we also vacate the sentence and
remand for resentencing.
Before we begin our analysis of the sufficiency of the evidence claims,
we will relate the underlying facts of this matter as recounted by the trial court
in its June 26, 2017, Pa.R.A.P 1925(a) opinion.
The following events giving rise to [Cooper’s] judgment of
sentence occurred on July 23, 2015, at the home he lived at with
his parents, Lawrence and Sara[3] Cooper, in Lansdale Borough,
Montgomery County. [Cooper], who was 27-years-old at the
time, had a preliminary hearing scheduled that day in a pending
driving under the influence case. He planned to miss the hearing,
kill his parents and ambush police, whom he believed would
respond to the house to apprehend him after the missed hearing.
Lawrence Cooper (“Mr. Cooper”) first made contact that day with
his son after awaking at approximately 5:15 a.m. and going
downstairs from the master bedroom to make coffee. Mr. Cooper,
who planned to accompany [Cooper] to the preliminary hearing,
saw [Cooper] sitting in the backyard with a friend. Mr. Cooper
told his son he should get some sleep because of the hearing.
[Cooper’s] friend left a few minutes later and [Cooper] returned
to the house.
____________________________________________
3Throughout the record, this name is spelled both “Sara” and “Sarah”. We
will use “Sara”.
-2-
J-A01036-18
Shortly thereafter, [Cooper] emerged from the basement and
came into the first-floor living room holding a 7.62 millimeter rifle.
Mr. Cooper was in the living room and [Cooper] pointed the rifle
in Mr. Cooper’s direction. Mr. Cooper asked what [Cooper] was
doing, to which [Cooper] responded that he was not going to court
and that “this is the day I’m taking you all out.” [Cooper] told his
father that he had been planning this outcome for four months.[4]
Around this time, Sara Cooper [Mrs. Cooper] came out of the
master bedroom and saw one of [Cooper’s] guns partially sticking
out into the hallway from a spare room in the second floor. The
gun was surrounded by a lot of ammunition. Mrs. Cooper went
into the hall bathroom and heard her son come upstairs.
[Cooper] went into his bedroom and Mr. Cooper followed him.
When Mr. Cooper asked [Cooper] what was going on, [Cooper] hit
a lamp pole, causing the bulb to shatter. [Cooper] grabbed a .40
caliber pistol, pointed it in Mr. Cooper’s direction and cocked the
firearm. He then slapped Mr. Cooper and pushed him up against
a wall twice.
Mrs. Cooper heard the light bulb break and came out of the
bathroom. Mr. Cooper told her that [Cooper] said he was not
going to the hearing. When she asked him why not, [Cooper] said
“today is the day. I’m going to take everybody out.” When Mrs.
Cooper said she did not understand what [Cooper] meant, he
responded that “when they come to get me when I don’t show up
at the hearing, I will be ready for them.” He also told his mother
that “I have had it. Everybody is gone.” He told her she had one
hour to leave the house. When she responded that she would not
be thrown out of her own house, [Cooper] responded “Well, you
have 55 minutes now, get going, or do you want to be first.”
During this exchange, Mrs. Cooper saw a firearm leaning up
against the radiator in [Cooper’s] bedroom. She decided she
needed to get out of the house to call for help, so she went into
____________________________________________
4 In one of the great understatements, Mr. Cooper testified that after hearing
his son’s threats, “I figured, oh, well, we got a problem here.” N.T. Trial,
3/31/2016, at 12.
-3-
J-A01036-18
her bedroom to get dressed as if she was going out for her usual
morning walk.
Mr. Cooper went downstairs and shortly thereafter heard a
gunshot coming from his son’s bedroom. He called up to
[Cooper], who told [him] the noise was nothing. [Cooper]
eventually came downstairs into the living room where his parents
were and prevented Mr. Cooper from going into the kitchen to get
his coffee or from going upstairs to get dressed. Mr. Cooper tried
to leave the room in another direction but [Cooper] used his body
to block Mr. Cooper’s path. Around this time, Mrs. Cooper
announced she was going for her walk and left the house.
With the two alone in the house, [Cooper] slugged Mr. Cooper
from behind, sending his father into a wooden column. Mr. Cooper
suffered a gash to his right wrist. He tried to go upstairs to dress
the wound but [Cooper] would not let him go alone. [Cooper]
accompanied Mr. Cooper upstairs to put on a Band-Aid.
In the interim, Mrs. Cooper had called 911 from outside the house
using her cellular phone. Responding officers suggested she try
to get Mr. Cooper out of the house, so she telephoned him under
the guise that she had fallen during her walk and needed help.
Mr. Cooper answered the call and Mrs. Cooper eventually gave the
phone to one of the police officers. The officer spoke briefly with
Mr. Cooper before the call was disconnected.
Mrs. Cooper called back and told [Cooper], who had answered the
call, that she had fallen and needed help returning to the house.
[Cooper] would not let Mr. Cooper go alone and accompanied him
outside. Police apprehended [Cooper] near the house. A
subsequent search of the residence conducted pursuant to a
warrant revealed, inter alia, a gun safe in the dining room and a
.223 caliber semi-automatic rifle perched on a bipod partially
extending from a spare room into the second floor hallway. Police
also found a loaded 7.62 millimeter rifle, a loaded shotgun and a
loaded .40 caliber semi-automatic pistol in [Cooper’s] bedroom,
as well as thousands of rounds of ammunition throughout the first
and second floors of the house. The search further revealed a
spent .40 caliber shell casing in an area near a bullet hole in a wall
in [Cooper’s] bedroom.
-4-
J-A01036-18
The Commonwealth charged [Cooper] with two counts of
aggravated assault (attempt to cause serious bodily injury to each
parent), two counts of aggravated assault (attempt to cause
bodily injury with a deadly weapon to each parent), two counts of
recklessly endangering another person (as to each parent), one
count of disorderly conduct, four counts of possession of an
instrument of crime, two counts of terroristic threats (as to each
parent), one count of unlawful restraint (as to [Cooper’s] father)
and two counts of simple assault (as to each parent).
Trial Court Opinion, 6/26/2017, at 1-5 (citation to record and footnotes
omitted).
Cooper challenges the sufficiency of the evidence for his convictions of
aggravated assault, simple assault, unlawful restraint, REAP, and PIC. Our
standard of review for a claim of insufficient evidence is as follows:
“The determination of whether sufficient evidence exists to
support the verdict is a question of law; accordingly, our standard
of review is de novo and our scope of review is plenary.”
Commonwealth v. Johnson, --- Pa. ----, 160 A.3d 127, 136
(2017) (citation omitted). In assessing Appellant’s sufficiency
challenge, we must determine “whether viewing all the evidence
admitted at trial in the light most favorable to the
[Commonwealth], there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a reasonable
doubt.” Commonwealth v. Grays, 167 A.3d 793, 806 (Pa.
Super. 2017) (citation omitted). “[T]he facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence.... [T]he 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. Waugaman, 167 A.3d 153, 155-156 (Pa.
Super. 2017) (citation omitted).
Commonwealth v. Edwards, 177 A.3d 963, 969-70 (Pa. Super. 2018).
Cooper’s first claim is there was insufficient evidence to support his
convictions for aggravated assault against his parents. We agree with the trial
-5-
J-A01036-18
court that there was sufficient evidence to support the convictions regarding
his father, but we reverse the convictions regarding his mother.
Cooper was charged with violating 18 Pa.C.S. § 2702(a)(1) and (a)(4)
as to both his mother and father. Specifically, Section 2702 states, in relevant
part:
a) Offense defined.--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;
***
(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon;
18 Pa.C.S. § 2704(a)(1), (4).
There are no allegations that Cooper actually caused serious bodily
injury, or bodily injury with a deadly weapon, to either of his parents.
However, the statute allows for conviction upon proof beyond a reasonable
doubt of the attempt to cause such injury.
A person may be convicted of Aggravated Assault graded as a first
degree felony 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” has been 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
-6-
J-A01036-18
any bodily member or organ.” 18 Pa.C.S.A. § 2301. For
aggravated assault purposes, an “attempt” is found where an
“accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating
a serious bodily injury upon another.” Commonwealth v. Gray,
867 A.2d 560, 567 (Pa. Super. 2005), appeal denied, 583 Pa. 694,
879 A.2d 781 (2005). An intent ordinarily must be proven through
circumstantial evidence and inferred from acts, conduct or
attendant circumstances. [Commonwealth v.] Thomas, 65 A.3d
[939,] at 944 [Pa. Super. 2013], 2013 WL 1319796 at *4.
The Pennsylvania Supreme Court in Commonwealth v.
Alexander, 477 Pa. 190, 383 A.2d 887 (1978) created a totality
of the circumstances test to be used to evaluate whether a
defendant acted with the necessary intent to sustain an
aggravated assault conviction.
Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc).
The certified record supports the trial court’s determination that the
totality of the circumstances proves beyond a reasonable doubt that Cooper
both intended and attempted to inflict both serious bodily injury and bodily
injury with a deadly weapon, upon his father. Cooper directly threatened his
father, repeatedly aimed firearms at his father, physically assaulted his father,
prevented his father from freely moving about the house, and made it clear
that he intended to ambush and kill multiple people, including the police.
Further, Cooper possessed the wherewithal, to accomplish those threats.
Cooper took the active step of moving a gun safe from the basement to the
main floor. He possessed thousands of rounds of ammunition for multiple
weapons, including a 12-gauge shotgun, AR-15 semi-automatic rifle mounted
on a bi-pod, 7.62 caliber rifle, and a .40 caliber semi-automatic handgun. We
-7-
J-A01036-18
affirm the trial court’s determination of sufficient evidence to sustain both
counts of aggravated assault as to Cooper’s father.
The record does not provide the same clear evidence as to Cooper’s
mother. At most, Cooper’s direct threat toward his mother was conditional
when he told her to leave the home adding, “or do you want to be first.” N.T.
Trial, 3/31/2016, at 37. Cooper did not point any weapons at his mother,
physically assault her, or hinder her movements throughout the house, but
rather he let her leave the house, and attempted to help her when she claimed
to have fallen. While there is evidence that he put his mother at risk and that
she was generally threatened with harm, the totality of the circumstances
does not support a finding that Cooper intended or attempted to cause her
serious bodily injury or bodily injury with a deadly weapon. Accordingly,
Cooper’s convictions of aggravated assault under section 2702(a)(1) and
(a)(4) must be reversed, as to his mother.
Cooper also challenges his convictions of unlawful restraint (father),
simple assault (mother), reckless endangerment (both parents), and PIC. In
these instances, our review of the certified record leads us to conclude the
trial court committed no error in sustaining the convictions. We believe the
trial court adequately addressed these claims in it Pa.R.A.P. 1925(a) opinion,
-8-
J-A01036-18
and, accordingly, we rely thereon.5 See Trial Court Opinion, 6/26/2017 at 12-
15. The parties are directed to attach a copy of the trial court opinion, in the
event of further proceedings.
Finally, Cooper challenges the discretionary aspect of his sentence,
alleging the trial court imposed a manifestly harsh and excessive sentence on
each count. Cooper received an aggregate sentence of 120 to 240 months’
incarceration. Relevant to this issue, he received a 40 to 80 month term for
aggravated assault attempted serious bodily injury, Count 2, and 16 to 32
months for aggravated assault attempted injury with a deadly weapon, Count
4, regarding his mother as the victim. However, we have reversed both of
these convictions, thereby upsetting the overall sentencing scheme. This
requires we vacate the judgment of sentence and we remand the matter for
____________________________________________
5 We also note that at trial, in the closing argument, counsel agreed that there
was sufficient evidence to support the convictions for the charges listed above,
stating:
…the argument is while he has committed terroristic threats, while
he has committed reckless endangerment, possession of an
instrument of crime, and the litany of other misdemeanor charges,
I do not believe that there has been proven beyond a reasonable
doubt the specific intent to shoot his parents, which is the gist of
the aggravated assault charges.
N.T. Trial, 3/31/2016 at 79.
-9-
J-A01036-18
resentencing.6 See Commonwealth v. Motley, 177 A.3d 960, 963 (Pa.
Super. 2018) (where disposition upsets overall sentencing scheme, our Court
vacates judgment of sentence in entirety and remands for resentencing).
Convictions regarding Counts 2 and 4, 18 Pa.C.S. § 2702(a)(1), (a)(4)
– Sara Cooper as the victim – are reversed. All other convictions are affirmed.
Judgment of sentence is vacated in its entirety. This matter is remanded for
resentencing. Jurisdiction relinquished.
Judge Lazarus joins this memorandum.
Judge Platt files a concurring and dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/18
____________________________________________
6 For purposes of clarity in resentencing, at the original sentencing hearing on
December 9, 2016, the Commonwealth, in arguing for a strict sentence,
inadvertently misstated the trial evidence, claiming: “including an assault rifle
with a bipod that was focused at a reverse angle on the stairs so that any
person coming up the stairs would be in an angle of fire they would not
anticipate and would not see.” N.T. Sentencing, 12/9/2016 at 17.
Detective Sergeant Michael B. Trail, the Lansdale police officer who executed
the search warrant on the Cooper residence, specifically denied that any of
the weapons found in the house were set up or aimed in any particular fashion.
See N.T. Trial, 3/31/2016, at 73. See also Commonwealth Exhibit C-6,
depicting the rifle lying on the ground pointing at a vacuum cleaner.
- 10 -
J-A01036-18
- 11 -
Circulated 05/14/2018 12:54 PM
IN THE COURT OF COMMON PLEAS OF' MONTGOMERY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF No. 6238-15
PENNSYLVANIA
v.
ANDREW W. COOPER
OPINION
SILOW, J. JUNE tP, 2017
Andrew W. Cooper ("defendant") appeals from the judgment of sentence,
imposed after he was found guilty following a trial by judge of four counts of
aggravated assault and related offenses. For the reasons set forth below, the
judgment of sentence should be affirmed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following events giving rise to defendant's judgment of sentence
occurred on July 23, 2015, at the home he lived at with his parents, Lawrence
and Sara Cooper, in Lansdale Borough, Montgomery County. Defendant, who
was 27 -years -old at the time, had a preliminary hearing scheduled that day in
a pending driving underthe influence case. He planned to miss the hearing,
kill his parents and ambush police, whom he believed would respond to the
house to apprehend him after the missed hearing.
Lawrence Cooper ("Mr. Cooper")' first made contact that day with his son
after awaking at approximately 5:15 a,m. and going downstairs from the
1 Mr. Cooper was in his early seventies at the time.
master bedroom to make coffee. Mr. Cooper, who planned to accompany
defendant to the preliminary hearing, saw defendant sitting in the backyard
with a friend. (N.T., 3/31/16, p. 10) Mr. Cooper told his son he should get
some sleep because of the hearing. Defendant's friend left a few minutes later
and defendant returned to the house.
Shortly thereafter, defendant emerged from the basement and came into
the first -floor living room holding a 7.62 millimeter rifle. Id. at 11. Mr. Cooper
was in the living room and defendant pointed the rifle in Mr. Cooper's direction.
Id. at 11-12. Mr. Cooper asked what defendant was doing, to which defendant
responded that he was not going to court and that "this is the day I'm taking
you all out." Id. at 11. Defendant told his father he had been planning this
outcome for four months. Id. at 12.
Around this time, Sara Cooper2 (Mrs. Cooper) came out of the master
bedroom and saw one of defendant's guns partially sticking out into the
hallway from a spare room on the second floor. The gun was surrounded by a
lot of ammunition. Id. at 35, Mrs. Cooper went into the hall bathroom and
heard her son come upstairs.
Defendant went into his bedroom and Mr. Cooper followed him. When
Mr. Cooper asked defendant what was going on, defendant hit a lamp pole,
causing the bulb to shatter. Id. at 12. Defendant grabbed a .40 caliber pistol,
pointed it in Mr. Cooper's direction and cocked the firearm. Id. He then
slapped Mr. Cooper and pushed him up against a wall twice. Id. at 13.
2 Mrs. Cooper was in her mid -sixties at the time of the incident.
2
Mrs. Cooper heard the light bulb break and came out of the bathroom.
Mr. Cooper told her that defendant said he was not going to the hearing. When
she asked why not, defendant said "today is the day. I'm going to take
everybody out." Id. at 36. When Mrs. Cooper said she did not understand
what defendant meant, he responded that "when they come to get me when I
don't show up at the hearing, I will be ready for them." Id. He also told his
mother that "I have had it. Everybody is gone." Id. He told her she had one
hour to leave the house. When she responded that she would not be thrown
out of her own house, defendant responded "Well, you have 55 minutes now,
get going, or do you want to be first." Id. at 37.
During this exchange, Mrs. Cooper saw a firearm leaning up against the
radiator in defendant's bedroom. Id. at 36. She decided she needed to get out
of the house to call for help, so she went into her bedroom to get dressed as if
she was going out for her usual morning walk. /d. at 37.
Mr. Cooper went downstairs and shortly thereafter heard a gunshot
coming from his son's bedroom. Id. at 13. He called up to defendant, who told
Mr. Cooper the noise was nothing. Defendant eventually came downstairs into
the living room where his parents were3 and prevented Mr. Cooper from going
into the kitchen to get his coffee or from going upstairs to get dressed. Id. at
13-14. Mr. Cooper tried to leave the room in another direction but defendant
3 Mrs. Cooper had since come downstairs and was putting on her sneakers in
the living room.
3
used his body to block Mr. Cooper's path. Around this time, Mrs. Cooper
announced she was going for her walk and left the house.
With the two alone in the house, defendant slugged Mr. Cooper from
behind, sending his father into a wooden column.4 Id. at 14. Mr. Cooper
suffered a gash to his right wrist. He tried to go upstairs to dress the wound
but defendant would not let him go alone. Id. at 15. Defendant adcompanied
Mr. Cooper upstairs to put on a Band-Aid.
In the interim, Mrs. Cooper had called 911 from outside the house using
her cellular phone. Responding officers suggested she try to get Mr. Cooper out
of the house, so she telephoned him under the guise that she had fallen during
her walk and needed help. Id. at 40. Mr. Cooper answered the call and Mrs.
Cooper eventually gave the phone to one of the police officers. The officer
spoke briefly with Mr. Cooper before the call was disconnected.
Mrs. -Cooper called back and told defendant, who had answered the call,
that she had fallen and needed help returning to the house. Id. Defendant
would not let Mr. Cooper go alone and accompanied him outside. Police
apprehended defendant near the house. A subsequent search of the residence
conducted pursuant to a warrant revealed, inter alia, a gun safe in the dining
room and a .223 caliber semi-automatic rifle perched on a bipod partially
extending from a spare room into the second -floor hallway. Id. at 63-65. Police
4 Atsome point after Mrs. Cooper left the house, and before defendant injured
his father's wrist, defendant had carried a gun safe from the basement up to
the dining room.
also found a loaded 7.62 millimeter rifle, a loaded shotgun and a loaded .40
caliber semi -automatic pistol in defendant's bedroom, as well as thousands of
rounds of ammunition throughout the firstand second floors of the house. Td.
at 63-69. The search further revealed a spent .40 caliber shell casing in an
area near a bullet hole in a wall in defendant's bedroom. Id. at 68.
The Commonwealth charged defendant with two counts of aggravated
assault (attempt to cause serious bodily injury to each parent),5 two counts of
aggravated assault (attempt to cause bodily injury with a deadly weapon to
each parent),6 two counts of recklessly endangering another person (as to each
parent),' one count of disorderly conducts four counts of possession of an
instrument of crime,9 two counts of terroristic threats (as to each parent),10 one
count of unlawful restraint (as to defendant's father)" and two counts of
simple assault (as to each parent).12
5 18 Pa. C.S. § 2702(a)(1) - Counts 1 and 2.
6 18 Pa. C.S. § 2702(a)(4) - Counts 3 and 4,
7 18 Pa. C.S. § 2705 - Counts 5 and 6.
8 18 Pa. C.S. § 5503(a)(4) - Count 7.
9 18 Pa. C.S. § 907(a) - Counts 8 through 11.
10 18 Pa, § 2706(a)(1) - Counts 12 and 13.
11 18 Pa, C.S. § 2902(a)(3) Count 14.
12 18 Pa. C.S. § 2701(a)(3) - Counts 15 and 16.
5
Defendant proceeded to a trial by judge, at the conclusion of which he
conceded through counsel that the evidence sufficed to prove he committed all
of the charged offenses, with the exception of the four aggravated assaults. Id.
at 78-79, 85. This court found defendant guilty of all charges.
At defendant's subsequent sentencing hearing, he again acknowledged
through counsel the sufficiency of the evidence with regard to all but the
aggravated assault charges. (I .T., 12/9/16, p. 15) ("If you recall from trial,
there was no argument that he didn't engage in the conduct charged. The
argument merely was a legal argument that it was not to the level of an
aggravated assault attempt to cause serious bodily injury. And that was all.).
This court imposed sentences of 40 to 80 months on Count 1, 40 to 80
months on Count 2, 16 to 32 months on Count 3, 16 to 32 months on Count 4,
1 to 2 months on Count 8, 1 to 2 months on Count 9, 7 to 14 months on Count
12 and 7 to 14 months on Count 13.13 The sentences, which were set to run
consecutively with the exception of Counts 9 and 13, aggregated to 120 to 240
months in prison.
Defendant retained new counsel and filed a post -sentence motion, which
he later supplemented. Despite the prior representations at trial and
sentencing, he challenged, inter alia, the sufficiency of the evidence for all of
the offenses, except two counts of terroristic threats, simple assault against his
father and disorderly conduct. The Commonwealth filed a response and this
13Counts 15 and 16 merged for purposes of sentencing and this court imposed
no further penalty on Counts 5, 6, 7, 10, 11 and 14.
6
court denied the post-sentence motion after oral argument. Defendant
appealed to the Pennsylvania Superior Court and subsequently produced a
concise statement of errors in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b).
II. ISSUES
Defendant raises the following issues in his concise statement:
1. Whether the trial court erred in denying [defendant's] Motion
for Judgment of Acquittal on the two (2) counts of
Aggravated Assault because the Commonwealth failed to
establish that [defendant] attempted to intentionally cause
serious bodily injury to both of his parents in that the
evidence is insufficient to establish that [defendant]
possessed a present, specific intent to cause serious bodily
injury or death to his parents as required by 18 Pa.C.S. §
2702(a)(1)?
2. Whether the trial court erred in denying [defendant's) Motion
for Judgment of Acquittal on the two (2) counts of
Aggravated Assault because the Commonwealth failed to
prove that defendant attempted to intentionally cause bodily
injury to both of his parents with a deadly weapon in that
the evidence is insufficient to establish that defendant
possessed a present, specific intent to cause bodily injury
with a deadly weapon as required by 18 Pa.C.S. §
270[2](a)(4)?
3. Whether the trial court erred in denying [defendant's] Motion
for Judgment of Acquittal on the one (1) count of Unlawful
Restraint because the Commonwealth failed to establish that
[defendant) knowingly restrained his father in circumstances
exposing him to risk of serious bodily injury, in that the
evidence was insufficient to establish that defendant
restrained [his father] for a significant period of time as
required by 18 Pa.C.S. § 2902(a)(1)?
4. Whether the trial court erred in denying [defendant's] Motion
for Judgment of Acquittal on the one (1) count of Simple
Assault, as charged for his conduct against his mother, in
that the Commonwealth failed to establish that [defendant]
possessed a present, specific intent to cause bodily injury to
his mother as required by 18 Pa.C.S. § 2701(a)(3)?
5. Whether the trial court erred in denying [defendant's] Motion
for Judgment of Acquittal on the two (2) counts of Recklessly
Endangering Another Person because the Commonwealth
failed to establish that [defendant] recklessly created a risk
of death or serious bodily injury to his parents, in that the
evidence is insufficient to establish that [defendant's] parents
were in imminent risk of serious bodily injury or death?
6. Whether the trial court erred in denying [defendant's] Motion
for Judgment of Acquittal on four (4) counts of Possession of
an Instrument of Crime because the Commonwealth failed to
establish that [defendant] unlawfully possessed the .40
caliber handgun, 12 gauge shotgun, .223 rifle, and 7.62 rifle
with an intent to employ each of them criminally?
7. Whether this Honorable Court abused its discretion in
imposing such a harsh and excessive sentence when
sentencing [defendant] on each count consecutively when
[defendant] has no prior record, no history of violence, was
- only twenty-seven (27) years old at the time of the incident,
and the incident occurred within the confines of his home?
8. Whether this Honorable Court failed to adequately consider
mitigating evidence of [defendant's] history of mental illness
and intoxication at the time of the incident before imposing
the sentence?
III. DISCUSSION
1. The evidence supports defendant's aggravated assault
convictions.
Defendant contends this court should have granted his motion for
judgment of acquittal on the four charges of aggravated assault because the
evidence did not establish a present, specific intent to cause serious bodily
injury or death to both of his parents, as required under 18 Pa. C.S. §
2702(a)(1), or a present, specific intent to cause bodily injury with a deadly
8
weapon, as required under § 2702(a)(4). The record from the bench trial belies
these claims.
When reviewing a challenge to the sufficiency of the evidence, the
Superior Court:
evaluate[s] the record in the light most favorable to the
Commonwealth as the verdict winner, giving the
prosecution the benefit of all reasonable inferences to
be drawn from the evidence. Evidence will be deemed
sufficient to support the verdict when it establishes
each material element of the crime charged and the
commission thereof by the accused, beyond a
reasonable doubt. However, the Commonwealth need
not establish guilt to a mathematical certainty, and it
may sustain its burden by means of wholly
circumstantial evidence. Moreover, [the Superior
Court does] not substitute its judgment for that of the
factfinder, and where the record contains support for
the convictions, they may not be disturbed. Lastly,
the finder of fact is free to believe some, all, or none of
the evidence presented.
Commonwealth v. Taylor, 33 A.3d 1283, 1287-1288 (Pa. Super. 2011) (quoting
Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa. Super. 2008) (internal
quotations marks and citations omitted).
A person commits the offense of aggravated assault under 18 Pa. C.S. §
2702(a)(1) where 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...." Id. The Crimes
Code defines "serious bodily injury" to mean. "[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. § 2301. A person may be found guilty of aggravated assault
under
9
Section 2702(a)(4) where he "attempts to cause bodily injury to another with
a deadly weapon." 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. § 901(a). The attempt statute further
provides that "lilt shall not be a defense to a charge of attempt that because of
a misapprehension of the circumstances it would have been impossible for the
accused to commit the crime attempted." Id. at § 901(b).
Our Supreme Court has stated that courts should use a "totality of the
circumstances" test to determine on a case -by -case basis whether a defendant
possessed an intent to inflict serious bodily injury. See Commonwealth v.
Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (citing Commonwealth v. Alexander,
383 A.2d 887 (Pa, 1978)). The Matthews Court explained that:
Alexander provided a list, albeit incomplete, of factors
that may be considered in determining whether the
intent to inflict serious bodily injury was present,
including evidence of a significant difference in size or
strength between the defendant and the victim, any
restraint on the defendant preventing him from
escalating the attack, the defendants use of a weapon
or other implement to aid his attack, and his
statements before, during, or after the attack which
might indicate his intent to inflict injury. Alexander
made clear that 'simple assault combined with other
surrounding circumstances may, in a proper case, be
sufficient to support a finding that an assailant
attempted to inflict serious bodily injury, thereby
constituting aggravated assault....'
Matthew, 909 A.2d at 1257 (quoting Alexander, 383 A.2d at 889-890.
10
Here, defendant's words and actions, combined with the surrounding
circumstances as detailed above, demonstrated proof beyond a reasonable
to
doubt of his state of mind on the morning in question. Defendant intended
to his home after
kill his parent and ambush the police he believed would come
he missed his preliminary hearing. He told his parents, while in close
them.
proximity to firearms, that he planned to take everyone out, including
He pointed a firearm on more than one occasion at Mr. Cooper. He prevented
Mr. Cooper from walking freely around the interior of the house
and from
leaving the residence. He hit Mr. Cooper several times, launching him
at one
a
point into a wooden column in the house. He brought a gun safe containing
firearm and ammunition into the dining room and positioned other
firearms
of his
and ammunition throughout the upstairs of the house in furtherance
intended plan to kill his parents and police.
This is not a case where the Commonwealth is attempting to elevate a
defendant
simple assault to an aggravated assault. This is not a case where
simply attempted to scare his parents as a means to another end. Taking
defendant at his own words, he intended to kill them and police officers and
took substantial steps in furtherance of his intention. That defendant now
is a self-serving
wants the court to take a narrow, piecemeal view of his actions
allowed his
attempt to diminish the gravity of his conduct. That he eventually
and hold
mother to go for her daily walk, while continuing to plan his assault
was still in
his father hostage, does not ameliorate his prior actions when she
the house. Before his mother left, he took substantial steps in an
attempt to
11
cause serious bodily injury to both of his parents and to cause bodily injury to
them using a deadly weapon. He is guilty of the four charged aggravated
assault offenses.
2. Defendant committed the offense of unlawful restraint.
Defendant also argues he did not commit the offense of unlawful
restraint because the evidence did not show he restrained his father "for a
significant period of time." Concise Statement, ¶ 3. This claim fails.
Assuming defendant is permitted to pursue this challenge, as well as the
others infra, despite the representations made at trial and sentencing with ;
regard to the sufficiency of the evidence, a person commits the offense of
unlawful restraint where he, inter cilia, knowingly "restrains another unlawfully
in circumstances exposing [the other person] to risk of serious bodily injury."
18 Pa. C.S.A. § 2902(a)(1). Notwithstanding defendant's assertion in his
concise statement about the lack of a "significant period of time," Section
2902(a)(1) does not contain a temporal requirement. Moreover, the evidence
credited by this court demonstrates that defendant restrained his father's
movement inside the house -a house filled at the time with loaded firearms,
threats of death and actual physical violence - over the course of a nearly one -
hour period. While that span of time may not seem "significant" in the quiet of
a law firm -office drafting a concise statement, a fair inference from the evidence
isthat it may have seemed quiet long enough for Mr. Cooper. The evidence
amply demonstrates defendant committed the offense of unlawful restraint.
12
3. The evidence supports defendant's conviction for simple
assault against his mother.
Defendant next asserts that the evidence does not support the simple
assault conviction related to his mother because he did not possess the
present, specific intent to cause her bodily injury. The evidence suffices.
A person commits simple assault under 18 Pa. C.S. § 2701(a)(3) where he
"attempts by physical menace to put'another in fear of imminent serious bodily
injury." Id.
The evidence credited by this court demonstrates that defendant's
conduct placed his mother in fear of imminent serious bodily injury. Indeed,
Mrs. Cooper testified credibly that she believed she had to flee the home to get
help because of defendant's threatening behavior. That behavior included
stockpiling firearms and ammunition around the house while telling Mrs.
Cooper and her husband that he was going to kill them and ambush police.
Defendant's self-serving post-sentence characterization of his words and
actions does not warrant relief.
4. Defendant recklessly endangered his parents.
Defendant contends that he did not recklessly endanger his parents
because the evidence does not show they were in imminent risk of serious
bodily injury or death. This claim lacks merit.
A person commits the offense of recklessly endangering another person
where 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. "The
mens rea for the crime of recklessly endangering another person is a 'conscious
13
disregard of a known risk of death or great bodily injury to another person."'
Commonwealth v. Fabian, 60 A.3d 146, 155 (Pa. Super. 2013) (citation
omitted). "[TJhe Commonwealth must prove that the defendant had an actual
present ability to inflict harm and not merely the apparent ability to do so."
Commonwealth v. Martuscelti, 54 A.3d 940, 949 (Pa. Super. 2012) (citation
omitted).
The evidence presented by the Commonwealth, and credited by this
court, amply demonstrates beyond a reasonable doubt that defendant had an
actual, present ability to inflict harm on his parents. While threatening them
with death, he stockpiled the second -floor of the house with firearms and
ammunition and pointed a firearm in Mr. Cooper's direction on more than one
occasion. This is not an incident where defendant merely was trying to scare
his parents. He told them he planned to kill them while taking measures to do
so. He is not entitled to relief on this claim.
5. Defendant possessed instruments of crime.
Defendant's fmal challenge to the trial evidence against him relates to
whether the Commonwealth established that he unlawfully possessed with the
intent to employ criminally the .40 caliber handgun, 12-guage shotgun, .223
rifle and the 7.62 rifle. It did.
A person violates 18 Pa. C.S. § 907(a) where he "possesses any
instrument of crime with intent to employ it criminally." Id. The direct and
circumstantial evidence credited by this court demonstrates beyond a
reasonable doubt that defendant possessed all four firearms with the intent,
14
borne out by his own words, to kill his parents and ambush police. He is guilty
of all four counts.
6. Defendant is not entitled to relief on his challenge to
discretionary aspects of his sentence.
Defendant's remaining two issues relate to the discretionary aspects of
his sentence. Neither entitles him to relief.
The Superior Court employs a well -established standard of review when a
defendant raises a challenge to the discretionary aspects of his sentence:
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather, the
appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
'Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Where, as
here, the sentencing court had the benefit of a presentence investigation report,
it is assumed to have been "aware of relevant information regarding the
defendant's character and [to have] weighed those considerations along with
mitigating statutory factors." Commonwealth v. Antidormi, 84 A.3d 736, 761
(quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)), The sentencing
court has the discretion to impose sentences consecutively. See 42 Pa. C.S. §
9721. The right to appeal the discretionary aspects of a sentence is not
absolute. Antidormi, 84 A.3d at 759 (quoting Commonwealth v. Austin, 66 A.3d
15798, 807-08 (Pa. Super. 2013)). Rather the defendant must raise a substantial
question regarding the appropriateness of the sentence. Id.As an initial matter, defendant has not preserved his challenge to his
sentences being imposed consecutively. His post-sentence motion addressed
only this court's alleged failure to consider certain mitigating factors, resulting
in what he characterized as an excessive and harsh sentence. As such, he has
waived for. purposes of appellate review his claim about the consecutive nature
of his sentences. See Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super.
2013) (failure to raise challenge to discretionary aspect of sentence in the first
instance before the trial court, either at the time of sentencing or in a post -
sentence motion results in waiver of the claim) (internal citations omitted)."
Defendant's preserved claim that this court did not consider certain
mitigating evidence is not supported by the record. This court had the benefit
of a pre -sentence investigation report and was aware of defendant's age,
background and the circumstances surrounding the offenses. This court
considered all of that information, as well as the other evidence presented at
the sentencing hearing, in fashioning defendant's sentence. (N.T., 12/9/16,
pp. 28, 31-36)
14Even had defendant preserved a challenge to the imposition of consecutive
sentences, this court is authorized to do so by 42 Pa. C.S. § 9721 and amply
explained the reasons for the sentence imposed. (N.T., 12/9/16, pp. 28, 31-36)
16
V, CONCLUSION
Based upon the foregoing, defendant's judgment of sentence should be
affirmed.
Sent on ct± Q(a. I 11
to the foil ving:
Clerk of Courts (original)
District Attorney's Office
Jo I. McMahon Jr., Esquire
cia1 Secrete)
17