Com. v. Bruder, R.

J-S23034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL RUDOLPH BRUDER :
:
Appellant : No. 1616 MDA 2021
Appeal from the Judgment of Sentence Entered November 15, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001696-2020
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 27, 2022
Appellant, Russell Rudolph Bruder, appeals from the judgment of
sentence of 3 to 23 months’ incarceration imposed by the Court of Common
Pleas of Schuylkill County following a jury trial at which he was convicted of
simple assault by physical menace.1 For the reasons set forth below, we
affirm.
This case arises out of an incident that occurred late on the night of
August 28 to 29, 2020, in which Appellant pointed a shotgun at a man and a
woman who were sitting in a car in the parking lot of the Joliett Fire Company
(the Fire Company). The only persons present at the time of the incident were
two occupants of the car, Clinton Mettler and Brittany Mauer, and Appellant
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2701(a)(3).
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and his wife. Appellant was charged with two counts of aggravated assault,
two counts of simple assault by physical menace, and two counts of reckless
endangerment. Amended Criminal Information.
A jury trial was held on October 20, 2021, at which Mauer, Mettler, and
the state trooper who responded at the scene testified for the Commonwealth.
Appellant, his wife, and the president of the Fire Company testified for the
defense. In addition, Appellant played a video recording from security
cameras at the Fire Company at trial that showed Appellant’s and his wife’s
actions during the incident.
Maurer and Mettler testified that Mettler was driving Maurer home from
a date on the night in question and that they had pulled into the Fire Company
parking lot because of poor driving conditions. N.T. Trial at 17-19, 31-33.
Maurer, who was sitting in the front passenger seat, testified that while she
and Mettler were sitting in the car talking, Appellant walked to the parking lot
and pointed a shotgun at her face. Id. at 19-20. Maurer testified that
Appellant, while pointing the shotgun at her, screamed “[w]hat the bleep are
you doing here.” Id. at 20. Maurer testified that Mettler then pushed her
forward out of the way and pulled out a gun, that Appellant said to Mettler
“why are you pointing a gun at me” and Mettler replied “because you came
up and aimed a shotgun at us,” and that Appellant said to Mettler “[a]re you
ready to die?” Id. at 21-22. Maurer testified that she was terrified and
thought that she was going to die. Id. at 22. Maurer testified that after
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Mettler told Appellant that he was a disabled veteran and the woman who was
with Appellant verified that from the car’s license plate, Appellant stopped
pointing the shotgun at her and Mettler. Id. Maurer testified that Appellant
and the woman then walked away to the firehouse and Mettler called the
police. Id. at 22-23.
Mettler testified that while he and Maurer were sitting in the car in the
Fire Company parking lot, Appellant came up to the car with a shotgun and
said “[w]hat the fuck are you doing here.” N.T. Trial at 33-34. Mettler testified
that he responded “[w]ho the fuck are you because you just come up on
somebody like that” and Appellant raised the shotgun at them. Id. Mettler
testified that he then got his gun from the driver side door, pushed Maurer
down, reached across her, and told Appellant not to move or he would shoot,
and that Appellant asked Mettler if he was ready to die. Id. at 33-36, 39.
Mettler testified that while Appellant was pointing the shotgun at him and
Maurer, he noticed that Appellant’s hand was not on the trigger and that he
told Appellant not to move his hand and to put the shotgun down. Id. at 35-
36. Mettler testified that after some verbal back and forth during which the
woman with Appellant read from Mettler’s license plate that he was a disabled
veteran, Appellant pointed the shotgun to the ground. Id. Mettler testified
that that he then told Appellant to get away from him and Maurer, that
Appellant moved away, and that Mettler then called the police. Id. at 36.
Mettler testified that while Appellant was pointing the shotgun at them, he
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thought that either he would kill Appellant or Appellant would kill him or
Maurer. Id. at 37.
The state trooper testified that he spoke to Mettler, Maurer, and
Appellant after he arrived at the scene. N.T. Trial at 45. The trooper testified
that Appellant told him that he went to the Fire Company with a shotgun
because of concerns about criminal activity in the area and that when he saw
the car in the parking lot, he approached it and pointed the shotgun at an
occupant’s head. Id. at 45-46. The trooper also testified that Appellant told
him that the shotgun was not loaded and that when he, the trooper, retrieved
the shotgun from Appellant, it was not loaded. Id. at 46.
Appellant and his wife testified that they were members of the Fire
Company and walked there from their house that night because they heard
noise from an ATV that they believed was trespassing on the Fire Company
property. N.T. Trial at 60-64, 75-79. Appellant testified that he took a
shotgun with him for protection, but that it was unloaded and that his wife
carried a bullet in her pocket. Id. at 79, 82, 99. Appellant testified that he
approached the car with his shotgun pointed to the ground and said to the
occupants “[w]hat the F are you doing here" and saw Mettler pointing a gun
at him. Id. at 79-82. Appellant testified that he then jumped back and
pointed the shotgun at the occupants and told his wife “[g]et back, Babe, he’s
got a gun.” Id. at 80-82. Appellant testified that after Mettler told him several
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times to check the car’s license plate and Appellant’s wife reported that it said
“disabled veteran,” he lowered his gun. Id. at 82-83.
Appellant’s wife testified that Appellant took a shotgun with him when
they walked to the Fire Company and that it was unloaded. N.T. Trial at 65.
She testified that they saw the car parked at the Fire Company and that
Appellant walked up to the car and said “what the F are you doing here” and
then told her “[g]et back, Babe, he’s got a gun.” Id. at 66-67. Appellant’s
wife testified that after Appellant told her to get back, she looked into the car
and saw that the driver was pointing a large handgun at her and Appellant.
Id. at 67. Appellant’s wife, like Appellant, testified that the driver repeatedly
told them to check the license plate and that the standoff ended after she
reported that the license plate said “disabled veteran.” Id. at 67-68. The
president of the Fire Company testified that Appellant and his wife were
responsible for taking care of the Fire Company’s social hall and that there
were “No Trespassing” signs posted on the property. Id. at 53-56. He also
testified concerning the Fire Company’s video security cameras. Id. at 54-
55.
The video recording played at trial shows Appellant and his wife walking
to the Fire Company parking lot and up to where the car was, shows Appellant
raising the shotgun, stepping back, and aiming the shotgun at the location
where the car was, and shows him holding the shotgun up and aimed in that
direction for approximately 50 seconds before lowering it. Neither the inside
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of the car nor its occupants, however, are visible in the portion of the video
where Appellant is approaching the car and pointing the shotgun and the video
contains no audio recording. The video shows Appellant’s wife following
Appellant when he approaches the car and standing near him while he is
pointing the shotgun at the car and she does not appear to exhibit any reaction
that indicates that she is afraid.
At the close of the evidence, the trial court dismissed the aggravated
assault charges. N.T. at 112. The charges of simple assault by physical
menace with respect to Mettler, reckless endangerment with respect to
Mettler, simple assault by physical menace with respect to Maurer, and
reckless endangerment with respect to Maurer were submitted to the jury.
Id. at 134-35. The jury, on October 20, 2021, found Appellant guilty of simple
assault by physical menace with respect to Maurer and not guilty on the other
three charges. Id. at 142; Verdict Sheet.
On November 15, 2021, the trial court sentenced Appellant to 3 to 23
months’ incarceration. Sentencing at 47-48; Sentencing Order. Appellant
filed a timely post-sentence motion in which he contended that the verdict
was against the weight of the evidence. The trial court denied Appellant’s
post-sentence motion on December 2, 2021, and this timely appeal followed.
Appellant argues two issues in this appeal: 1) whether the evidence at
trial was insufficient to prove the intent required for a conviction for simple
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assault by physical menace and 2) whether the verdict was against the weight
of the evidence. Appellant’s Brief at 6-7.2 Neither of these issues merits relief.
Our standard of review in a challenge to the sufficiency of the evidence
is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (quoting
Commonwealth v. Estepp, 17 A.3d 939 (Pa. Super. 2011)).
The offense of simple assault by physical menace is defined as follows:
Except as provided under section 2702 (relating to aggravated
assault), a person is guilty of assault if he:
* * *
(3) attempts by physical menace to put another in fear of
imminent serious bodily injury ….
____________________________________________
2 Appellant lists his claim that the verdict was against the weight of the
evidence as two issues, one concerning Maurer’s testimony and one
concerning Mettler’s testimony, but briefs these as one issue in the argument
section of his brief.
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18 Pa.C.S. § 2701(a)(3). To prove this offense, the Commonwealth must
prove that the defendant intentionally placed another in fear of imminent
serious bodily injury through the use of menacing or frightening activity.
Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003);
Commonwealth v. Repko, 817 A.2d 549, 554 (Pa. Super. 2003), overruled
in part on other issue, Commonwealth v. Matthews, 870 A.2d 924 (Pa.
Super. 2005) (en banc).
Appellant argues that the evidence was insufficient to prove that he
intended to place Maurer in fear of imminent serious bodily injury. We do not
agree. The defendant’s intent can be proven by circumstantial evidence and
may be inferred from the defendant’s conduct. Reynolds, 835 A.2d at 726;
Repko, 817 A.2d at 554. The act of pointing a firearm at another person is
sufficient to prove intent to place that person in fear of imminent serious bodily
injury. Reynolds, 835 A.2d at 726-27; Repko, 817 A.2d at 554-55; In re
Maloney, 636 A.2d 671, 674 (Pa. Super. 1994); Commonwealth v. Krick,
No. 490 WDA 2020, at 6-7 (Pa. Super. March 19, 2021) (unpublished
memorandum). Here, Maurer testified that Appellant walked up to her car
window and pointed a shotgun at her face. N.T. Trial at 19-20. That evidence
alone was sufficient for the jury to infer and find that Appellant intended to
place Maurer in fear of imminent serious bodily injury.
Appellant asserts that there was insufficient evidence of the required
intent because the shotgun was unloaded and he did not have his finger on
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the trigger. Neither of those facts negates intent to place the victim in fear of
imminent serious bodily injury. The law is clear that pointing an unloaded
firearm at another person is sufficient to prove intent to place in fear of
imminent serious bodily injury and to support a conviction for simple assault
by physical menace where, as here, the victim does not know that the firearm
is unloaded. Commonwealth v. Gouse, 429 A.2d 1129, 1131 (Pa. Super.
1981); Commonwealth v. Trowbridge, 395 A.2d 1337, 1340-41 & n.8 (Pa.
Super. 1978) (en banc); Krick, No. 490 WDA 2020, at 2, 6-7; see also
Reynolds, 835 A.2d at 728 (issue of whether gun that defendant pointed at
victims was unloaded was relevant only to reckless endangerment, not simple
assault by physical menace conviction).
Our decisions in Reynolds, Repko, Maloney, and Krick holding that
pointing a firearm at the victim is sufficient to prove intent do not indicate that
there was any evidence that the defendant’s finger was on the trigger and do
not suggest that such a fact is essential to prove intent to place the victim in
fear of imminent serious bodily injury. Indeed, approaching a person while
holding a firearm while shouting obscenities at the person can be sufficient to
show intent to place the victim in fear of imminent serious bodily injury, even
where the defendant does not point the gun at the victim. Commonwealth
v. Little, 614 A.2d 1146, 1147-48 & n.2, 1151-55 (Pa. Super. 1992). Here,
the Commonwealth also introduced evidence that Appellant screamed an
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obscenity at Maurer and Mettler while holding the shotgun and said “[a]re you
ready to die?” while pointing the shotgun at them. Id. at 20-22, 33-35.
Appellant also contends that no intent to place Maurer in fear was shown
because he pointed the shotgun at the car only after Mettler pointed a gun at
him. The Commonwealth, however, introduced evidence that Appellant
pointed the shotgun at Maurer before Mettler drew his gun. Not only did
Maurer testify that Appellant came up to the car window and pointed the
shotgun at her before Mettler got his gun, but Mettler testified that he got his
gun after Appellant raised the shotgun and the trooper testified that Appellant
said that he approached the car and pointed the shotgun “at the victim’s
head,” not that he raised the shotgun after a gun was pointed at him. N.T.
Trial at 19-21, 27, 29-30, 34, 40, 45-46. We judge the sufficiency of the
evidence by whether the evidence supporting the Commonwealth’s case was
sufficient if believed by the jury to prove the elements of the offense, not
based on Appellant’s disputed version of facts, which the jury rejected.
Commonwealth v. James, 268 A.3d 461, 469 (Pa. Super. 2021);
Antidormi, 84 A.3d at 756-57.
Appellant’s remaining issue likewise fails. A new trial may be granted
on the ground that the verdict is against the weight of the evidence only where
the verdict was so contrary to the evidence that it shocks the trial court’s
sense of justice. James, 268 A.3d at 468; Antidormi, 84 A.3d at 758. Our
review of the denial of a motion for a new trial based on weight of the evidence
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is limited. We review whether the trial court abused its discretion in
concluding that the verdict was not against the weight of the evidence, not
whether the verdict, in this Court’s opinion, was against the weight of the
evidence. Commonwealth v. Clemons, 200 A.3d 441, 463-64 (Pa. 2019);
Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021).
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge …. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence.
Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049,
(Pa. 2013)) (brackets omitted).
Appellant argues that Maurer’s and Mettler’s testimony is contradicted
with the video recording played at trial, which he claims support his and his
wife’s testimony that he raised the shotgun in response to Mettler pointing a
gun at him. That argument misstates what the video showed. As the trial
court noted, Trial Court Opinion, 12/2/21, at 4, the video does not show the
inside of the car or Maurer’s or Mettler’s actions during the time period when
Appellant approached the car and pointed his shotgun at them. It therefore
does not show whether Mettler drew his gun before or after Appellant pointed
the gun at Maurer. While the video shows Appellant stepping back from the
car as he raises the shotgun and aims it at the car, it does not show him or
his wife taking cover and is not inconsistent with the conclusion that Appellant
moved back to position himself to aim the shotgun or moved back in response
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to Mettler’s verbal response to Appellant’s question why he was in the parking
lot, rather than in reaction to seeing a gun. Because the video is not
irreconcilable with Maurer’s and Mettler’s testimony, it does not show that the
jury’s verdict was against the weight of the evidence. Commonwealth v.
Wall, 953 A.2d 581, 586 (Pa. Super. 2008) (“Where an appellant argues that
physical evidence is ‘inconsistent’ with a victim’s testimony, but that evidence
does not necessarily exculpate him, the fact-finder may entertain a
defendant's alternative theory and reasonably reject it”).
Appellant also argues that there were inconsistencies between Maurer’s
testimony and her statement to the state trooper and between some details
of Maurer’s and Mettler’s testimony. These inconsistencies, however, were
on matters other than the key issue of what Appellant said and did. Such
inconsistencies in witnesses’ testimony are issues of credibility for the jury to
resolve, not grounds for a new trial on weight of the evidence grounds.
Delmonico, 251 A.3d at 838; Commonwealth v. Stokes, 78 A.3d 644, 651
(Pa. Super. 2013). The trial court, which observed the witnesses, did not
abuse its discretion in concluding that “[t]he evidence at trial was not one-
sided or so weighted in favor of acquittal that it shocked the Court's sense of
justice.” Trial Court Opinion, 12/2/21, at 4.
For the foregoing reasons, we conclude that the issues raised by
Appellant do not merit relief. Accordingly, we affirm Appellant’s judgment of
sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2022
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