Com. v. Markowski, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS ALLEN MARKOWSKI :
:
Appellant : No. 1536 MDA 2019
Appeal from the Judgment of Sentence Entered August 26, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005511-2016
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JULY 13, 2020
Thomas Allen Markowski appeals from the August 26, 2019 judgment of
sentence of twenty-four-and-one-half to fifty years of imprisonment following
his convictions for two counts each of aggravated assault and robbery, and
one count each of attempted murder of a law enforcement officer of the first
degree, theft by unlawful taking, possession of a weapon, using an offensive
weapon, recklessly endangering another person, and assault of law
enforcement officer. We affirm.
The following facts are relevant to our review. On April 7, 2016, at the
Wal-Mart in Shrewsbury, Pennsylvania, two pharmacy employees, Terry White
and Stuart Wiener, observed Appellant pulling up to the pharmacy drop-off
window in a motorized wheelchair or cart. See N.T. Trial, 5/20-21/19, at 5.
Appellant sat in the motorized cart for approximately three minutes before
Ms. White approached him and asked if he needed assistance. Id. at 11.
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Appellant demanded fentanyl patches and told Ms. White that he had a
firearm. Id. Appellant was carrying a sawed-off shotgun that he had modified
at his home and concealed in a plastic bag.
Ms. White returned to the back of the pharmacy and told the pharmacist
on duty to get the fentanyl patches. Mr. Wiener escorted customers out of
the pharmacy department and dialed 9-1-1. Id. at 22. Ms. White
remembered seeing the gun at some point. She retrieved the fentanyl patches
from the pharmacist, delivered them to Appellant at the drop-off window of
the pharmacy, and directed him to leave. Id. at 16. He stood up from the
motorized cart and walked toward the front door of the store. Mr. Wiener
went outside to meet police who had been dispatched to the scene.
Pennsylvania State Trooper Darrio Parham was in uniform at the Wal-
Mart purchasing food when the call came in. As he responded to the call, Mr.
Weiner hailed him and they proceeded towards the pharmacy entrance of the
store. Appellant exited with the fentanyl patches, carrying the bag containing
his concealed shotgun. Id. Mr. Wiener testified that Appellant “told the officer
that he had a gun, and he would shoot him, and the officer pulled his weapon.”
Id. at 23.
Appellant pointed the sawed-off shotgun at Trooper Parham, who
ordered Appellant to drop his weapon. When Appellant failed to comply,
Trooper Parham drew his service pistol. Id. Appellant aimed his shotgun at
Trooper Parham from point-blank range, and Trooper Parham slapped the
shotgun away. Id. at 58. Appellant regained control of the shotgun and once
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again pointed it at the chest area of the trooper’s body. Id. at 57. As Trooper
Parham grasped the weapon to move it aside a second time, Appellant fired
the gun. Id. Trooper Parham returned fire, striking Appellant in the chest
and ending the altercation. Id. at 59. A subsequent investigation conducted
by police revealed that two rounds remained in Appellant’s gun after the shot
was fired, and that Appellant had an additional five shotgun shells in his
pockets. Id. at 39, 43.
Appellant gave a recorded interview to police after he was medically
cleared during which he admitted that, in anticipation of robbing the Wal-Mart,
he modified the shotgun so that it was easier to conceal. He told police that
he loaded the weapon in the pharmacy because they were taking too long to
retrieve the fentanyl. Appellant confirmed that he knew Trooper Parham, who
was in uniform, was a law enforcement officer. Id. at 45. He acknowledged
that the trooper ordered him to drop the weapon. Id. Appellant told police
that he pulled the trigger because he panicked. Id. at 46.
Appellant was charged with attempted murder and numerous other
offenses.1 Following a non-jury trial on May 20-21, 2019, Appellant was found
guilty of all charges. He filed a motion for reconsideration, which was denied.
He was sentenced on August 29, 2019, and he orally moved at that time for
arrest of judgment, which was denied.
____________________________________________
1Prior to trial, Appellant underwent a competency evaluation and was found
competent to stand trial.
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Appellant filed a timely notice of appeal, and both he and the trial court
complied with Pa.R.A.P. 1925. Appellant presents one issue for our
consideration:
Whether the trial court abused its discretion when it denied
[Appellant’s] request for reconsideration (motion for arrest of
judgment) on August 26, 2019, as there was insufficient evidence
to find [him] guilty of assault of [a] law enforcement officer;
attempted murder of a law enforcement officer; and aggravated
assault; where the evidence showed [that Appellant] did not
intend to fire at the trooper and that the gun accidentally
discharged?
Appellant’s brief at 6 (cleaned up).
Our standard of review for a challenge to the sufficiency of the evidence
is well settled:
Because a determination of evidentiary sufficiency presents
a question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017)
(citations and quotation marks omitted).
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Appellant confines his sufficiency challenges to his convictions for
attempted murder of a law enforcement officer, assault of a law enforcement
officer, and aggravated assault. Accordingly, we consider the elements of
those crimes. A criminal attempt occurs when a person, “with intent to
commit a specific crime, does any act which constitutes a substantial step
toward the commission of that crime.” 18 Pa.C.S. § 901(a). “A person
commits murder of a law enforcement officer of the first degree who
intentionally kills a law enforcement officer while in the performance of duty
knowing the victim is a law enforcement officer.” 18 Pa.C.S. § 2507.
In the case of attempted murder, “a person may be convicted if he takes
a substantial step toward the commission of a killing with the specific intent
in mind to commit such an act.” Commonwealth v. Dale, 836 A.2d 150,
153 (Pa.Super. 2003) (citations omitted). The intent to kill must be shown.
Commonwealth v. Griffin, 456 A.2d 171, 178 (Pa.Super. 1983). The firing
of a bullet in the general area of vital organs can alone be sufficient to prove
specific intent to kill. See Commonwealth v. Manley, 985 A.2d 256, 272
(Pa.Super. 2009). As this Court held in Commonwealth v. Mapp, 335 A.2d
779, 781 (Pa.Super. 1975), an attempted murder is completed by the
discharge of a weapon at a person with intent to kill, even if no injury results.
Assault of a law enforcement officer is committed when a person
attempts to cause or intentionally or knowingly causes bodily injury to a law
enforcement officer, while in the performance of duty and with knowledge that
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the victim is a law enforcement officer, by discharging a firearm. 18 Pa.C.S.
§ 2702.1(a). This Court has held that criminal attempt under § 2702.1(a)
requires a showing of some act accompanied by an intent to inflict bodily injury
upon a law enforcement officer by discharging a firearm. See
Commonwealth v Landis, 48 A.3d 432 (Pa.Super. 2012).
One commits aggravated assault when one attempts to cause or
intentionally, knowingly or recklessly causes serious bodily injury to certain
enumerated persons, including state law enforcement officers, while in the
performance of duty. See 18 Pa.C.S. § 2702(a)(2), (c)(18). Additionally, one
commits aggravated assault when one attempts to cause or intentionally or
knowingly causes bodily injury to another with a deadly weapon. See 18
Pa.C.S. § 2702(a)(4).
Relevant to the intent element of these crimes, this Court has explained:
An intent is a subjective frame of mind, it is of necessity difficult
of direct proof. We must look to all the evidence to establish
intent, including, but not limited to, appellant’s conduct as it
appeared to his eyes. Intent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct
or from the attendant circumstances.
Commonwealth v. Alford, 880 A.2d 666, 671 (Pa.Super. 2005) (cleaned
up). Additionally, our Supreme Court indicated in Commonwealth v.
Meredith, 416 A.2d 481 (Pa. 1980), “[w]here the intention of the actor is
obvious from the act itself, the finder of fact is justified in assigning the
intention that is suggested by the conduct.” Id. at 485.
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Appellant contends that the Commonwealth failed to prove the requisite
intent for each of the three charges listed above. Appellant’s brief at 11. In
support of his position, he points to his testimony at trial that he had no intent
to harm or kill Trooper Parham. He initially stated that the weapon discharged
accidentally when he was attempting to hand the gun to Trooper Parham. N.T.
Trial, 5/20-21/19, at 79. He later testified that it was his intention to simply
walk out, but that he froze in the moment and did not know what to do. Id.
at 83. Appellant argues further that video surveillance footage and eyewitness
testimony are inconclusive as to whether he pulled the trigger of the shotgun.
See Appellant’s brief at 11.
Appellant’s argument disregards our standard of review. We must view
the evidence in the light most favorable to the Commonwealth, not Appellant.
See Williams, supra at 305-06. The trial court, sitting as factfinder, found
that Appellant intended to kill Trooper Parham, inferring such intent from
Appellant’s conduct of walking toward the Trooper while aiming the barrel of
the shotgun at his mid-section, with his finger on the trigger and the safety
off. The court also found that Appellant shot the gun at the trooper, and “but
for Trooper Parham quickly diverting the shotgun away from himself,
Appellant’s shot would have found its mark.” Trial Court Opinion, 11/15/19,
at 11. Hence, the factfinder disbelieved Appellant’s testimony that the
shotgun accidentally discharged.
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As detailed in our recitation of the evidence above, the trial court’s
finding is supported by the record when viewing the evidence in the light most
favorable to the Commonwealth, as we must. This evidence was sufficient to
sustain Appellant’s convictions. Specifically, the evidence established the
intent-to-kill element of his attempted murder conviction, as Appellant
entered the Wal-Mart intending to rob the pharmacy, armed with a shotgun
that he altered specifically for that purpose. Upon exiting the store with
fentanyl, Appellant “told the officer that he had a gun, and he would shoot
him, and the officer pulled his weapon.” Id. at 23. Rather than obeying
Trooper Parham’s command to drop the weapon, Appellant moved toward the
trooper with the partially-concealed deadly weapon pointed at Trooper
Parham’s mid-section. The safety was off and the weapon was loaded with a
slug chambered, evidence that Appellant intended to harm or kill the trooper.
Appellant pointed the gun at the trooper’s mid-section, a vital part of the body,
and the gun discharged as the trooper pushed it away.
The assault and aggravated assault convictions were based upon the
attempt to cause injury upon a police officer, or attempt to cause serious
bodily injury respectively. This Court has held that merely pointing a loaded
firearm at an individual constitutes circumstantial evidence to support a
conviction of aggravated assault. Commonwealth v. Miller, 217 A.3d 1254(Pa.Super. 2019). See also Commonwealth v. Payne, 868 A.2d 1257(Pa.Super. 2005) (holding the intentional act of pointing the gun and aiming
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it at a vital part of the human body creates the presumption of malice for the
purposes of prosecution for aggravated assault). The discharge of the weapon
in the present case only serves as additional circumstantial evidence that
Appellant intended to harm or kill Trooper Parham.
Furthermore, the evidence sufficiently established that Appellant
actually pulled the trigger. Appellant’s own testimony confirmed that as he
approached Trooper Parham, he had his finger on the trigger and his weapon
pointed at the trooper. See N.T. Trial, 5/20-21/19, at 79. The trial court
found that Appellant discharged the firearm. This Court may not alter a finding
of fact made by the trial court unless no probability of fact can be drawn from
the circumstances. Commonwealth v. Tejada, 107 A.3d 788, 792
(Pa.Super. 2015).
Finding no merit to Appellant’s sufficiency challenges, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/13/2020
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