Com. v. Conley, B.

J-S75010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRYAN WILLIAM CONLEY
Appellant No. 496 WDA 2019
Appeal from the Judgment of Sentence entered February 13, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0002061-2018
BEFORE: STABILE, KUNSELMAN, and PELLEGRINI,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 15, 2020
Appellant, Bryan William Conley, appeals from his judgment of sentence
of 48 months of restrictive intermediate punishment followed by three years
of probation for two counts of terroristic threats and one count each of simple
assault, disorderly conduct and harassment.1 On appeal, Appellant challenges
the sufficiency of the evidence supporting his convictions. We affirm.
The trial court accurately summarized the evidence presented during
trial as follows:
1. Andrea Delsandro—Trial Testimony:
The Commonwealth presented the testimony of the victim, Andrea
Delsandro . . . Appellant and Delsandro had been in a relationship
for close to five years. In approximately mid-May 2018, Appellant
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(1), 5503(a)(1), and 2709(a)(1),
respectively.
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and Delsandro separated. They were the parents of a three-year
old and Delsandro was pregnant with their second child. A
[P]rotection [F]rom [A]buse [o]rder was entered on June 25,
2018, forbidding Appellant from contact with Delsandro.
Two days later, on June 27, 2018, Delsandro gave birth to her and
Appellant’s second child at St. Vincent’s Hospital in Erie,
Pennsylvania. On June 28, 2018, Delsandro was moved from the
birthing room into the recovery room on the 5th Floor of the
hospital. Later that day, Appellant came to Delasandro’s room at
the hospital where she was lying in bed with the baby. Appellant
sat down approximately six feet away. Appellant was initially calm
and made statements to Delsandro about his mental health issues
and history. This conversation caused Delsandro concern.
Appellant informed Delsandro he tried different coping
mechanisms and nothing had worked. Appellant then displayed
agitation and became confrontational with Delsandro. He advised
he was upset about the name Delsandro had given the child.
Appellant then stood up and advanced toward Delsandro and the
baby. Appellant held two fingers up and told Delsandro he was
this close to getting a gun and blowing her head off, shooting the
child, and shooting himself. Appellant told Delsandro he was
going to kill her father and bury him in the backyard, and then go
after her mother. Appellant advised of his plan to retrieve guns
at his parents’ residence and follow through with his threats. With
the prior knowledge Appellant had access to guns at his parents’
residence, Delsandro took Appellant’s threats seriously. Next,
Appellant grabbed Delsandro’s cell phone and told her she
wouldn’t need it anymore.
During the five-minute encounter with Appellant, Delsandro
became increasingly afraid and pressed the call button for the
nurse several times. Finally, when Appellant grabbed her phone,
Delsandro screamed out loud for help. She was shaking, fearful
and anxious. Nurse Aubrey Lucas responded and stepped
between Appellant and Delsandro, instructing Appellant to leave.
After Appellant exited the room, Delsandro telephoned her
landlord as she was afraid Appellant was headed to retrieve
weapons from the property. Lucas notified the police what had
occurred. Delsandro continues to suffer flashbacks, anxiety and
fear from the incident.
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2. Audrey Lucas, LPN—Trial Testimony:
The Commonwealth presented the testimony of Audrey Lucas, LPN
. . . On June 28, 2018, Lucas was working at St. Vincent’s Hospital
for the postpartum department on Floor 5 North. Floor 5 North is
a locked unit for safety reasons. A picture of Appellant was posted
at the nurses’ station to alert staff Appellant was not permitted on
the floor. Lucas had seen the picture. Lucas was also aware
Delsandro was a “Code Purple,” which meant that the fact of
Delsandro’s admission was not to be revealed to certain persons.
While in a patient room next to Delsandro’s room, Lucas heard a
“blood-curdling scream.” Lucas stepped into the hall and
observed the door to Delsandro’s room was closed. Lucas opened
the door and saw Appellant leaning over the hospital bed and
Delsandro on her knees in the bed, appearing visibly upset. Lucas
recognized Appellant as the man in the picture posted at the
nurses’ station. Lucas contacted security. She advised Appellant
to leave immediately.
3. Christopher Szustak—Trial Testimony:
The Commonwealth presented the testimony of Christopher
Szustak, Manager of Security Operations at St. Vincent’s Hospital
. . . Szustak is the Manager of Security Operations at St. Vincent’s
Hospital. Szustak was working on June 28, 2018. He testified an
alert had been issued by security that Appellant had tried to
access the 5th floor at approximately 12:30 a.m. or 1:00 a.m.
that day via the emergency room entrance but had been turned
away by security due to the active PFA. At that time, Appellant
was informed of the reason he was prohibited entrance. Video
surveillance showed Appellant returned to St. Vincent’s Hospital
later that morning or early afternoon and accessed the 5th floor
by following staff members through the locked doors and
bypassing the security desk. Shortly thereafter, security received
a panicked call from staff members on the 5th floor requesting
security help and reporting Appellant was on the floor. All six
security officers on-duty were dispatched to the 5th floor, and calls
were made to second-shift officers to come in early to assist.
Appellant had left the 5th floor by the time security arrived, so the
officers began gathering information and reviewing video footage
to determine Appellant’s movements. Guards were stationed
outside Delsandro’s room, the nurses’ station, and the main lobby
to ensure Appellant did not return. Delsandro was moved to
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another secure unit. These security measures, which ultimately
resulted in a hospital lockdown, were the most extreme measures
Szustak ever had to employ during his eight-year tenure at the
hospital.
4. Officer Mark Schroeck—Trial Testimony:
The Commonwealth presented the testimony of Officer Mark
Schroeck . . . Officer Schroeck is employed by the City of Erie
Police Department. On June 28, 2018, Officer Schroeck was
dispatched to the 5th floor of St. Vincent Hospital for a PFA
violation. Upon arriving at Delsandro’s hospital room, Schroeck
found her in an emotional and distraught state. Delsandro
provided a copy of the PFA and a description of Appellant and his
vehicle along with his current address. Officer Schroeck confirmed
Appellant had been verbally notified of the PFA prior to June 28,
2018.
Appellant’s vehicle was located at his residence. The SWAT team
was dispatched to Appellant’s residence due to the nature of the
threats Appellant had made and the ensuing hospital lockdown.
After two hours, Appellant finally surrendered to police and was
arrested.
5. Appellant—Trial Testimony:
Appellant’s relevant testimony is summarized herein. The basis
for the PFA filed on June 25, 2018 was that on May 20, 2018,
Appellant took Delandro’s arm and wrapped it around her body in
order to retrieve his cell phone. He denied choking her. He
admitted that on June 9, 2018, he was angry, broke chairs and
threw glass and knives at Delsandro’s residence. Appellant
admitted that on June 18, 2018, he and Delsandro argued and it
“may or may not be so” that he told her he was going to have a
“b- - - -” beat her “a- -” and throw her down the stairs. Appellant
did not view the incidents as threatening.
Appellant claimed he thought he and Delsandro were dating up
through June 28, 2018. Prior to June 28, 2018, Erie County Sheriff
John Loomis notified Appellant about the PFA and that he was
evicted from the residence. Appellant admitted he went to St.
Vincent’s hospital at approximately 4:00 a.m. or 4:30 a.m. on
June 28, 2018; he was stopped by security and informed there
was an active PFA against him. Appellant returned to the hospital
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later that day with the intention of seeing his son. He went directly
to Delsandro’s room on the 5th floor without stopping at security.
He noticed the newborn’s name written on the dry erase marker
board in Delsandro’s room. Appellant went over to the board and
crossed off part of the name. Appellant admitted he and
Delsandro had a heated conversation regarding infidelities.
Appellant admitted he stood up, grabbed Delsandro’s phone, and
told her she didn’t need it anymore. He further admitted
Delsandro screamed and Nurse Lucas rushed to the room and
informed him he could not be in the hospital. Appellant left the
hospital. When the SWAT team arrived at the residence, Appellant
testified he engaged in the standoff with the police because
Appellant felt it was a joke.
Trial Court Opinion, 6/12/19, at 5-10 (citations to the record omitted).
Following a non-jury trial, the trial court found Appellant guilty of the
aforementioned charges. On February 13, 2019, the trial court imposed
sentence. Appellant filed timely post-sentence motions, which the court
denied on March 5, 2019. On April 3, 2019, Appellant filed a timely notice of
appeal and a Pa.R.A.P. 1925(b) statement of matters complained of on appeal
challenging the sufficiency of the evidence.
On June 12, 2019, the trial court filed a Pa.R.A.P. 1925(a) opinion
asserting that Appellant waived his challenges to the sufficiency of the
evidence due to the vagueness of his Rule 1925(b) statement. The trial court
stated that even if Appellant did not waive his sufficiency challenges, they
were devoid of merit.
On July 22, 2019, Appellant filed an application for relief in this Court
requesting leave to amend his Rule 1925(b) statement. On August 2, 2019,
this Court remanded the record to the trial court to allow Appellant to file an
amended Rule 1925(b) statement and directed the trial court to file a
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supplemental Rule 1925(a) opinion. On August 9, 2019, Appellant filed an
amended Rule 1925(b) statement in the trial court. On September 24, 2019,
the trial court filed a supplemental opinion incorporating its August 2, 2019
opinion by reference and concluding, once again, that Appellant’s sufficiency
claims were without merit.
On April 28, 2020, this Court entered a memorandum affirming
Appellant’s judgment of sentence. We concluded that Appellant waived his
challenge to the sufficiency of the evidence due to the vagueness of his original
Rule 1925(b) statement. On May 6, 2020, Appellant filed a timely application
seeking reconsideration on the ground that he had cured the defect in his
original Rule 1925(b) statement by filing a supplemental Rule 1925(b)
statement in the trial court. He further pointed out that the trial court filed a
supplemental opinion in which it reviewed his sufficiency challenge on the
merits. On June 10, 2020, we granted panel reconsideration, withdrew our
April 28, 2020 memorandum, and instructed that the parties need not file any
additional briefs.2 We now review the merits of the arguments raised in this
appeal.
Appellant raised the following argument in his brief, “[w]hether the
Commonwealth failed to present sufficient evidence to find [A]ppellant guilty
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2 Appellant’s Brief does not comply with Pa.R.A.P. 2111, as Appellant failed to
include a copy of the statements of errors complained of on appeal, see
Pa.R.A.P. 2111(a)(11), (d), and a copy of the supplemental Rule 1925(a)
opinion, see Pa.R.A.P. 2111(a)(10), (b). We note that reconsideration might
not have been necessary had Appellant complied with these rules.
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beyond a reasonable doubt of terroristic threats, simple assault, and
disorderly conduct[.]” Appellant’s Brief at 3. Appellant does not challenge
the sufficiency of the evidence underlying his conviction for harassment.
When reviewing a challenge to the sufficiency of the evidence, we
determine “whether the evidence admitted at trial, as well as all reasonable
inferences drawn therefrom, when viewed in the light most favorable to the
verdict winner, are sufficient to support all the elements of the offense.”
Commonwealth v. Cline, 177 A.3d 922, 925 (Pa. Super. 2017) (citation
omitted). “This standard is equally applicable to cases where the evidence is
circumstantial rather than direct so long as the combination of the evidence
links the accused to the crime beyond a reasonable doubt.” Commonwealth
v. Hardcastle, 546 A.2d 1101, 1105 (Pa. 1988) (citation omitted). “The
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. Brown, 186 A.3d 985, 991 (Pa. Super. 2018). In
reviewing a challenge to the sufficiency of the evidence, we may not weigh
the evidence and substitute our judgment for the fact-finder. Id. at 990.
The Crimes Code provides that the defendant commits the crime of
terroristic threats when he “communicates, either directly or indirectly, a
threat to . . . commit any crime of violence with intent to terrorize another.”
18 Pa.C.S.A. § 2706(a)(1). This offense is a first degree misdemeanor “unless
the threat causes the occupants of the building, place of assembly or facility
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of public transportation to be diverted from their normal or customary
operations” in which case it is a third degree felony. 18 Pa.C.S.A. § 2706(d).
Construed in the light most favorable to the Commonwealth, the evidence
supports Appellant’s conviction for terroristic threats, graded as a third degree
felony. The trial court reasoned:
The evidence as described herein sufficiently established not only
did Appellant threaten to kill Delsandro, the newborn child, and
her father and with the intent to cause terror to Delsandro, but
also that Appellant’s threats further caused St. Vincent’s Hospital
to divert its normal operations. All on-duty security personnel
responded to the incident and were diverted from their normal
duties. Additional security officers were called in early to assist.
Delsandro and the baby had to be moved to another room. The
entire facility was put on lockdown. The head of security at the
hospital had never seen measures as extreme as this taken during
his tenure.
Trial Court Opinion, 6/12/19, at 10-11. We agree with this reasoning.
With regard to Appellant’s misdemeanor conviction for terroristic
threats, we note that Delsandro testified that “[Appellant] was this close to
getting a gun and blowing her head off, shooting the child, and shooting
himself. Appellant told Delsandro that he was going to kill her father and bury
him in the backyard, and then go after her mother.” Id. at 6 (citation to the
record omitted). Delsandro knew that Appellant had guns and feared his
threat was serious. Moreover, Appellant went to considerable lengths to
convey this threat by evading hospital security and defying his PFA order.
Furthermore, the Commonwealth presented three additional witnesses
corroborating the victim’s testimony. As noted above, the trial court, sitting
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as trier of fact, was free to believe the testimony of the Commonwealth’s
witnesses over Appellant’s version of the facts. We cannot reweigh the
evidence or make credibility assessments. Brown, 186 A.3d at 990. Thus,
Appellant’s challenge to the sufficiency of the evidence underlying his
convictions of terroristic threats is without merit.
Turning to Appellant’s conviction for simple assault, the Crimes Code
provides that the defendant is guilty of this offense if he “attempts by physical
menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A.
§ 2701(a)(3). The evidence clearly establishes all elements of this offense.
As the trial court observed:
Appellant is twice the size of Delsandro. Delsandro was confined
to a hospital bed, having just given birth hours earlier. With
Delsandro in this condition, Appellant approached her, hovered
over her, told her he was going to get a gun to shoot her and the
newborn in the head, and physically grabbed the phone from her
hand. Delsandro had been paging for help during the encounter
and let out a “blood–curdling scream.” When Lucas arrived in the
room, she observed Appellant still hovering over Delsandro.
Delsandro was visibly upset and shaking.
Trial Court Opinion, 6/12/19, at 12. We agree with this analysis and reject
Appellant’s challenge to the sufficiency of the evidence on this charge.
Finally, with regard to Appellant’s conviction for disorderly conduct, the
Crimes Code provides that a defendant is guilty of this offense “if, with intent
to cause public inconvenience, annoyance or alarm, or recklessly creating a
risk thereof, he . . . engages in fighting or threatening, or in violent or
tumultuous behavior.” 18 Pa.C.S.A. § 5503(a)(1). The trial court wrote:
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The elements of th[is] crime were satisfied. The evidence
established Appellant made violent threats to Delsandro and the
threats in a public inconvenience . . . Appellant’s actions resulted
in the lockdown of the hospital and staff was diverted from their
usual duties to deal with the situation Appellant had created.
Public resources were expended to address the situation Appellant
had created by his words and actions. The evidence was sufficient
to convict Appellant of disorderly conduct.
Trial Court Opinion, 6/12/19, at 12-13 (unnecessary capitalizations omitted).
We agree with the trial court’s analysis and conclusions.
For these reasons, we hold that Appellant’s challenge to the sufficiency
of the evidence is devoid of merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2020
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