Com. v. Baj, C.

J-A04023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER BAJ, :
:
Appellant : No. 1186 EDA 2019
Appeal from the Judgment of Sentence Entered December 19, 2018
in the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000834-2018
BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 4, 2020
Christopher Baj (Appellant) appeals from the judgment of sentence
imposed following his convictions for aggravated assault, simple assault,
recklessly endangering another person (REAP), and endangering the welfare
of children (EWOC). We affirm.
The trial court provided the following background.
The events unfolded in the early evening on January 29, 2018,
after [Appellant] was served divorce papers by his wife, Mia [],
at their residence at 2272 Toursdale Drive in Bethlehem
Township, Northampton County, Pennsylvania. Apparently,
[Appellant] did not anticipate the divorce filing.
According to the testimony, in the early evening hours,
[Appellant] and [Mia] calmly discussed the divorce until around
midnight, when she went to bed. [Appellant] remained awake at
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* Retired Senior Judge assigned to the Superior Court.
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this time and went into his home office. While in his office[,
Appellant] completed an online transfer of approximately
$75,000 from a marital account into an account that he shared
with his adult daughter, Natalie ([Mia’s stepdaughter]). He also
consumed a bottle of vodka and sent a cryptic email to both of
his adult daughters from his previous marriage. In the email,
[Appellant] expressed that he had no desire to proceed with the
divorce.
On January 30, 2018, at approximately 2:30 a.m.[, Mia]
awoke because she heard [Appellant] coming up the stairs.
[Mia] got out of bed. [Appellant] approached [Mia] with the
divorce papers in his left hand. At that time[, Mia] became
alarmed because she observed a firearm in the waistband of
[Appellant’s] gym shorts. [Mia] alleged that she attempted to
grab the firearm. [Appellant] swatted away [Mia’s] hand,
removed the gun from his shorts and raised the gun to her head.
[Mia] ran into the master bathroom and locked [the] door. She
then dialed 911. [Appellant] tried to open the locked door and
then proceeded to shoot his gun three times through the
bathroom door, at varying heights, twice near the locking
mechanism and once near the door frame, at head height.
[Appellant] then attempted to break the door open, at that time
[Mia] was able to run out of the bathroom, down the stairs, and
outside the home, all the while she remained on the phone with
the 911 operator. [Mia] recounted that as she ran down the
stairs she saw her son, J.B.[,] come to the doorway of his room
and say, “Daddy?” and she heard [Appellant] instruct J.B. to get
back in his room.
The Commonwealth played the 911 call for the jury, in
which [Mia] could be heard desperately crying for help,
screaming to her husband on the other side of the door that she
was calling the police and begging for the operator to send the
police because she was fearful that [Appellant] was going to kill
her. After which, three gun shots can be heard. The jury heard
the three shots taken by [Appellant] into the door that [Mia] was
cowering behind, after she cried out in fear, and asked for help.
The police responded to the scene, along with a SWAT
team and a hostage negotiator. For several hours, [Appellant]
refused to respond to police phone calls and loudspeaker
instructions. The hostage negotiator was unable to defuse the
situation or to safely get the two minor children out of the
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residence. Eventually, the police were able to monitor the
children and then contact the children by accessing the speaker
for the parent’s monitor/surveillance system stationed in the
children’s bedroom. After the boys woke up around 6:30 a.m.,
the older son, J.B., who was 7 years old at the time, was
instructed by officers to get his 4-year-old brother and leave
through the front door of the home. The boys were able to leave
the residence on their own accord; however, [Appellant] did not
assist in the safe exit of the two boys and refused to comply with
all police directives. Apparently, after pacing in the home for
hours, [Appellant] sat catatonically on a living room chair for
several hours.
After repeated attempts to ask [Appellant] to leave the
home by his own volition, around 12:00 p.m. the police
performed a “brake and rake” where they broke a window in
[Appellant’s] home to distract him, and the SWAT team entered
the home and took [Appellant] into custody without injury. The
police then obtained a search warrant. The police located and
seized a Taurus revolver that was used in the shooting, as well
as the bullet fragments in the bathroom and casings in the
bedroom. The revolver was found in a cabinet above the
refrigerator.
Trial Court Opinion, 5/15/2019, at 2-5 (citations omitted). Upon further
investigation, police located a storage locker which contained several
firearms and a bottle of vodka, and discovered Appellant made a $75,000
transfer of funds held in a trust with Mia to Appellant’s other adult daughter,
Kristina. Both the rental and the transfer occurred two days before the
shooting. Additionally, Appellant, Mia, and their two children, were
scheduled to travel to Poland on the morning of January 30, 2018. On
January 29, 2018, Appellant cancelled their car service to the airport, and
later in the day, rescheduled via a blocked phone number transportation for
one.
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As a result of this incident, Appellant was arrested and charged with
the aforementioned crimes, as well as attempted murder. Appellant
proceeded to a jury trial, where the aforementioned facts were developed.
At the conclusion of the trial, the jury convicted Appellant of one count each
of aggravated assault, simple assault, and REAP, and two counts of EWOC,
but the jury was hung as to the attempted murder charge and a mistrial was
declared as to that charge.
On December 19, 2018, the trial court sentenced Appellant to an
aggregate term of 6 to 17 years of incarceration. For sentencing purposes,
the trial court merged Appellant’s convictions for simple assault and
aggravated assault. Appellant timely filed a post-sentence motion
challenging the sufficiency of the evidence to sustain his convictions for
aggravated assault and simple assault. The trial court denied the motion on
March 25, 2019.
This timely-filed appeal followed.1 On appeal, Appellant challenges the
sufficiency of the evidence to sustain his convictions for aggravated assault
and simple assault. Appellant’s Brief at 4.
To address a challenge to the sufficiency of the evidence, we must
determine
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1Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
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whether, viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth as 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. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(citation omitted).
In the instant case, Mia did not suffer physical injury as a result of
Appellant’s shooting. Therefore, the Commonwealth proceeded on
aggravated assault and simple assault charges on the basis of attempt. To
prove that Appellant committed aggravated assault, the Commonwealth had
to establish that Appellant “attempt[ed] to cause serious bodily injury to
another, [] under circumstances manifesting extreme indifference to the
value of human life.” 18 Pa.C.S § 2702(a)(1). As applied to the offense of
aggravated assault, “serious bodily injury” is 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 any bodily
member or organ.” 18 Pa.C.S. § 2301. “Where the victim does not sustain
serious bodily injury, the Commonwealth must prove that the [defendant]
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acted with specific intent to cause serious bodily injury.” Commonwealth
v. Lewis, 911 A.2d 558, 564 (Pa. Super 2006).
In order to prove that Appellant committed simple assault, the
Commonwealth had to prove that Appellant attempted to cause bodily injury
to another. 18 Pa.C.S. § 2701(a)(1). “Bodily injury” is “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S. § 2301.
“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). “Intent can be proven by
direct or circumstantial evidence; it may be inferred from acts or conduct or
from the attendant circumstances.” Commonwealth v. Miller, 172 A.3d
632, 641 (Pa. Super. 2017). In determining whether the Commonwealth
proved Appellant had the requisite specific intent, the fact-finder is free to
conclude “the accused intended the natural and probable consequences of
his actions to result therefrom.” Commonwealth v. Rosado, 684 A.2d
605, 608 (Pa. Super. 1996).
The crux of Appellant’s argument is that the evidence was insufficient
to sustain his convictions because the Commonwealth failed to prove that
Appellant acted with the requisite specific intent. Appellant’s Brief at 11-15.
Specifically, Appellant claims “he fired each shot for the purpose of opening
the door and not with the specific intent to hurt [Mia].” Id. at 11. To
support his contention, Appellant essentially argues that if it was his
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intention to cause his wife serious bodily injury, he would have done so after
he finally broke the door open. Id. Lastly, Appellant contends his conviction
on the charge of aggravated assault was inconsistent with the jury’s hung
verdict as to attempted murder. Id. at 14.
As stated supra, the intent to commit aggravated assault is established
when the accused intentionally acts in a manner that constitutes a
substantial or significant step toward perpetrating serious bodily injury upon
another. Rosado, 684 A.2d at 608. This Court has found the requisite
intent to commit aggravated assault when the accused has fired a gun into a
building he knew was occupied. Id. at 609-10.
Reviewing the evidence in the light most favorable to the
Commonwealth, we conclude the evidence was sufficient to enable the jury
to find Appellant guilty of aggravated assault. Specifically, the jury was
permitted to find the evidence established Appellant intended to cause
serious bodily injury when he fired his weapon at the bathroom door, at
varying heights, behind which he knew Mia was hiding. See Rosado, 684
A.2d at 609-10. The foregoing, together with the events in the preceding
days that culminated in Appellant’s being served divorce and custody
papers, in context, allow one to infer that Appellant intended to cause
serious bodily injury to Mia. Accordingly, we conclude the evidence is
sufficient to establish that Appellant acted with the requisite intent, and
therefore, sustain Appellant’s conviction of aggravated assault.
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Because we have determined that the evidence was sufficient to
sustain Appellant’s conviction of aggravated assault, and simple assault is a
lesser included offense of aggravated assault, we also conclude the evidence
is sufficient to sustain Appellant’s conviction of simple assault. See
Commonwealth v. Sirianni, 428 A.2d 629, 632-33 (Pa. Super. 1981)
(explaining that simple assault as an attempt to cause bodily injury is a
lesser included offense of aggravated assault, which is an attempt to cause
serious bodily injury).2
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2 In Appellant’s Brief, he alludes to an argument that the verdict was
inconsistent. “[I]t is hard to reconcile how a jury could have found that
Appellant had the conscious object to seriously harm but not to kill.”
Appellant’s Brief at 14.
Such an argument fails on numerous grounds. First, it is waived. If
Appellant is claiming attempted murder and aggravated assault have
identical elements of intent, and therefore the failure to convict Appellant on
the attempted murder charge should have also resulted in a failure to
convict on the aggravated assault charge, Appellant never raised this in his
1925(b) Statement.
[T]he United States Supreme Court has recognized that a court’s
review of the evidentiary sufficiency of a particular conviction is
separate from its review of inconsistent verdicts, as sufficiency
review entails an assessment of whether the evidence was
sufficient for the jury to convict a defendant of a particular
offense and is “independent of the jury’s determination that
evidence on another count was insufficient.” United States v.
Powell, 469 U.S. 57, 67, [ ] (1984). Thus, the Supreme Court
has explicitly cautioned that sufficiency review “should not be
confused with the problems caused by inconsistent verdicts.”
Id. Accordingly, in line with the [H]igh Court, we emphasize
that such challenges are more appropriately characterized as
challenges to the inconsistency of the jury’s verdict, rather than
(Footnote Continued Next Page)
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Based on the foregoing, we affirm Appellant’s judgment of sentence.
(Footnote Continued) _______________________
to the sufficiency of the evidence to sustain a particular
conviction.
Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014).
Second, the trial judge in his opinion explained that the jury verdict was not
inconsistent. Trial Court Opinion, 5/15/2019, at 8-12. Third, a jury verdict
is not required to be consistent.
“Inconsistent verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal.
Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super.
2004) (citations omitted). Rather, “[t]he rationale for allowing
inconsistent verdicts is that it is the jury’s sole prerogative to
decide on what counts to convict in order to provide a defendant
with sufficient punishment.” Commonwealth v. Miller, 657
A.2d 946, 948 (Pa. Super. 1995) (citations omitted). “When an
acquittal on one count in an indictment is inconsistent with a
conviction on a second count, the court looks upon the acquittal
as no more than the jury’s assumption of a power which they
had no right to exercise, but to which they were disposed
through lenity. Thus, this Court will not disturb guilty verdicts
on the basis of apparent inconsistencies as long as there is
sufficient evidence to support the verdict. Petteway, 847 A.2d
at 718.
Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa. Super. 2005)
(citations modified); see also Commonwealth v. Miller, 35 A.3d
1206, 1208, 1213 (Pa. 2012) (“inconsistent verdicts ... are allowed to
stand so long as the evidence is sufficient to support the conviction”;
“an acquittal cannot be interpreted as a specific finding in relation to
some of the evidence, and that even where two verdicts are logically
inconsistent, such inconsistency alone cannot be grounds for a new
trial or for reversal”; “the ‘special weight’ afforded the fact of an
acquittal plays no role in the analysis of inconsistent verdicts, because,
by definition, one of the verdicts will always be an acquittal”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2020
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