Commonwealth v. Bollinger

245 A.3d 1060 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Tyler BOLLINGER, Appellant

No. 611 EDA 2018

Superior Court of Pennsylvania.

Filed December 11, 2020

MEMORANDUM BY STRASSBURGER, J.:

Tyler Bollinger (Appellant) appeals from the judgments of sentence entered following revocation of his terms of probation. ¹ We affirm.

The underlying cases stem from an incident where Appellant and four co-defendants attacked a group of high school students, seriously injuring three of them. Appellant entered into negotiated guilty pleas on the three dockets, which resulted in his pleading guilty to three counts of aggravated assault, one count of conspiracy, and one count of possession of an instrument of crime (PIC).

We glean the following from the recitation of facts to which Appellant pleaded guilty at his guilty plea hearing. See N.T., 10/10/2017, at 15-17. On March 21, 2014, at about 10 p.m., Appellant and co-defendants Hellena Andro, David Cramp, John Farrell, and Ryan Palen encountered a group of high school students, including Thomas Bayer, Joseph Galasso, and James Galasso (collectively, the Victims). Appellant and the co-defendants initiated a physical fight with the Victims by throwing glass beer bottles at them. The Victims, who were unarmed, responded by engaging in a fistfight, punching Appellant and co-defendants. In the end, the Victims were stabbed multiple times and suffered critical injuries that required hospitalization. Bayer suffered five stab wounds, Joseph suffered three, and James suffered eight. Appellant and the co-defendants ran from the scene to the residence of Appellant's father, where Appellant hid two knives that were used in the assault. The knives were recovered pursuant to a search warrant executed the following day. Appellant was not identified by the Commonwealth as one of the individuals who had stabbed the Victims.

Based on the foregoing, Appellant and the co-defendants were charged with aggravated assault and related offenses and listed for a consolidated jury trial. Prior to trial, co-defendants Andro, Cramp, and Palen pleaded guilty. Thereafter, the Commonwealth agreed to sever the trials of Appellant and Farrell. Farrell's trial, which was held first, resulted in a mistrial due to a hung jury. The Commonwealth then moved to consolidate Appellant's and Farrell's cases for a jury trial, which the trial court granted over Appellant's objection.

After several continuances, the consolidated jury trial was scheduled for October 10, 2017. Before trial started on that date, Appellant entered into a negotiated guilty plea to the following: at docket 4371-2014, aggravated assault (victim Joseph Galasso), conspiracy-aggravated assault, and PIC; at docket 4374-2014, aggravated assault (victim James Galasso); and at docket 4377-2014, aggravated assault (victim Bayer). ² After Appellant's guilty plea colloquy, the court heard argument from counsel for the parties, testimony from Appellant's grandmother confirming Appellant would live with her if he was sentenced to a term of probation, and Appellant's allocution. The court then accepted the parties' negotiated agreement and imposed the negotiated aggregate term of 1 ½ to 3 years of incarceration followed by 10 years of probation on the three dockets. ³

Appellant received credit for time served and was immediately released on probation with the conditions that he be supervised by the anti-violence unit; seek and maintain employment; submit to random drug and alcohol screens and comply with all treatment; submit to random home and vehicle checks for drugs or weapons; perform 100 hours of community service; have no direct, indirect, social media, or third-party contact with the Victims or Commonwealth witnesses; ⁴ and pay restitution.

One week later, on October 17, 2017, Appellant tested positive for marijuana. In addition, Appellant's probation officer reported that Appellant had posted a video on social media (Facebook Live) where he, among other things, openly engaged in drug and alcohol use with co-defendant Andro, "rapped," voicing his frustrations, threatened Roseanna Punzo, the mother of his young child, and disparaged the judge who sentenced him. Appellant was arrested and the court issued a detainer on November 3, 2017.

A violation of probation hearing was held on November 6, 2017. At the hearing, the court viewed the Facebook video and heard testimony from Punzo; Tabitha Dolbow, the godmother of Appellant and Punzo's child; Susan Luckangelo, Appellant's grandmother; and Appellant. The following are excerpts from the transcript of statements Appellant made during the video.

• "I feel like Poltergeist, looking for a throat to slice, with this lyrical machete, get ready when I approach the mic potent ... smoke this pipe and if you're fucking with me better know the price if you want to gamble with your life then go roll the dice fuck it homie. Yolo right? Am I gonna make it home at night? Might not ever see your ass again.. you know I'm right[.]"

• "[I]f I could start picking off targets like the shooting range; that's why they call me TILT; ^[5] ...if I could start hitting my mark I gotta shooters aim[.]"

• "[C]oming through excuse me; you don't want to move I'm hittin' you with a two piece; not a 1 – 2; I'm talking a 22 piece; 22 calibers going inside of you, peace[.]"

• "You only have one life to live; one life to give; to the people who deserve the most like your wife and kids; so fuck it let the dutch light and hit cause life is quick; you might not make it through the night but miss what is right in front of your eyes, you blind spiteful bitch; I just want to see my daughter I don't like this shit; this is something I got ... to fight with fists cause I don't punch females but this bitch might get kicked[.]"

• "I said fuckin up my liver; ... like a flicker; pass it back to my homie.. bitch hold the liquor cause I'm driving on 95 but I'm loaded and twisted ... not sober for a minute[.]"

• "[C]ock, suicide by police I die when I go free; when you do your crimes never ride with a co-D[.]"

• "LISTEN – fuck the judge, jury, fuck the DA, tell em to bring your secretary we can have a three way; homie I got Jack McMahon, ^[6] so what can she say; and after this brief stay... packin up my briefcase and going to an island I got this ... sweepstakes for petesakes I'm sick. I said ... Listen listen listen[.]"

• "Let em all fucking say I'm whack cause I'm white, pass me the mic and ... I'm fast in a fight, got a straight jab.. that would put any fucking body on their ass for the night; TILTs back home tell everybody you know, a lot of these motherfuckers try to copy my flow, I gotta be the only rapper not watching the throne, throw a fucking bomb on that bitch and watch it explode; ... a mess cause I'm gonna fight til the death; my fight's quicker than a viper bite striking your neck and I gotta knife in my left that slice right through your chest right through your ... slice right through your vest; motherfuckers telling me I might be the best, the only reason I was stopped because ... [w]ent down[ ]made the most of it[,] waited for an opening so I could take the game over when I'm home again strapped with a loaded pen blast[,] then I load again[. C]aught a case[,] now I'm back and I'm showing them I'm the next to make it[.] Make you wish you never hated enemy ... that's invading memories ... rappers get eliminated ... and incinerated ... still I been the greatest.. I SAID Listen listen listen – I can go forever, I'm so fucking high right now.

• "... I never stop til I'm dead, get a fuckin glock and take a few shots to your head, got bars like the meanest cell block in the fed, got bars like the back of a cop car, got hard dope and more coke than a rock store[.]"

• "I walk out that jail smelling like a pound of some loud so Fuck probation couple pounds tucked in basements. Anybody want to try they luck I'm waiting hoping praying somebody try to test my patience. Fuck around you'll be a body with no explanation."

• "Fuckin Anne Marie Coyle. ^[7] This bitch is fuckin nuts. You do not want this judge. Whoever gets this fuckin judge – you better go on the fuckin run or somethin."

• Referring to and looking at Andro, Appellant said "you know who that is? That's my motherfuckin Co-D!! She goes to court in 3 days for this shit."

N.T., 11/6/2017, at Court Exh. 1 (video transcript).

To contextualize Appellant's threats in the Facebook video, Punzo testified about her past relationship with Appellant. ⁸ She testified that while they were dating, Appellant was controlling as to what she wore, to whom she spoke, and where she went. N.T., 11/6/2017, at 14. After she became pregnant with Appellant's child, he became physically abusive to her. Id. at 14-17. Punzo described one incident where she asked Appellant to get help for his drug use, and he refused, pushed her into a wall, and threw a glass bottle at her, hitting her in the head. Id. at 14-15. She testified that she did not pursue a a protection from abuse (PFA) against Appellant at that time due to Appellant's minor status. Id. at 16. Punzo also talked about her court-ordered child visitations with Appellant while he was incarcerated. She described one visit to Appellant in prison where he screamed and yelled at her, threatened to take their daughter from her "no matter what," and balled his hands up as if to punch her. Id. at 19.

Next, Punzo testified about Appellant's attempts to contact her once he was released from prison in October 2017. Punzo testified that she had changed her phone number three times so Appellant could not contact her. Id. at 20. Despite this, Appellant used Andro's Facebook account to message and call Punzo, and Appellant messaged Punzo's then-boyfriend and others to ask for her phone number. Id. Within the first two days of Appellant's release from prison, Appellant told Punzo that "he would have somebody else take care of [Punzo] if he couldn...