Commonwealth v. Cole

1

COMMONWEALTH OF PENNSYLVANIA v. KENNETH J. COLE Appellant

No. 156 EDA 2023

No. J-A14028-24

Superior Court of Pennsylvania

September 25, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered July 15, 2022 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0003724-2019

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.

MEMORANDUM

STABILE, J.

Appellant Kenneth J. Cole, appeals from the judgment of sentence imposed on July 15, 2022, as made final by the denial of his post-sentence motion on December 13, 2022. He challenges the sufficiency and weight of the evidence to support his convictions of endangering the welfare of children, resisting arrest and summary harassment. Concluding Appellant's claims to be waived, as well as meritless, we affirm.

On May 23, 2019, Nicole Gantt was sleeping in bed with her minor daughter when her husband, Appellant, came home drunk. N.T., 8/31/21, at 40-41. Appellant woke up Ms. Gantt by slapping her buttocks and using profanity in the presence of the child to get out of bed. Id. Initially, Ms. Gantt and her daughter got up and went into a different room. Id. at 41. Ms. Gantt went back into the bedroom to retrieve her cell phone, and an argument ensued between her and Appellant. Id. Appellant, who had been sitting on the bed, jumped up and hit Ms. Gantt, who defended herself. Id. Appellant punched her in the "head, face, everywhere." Id. at 42. Ms. Gantt estimated that Appellant punched her six or seven times, but she was unsure of the exact number. Id. While Ms. Gantt was on the ground, Appellant "was standing over top of [her and] just came down with his one knee into [her] ribs." Id.

Ms. Gantt called 911.^[1] Id. She informed dispatch that Appellant struck her repeatedly, and that her ribs were possibly broken. Id., at Exhibit C-2. She was unsure if there were weapons in the home and reported that she believed Appellant was intoxicated. Id. While Ms. Gantt was on the phone with the 911 operator, a responding officer arrived at the home. Id.

Officer Michael Kinsman of the City of Coatesville Police Department was dispatched to Appellant's residence, and he arrived about two minutes after Ms. Gantt called 911.^[2] N.T., 9/1/21, at 5, 8-9. Before he exited his vehicle, the dispatch was upgraded to an assault with injuries based on the 911 call from Ms. Gantt. Id. at 9-10.

When Officer Kinsman knocked on the door, he could hear Ms. Gantt on the phone with the 911 operator. Id. at 12. The officer observed that Ms. Gantt was visibly distressed and that it was painful for her to walk. Id. She held her cell phone in one hand and clutched the left side of her upper torso with the other. Id.

Ms. Gantt informed Officer Kinsman that Appellant had violently assaulted her. Id. at 13. Officer Kinsman was only partially able to see inside the home, so he asked Ms. Gantt to step outside for her safety as Appellant was still inside, standing at the top of the stairs to the second floor. Id. at 13-14. As Ms. Gantt stepped out, Appellant ran down the stairs "very aggressively," only stopping at the front door, within feet of Officer Kinsman and Ms. Gantt. Id. at 14-15. Officer Kinsman believed Appellant intended to attack him or Ms. Gantt, and Appellant was directed to back away. Id. When Appellant did not comply, Officer Kinsman unholstered his firearm and pointed it at Appellant. Id.

Officer Kinsman continued to command Appellant to show his hands, as it was difficult for the officer to see what, if anything, Appellant was holding. Id. at 16. Appellant ignored the order and instead ran to the front door, pushed it shut and tried to lock it. Id. Officer Kinsman kicked the door open because it had been reported that children were in the home, and he wanted to ensure their safety. Id. at 16-17. As the door was kicked, the glass in the top half of its windowpane shattered. Id. at 17-18.

Around this time, Officer Samuel Snyder arrived at the home. N.T., 8/31/21, at 57. When he saw Officer Kinsman draw his firearm, Officer Snyder did so too, but he did not point it at Appellant. Id. at 57-58. As Officers Kinsman and Snyder entered the home, Appellant fled upstairs. Id. at 58.

Officer Snyder put his firearm away and drew his taser to ensure the officers had a non-lethal option. Id. at 58-59.

Once inside the home, Officers Kinsman and Snyder observed Appellant standing at the top of the stairs holding his minor son, K.C., in front of him. Id. at 59. Appellant seemed angry, and he demanded to know why officers were in the home. Id. at 60. From the bottom of the stairs, the officers continued to yell commands at Appellant to show his hands and release K.C. Id. Ms. Gantt, who was downstairs behind the officers, and the parties' minor daughter who was upstairs, were also yelling at Appellant to let K.C. go. Id. at 61-62. Appellant was yelling at the minor daughter to record what was happening. Id. at 62.

Throughout this entire encounter, Officer Kinsman had his firearm, and Officer Snyder had his taser, pointed at Appellant. Id. at 65. The taser held by Officer Snyder emitted a targeting laser, and when K.C. saw the laser on Appellant, the child began screaming. Id. Shortly thereafter, Appellant released K.C., who then moved away from Appellant. Id.

Two more officers then arrived at the home - Corporal Jared Davis^[3] and Lieutenant Kenneth Michaels.^[4] Appellant started to come down the stairs after Corporal Davis commanded him to, and when he was about halfway down the stairs, the officers ordered him to get on the ground. Id. at 67. Appellant refused and retreated back to the top of the steps. Id. Once it was determined that Appellant was not armed with a weapon, the officers decided to go upstairs to attempt to detain him. Id. at 69.

Officer Snyder was the first up the stairs and upon reaching the landing, he forcefully shoved Appellant backwards. Id. Appellant thrashed around and yelled for his children to record what was happening. Id. at 70. "Eventually [Appellant] curled up with his hands up underneath his body as he laid sort of facedown and was holding them tight to his chest to prevent us from pulling his hands out so that he could be placed in handcuffs." Id. Officer Kinsman stunned Appellant using the drive stun feature. N.T., 9/1/21, at 38. However, Appellant was not subdued, as he was able to grab the taser, pull it away from his body, and strike Lieutenant Michaels with it. Id.

The police managed to handcuff Appellant, and during the struggle, he was thrashing, kicking, yelling and telling his children to record him. N.T., 8/31/21, at 72. As soon as the handcuffs were secured, Appellant "went limp and just laid there." Id. at 72. Officers moved Appellant onto his side into a recovery position, and eventually to a seated position. Id. at 72-73. Once he was placed in a seated position, Appellant appeared to be unconscious. Id. at 73.

Emergency medical services ("EMS") were nearby when the responding officers called for assistance, and they responded almost immediately. N.T., 9/1/21, at 48. An emergency medical technician, Kevin Collette arrived to render aid, and when he did so, he observed Appellant in a seated position with his hands behind his back. Id. at 49. There was some blood on appellant's face, and he refused to answer any questions. Id. EMS checked and confirmed Appellant had a very strong pulse and he did not appear to be suffering from any major medical issue. N.T., 8/31/21, at 74. Appellant was merely not responding. Id. Mr. Collette testified that he did not believe Appellant was unconscious because "he responded by opening his eyes and looking around on occasion." N.T., 9/1/21, at 49. Had he believed Appellant lost consciousness, he would have requested a medic per protocol. Id. at 49-50.

Officers requested EMS to bring a stair chair, which is a device used to transport a patient downstairs. Id. at 48. When officers and EMS attempted to put Appellant on the stair chair, he went stiff, preventing him from being secured in the device. Id. at 49. Once it became clear that EMS could not utilize the stair chair safely, a Reeves stretcher was brought in. Id. at 50. A Reeves stretcher is "a large orange flexible stretcher. It enables [EMS] to strap patients in using three straps. It's got flaps on either end to hold the patient in and secure their head. It's got board slats that go down the length of the stretcher to keep it firm." Id. "It also enables [EMS] to slide the patient on hard surfaces and makes it a little easier for getting people out." Id. (Cleaned up).

Once Appellant was secured in the Reeves stretcher, he again yelled at his children to record, and rolled his body around while officers and EMS carried him downstairs. Id. at 75. While being carried downstairs, Appellant was yelling, and blood was spraying all over. N.T., 9/1/21, at 53.

When they got to the first floor, Appellant "essentially rolled out of the Reeves [stretcher]." N.T., 8/31/21, at 76. Appellant was asked to stand up and walk on his own, but he refused and continued to yell for his children to record the incident. Id. Officer Snyder, Lieutenant Michaels, and another individual had to pick Appellant up and carry him through the front door. Id. In doing so, Officer Snyder's arm was cut by the broken glass from when Officer Kinsman broke the door open. Id. at 76-77. Officer Snyder had a four-inch, U-shaped laceration that required eight stitches to close the wound. Id. at 77.

After EMS tended to Officer Snyder, they put Appellant back on the Reeves stretcher because he was still kicking and thrashing. N.T., 9/1/21, at 53. Eventually, they were able to get Appellant into the...