Commonwealth v. Gardopee

287 A.3d 900 (Table)

COMMONWEALTH of Pennsylvania

v.Matthew Scott GARDOPEE, Appellant

No. 186 WDA 2022

Superior Court of Pennsylvania.

Filed: October 28, 2022

MEMORANDUM BY MURRAY, J.:

Matthew Scott Gardopee (Appellant) appeals from the judgment of sentence entered after a jury convicted him of three counts of recklessly endangering another person (REAP); two counts each of aggravated assault and simple assault; and one count of terroristic threats.¹ We affirm.

The trial court summarized the underlying facts as follows:

Testimony at trial established that on July 2, 2020, [Appellant] was involved with a verbal altercation with his girlfriend, Anna Halapia (Anna) inside their residence at 114 Cedar Street.¹ The incident escalated with [Appellant] threatening Anna and her daughter, Adreanna, saying someone needed to die. [Appellant] left the residence followed by Anna[,] who saw him walk around the residence headed to the backyard which was shared with her brother, Robert [Sechrengost (Robert)]. At the time[,] Matthew [Sandoval (Matthew)] was in the backyard with [his and Halee Sechrengost's (Halee) two-year old daughter] playing in a kiddie pool. Anna reentered her residence, proceeded to th[e] back door to look out, and told Adreanna to call 911 because she was afraid [Appellant] would hurt someone. Adreanna call[ed] 911 to report that [Appellant] [was] making threats. While Adreanna [was] on the phone, Anna [told her] to tell 911 that [Appellant] had a knife[,] and she relay[ed] this information to the operator.²

¹ Anna's residence is a duplex with her brother Robert residing in the other half.

² A recording of the 911 call was played for the jury.

As he walked around the residence, [Appellant] encountered Halee[, (who is Robert's daughter and Anna's niece),] who was in her neighboring yard. [Appellant] grabbed Halee and threatened her with a knife he took from his belt[,] but she was able to get away from him and go to her residence where she retrieved her shotgun. Matthew saw the encounter between his girlfriend, Halee, and [Appellant] and took his daughter from the pool and placed her inside Robert's back door. While inside[,] Matthew call[ed] for Robert to come downstairs because [Appellant had] just threatened Halee with a knife.

While Matthew was putting his daughter inside Robert's backdoor, [Appellant] crossed the yard and walked towards him. Robert came downstairs and entered the backyard through a side door where he confronted [Appellant,] asking him why he was threatening Halee. [Appellant] turned away from Mathew towards Robert and began approaching him with his knife in hand. Robert backed away from [Appellant] and became entangled or tripped up by a camping chair in the backyard, at which time [Appellant] lunged at him with the knife. Matthew pushed Robert aside and began struggling with [Appellant] over control of the knife.

During the struggle, Matthew was able to take the knife away from [Appellant,] while [Appellant] put Matthew in a headlock and began punching his head and back. In an effort to get [Appellant] to release him, Matthew use[d] [Appellant's] knife and stab[bed] him repeatedly to no avail[,] as [Appellant would] not release him or stop the attack. At this point Halee arrived in the backyard carrying a shotgun and saw Matthew struggling with [Appellant]. Halee approached the pair and saw blood on the two men but could not tell who was injured. She struck [Appellant] on the head with the butt of the weapon in an effort to end the fight. [Appellant] continued to fight and Halee pointed the shotgun at him and told him to stop or she would shoot, at which time [Appellant] stopped struggling and collapsed on the ground.

... Johnstown Police Department (JPD) Patrolman Alex Conahan ([Officer] Conahan) arrived on the scene to find [Appellant] on the ground with Matthew administering aid. Conahan observed the knife on the ground some distance away from the pair[,] testifying that it had a multicolored handle and had blood on it. Multiple other officers arrived on scene as did EMS personnel who took over providing attention to [Appellant] and eventually transported him to Conemaugh Memorial Medical Center, where he underwent surgery for his injuries.

Trial Court Opinion, 5/9/22, at 5-7 (footnotes in original). At the scene, JPD Patrolman Robert Hanik (Officer Hanik) recovered a multi-colored knife with skulls and crosses on it.

On November 16, 2021, a jury convicted Appellant of the aforementioned charges.² The Commonwealth filed notice of its intention to seek the mandatory minimum sentence³ for Appellant's conviction of aggravated assault – attempt to cause serious bodily injury (Matthew), based on Appellant's 2009 conviction of arson of an inhabited building or structure. On January 12, 2022, following the preparation of a pre-sentence investigation report (PSI), the trial court sentenced Appellant to an aggregate prison term of 11.3 to 25 years. Appellant filed a post-sentence motion, which the trial court denied. Appellant timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for review:

1. Whether the [ ] court erred when it denied [Appellant's] Motion for a New Trial since the jury's verdict was against the sufficiency of the evidence? Particularly, [Appellant] claims that the knife admitted into evidence during the trial was tampered with.

2. Whether [Appellant] was denied a fair trial due to testimony of multiple witnesses that [Appellant] claims was so patently unreliable that a guilty verdict based thereon was pure conjecture?

3. Whether a substantive variance between the criminal information, the jury instructions, and the verdict slips on Counts 5, 10, and 11, as to the elements of the crimes charged constituted reversible error?

4. Whether the court abused the discretionary aspects of sentencing in that [Appellant's] sentence was unduly harsh and by failing to take into adequate consideration mitigating factors including [Appellant's] life-threatening injuries caused by the Victims?

5. Whether [Appellant] was denied a fair trial by the failure of the Commonwealth to arrest and charge three witness-victims in this case (Matthew Sandoval, Robert Sechrengost, and Halee Sechrengost) with assault against [Appellant], who suffered life-threatening wounds?

Appellant's Brief at 3 (issues renumbered for disposition, some capitalization omitted).

Appellant first challenges the sufficiency of the evidence.⁴ Appellant's Brief at 19. In particular, Appellant claims the knife shown to the jury at trial as Exhibit 11 was tampered with while in police possession. He argues

the knife used by Matthew [ ] to inflict life-threatening wounds on him was tampered with between July 2, 2020, and the date it was introduced into evidence at trial on November 15, 2021. [Appellant] claims the jury should have recognized that the identity and condition of the exhibit did not remain unimpaired until it was surrendered to the trial court.

Id. at 20. Appellant directs our attention to the testimony of JPD Detectives Mark Britton (Detective Britton) and Brad Christ (Detective Christ). Both detectives testified that the knife presented at trial had dried blood and "some hair" on it. See id. at 21 (citing N.T., 11/15/21, at 84 (Detective Britton describing the knife as having blood and hair on it), 101 (Detective Christ stating the knife "looks like it had dried blood on it.")). In contrast, Appellant asserts that Commonwealth's Exhibit 16, a photograph of the knife taken by Detective Christ in October 2021, depicted a clean and shiny knife. Id. at 22. Appellant relies on the following in-chambers exchange between the Commonwealth and his defense counsel:

[Defense Counsel]: ... [Y]ou sent over a picture of the knife all clean and shiny.

[The Prosecutor]: I did.

[Defense Counsel]: Does it still have blood on it?

[The Prosecutor]: I don't know. I didn't really notice if it did or not.

Id. (quoting N.T., 11/15/21, at 10-11). Appellant claims the photo of a "clean and shiny" knife rendered the detectives’ testimony insufficient as a matter of law. Id. at 22.

When reviewing a challenge to the sufficiency of the evidence, we determine "whether the evidence proved at trial established the appellant's guilt of each element of the offenses charged beyond a reasonable doubt[.]" Commonwealth v. Smith , 234 A.3d 576, 581 (Pa. 2020) (citations omitted). "Evidentiary sufficiency is a question of law and, therefore, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Sanchez , 36 A.3d 24, 37 (Pa. 2011). "When performing a sufficiency review, we consider whether the evidence introduced at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish the elements of the offense beyond a reasonable doubt." Smith , 234 A.3d at 581.

This Court has explained:

The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, 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. Fabian , 60 A.3d 146, 151 (Pa. Super. 2013) (citation omitted). "Issues of witness credibility include questions of inconsistent testimony and improper motive." Sanchez , 36 A.3d at 27.

As observed by the trial court, Appellant's Pa.R.A.P. 1925(b) concise statement failed "to specify which element or elements of which offense the Commonwealth's evidence was purportedly insufficient on." Trial Court Opinion, 5/9/22, at 11. "In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant's Rule 1925(b) statement must state...