Commonwealth v. Giordano

121 A.3d 998

2015 PA Super 167

COMMONWEALTH of Pennsylvania, Appellee

v.William GIORDANO, Appellant.

No. 127 MDA 2015

Superior Court of Pennsylvania.

Submitted June 29, 2015.

Filed Aug. 5, 2015.

Donna M. DeVita, Public Defender, Scranton, for appellant.

Andrew J. Jarbola, III, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.^*

Opinion

OPINION BY WECHT, J.:

William Giordano appeals his November 25, 2014 judgment of sentence. After careful review, we affirm.

The following factual history is based upon the trial testimony and summarized in the light most favorable to the Commonwealth as the verdict winner. See Commonwealth v. Matthew, 589 Pa. 487, 909 A.2d 1254, 1256 (2006). On September 17, 2013, Giordano and his wife went to the Scranton school district administration building. Notes of Testimony (“N.T.”), 10/17/2014,¹ at 31. Once there, Giordano became angry and began yelling that his child was being deprived of an education because the child had been sent home from school for failing to abide by the district's dress code. Id. at 32–33. Paula Joyce, the secretary to the supervisor of secondary education, responded to Giordano's concerns, but felt threatened because Giordano was wearing a sword in a scabbard and had his hand on the hilt. Id. at 33–35. Mary Theresa Ruddy, another secretary in the same office, heard both Giordano and his wife yelling at Ms. Joyce. Id. at 151. Ms. Ruddy asked them to lower their voices. Id. at 152. Ms. Ruddy also saw the sword on Giordano's belt. Id. at 153.

Due to Giordano's demeanor and actions, William King, the superintendent, was called to address the situation. Id. at 87. Mr. King provided Giordano with some sample uniforms that his children could wear. Id. at 88–89. Mr. King described Ms. Joyce and Ms. Ruddy as nervous and uncomfortable around Giordano. Id. at 90. Mr. King also informed Giordano that he could not wear the sword in the building and instructed Giordano not to bring the sword if Giordano returned because weapons are not permitted in school district buildings. Id. at 92–93.

The administration building is owned by the school district. Id. at 79. In addition to ordinary administrative functions, the administration building also is used for diagnostic testing of children and homebound instruction when a child cannot attend school and that child's instruction cannot be given in the home.Id. at 42, 79–81. School registration also occurs in the building. Id. at 81. Four or five cooperative education students from the district's high schools work in the building each day. Id. at 82–83.

On September 18, 2013, Giordano returned to the administration building. Id. at 37. Giordano again was yelling and angry and stated that he wanted a sweater for his child. Id. at 39. Giordano again was wearing the sword and had his hand on the hilt. Id. at 40. Ms. Joyce felt unsafe and asked Giordano to remove the sword. Giordano refused, citing his constitutional right to bear arms. Id. at 41. Jessica Aquilina,² then the supervisor of elementary education, approached Giordano and told him that he could not have the sword in the building. Id. at 59. Ms. Aquilina escorted Giordano out of the office. Giordano was argumentative and kept repeating that he had a right to bear arms. Id. at 60, 63. Other parents and children were nearby, waiting for meetings. Id. at 62. Mr. King again was called to assist and he told Giordano that he had to leave and that Mr. King was not going to have a discussion as long as Giordano had the sword in the building. Id. at 95. Ms. Aquilina and Mr. King were able to escort Giordano out of the building. Id. at 64. The police were called. Id. at 95.

Officer Kevin Davis responded to the call, but arrived after Giordano had left. Id. at 106. Officer Davis went to Giordano's home, but Giordano was uncooperative and insisted that Officer Davis “[s]how [Giordano] where it says I can't carry a weapon on school grounds.” Id. at 107–08. Officer Davis got approval from an assistant district attorney and took Giordano into custody. Id. at 108–09, 112.

Giordano was charged with two counts of possessing a weapon on school property, 18 Pa.C.S.A. § 912(b), and two counts of disorderly conduct, 18 Pa.C.S.A. § 5503(a)(4), related to the events of September 17 and September 18. Giordano initially pled guilty, but was permitted to withdraw his plea on July 29, 2014. On September 23, 2014, the Commonwealth and Giordano selected a jury. However, that jury was dismissed before trial began when it was revealed that at least two jurors had read a newspaper article, titled “Sword-wielding parent goes to trial today,” about Giordano and the incidents on September 17 and 18. Trial Court Memorandum, 10/6/2014, at 4–8. A new jury was empaneled and trial commenced on October 17, 2014.

At trial, Giordano testified that he went to the administration building because he had problems with the dress code. N.T. at 120–22. Giordano admitted that he was wearing the sword on September 18, but could not recall whether he had it on September 17. Id. at 123. However, Giordano stated that he wears the sword all day, every day because “it looked pretty neat to walk around with a sword. Like, everybody carries guns and I don't like guns so I carry a sword instead.” Id. at 124. However, Giordano claimed that he wore only the scabbard and not the sword when he went to meetings or events at the elementary or middle school. Id. at 130–31. Giordano had been to the administration building before September 17, 2013, with his sword. The guard at the door of the administration building never stopped him, and the sword had never caused any explicit concerns. Id. at 126–27. Giordano asserted that the sword was decorative and not a weapon. Id. at 137–38. However, he also said that he does not wear it any place that posts a sign indicating that weapons are not permitted on the premises. Id. at 131, 141–42.

Giordano was found guilty of two counts of possessing a weapon on school property but not guilty of disorderly conduct. On November 25, 2014, Giordano was sentenced on the first count to five years of restrictive intermediate punishment with the first three months in the county jail followed by three months of house arrest. On the second count, Giordano was sentenced to two years of probation, which was ordered to run consecutively to the first sentence. On December 5, 2014, Giordano filed a motion for reconsideration of sentence and a motion for a new trial, in which he raised claims challenging the weight and sufficiency of the evidence. On December 16, 2014, the trial court denied the motions.

On January 12, 2015, Giordano filed a notice of appeal. On February 2, 2015, the trial court ordered Giordano to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Giordano timely complied.

Giordano raises three issues for our review:

A. Whether there was sufficient evidence to support the verdicts of two counts of possession of weapon on school property?

B. Whether the verdicts were against the weight of the evidence?

C. Whether the lower court imposed harsh and unreasonable sentences due to the fact that it was unaware of all relevant facts and circumstances?

Giordano's Brief at 4.

Giordano first challenges the sufficiency of the evidence for his convictions for possessing a weapon on school property. Our standard of review of a sufficiency of the evidence claim is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to 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. 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. Cahill, 95 A.3d 298, 300 (Pa.Super.2014) (quoting Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa.Super.2011) ).

Section 912 states, in pertinent part:

(b) Offense defined. —A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.

18 Pa.C.S.A. § 912.

In his sufficiency challenge, Giordano argues that the Commonwealth did not prove that he possessed a weapon “in the building[ ] of [or] on the grounds of ... any elementary or secondary publicly-funded educational institution.”18 Pa.C.S.A. § 912(b). Giordano asserts that the Commonwealth proved only that he carried a weapon into the administration building, which is neither an elementary nor a secondary educational institution. Giordano contends that the administration building cannot be construed to be a school because no teachers are assigned to the building, and no regularly scheduled classes are held there. Giordano's Brief at 17–18.

The Commonwealth responds that, because the school district serves elementary and secondary...