Commonwealth v. Headley

242 A.3d 940

COMMONWEALTH of Pennsylvania

v.Joshua HEADLEY, Appellant

No. 76 EDA 2020

Superior Court of Pennsylvania.

Submitted August 3, 2020

Filed: November 19, 2020

Burton A. Rose, Philadelphia, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

Gerald P. Morano, Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY SHOGAN, J.:

Appellant, Joshua Headley, appeals from the judgment of sentence entered on December 6, 2019, in the Chester County Court of Common Pleas. We affirm.

On September 6, 2019, Appellant was tried on stipulated facts before the trial court sitting without a jury. The stipulated facts are as follows:

1. On or about January 5, 2019, at approximately 3:00 p.m., [Appellant] discharged a firearm while in his apartment located at 425 Crest Lane, Pottstown, Chester County, Pennsylvania.

2. [Appellant] was in his apartment with Kimberly R. Green. [Appellant] and Ms. Green were involved in a romantic relationship. On January 5, 2019, [Appellant] and Ms. Green engaged in an argument. During this argument [Appellant] discharged his nine-millimeter handgun inside the apartment unit.

3. The bullet fired by [Appellant] passed through the floor of [Appellant's] apartment into and then through the apartment below, 415 Crest Lane, Pottstown, Chester County, Pennsylvania. The resident of the 415 Crest Lane apartment was 91-year-old Marie Ilg.

4. Ms. Ilg heard the argument between [Appellant] and Ms. Green, followed by a loud noise. The victim was sitting in a chair in her living room when the bullet fired by [Appellant] entered her residence through the ceiling, proceeded past her, then pierced the apartment wall next to an exterior window within three or four feet of where she sat.

5. Ms. Ilg called law enforcement and Officers Gregory Bickel and Nicholas Campitelli from the East Coventry Township Police Department responded to the location.

6. The officers spoke with [Appellant], Ms. Green, and Ms. Ilg. Both Ms. Green and Ms. Ilg gave officers written statements.

7. Ms. Green's written statement is attached as Commonwealth Exhibit 1.

8. Ms. Ilg's written statement is attached as Commonwealth Exhibit 2.

9. The officers' investigation revealed that a bullet had penetrated the ceiling of Ms. Ilg's apartment by way of the floor of [Appellant's] apartment. The bullet traversed Ms. Ilg's living space and impacted a wall next to a chair in her living room.

10. Photos from Ms. Ilg's residence of the bullet holes and chair are attached as Exhibit 3.

11. [Appellant] told investigating officers that he had discharged the firearm while in his apartment located at 425 Crest Lane, Pottstown, Chester County, Pennsylvania.

12. The bullet from the firearm [Appellant] discharged passed from [Appellant's] apartment into the victim's apartment.

13. [Appellant's] apartment is a separately secured unit in an apartment building.

14. The victim's apartment, 415 Crest Lane, Pottstown, Chester County, Pennsylvania, is a separately secured unit in the same apartment building.

15. The firearm [Appellant] discharged is a firearm within the definition of § 2707.1(d).

16. § 2707.1(d) also defines an "occupied structure" as "any structure, vehicle, or place adapted for overnight accommodation of persons or for carrying on business therein, ... whether or not a person is actually present."

17. [Appellant] discharged the firearm intentionally, knowingly, or recklessly.

18. None of the defenses in § 2707.1(c) apply in this case.

19. In discharging a firearm [Appellant] consciously ignored a great and unjustifiable risk that what he was doing would cause another person to be seriously injured.

20. In discharging a firearm [Appellant] recklessly placed Marie Ilg in danger of death or serious bodily injury.

Stipulated Facts, 9/6/19, at 1-3.

The trial court summarized the procedural history as follows:

On September 6, 2019, following a stipulated facts trial before the undersigned sitting without a jury, [Appellant] was found guilty of discharge of a firearm into an occupied structure,¹ and recklessly endangering another person [("REAP")].²

¹ 18 Pa.C.S.A. § 2707.1 [.]

² 18 Pa.C.S.A. § 2705 [.]

[Appellant] was sentenced on December 6, 2019 to 11 ½ to 23 months [of] incarceration and 1 year probation, consecutive to parole, for discharge of a firearm into an occupied structure and 1 year probation concurrent to the above sentence for recklessly endangering another person. [Appellant] was also ordered to perform 50 hours of community service. [Appellant] did not file post-sentence motions. [Appellant] filed a timely Notice of Appeal on December 26, 2019.

Trial Court Opinion, 1/23/20, at 1. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues for our consideration:

1. Was the evidence insufficient to establish guilt beyond a reasonable doubt that the Appellant was guilty of recklessly endangering another person?

2. Was the evidence insufficient to prove beyond a reasonable doubt that the Appellant was guilty of having discharged a firearm into an occupied structure?

Appellant's Brief at 3.¹

In both issues, Appellant challenges the sufficiency of the evidence. A challenge to the sufficiency of evidence presents a question of law, and as such, the standard of review is de novo and the scope of review is plenary. Commonwealth v. Weimer , 602 Pa. 33, 977 A.2d 1103, 1104-1105 (2009). Additionally:

When presented with a claim that the evidence was insufficient to sustain a conviction, an appellate court, viewing all of the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the fact-finder to find that all elements of the offense were established beyond a reasonable doubt.

Commonwealth v. Woody , 939 A.2d 359, 361 (Pa. Super. 2007) (citation omitted). "The Commonwealth may sustain its burden by proving the crime's elements with evidence which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evidence." Id. at 361-362 (internal citation and quotation marks omitted). "As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record." Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014). "Additionally, we may not reweigh the evidence or substitute our own judgment for that of the factfinder." Commonwealth v. Walker , 139 A.3d 225, 229 (Pa. Super. 2016).

In his first issue, Appellant alleges that the evidence was not sufficient to establish the crime of REAP. We disagree.

A person is guilty of REAP, "a misdemeanor of the second degree[,] if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. § 2705. To sustain a conviction for REAP, "the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so. Danger, not merely the apprehension of danger, must be created." Commonwealth v. Hopkins , 747 A.2d 910, 915 (Pa. Super. 2000) (internal citation omitted).

The mere act of discharging a firearm, by itself, does not constitute REAP. See Commonwealth v. Kamenar , 358 Pa.Super. 62, 516 A.2d 770 (1986) (concluding the evidence insufficient to support a conviction of REAP where the defendant fired a single gunshot away from the direction of other people and into a wooded hillside). However, discharging a firearm near another person or in a manner where the projectile could have struck a person is sufficient to prove REAP. Commonwealth v. Shaw , 203 A.3d 281, 284 (Pa. Super. 2019) (citing Commonwealth v. Hartzell , 988 A.2d 141 (Pa. Super. 2009) ).

After review, we conclude that there is no merit to this issue. As specified in the stipulated facts enumerated above, Appellant was arguing with his paramour inside a multi-unit apartment building. During this argument, Appellant discharged a firearm through the floor of his apartment. The bullet passed through Appellant's apartment floor and through the ceiling of the apartment below. The apartment below Appellant's was occupied by Ms. Ilg. The bullet progressed through Ms. Ilg's home within three or four feet of her. The projectile then penetrated a wall inside of Ms. Ilg's apartment.

These facts establish the elements of REAP. Appellant was not merely presently able but did, in fact, fire a projectile into Ms. Ilg's apartment and in Ms. Ilg's direction. Appellant's reckless conduct of firing a bullet into Ms. Ilg's home, in her direction, and within three or four feet from where Ms. Ilg was seated, placed Ms. Ilg in danger of death or serious bodily injury pursuant to 18 Pa.C.S. § 2705. Shaw , 203 A.3d at 284. Appellant disregarded the risk of death or injury and could have seriously wounded or killed Ms. Ilg. We conclude that Appellant's actions created actual danger and not merely the apprehension of danger. Hopkins , 747 A.2d at 915. For these reasons, we conclude that the evidence was sufficient to prove REAP, and Appellant's claim of error is meritless.

In his second issue, Appellant asserts that the evidence was insufficient to prove that he committed the crime of discharging a firearm into an occupied structure in violation of 18 Pa.C.S. § 2707.1. Appellant challenges the interpretation of the term "occupied structure," and he avers that because he and Ms. Ilg lived in the same apartment building, he could not have discharged his firearm "into an occupied structure" as he was already within that structure. Appellant's Brief at 9-12. After review, we disagree.

When called upon to review the interpretation of a statute, we adhere to the following:

Under the Statutory Construction Act of 1972,

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