Commonwealth v. Ivie

1

COMMONWEALTH OF PENNSYLVANIA v. MARK A. IVIE, JR. Appellant

No. 358 MDA 2022

No. J-S39031-22

Superior Court of Pennsylvania

March 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered December 22, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003018-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM

NICHOLS, J.

Appellant Mark A. Ivie, Jr. appeals from the judgment of sentence entered following his convictions for aggravated assault recklessly endangering another person (REAP), and related offenses. Appellant challenges the sufficiency of the evidence supporting his REAP conviction and raises claims concerning the discretionary aspects of his sentence. We affirm.

The trial court summarized the underlying facts and procedural history of this matter as follows:

In the early morning hours of July 5, 2020, Appellant opened fire into a group of six young men with a short-barrel AR-15 rifle. Earlier that evening, the victims were at a cookout and one victim, Mr. Randy Brandt, uploaded a video of himself rapping onto the social media platform Snapchat. Appellant was able to see the video Mr. Brandt posted, and he was not a fan, so much so that Appellant left comments with his negative opinions on Mr. Brandt's video. Appellant and Mr. Brandt then exchanged angry messages back and forth, followed by a screaming telephone call in which Appellant invited Mr. Brandt to his home at 6 Blackberry Lane in Ephrata Township for a fist fight. Despite the hour, around 1:30 a.m., Mr. Brandt agreed and brought the other five victims with him to Blackberry Lane. While waiting for the victims' arrival, Appellant asked his father to bring him a gun. Appellant asserted that having the gun would ensure a fair fight, and he waited for the victims with his father on the front porch, brandishing a loaded AR-15 short-barreled rifle.

Mr. Brandt arrived with Devon Schaefer, Jeremy Ross-Gates, Billy Joe Varner, Josue Colon, and Joshua Norwood, and the first physical fight broke out between Appellant and Mr. Schaefer, while Appellant's father beat Mr. Ross-Gates. When Appellant was able to break free, he then grabbed the rifle, disengaged the safety mechanism, and fired into the group of men fourteen times. Mr. Varner was shot in the left side of his chest, Mr. Colon was shot in the face and the abdomen, Mr. Schaefer was shot through the arm, Mr. Brandt was shot in the earlobe, a bullet grazed Mr. Norwood's arm, and Mr. Ross-Gates was severely beaten by the Appellant's father. Police later found several rounds of ammunition had hit neighboring homes, one of which was occupied by two people,^[1] and also that the residents of 3 Blackberry Lane had a security camera which had recorded the entire incident. Following Appellant's admission to police that he was the person responsible for shooting the firearm, he was arrested and charged with six counts of attempted homicide [and] six counts of aggravated assault [for firing shots at the six men involved in the altercation. He was also charged with] two counts of discharging a weapon into an occupied structure and two counts of [REAP for firing shots into two nearby residences.]

On August 11, 2021, Appellant filed a pretrial motion in limine to preclude the Commonwealth from introducing video evidence of a firearm demonstration from being admitted as substantive evidence at trial. After briefings from both parties, Judge Margaret Miller denied the motion, and the video was admitted at trial. On October 27, 2021, Appellant was convicted of five counts of attempted voluntary manslaughter, five counts of aggravated assault, two counts of discharging a firearm into an occupied structure, and two counts of REAP.^[2]

On December 22, 2021, the court imposed an aggregate sentence of 24 to 50 years' incarceration.^[3] On December 31, 2021, Appellant filed a timely post-sentence motion, arguing that the court abused its discretion in sentencing because the sentence is manifestly excessive, it is not consistent with the Commonwealth's interest in protecting the public, it is not necessary to address "the nature and circumstances of the crime" considering Appellant's lack of prior record, it fails to consider mitigating factors, and Appellant asserted that the sentences for aggravated assault should not be consecutive due to Appellant's lack of opportunity for "cool reflection." This court denied Appellant's post sentence motion on January 21, 2022.

Trial Ct. Op., 4/25/22, at 2-4 (record citations omitted).

Appellant subsequently filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing Appellant's claims.

On appeal, Appellant raises the following issues for review:

1. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that [Appellant] committed either offense of [REAP], where the Commonwealth did not prove that [Appellant's] actions placed either inhabitant of 6 Eastbrooke Drive in danger of death or serious bodily injury?

2. Was the imposition of five consecutive sentences, for an aggregate sentence of 24 to 50 years' incarceration, manifestly excessive under the circumstances, and an abuse of the court's discretion?

Appellant's Brief at 15.

In his first claim, Appellant challenges the sufficiency of the evidence supporting his convictions for REAP. Id. at 26. Initially, Appellant acknowledges that two individuals were sleeping inside of 6 Eastbrooke Drive when one bullet traveled through the garage attached to the residence and two other bullets struck an exterior light post located in the front yard of the property. Id. at 29-30. However, Appellant argues that there was no evidence "regarding where the residents . . . were located at the time the bullets struck the light post and the garage, only that they were sleeping inside the residence." Id. at 30. Further, Appellant contends that "it is apparent that the residents were not in the front yard in the vicinity of the light post and they were not in the garage" and "there was no indication that the bedroom where they were sleeping was near the garage." Id. Therefore, Appellant concludes that "there was no evidence that there was any danger to the residents, or that either projectile could have struck them" or that the bullets "came anywhere near the residents" and "thus, there is no evidence that they were in danger of death or serious bodily injury." Id. at 26, 30.

In reviewing a challenge to the sufficiency of the evidence, our standard of review is as follows:

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the factfinder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation omitted).

This Court has explained:

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."^[4] 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).

Commonwealth v. Headley, 242 A.3d 940, 944 (Pa. Super. 2020) (emphases added).

Additionally, this Court has stated:

This Court has held that both a handgun and a BB gun are capable of causing serious bodily injury or death. Commonwealth v. Peer, 684 A.2d 1077, 1081 (Pa. 1996); Commonwealth v. Ramos, 920 A.2d 1253, 1257 (Pa. Super. 2007). However, the mere act of discharging a firearm does not on its own constitute recklessly endangering another person. See Commonwealth v. Kamenar, 516 A.2d 770 (Pa. 1986) (finding evidence insufficient to support conviction where the accused fired a single gunshot away from the direction of other people, into a wooded hillside behind his home); Commonwealth v. Smith, 447 A.2d 282 (Pa. 1982) (finding evidence insufficient where no evidence indicated that the rifle was fired at the witness, and it was just as likely that the accused safely fired the rifle into the air). However, Discharging a firearm near another person is sufficient to support such a conviction. Commonwealth v. Hartzell, 988 A.2d 142 (Pa. Super. 2009).

Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa. Super. 2019).

In Hartzell, the defendant was convicted of REAP after he fired a semiautomatic rifle from his property and into a creek approximately 30 yards away from a bridge on which two men were standing. Hartzell, 988 A.2d at 142. On appeal, the defendant argued that the Commonwealth failed to prove that the two men were placed in danger by the defendant's...