J-A23007-24
2024 PA Super 296
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WILLIAM RANSOM :
:
Appellant : No. 549 MDA 2024
Appeal from the Judgment of Sentence Entered November 8, 2023
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000742-2020
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY BOWES, J.: FILED: DECEMBER 12, 2024
Robert William Ransom appeals from the aggregate sentence of 441
months and three days to 946 months of imprisonment following his
convictions arising from shooting a Pennsylvania State Police (“PSP”) trooper.
We affirm.
We glean the following background from the certified record. On
February 29, 2020, PSP Trooper Jason Brindle was riding in a marked cruiser
with a trooper in training, Michael Garbacik. Trooper Brindle observed a
speeding vehicle and conducted a traffic stop. He determined that Appellant
was the driver and noted the odor of burnt marijuana emanating from the
vehicle. The trooper asked Appellant if there were any weapons in the vehicle,
to which Appellant responded in the negative. Trooper Brindle then ordered
Appellant out and patted him down, focusing primarily on the waistband and
pocket areas, finding no weapons. After conducting field sobriety tests and
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Appellant admitting to having a marijuana “roach” in the vehicle, Trooper
Brindle decided to arrest Appellant and placed a cuff around one of Appellant’s
wrists.
At this point, Appellant began to resist by pulling away. Following a
brief scuffle, Troopers Brindle and Garbacik took Appellant to the ground as
they attempted to restrain him. Appellant was face down and had his free
arm under his body along his waistband. He began shouting profanities at the
troopers, calling them “white mother fuckers” and accusing them of harassing
him. See N.T. Trial, 9/25/23, at 115. The troopers were eventually able to
get Appellant’s other arm behind him and cuffed. Trooper Brindle again patted
Appellant’s hips and rear pockets while Appellant remained prone on the
ground, finding nothing additional.
The troopers lifted Appellant and began escorting him to the patrol
vehicle. While walking, Appellant hunched over and moved one of his legs up
and down. Appellant was then placed against the patrol vehicle. Before the
troopers could put Appellant inside, however, he retrieved a handgun from
somewhere on his person and fired a single round, striking Trooper Brindle in
the groin region and causing one of the magazine pouches on his duty belt to
explode. Appellant did not immediately discard the firearm, which he held by
the grip, but the troopers were able to disarm him. Trooper Brindle was life-
flighted to York Hospital and underwent immediate surgery to address
significant injuries to his lower abdomen and groin.
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The Commonwealth charged Appellant with numerous offenses on
February 29, 2020, including attempted murder of a law enforcement officer
and aggravated assault as to both troopers. The matter endured a lengthy
and litigious procedural history which, as will be discussed in more detail
below, included Appellant filing a motion to dismiss pursuant to Pa.R.Crim.P.
600 and the Commonwealth filing a motion for recusal of Franklin County
Court of Common Pleas Judge Todd Sponseller after the judge granted a
motion in limine in favor of Appellant. Judge Sponseller ultimately recused,
and the case was thereafter assigned to Judge Mary Beth Shank. Following
briefing from the parties and several court appearances, Judge Shank denied
Appellant’s Rule 600 motion and a motion from the Commonwealth to
reconsider the decision pertaining to the motion in limine.
The case proceeded to a jury trial on September 25, 2023, wherein the
Commonwealth presented evidence consistent with the above. The
Commonwealth also called as an expert witness Joseph Horton, a firearm and
toolmark examiner employed by the PSP. Inter alia, Mr. Horton attested that
the handgun in question had a thumb safety that was required to be depressed
into the firing position to discharge the weapon, and that the average trigger
pull on the handgun was approximately ten and one-half pounds, akin to the
weight of a bag of potatoes in the grocery store.
Notably, following the first day of trial, one of the empaneled jurors
drove another one (“Excused Juror”) home as a favor. During the drive,
Excused Juror relayed that she had multiple convictions for driving under the
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influence (“DUI”), and that she believed the most recent, which caused her to
lose her license, was charged by Trooper Brindle. Based on the testimony she
heard during the first day of trial, Excused Juror criticized the trooper’s
conduct during Appellant’s stop and believed it was unnecessarily prolonged,
like with her own DUI.
Prior to the commencement of testimony on the second day of trial, the
good Samaritan juror reported this discussion to court staff. The trial court,
along with a representative from the Commonwealth and defense counsel,
conducted an interview with Excused Juror. She admitted that she had four
DUI convictions, despite previously listing on the voir dire questionnaire that
she only had one. Excused Juror also admitted that she was highly irritated
when she was subjected to field sobriety testing for her last DUI and believed
that Appellant was likewise subjected to overly onerous requirements during
the encounter. Defense counsel was able to confirm during that discussion
that Excused Juror’s prior interaction was, in fact, with a PSP trooper other
than Trooper Brindle. When asked, Excused Juror indicated that she could be
fair and impartial, but also questioned whether she was in trouble for
discussing the case in violation of the court’s instructions. Over Appellant’s
objection, the trial court dismissed Excused Juror and promoted an alternate
juror.
At the conclusion of trial, the jury convicted Appellant of the following
offenses: one count of attempted murder of a law enforcement officer as to
Trooper Brindle; two counts of aggravated assault, one as to each trooper;
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and one count each of firearms not to be carried without a license, recklessly
endangering another person, resisting arrest, and assault on a law
enforcement officer – discharge firearm.1 The trial court subsequently
sentenced Appellant as indicated hereinabove. Appellant filed a timely post-
sentence motion, which the court denied after a hearing held on March 18,
2024.
Appellant timely appealed and complied with the court’s order to file a
statement of errors pursuant to Pa.R.A.P. 1925(b). The court authored a
responsive Rule 1925(a) opinion, directing us to prior opinions entered during
this case.
Appellant presents eight issues for our consideration:
I. Whether the evidence presented at trial was insufficient to
prove Count 2: attempted murder of a law enforcement officer,
in that the Commonwealth failed to prove beyond a reasonable
doubt that [Appellant] . . . had an intent to kill Trooper Brindle?
II. Whether the evidence presented at trial was insufficient to
prove Count 3: aggravated assault - causing serious bodily
injury to an enumerated person, in that the Commonwealth
failed to prove beyond a reasonable doubt that [Appellant]
acted intentionally, knowingly[,] or recklessly?
III. Whether the evidence presented at trial was insufficient to
prove Count 4: aggravated assault - causing bodily injury to
an enumerated person, in that the Commonwealth failed to
prove beyond a reasonable doubt that [Appellant] acted
intentionally or knowingly?
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1 The jury acquitted Appellant of attempted murder of a law enforcement
officer as to Trooper Garbacik.
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IV. Whether the evidence presented at trial was insufficient to
prove Count 4: aggravated assault - causing bodily injury to
an enumerated person, in that the Commonwealth failed to
prove beyond a reasonable doubt that. . . the injury to Trooper
Garbacik was an impairment of physical condition or caused
substantial pain?
V. Whether the evidence presented at trial was insufficient to
prove Count 10: assault of a law enforcement officer causing
bodily injury by discharge of firearm, in that the
Commonwealth failed to prove beyond a reasonable doubt that
[Appellant] acted intentionally or knowingly?
VI. Whether the Honorable Court erred in not dismissing all counts
when, excluding time due to COVID[-]19 courthouse closures
and continuances and motions filed by the defense, [Appellant]
had been incarcerated for approximately 560 days without trial
in violation of Pennsylvania Rule of Criminal Procedure 600?
VII. Whether it was an abuse of discretion to excuse a juror simply
because she showed distrust of state police?
VIII. Whether the crimes of attempted murder, assault of a law
enforcement officer[,] and aggravated assault on a law
enforcement officer arose from a single act, sentencing
[Appellant] on each separately is a violation of the Double
Jeopardy clause on the constitutions of both the United States
and Pennsylvania?
Appellant’s brief at 3-5 (cleaned up).2
In his first five claims, Appellant argues that the Commonwealth
provided insufficient evidence as to the following crimes: attempted murder
of a law enforcement officer, aggravated assault–causing serious bodily injury
to an enumerated person, aggravated assault–causing bodily injury to an
____________________________________________
2 To our significant disappointment and disapproval, the Commonwealth
elected not to file an appellate brief in this matter.
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enumerated person, and assault of a law enforcement officer. 3 Since
Appellant advances related arguments as to each count, we address these
issues together.
We consider Appellant’s position mindful of the following well-settled
standard of review:
When reviewing a [sufficiency] claim, we face a question of law.
Accordingly, our standard of review is de novo. We view the
evidence in the light most favorable to the Commonwealth, as the
verdict winner, and we draw all reasonable inferences therefrom
in the Commonwealth’s favor. Through this lens, we must
ascertain whether the Commonwealth proved all of the elements
of the crime at issue beyond a reasonable doubt.
The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, we may not weigh the
evidence and substitute our judgment for the factfinder. Any
doubts regarding a defendant’s guilt may be resolved by the
factfinder, 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.
Commonwealth v. Roberts, 293 A.3d 1221, 1223 (Pa.Super. 2023)
(cleaned up).
____________________________________________
3 Despite raising five separate questions as to sufficiency, Appellant only
advances four distinct argument sections in his brief pertaining to these
claims, in violation of the Pennsylvania Rules of Appellate Procedure. See
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part-in
distinctive type or in type distinctively displayed-the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent[.]”). Counsel is cautioned to abide by our procedural rules in the
future.
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With respect to a conviction for attempted homicide, “[a] person
commits an attempt when, with intent to commit a specific crime, he does any
act which constitutes a substantial step toward the commission of that crime.”
18 Pa.C.S. § 901(a). Further, “[a] person commits murder of a law
enforcement officer of the first degree [when he] intentionally kills a law
enforcement officer while in the performance of duty knowing the victim is a
law enforcement officer.” 18 Pa.C.S. § 2507(a).
The Pennsylvania Crimes Code states that a person may be convicted of
aggravated assault if he “attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to any of the officers, agents,
employees or other persons enumerated in subsection (c) . . . , while in the
performance of duty.” 18 Pa.C.S. § 2072(a)(2). Both police officers and state
law enforcement officials are codified as other enumerated persons. See 18
Pa.C.S. § 2702(c). Finally, “[a] person commits a felony of the first degree
[when he] attempts to cause or intentionally or knowingly causes bodily injury
to a law enforcement officer, while in the performance of duty and with
knowledge that the victim is a law enforcement officer, by discharging a
firearm.” 18 Pa.C.S. § 2702.1(a)(1).
The thrust of Appellant’s primary argument is that the Commonwealth
failed to prove that he had the requisite mens rea, or state of mind, for these
offenses. More particularly, he advances nearly identical arguments in each
corresponding section of his brief:
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Appellant was handcuffed at the time the shot was fired and was
incapable of pointing the firearm at anyone. Prior to being
handcuffed, despite ample opportunity, and the interaction
already being hostile, . . . Appellant made no move for the firearm
and did not attempt to fire a shot at either trooper. It makes little
sense that Appellant, once on the ground and detained by law
enforcement, would choose that time to attempt to kill Trooper
Brindle. Appellant was trying to dispose of the firearm before
being taken into custody and the discharge of the firearm was
unintentional.
See, e.g., Appellant’s brief at 8-9.
Appellant additionally maintains that, as to aggravated assault against
both troopers, the Commonwealth did not prove knowing or reckless behavior.
Id. at 9. Finally, with respect to aggravated assault specifically directed to
Trooper Garbacik, Appellant adds that the injury “was superficial, barely a
scraped knee, and didn’t cause an impairment of physical condition or
substantial pain.” Id. at 11.
In addressing these claims, the trial court noted that Appellant had
numerous opportunities during the encounter in which to inform the troopers
that he had a firearm, but he neglected to do so. See Trial Court Opinion,
3/18/24, at 8. It further recounted the testimony that Appellant became
increasingly agitated throughout the arrest, calling the troopers “white mother
fuckers” during the scuffle and accusing them of harassing him. Id. at 9. The
court also highlighted the fact that Appellant was holding the pistol by its grip
at the time it was fired and did not drop the firearm after discharge. Rather,
the troopers had to forcibly knock it away from his hand. Id. Additionally,
the court reiterated that the Commonwealth’s expert testimony established
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that Appellant had to ensure a thumb safety was disengaged and utilize ten
and one-half pounds of pressure to depress the trigger, undercutting the claim
that the shooting was accidental. Thus, the court concluded that a jury had
sufficient evidence to find that Appellant intended to shoot Trooper Brindle
and kill him. Id.
Further, the court rejected the argument that the Commonwealth did
not prove aggravated assault as to Trooper Garbacik due to a lack of the
trooper’s injuries. It stated that the jury specifically found that Trooper
Garbacik did not suffer bodily injury, and thus the assault conviction was
premised upon Appellant’s attempt to cause the same. Id. at 11. Based on
the above, the court found that the circumstantial evidence of Appellant’s
intent likewise established the necessary mental state required for the other
assault crimes. Id.
Upon review, we agree with the trial court that the Commonwealth
presented sufficient evidence to sustain all of Appellant’s convictions. The
testimony at trial showed that Appellant lied about possessing a firearm on
numerous occasions. Once he realized that he was being arrested, he offered
significant resistance. Despite being handcuffed, he managed to grasp a
firearm by the handle and apply over ten pounds of pressure on the trigger,
striking Trooper Brindle and causing serious bodily injury. Appellant further
did not drop the firearm of his own initiative, which belies his claim that the
discharge was accidental. This finding of intent to kill Trooper Brindle would
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apply with equal force to the convictions of aggravated assault and assault of
a law enforcement officer wherein that trooper was the victim. As noted
above, assault of a law enforcement officer requires specific intent to cause
harm, whereas aggravated assault may be proven with either a specific intent
to cause harm or actually doing so recklessly.
With respect to the charge of aggravated assault as to Trooper Garbacik,
we agree with the trial court that Appellant’s argument is unavailing. Despite
his contention, the Commonwealth was not required to show that the trooper
sustained bodily injury, only that Appellant attempted to cause such. A jury
could infer Appellant’s intent to attempt causing injury based on the
circumstances described above. Therefore, no relief is due.
In his next issue, Appellant asserts that the court erred in denying his
motion to dismiss pursuant to Rule 600. “Our standard of review in evaluating
speedy trial issues is whether the trial court abused its discretion, and our
scope of review is limited to the trial court’s findings and the evidence on the
record, viewed in the light most favorable to the prevailing party.”
Commonwealth v. Womack, 315 A.3d 1229, 1237 (Pa. 2024) (citation
omitted). Further, “[a]n abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will[,] discretion is abused.”
Id. (citation
omitted).
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By way of background, we note that Rule 600 was enacted to protect a
defendant’s rights to a speedy trial enshrined in the United States and
Pennsylvania constitutions, as well as “society’s right to effective prosecution
in criminal cases.” Id. (cleaned up). Our review is conducted cognizant of
these dual rights, as well as the Commonwealth’s duty “to restrain those guilty
of crime and to deter those contemplating it.”
Id. (cleaned up). The rule
itself provides, in pertinent part, as follows:
(A) Commencement of Trial; Time for Trial
(1) For the purpose of this rule, trial shall be deemed to commence
on the date the trial judge calls the case to trial, or the defendant
tenders a plea of guilty or nolo contendere.
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days from
the date on which the complaint is filed.
....
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any stage
of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.
....
(3)(a) When a judge or issuing authority grants or denies a
continuance:
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(i) the issuing authority shall record the identity of the party
requesting the continuance and the reasons for granting or
denying the continuance; and
(ii) the judge shall record the identity of the party requesting
the continuance and the reasons for granting or denying the
continuance. The judge also shall record to which party the
period of delay caused by the continuance shall be
attributed, and whether the time will be included in or
excluded from the computation of the time within which trial
must commence in accordance with this rule.
....
(D) Remedies
(1) When a defendant has not been brought to trial within the time
periods set forth in paragraph (A), at any time before trial, the
defendant’s attorney, or the defendant if unrepresented, may file
a written motion requesting that the charges be dismissed with
prejudice on the ground that this rule has been violated. A copy
of the motion shall be served on the attorney for the
Commonwealth concurrently with filing. The judge shall conduct
a hearing on the motion.
Pa.R.Crim.P. 600.
As succinctly explained by our Supreme Court, a “defendant who has
not been brought to trial within the time specified in Rule 600(A) may, at any
time prior to trial, file a written motion requesting that the charges be
dismissed with prejudice on the ground that the rule has been violated.”
Commonwealth v. Harth, 252 A.3d 600, 615 (Pa. 2021) (cleaned up).
Then, “[i]f the trial court determines that the Commonwealth violated Rule
600, it shall dismiss the charges and discharge the defendant.”
Id. (cleaned
up).
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In deciding Appellant’s Rule 600 motion, the trial court found that
because the complaint was filed on February 29, 2020, the mechanical run
date was March 1, 2021. See Memorandum Opinion, 9/22/23, at 3. It then
thoroughly reviewed the history of continuances in the matter, finding a total
of 171 days excludable due to judicial emergencies arising from the COVID-
19 pandemic. Id. at 3-4. The court also determined that 201 days were
excluded, for the period of March 3, 2021 through September 20, 2021, based
on a prior court order scheduling trial in the aftermath of the pandemic and
stating particularly that the delay was not attributable to either party. Id. at
4. The court then excluded 165 days from calculation for the period of
September 20, 2021 through March 4, 2022, based on two motions to
continue filed by the defense. Id. at 5-6. Finally, it excluded 129 days, March
4, 2022 through July 22, 2022, after the court entered an order during a pre-
trial conference, noting that there were additional issues to address before
trial could commence, and which specifically provided that the time was not
to be held against the Commonwealth. Id. at 6.
Based on the above, the trial court calculated an adjusted run date of
December 29, 2022, more than four months after the date the Rule 600
motion was filed. Id. at 7. It further concluded that for all relevant periods,
the delays occurred despite the Commonwealth’s due diligence, either as
noted in previous orders or based upon judicial delay. Id.
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In his brief, Appellant does not contest the time excluded due to the
judicial emergency during the pandemic. Rather, he focuses on two particular
periods that he believes were required to be included in the Rule 600
calculation. The first is from September 12, 2021 through May 3, 2022,
spanning 235 days. See Appellant’s brief at 13. This delay sprang from a
defense continuance, which Appellant acknowledges; however, he argues that
the continuance was necessary because he received 500 new photographs
from the Commonwealth only ten days before trial was set to begin. Id.
Appellant further highlights that this occurred after the Commonwealth had
twice stated on the record at prior conferences that all discovery had been
disclosed. Id. He asserts, rather cursorily, that the Commonwealth’s actions
in this circumstance do “not support a finding of reasonable due diligence[.]”
Id.
The second time frame Appellant challenges is that from February 14,
2022 through September 23, 2022, a total of 222 days, some of which
overlaps with his contention above.4 Id. at 14-15. Specifically, he asserts
____________________________________________
4 Appellant filed his Rule 600 motion on July 20, 2022.Accordingly, although
he contends that the time between then and September 23, 2022 should be
included, the law is clear that the time during which a court decides a Rule
600 motion is not included. See, e.g., Commonwealth v. Brown, 875 A.2d
1128, 1140 (Pa.Super. 2005) (stating that the time taken by the court to
decide a Rule 600 motion “renders the time excludable”). Therefore, we treat
this challenge as being for the period from February 14, 2022 through July
19, 2022.
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that during this period, “the Commonwealth began an unnecessary,
unfounded[,] and unsupported effort to remove Judge Sponseller from the
case . . . through a frivolous motion to reconsider[.]” Id. (some capitalization
altered). Appellant insists that the Commonwealth did not introduce evidence
or testimony concerning its motion, but rather “sought to make unfounded
allegations of conflict in an attempt to deny Appellant his counsel of choice.”
Id. at 15.
As additional background, the second period Appellant asserts should
have been included in the Rule 600 calculation comprised the delay based
upon the Commonwealth’s motion requesting Judge Sponseller to recuse, as
well as pending motion for reconsideration. More particularly, the
Commonwealth filed the recusal motion on February 14, 2022, after Judge
Sponseller granted a motion in limine in Appellant’s favor and refused to oblige
the Commonwealth’s oral request that defense counsel be removed for a
potential conflict of interest.5 Judge Sponseller scheduled a hearing for April,
____________________________________________
5 The motion in limine sought to preclude testimony from the individual who
had provided the firearm in question to Appellant as part of a straw purchase.
Defense counsel represented this individual for criminal charges arising from
that transaction along with Appellant in the instant case, but argued that any
testimony as to how Appellant received the firearm was irrelevant to
Appellant’s charges arising from carrying without a license and attempted
murder. Judge Sponseller granted the motion in limine on the basis that the
testimony would be irrelevant, or of such little probative value as to be unduly
prejudicial to Appellant. See Opinion and Order of Court, 3/22/22, at 16-31.
Thus, he deemed that there was no conflict of interest requiring removal of
defense counsel.
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but before then, held an in camera meeting with the District Attorney and
defense counsel. Therein, the District Attorney presented a letter from
Samuel C. Stretton, Esquire, a purported legal ethics expert, suggesting that
the court was violating its duties by permitting counsel to remain in the case
and granting the motion in limine.
The end result of the Commonwealth’s filing was that Judge Sponseller
entered an opinion and order on March 22, 2022, recusing from the matter,
although he directed significant criticism towards the District Attorney’s
actions. See Opinion and Order of Court, 3/22/22, at 44 (discussing Rule
2.11(A) of the Model Code of Judicial Conduct and concluding that based on
the accusations from the Commonwealth, the court’s impartiality may
reasonably be questioned). After the case was reassigned to Judge Shank,
several hearings were held concerning the Commonwealth’s motion for
reconsideration as to Judge Sponseller’s ruling on the motion in limine,
including one on September 28, 2022, after Appellant filed the Rule 600
motion. Judge Shank ultimately denied the Commonwealth’s reconsideration
request.
In light of the specific challenges raised by Appellant, and after an
exhaustive review of the record, we cannot conclude that the trial court
abused its discretion in denying Appellant’s Rule 600 motion. With regard to
Appellant’s first challenged period, we note that this arose from a defense
continuance request after Appellant received additional discovery from the
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Commonwealth. Critically, since the trial court was concerned that the delay
would have potential speedy trial implications, it performed a colloquy prior to
granting Appellant’s motion to continue. Appellant understood that the time
from the continuance would be excluded for purposes of Rule 600 and yet
agreed to pursue the continuance. See Opinion and Order of Court, 3/22/22,
at 4; see also Order of Court, 9/16/21 (indicating that the trial court was
satisfied after performing a colloquy that Appellant “knowingly and
intelligently waived his rights under Rule 600”). Therefore, Appellant cannot
now claim that this delay was caused by the Commonwealth. See
Pa.R.Crim.P. 600(c)(1) (excluding from computation delay unless it was
“caused by the Commonwealth when the Commonwealth has failed to
exercise due diligence” (emphasis added)).
Concerning Appellant’s second argument that slightly more than seven
months should have been included based on the Commonwealth’s pursuit of
Judge Sponseller’s recusal and reconsideration of a motion in limine, we are
not convinced that the court erred in excluding the time. Initially, Appellant
proffers no authority for the proposition that this time must be included merely
because it was a Commonwealth pre-trial filing. This is especially true where,
as here, the Commonwealth was given relief as to the recusal matter, albeit
under protest of the trial court. Accord Commonwealth v. Burno, 154 A.3d
764, 794 (Pa. 2017) (concluding that the Commonwealth acted with due
diligence when it received an unfavorable ruling on a motion filed by the
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defendant, timely moved for reconsideration, and timely appealed denial of
reconsideration). Further, as to the motion in limine, although the
Commonwealth was ultimately unsuccessful on its request for reconsideration,
there is no indication that it lacked due diligence while prosecuting the claim.
Indeed, Judge Shank, who decided both the reconsideration motion and the
Rule 600 motion, specifically determined that the Commonwealth exercised
due diligence at all relevant times. Hence, Appellant was not entitled to
dismissal of his charges.
Appellant’s next claim is that the court erred in dismissing Excused Juror
after the first day of trial. “The decision to discharge a juror is within the
sound discretion of the trial court and will not be disturbed absent an abuse
of that discretion. This discretion exists even after the jury has been
impaneled and the juror sworn.” Commonwealth v. Marrero, 217 A.3d 888,
890 (Pa.Super. 2019) (citation omitted). Further, “the trial judge, in his sound
discretion, may remove a juror and replace him with an alternate juror
whenever facts are presented which convince the trial judge that the juror’s
ability to perform his duty as a juror is impaired.”
Id. (citation omitted).
In arguing that the trial court erred in dismissing Excused Juror,
Appellant recounts that Excused Juror indicated to the court, upon
questioning, that she could be fair and impartial. See Appellant’s brief at 18.
He contends that removal cost him a favorable juror and effectively tainted
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the jury pool by implicitly signifying to them that the court would not tolerate
criticism of law enforcement. Id.
The trial court acknowledged that Excused Juror informed that she could
remain fair and impartial. See Trial Court Opinion, 3/18/24, at 14-15.
However, the court stated that it released her from service because she
violated a court instruction not to discuss the case with anyone, which was
given not only at jury selection, but was the last thing told to jurors before
being excused after the first day of testimony. Id. at 15. The court further
stated that it had serious concerns over Excused Juror’s truthfulness when she
lied about the number of DUI convictions she had on the voir dire
questionnaire, and was persuaded by the prosecutor who indicated that the
Commonwealth would have stricken Excused Juror during the selection
process had it known the same. Id. at 15-16.
We find no abuse of discretion with the court’s decision. Excused Juror
openly acknowledged that she was dishonest about her convictions during
selection and disregarded multiple court instructions about refraining from
discussing the case. Under these circumstances, there was sufficient reason
for the court to be convinced “that the juror’s ability to perform [her] duty . . .
[was] impaired.” Marrero, 217 A.3d at 890. Thus, in contravention to how
Appellant framed the issue, it is clear that the court did not dismiss Excused
Juror simply because she “showed distrust of state police.” Appellant’s brief
at 4. No relief is due.
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Finally, Appellant argues that the trial court erred in concluding that
certain of his offenses did not merge for sentencing purposes. This challenge
implicates the legality of his sentence, and as such “our standard of review is
de novo and our scope of review is plenary.” See Commonwealth v.
Watson, 228 A.3d 928, 941 (Pa.Super. 2020).
This Court has previously explained:
Merger of criminal sentences is governed by § 9765 of the
Pennsylvania Sentencing Code, which provides as follows:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.
42 Pa.C.S. § 9765. As this Court has noted, the language of the
legislature is clear. The only way two crimes merge for sentencing
is if all elements of the lesser offense are included within the
greater offense. [See] Commonwealth v. Cianci, 130 A.3d 780,
782 (Pa.Super. 2015) (stating that the “relevant question in [a]
merger analysis now is whether person can commit one crime
without also committing [the] other crime and vice-versa,
regardless of whether [the] crimes arose from same set of facts;
if [the] elements differ, under [the] legislative mandate of Section
9765, [the] crimes do not merge”). Finally, if both crimes require
proof of at least one element that the other does not, then the
sentences do not merge.
Commonwealth v. Merced, 308 A.3d 1277, 1282 (Pa.Super. 2024)
(some brackets and quotation marks removed).
Appellant specifically contends that two of his convictions, namely
attempted murder of a law enforcement officer and assault of a law
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enforcement officer – discharge firearm, legally merge.6 See Appellant’s brief
at 19. As recounted above, with respect to a conviction for attempted
homicide, “[a] person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901(a). Further, “[a] person
commits murder of a law enforcement officer of the first degree [when he]
intentionally kills a law enforcement officer while in the performance of duty
knowing the victim is a law enforcement officer.” 18 Pa.C.S. § 2507(a). As
to Appellant’s assault conviction, “[a] person commits a felony of the first
degree [when he] attempts to cause or intentionally or knowingly causes
bodily injury to a law enforcement officer, while in the performance of duty
and with knowledge that the victim is a law enforcement officer, by
discharging a firearm.” 18 Pa.C.S. § 2702.1(a)(1).
With regard to his merger argument, Appellant asks us to find
distinguishable a non-precedential decision on point, Commonwealth v.
Sargent, 290 A.3d 698,
2022 WL 17885014 (Pa.Super. 2022) (non-
____________________________________________
6 In the questions presented, Appellant also listed as to this issue that
aggravated assault of a law enforcement officer would merge with the other
offenses. See Appellant’s brief at 4-5. However, in the argument section of
his brief, he does not discuss the elements of aggravated assault or otherwise
take any further steps to develop this argument. Therefore, we find this
particular position waived. See, e.g., Commonwealth v. Westlake,
295
A.3d 1281, 1288 n.10 (Pa.Super. 2023) (“Appellant’s undeveloped argument
in this regard results in waiver of the issue.”).
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precedential decision). There, this Court compared the pertinent statutes,
holding:
[R]eview of the elements of the two crimes reveals at least one
element in each that is not present in the other. Specifically,
assault of a law enforcement officer requires the discharge of a
firearm. Criminal attempt to murder a law enforcement officer
requires a specific intent to kill. Because the two crimes each have
an additional element not included in the other offense, they do
not merge for sentencing purposes.
Id. at *4 (cleaned up). Appellant argues that here, unlike in Sargent, the
actions underlying the convictions at issue all arose from a single criminal act,
and hence the crimes should merge. See Appellant’s brief at 21.
Although the holding in Sargent is not binding, we find it persuasive,
as did the trial court. See Trial Court Opinion, 3/18/24, at 20. Since
attempted murder requires a specific intent to kill and assault of a law
enforcement officer requires discharge of a firearm, each crime contains at
least one different element from the other, and thus they do not merge
pursuant to § 9765. Essentially, Appellant asks us to conclude that because
there was a single act in question that happened to satisfy the elements of
the two crimes, they must merge. However, as noted above, the “relevant
question in merger analysis now is whether [a] person can commit one crime
without also committing [the] other crime and vice-versa, regardless of
whether [the] crimes arose from same set of facts[.]” Cianci, A.3d at 782
(emphasis in original). Since a person can attempt to kill a law enforcement
officer without discharging a firearm, and likewise a person can discharge a
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firearm at an officer without the specific intent to kill, neither of these crimes
merges into the other.
In sum, none of the issues raised by Appellant garners him relief. We
therefore have no cause to disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/12/2024
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