Com. v. Peer

• Decision Date: 28 October 1996
• Citation: 684 A.2d 1077,454 Pa.Super. 109
• Parties: COMMONWEALTH of Pennsylvania v. James A. PEER, Appellant.
• Court: Pennsylvania Superior Court

Page 1077

684 A.2d 1077

454 Pa.Super. 109

COMMONWEALTH of Pennsylvania v. James A. PEER, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 1, 1996.

Filed Oct. 28, 1996.

Alex E. Echard, Mt. Pleasant, for appellant.

Rita Donovan Hathaway, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

Before KELLY, JOHNSON and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

As a result of a domestic altercation that grew into a confused and tangled melee, appellant, James A. Peer, was arrested and charged with recklessly endangering another person (REAP), terroristic threats and simple assault. Following a non-jury trial, appellant was convicted of the REAP charge. He now appeals from the judgment of sentence.

On September 10, 1994, appellant and his wife attended a party hosted by Robert Trask. Sometime around 2:30 a.m., several guests witnessed a dispute between appellant and his wife in which appellant grabbed his wife and threatened to kill her. At least two of the party guests attempted to pry Charlotte Peer away from appellant, to no avail. It was at this time that the witnesses noticed that appellant was holding a gun. At some point, Mr. Trask ran out of his home and saw that appellant had his weapon trained on Charlotte Peer. After appellant refused to surrender the gun, Mr. Trask tackled appellant. In the ensuing struggle, appellant threatened to kill Mr. Trask and dug the barrel of his gun into Mr. Trask's chest. Appellant was eventually subdued and restrained without harm to himself or Mr. Trask.

Appellant presents a number of issues for our review. He argues that: (1) the Commonwealth failed to sustain its burden of proof with respect to the intent requirement of the REAP charge and that because simple assault is a lesser included offense of REAP, he could not be convicted of only the greater charge, (2) the trial court erred in refusing to grant appellant's motion to dismiss pursuant to Pa.R.Crim.P. 1100, (3) the trial court erred in admitting testimony relative to the altercation between appellant and his wife that was occurring as the victim encountered appellant, (4) the trial court erred in refusing to allow testimony concerning an allegation that the victim and his girlfriend had previously accused a third party of murder in an unrelated incident, (5) appellant was subjected to double jeopardy due to the trial court's failure to dismiss the criminal charges against him after he was fired from his job with the Westmoreland County Children's Bureau as a result of the same incident and that his acquittal of simple assault necessitated a finding of double jeopardy with respect to his conviction for recklessly endangering another person and (6) the trial court erred in applying the deadly weapon enhancement to appellant's sentence.

With respect to appellant's initial claim, that of insufficient evidence to sustain the REAP conviction, our standard of review is well-settled. This Court must view the evidence and all reasonable inferences derived therefrom in the light most favorable to the Commonwealth, as verdict winner, and determine whether sufficient evidence was presented to prove each element of each crime beyond a reasonable doubt. See, e.g., Commonwealth v. Berkowitz, 537 Pa. 143, 146-48, 641 A.2d 1161, 1163 (1994); Commonwealth v. Smolko, 446 Pa.Super. 156, 162-63, 666 A.2d 672, 675 (1995).

The crime of recklessly endangering another person is committed when a person "recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705. "The mens rea required for this crime is a conscious disregard of a known risk of death or great bodily harm to another person." Commonwealth v. Cottam, 420 Pa.Super. 311, 344, 616 A.2d 988, 1004 (1992). See also, Commonwealth v. Sanders, 339 Pa.Super. 373, 379, 489 A.2d 207, 210 (1985).

Contrary to appellant's assertion, this Court believes that ample evidence was adduced at trial to find that appellant recklessness was appellant's possession of a weapon at a party at which he consumed alcohol, appellant completely disregards the fact that, in addition to merely possessing the weapon, he brandished the weapon, struggled over control of it and threatened to kill two people. Moreover, appellant would have this Court believe that, because he was trained in firearms safety, there was no risk of injury and therefore no assault. "Defendant's gun was in effect the same as [an] unloaded weapon." (Appellant's brief at 22.) This Court refuses to hold that a loaded weapon in the hands of a person trained in its use is tantamount to an unloaded weapon. Such a conclusion would belie reality. In light of the foregoing, appellant's assertion that his conduct did not deviate from that of a reasonable person is ludicrous.

In addition to the sufficiency argument, appellant claims that, because he was acquitted of the lesser included offense of simple assault, he could not rightfully be convicted of the greater offense of REAP. This argument is fundamentally flawed.

Although the Commonwealth argues that simple assault and recklessly endangering another person are distinct offenses, this Court is bound by the controlling precedent of this Commonwealth which holds that simple assault is indeed a lesser included offense of recklessly endangering another person. See, e.g., Commonwealth v. Berrena, 421 Pa.Super. 247, 251-53, 617 A.2d 1278, 1280 (1992); Commonwealth v. Channell, 335 Pa.Super. 438, 444-45, 484 A.2d 783, 786 (1984); Commonwealth v. Artis, 294 Pa.Super. 276, 282-83, 439 A.2d 1199, 1202 (1982). This finding affords appellant a Pyrrhic victory, however, for it does not follow that this prevents a conviction for only the greater offense.

The fact that simple assault is a lesser included offense of recklessly endangering another person means that the two crimes merge for sentencing purposes and that, if convicted for both crimes, appellant could only have been sentenced once. Id. The merger doctrine has no impact upon the long-standing precedent in this Commonwealth that consistency is not required in criminal verdicts. Provided that sufficient evidence exists for the count upon which appellant was convicted, the judgment of the fact-finder will not be disturbed. See, e.g., Commonwealth v. Miller, 441 Pa.Super. 320, 324-26, 657 A.2d 946, 948 (1995); Commonwealth v. Swann, 431 Pa.Super. 125, 127-29, 635 A.2d 1103, 1104-05 (1994). The rationale for permitting inconsistency in criminal verdicts is that it is the function of the fact-finder, the learned trial judge in this case, to mete out sufficient punishment. Miller, 441 Pa.Super. at 324-26, 657 A.2d at 948.

Because we have found that sufficient evidence existed to convict appellant of recklessly endangering another person, this Court will not disturb the inconsistent verdict that resulted in appellant's acquittal on the lesser included offense of simple assault.

Appellant next claims that the trial court erred in refusing to sustain his motion to dismiss pursuant to Pa.R.Crim.P. 1100. Our standard of review in evaluating Rule 1100 issues is whether the trial court abused its discretion in determining that the Commonwealth acted with due diligence in attempting to try the defendant within the applicable time period. Commonwealth v. Zaslow, 448 Pa.Super. 289, 294-95, 671 A.2d 707, 710 (1996). Due diligence is a fact-specific concept that is determined on a case-by-case basis. Id. See also, Commonwealth v. Wentzel, 434 Pa.Super. 76, 78-81, 641 A.2d 1207, 1208-09, alloc. denied, 539 Pa. 667, 652 A.2d 838 (1994).

In relevant part, Rule 1100 provides that "[t]rial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint is filed." Pa.R.Crim.P. 1100(a)(3). In the instant matter, appellant was charged by criminal complaint on September 14, 1994. The Rule 1100 run date was, therefore, September 14, 1995.

Appellant's case was listed for trial in Judge Pezze's courtroom in April, June, August and September of 1995. Judge Pezze is normally assigned criminal trials every other month. Each time that the case was scheduled, a delay resulted from the trial of other criminal proceedings that had more urgent run dates. The case was eventually called for trial on October 11, 1995, twenty-seven days past the run date. On that day, a Rule 1100 hearing was conducted and Judge Pezze rejected appellant's motion to dismiss after hearing testimony from both the prosecution and the defense. Additionally, appellant withdrew his request for a jury trial and requested a continuance and a non-jury trial. The request was granted and a non-jury trial commenced on November 7, 1995.

It is evident from the record that the Commonwealth did not at any time prevent appellant's case from commencing or act surreptitiously in any manner. The testimony from Linda Lessick, of the Westmoreland County Court Administrator's Office, taken at the Rule 1100 hearing, established that a crowded criminal docket was the sole reason for the delay in prosecuting appellant. Both this Court and our Supreme Court have held that court congestion may provide a reasonable explanation for the inability to try a defendant within the prescribed time period. See, e.g., Commonwealth v. Smith, 524 Pa. 72, 76-77, 569 A.2d 337, 339 (1990) (courts are under no obligation to rearrange their dockets to accommodate a defendant's Rule 1100 rights); Commonwealth v. Eaddy, 419 Pa.Super. 48, 58-59, 614 A.2d 1203, 1209 (1992), alloc. denied, 534 Pa. 636, 626 A.2d 1155 (1993). Moreover, appellant's bald assertions that "the prosecution decided the order of selecting cases for trial" and "the Assistant District Attorney, assigned to the Courtroom elected to try other cases before proceeding with the within case" are vacuous and unfounded. (...