Com. v. Repko

• Citation: 817 A.2d 549
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gerard Guy REPKO, Appellant.
• Decision Date: 11 February 2003
• Court: Pennsylvania Superior Court

817 A.2d 549

COMMONWEALTH of Pennsylvania, Appellee, v. Gerard Guy REPKO, Appellant.

Superior Court of Pennsylvania.

Submitted July 22, 2002.

Filed February 11, 2003.

Paul J. Levy, Jim Thorpe, for appellant.

Jean A. Engler, Assistant District Attorney, Jim Thorpe, for Com.

Before LALLY-GREEN, BENDER and CAVANAUGH, JJ.

CAVANAUGH, J.:

¶ 1 Gerard Guy Repko appeals from the judgment of sentence to serve an aggregate term of from 43 to 86 months imprisonment imposed after a jury found him guilty of multiple counts of aggravated assault, simple assault, terroristic threats and recklessly endangering another person (REAP). Appellant claims that the evidence was insufficient to support his convictions. After careful review, we affirm in part, reverse in part, and remand for resentencing. ¶ 2 The relevant facts, as gleaned from the record, show that in the late evening hours of November 26, 1999, appellant had an argument with, among others, Kathy Hiller (appellant's fiancee), George Hiller (appellant's fiancee's son) and Jason Murtha (Melissa Bench's boyfriend) while the group was drinking heavily and playing pool in a bar. Police were called and appellant was escorted out of the bar and driven home. The Hillers, Mr. Murtha and Ms. Bench went to the Hiller residence. The argument subsequently continued as Mr. Murtha and George Hiller exchanged insults and threats with appellant over the telephone.

¶ 3 After hanging up with appellant, George left the Hiller residence with the express intent to visit appellant to settle the matter. Ms. Hiller and Ms. Bench drove to appellant's home to try to defuse the situation. When they got there, George had not yet arrived. Appellant met the women's vehicle as it pulled into his driveway. He pointed a gun at Ms. Bench from a distance of 25 feet and told her to leave his property or he would shoot her in the head. Ms. Bench complied, walking away from the vehicle, down appellant's driveway to the road where she waited while Ms. Hiller and appellant continued to talk. Sometime thereafter, Ms. Bench came back down the driveway toward the car and appellant again pointed a gun at her and threatened to shoot. She again left.

¶ 4 Within a few minutes, George Hiller arrived at appellant's home. At that point, appellant was back inside his home and Kathy Hiller was outside. George began screaming at appellant from outside. George smashed the front picture window with a trash can. Appellant then fired a round from his weapon through a smaller adjacent window "to scare off whoever was out there, whoever was coming at me." George was not deterred by the gunshot. He kicked appellant's door down and the two fought over the gun in appellant's hand. Kathy Hiller entered appellant's home and tried unsuccessfully to separate her son and fiancee. George eventually wrested the gun from appellant and gave appellant a stiff beating, closing his left eye and bloodying his nose.

¶ 5 Mr. Murtha arrived at the scene after the fight started. He was carrying a gun he had retrieved from George Hiller's vehicle. Although Mr. Murtha could hear the commotion coming from inside appellant's home, including George's shouts for Mr. Murtha to enter and help him subdue appellant, Mr. Murtha did not enter appellant's home, but stayed outside, under cover, with his weapon drawn.

¶ 6 Ms. Bench frantically left the scene and flagged down Officer Nicholas Kuzo of the Jim Thorpe police department. She led Officer Kuzo to the scene. When the officer arrived, Mr. Murtha and George were outside appellant's home with their weapons in hand.¹ They complied with Officer Kuzo's order to drop the guns. Appellant was inside with Kathy Hiller, loudly arguing. Appellant then briefly emerged, with Kathy Hiller in tow, one arm around her neck, the other carrying a shotgun.

¶ 7 Officer Kuzo announced himself as an officer and ordered appellant to drop his weapon. Appellant did not do so. Instead he raised the shotgun and pointed it at Officer Kuzo. Officer Kuzo repeated the command. Appellant did not comply but instead, released Ms. Hiller and went back inside his home carrying the gun. He later re-emerged without the gun and was taken into custody without a struggle.

¶ 8 Appellant was charged with numerous offenses arising from the incident and was tried by a jury for the following: aggravated assault against Officer Kuzo under two statutory subsections; 18 Pa. C.S.A. § 2702(a)(2) (attempt to cause serious bodily injury to a police officer) and 18 Pa.C.S.A. § 2702(a)(6) (attempt by physical menace to put a police officer in fear of imminent serious bodily injury); aggravated assault of Kathy and George Hiller and Melissa Bench under 18 Pa.C.S.A. § 2702(a)(4) (attempt to cause bodily injury to another with a deadly weapon) and multiple counts of simple assault, terroristic threats and REAP.

¶ 9 The jury found appellant not guilty of aggravated assault against Kathy and George Hiller and not guilty of aggravated assault against Officer Kuzo under subsection (a)(2). Appellant was convicted, however, of aggravated assault against Officer Kuzo under subsection (a)(6) and against Melissa Bench under subsection (a)(4). Appellant was also convicted, inter alia, of simple assault against George and Kathy Hiller under 18 Pa.C.S.A. § 2701(a)(1) (attempt to cause bodily injury).

¶ 10 Sentence was imposed on September 25, 2000, and on October 3, 2000, appellant filed timely post-sentence motions which were deemed denied by operation of law 120 days later, on or about January 3, 2001. Pa.R.Crim.P. 720(B)(3)(a) provides that:

When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied. This order is not subject to reconsideration.

¶ 11 The docket fails to reflect that the clerk of courts entered the requisite order or furnished appellant with a copy thereof. On March 8, 2001, appellant filed a notice of appeal.²

¶ 12 On April 19, 2002, the trial court filed an opinion sur appeal in which it concluded, inter alia, that the evidence was insufficient to sustain appellant's convictions of aggravated assault against Melissa Bench and simple assault against George and Kathy Hiller.

¶ 13 Appellant raises three issues on appeal:

1. Whether the Commonwealth failed to present sufficient evidence to support the requisite intent for aggravated assault "attempt by physical menace." (18 Pa.C.S.A. 2702(a)(6))

2. Whether the Commonwealth failed to establish sufficient evidence to prove the Appellant attempted to cause serious [sic] bodily injuries as required for the aggravated assault offense charged. (18 Pa.C.S.A. 2702(a)(4))

3. Whether the Commonwealth failed to establish Appellant caused or intended to cause bodily injury to the listed victims for the simple assault offenses charged. (18 Pa.C.S.A. 2701(a)(1))

¶ 14 Our standard of review upon a challenge to the sufficiency of the evidence is well-settled:

"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." Commonwealth v. Heberling, 451 Pa.Super. 119, 678 A.2d 794, 795 (Pa.Super.1996) (citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). 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. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (Pa.Super.1995) (citations omitted). 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 trier 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. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted). Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001) (quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.Super.2000)) (quoting Commonwealth v. Vetrini, 734 A.2d 404, 406-407 (Pa.Super.1999)).

¶ 15 Appellant first alleges that the evidence was insufficient to establish that he attempted by physical menace to place Officer Kuzo in fear of imminent serious bodily injury under 18 Pa.C.S.A. § 2702(a)(6). Appellant specifically claims that he did not know Officer Kuzo was a police officer or that he intended to place Officer Kuzo in fear. The gravamen of appellant's argument is that when appellant first emerged from his home after Officer Kuzo's arrival, due to poor lighting and distance, appellant did not realize that Officer Kuzo was a policeman and that the shotgun appellant held was unloaded and appellant did not directly point it at the officer in any event.

¶ 16 18 Pa.C.S.A. § 2702(a)(6) provides as follows:

(a) Offense defined.—A person is guilty of aggravated assault if he:

(6) attempts by physical menace to put [a police officer] while in the performance of duty, in fear of imminent serious bodily injury.

18 Pa.C.S.A. § 2702(a)(6).

¶ 17 At trial, Officer Kuzo testified that he was in a marked patrol vehicle and in full...