J-A14030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN R. HIPPENSTEEL

                            Appellant                No. 1630 MDA 2014


              Appeal from the Judgment of Sentence June 3, 2014
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-06-CR-0002715-2013


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 21, 2015

        Appellant Brian Hippensteel appeals from the June 3, 2014 judgment

of sentence1 entered following his jury trial convictions for criminal attempt

to commit murder,2 aggravated assault,3 terroristic threats,4 simple assault,5



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Following the filing of timely post-sentence motions, the trial court
amended the June 3, 2014 judgment of sentence on September 23, 2014.
2
    18 Pa.C.S. § 901.
3
    18 Pa.C.S. § 2702(a)(1).
4
    18 Pa.C.S. § 2706(a)(1).
5
    18 Pa.C.S. § 2701(a)(1).
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two counts of recklessly endangering another person,6 and two counts of

criminal mischief.7 We affirm.

       On September 21, 2013, Appellant shot the victim, Timothy Bouder,

who sustained bleeding from his head.            N.T., 3/17/2014, at 13-14, 52.

Appellant also hit the victim’s pick-up truck, with one bullet entering near

the registration and inspection stickers on the truck’s windshield. Id. at 19-

20. Police discovered fragments of another bullet in a nearby building. Id.

at 22-23.

       Appellant shot the victim because the victim was in a relationship with

Appellant’s estranged wife. See, e.g., N.T., 3/17/2014, at 30-40.49-52. On

the day of the shooting, Appellant spent the entire day drinking beer. Id. at

178-80. Appellant claimed, although he shot the victim, he never intended

to kill him. Id. at 186. He argued he was a 12-year veteran of the United

States Army and received commendations as an expert marksman. Id. at

166-70. He claimed he aimed toward the victim and wanted to scare him,

but did not intend to kill or seriously hurt the victim. Id. at 186.

       On March 17, 2014, a jury trial commenced.             The jury convicted

Appellant of the aforementioned crimes.          On June 3, 2014, the trial court

sentenced Appellant to an aggregate sentence of 14 to 28 years’
____________________________________________


6
    18 Pa.C.S. § 2705.
7
    18 Pa.C.S. § 3304(a)(2).




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imprisonment.8 Appellant filed post-sentence motions, which the trial court

granted in part. Because it had applied a mandatory minimum pursuant to

42 Pa.C.S. § 9712, the trial court found the sentence was unconstitutional

pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013) and

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014) (en banc). The

trial court ordered that Appellant appear for a re-sentencing hearing on

September 23, 2014.          On September 23, 2014, the trial court issued the

following order:     “[O]ur sentencing order of June 3, 2014, is amended to

reflect the sentence imposed at Count 2, Aggravated Assault, is not a

mandatory sentence.”

       Appellant filed a timely notice of appeal. The trial court did not order,

and Appellant did not file, a statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925. The trial court

did not issue a Rule 1925(a) opinion.9

____________________________________________


8
  The trial court sentenced Appellant to 14 to 28 years’ imprisonment for the
criminal attempt to commit murder conviction; 5 to 10 years’ imprisonment
for the aggravated assault conviction; 6 to 24 months’ imprisonment for the
terroristic threats conviction; 6 to 24 months’ imprisonment for the simple
assault conviction; and 1 to 24 months’ imprisonment for the recklessly
endangering another person conviction.        The court did not impose a
sentence of imprisonment for the criminal mischief conviction. All sentences
ran concurrently.
9
  Although the trial court did not issue a Rule 1925(a) opinion, or statement
in lieu thereof, we will review this appeal without remanding for the issuance
of a 1925(a) opinion because the trial court addressed the issue raised on
appeal in its opinion addressing Appellant’s post-sentence motions.



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      Appellant raises the following issue on appeal:

         Since, like first degree murder, intent to kill is required to
         be convicted of attempted murder, is an accused entitled
         to a jury instruction that voluntary intoxication negates the
         mens rea for the charge, as it would for first degree
         murder?

Appellant’s Brief at 5 (capitalization removed). Appellant maintains the jury

should have been instructed that voluntary intoxication is a defense to

attempted murder. Id. at 10-13. We disagree.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super.2011) (quoting

Commonwealth v. Galvin, 985 A.2d 783, 798–799 (Pa.2009) (alteration in

original)).

      Pursuant to Pennsylvania law:

         Neither voluntary intoxication nor voluntary drugged
         condition is a defense to a criminal charge, nor may
         evidence of such conditions be introduced to negative the
         element of intent of the offense, except that evidence of
         such intoxication or drugged condition of the defendant
         may be offered by the defendant whenever it is relevant to
         reduce murder from a higher degree to a lower degree of
         murder.

18 Pa.C.S. § 308.     This Court has found voluntary intoxication is not a

defense to attempted murder.       Commonwealth v. Williams, 730 A.2d

507, 512 (Pa.Super.1999); accord Commonwealth v. Constant, 925 A.2d

810 (Pa.Super.2007), overruled on other grounds at Commonwealth v.


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Minnis, 83 A.3d 1047 (Pa.Super.2014). In Williams, we reasoned there is

“no such crime as attempted second or third degree murder.” Id. at 511.

We concluded that if voluntary intoxication could:

        negate the specific intent to kill element of attempted
        murder[,] [the Court] would be condoning the accused’s
        voluntarily self-induced intoxication as a complete defense
        to a charge of attempted murder. Such a conclusion is
        contrary to the prohibition of such defense expressed in §
        308.

Id. at 512.

     Appellant acknowledges that we have found voluntary intoxication is

not a defense to attempted murder. Appellant’s Brief at 11. He notes the

Supreme Court of Pennsylvania has not addressed whether voluntary

intoxication is a defense to attempted murder and argues he is seeking a

limited application of the voluntary intoxication defense. Id. at 12-13. The

Williams court, however, found the claim that voluntary intoxication should

be a defense to attempted murder lacks merit. 730 A.2d at 511-12.

     The trial court correctly refused to instruct the jury on the voluntary

intoxication defense. Opinion, 8/29/2014, at A-1 – A-2.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/21/2015



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