J-S11027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMES ROBERT SCHOLL

                            Appellant                  No. 908 MDA 2014


              Appeal from the Judgment of Sentence May 8, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001683-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                  FILED JUNE 02, 2015

       James Robert Scholl brings this appeal from the judgment of sentence

imposed May 8, 2014, in the Court of Common Pleas of Centre County. A

jury found Scholl guilty of aggravated assault — attempted serious bodily

injury (three counts), aggravated assault — official in fear (three counts),

terroristic threats (three counts), simple assault (three counts), recklessly

endangering another person (three counts), and resisting arrest (one

count).1 The trial court sentenced Scholl to an aggregate term of 16 to 32

years’ imprisonment.2       Scholl challenges the sufficiency of the evidence to
____________________________________________


1
  18 Pa.C.S. §§ 2702(a)(1), 2702(a)(6), 2706(a)(1), 2701(a)(1), 2705, and
5104(a)(1), respectively. The trial court found Scholl guilty of the summary
offense of harassment, 18 Pa.C.S. § 2709.
2
  The trial court sentenced Scholl to consecutive terms of five to ten years’
imprisonment on the three counts of aggravated assault under § 2702(a)(1),
(Footnote Continued Next Page)
J-S11027-15



sustain his convictions for aggravated assault as a felony of the first degree,

and his conviction for resisting arrest. Based upon the following, we vacate

the judgment of sentence and remand the case for resentencing.

      The trial court has aptly stated the facts underlying this appeal:

      [Scholl’s] charges stem from an incident in which Officers
      Chambers, Albright, and Shaffer responded to a call regarding a
      domestic incident. Testimony from each officer indicated a call
      to respond to 112 Zurich Road in Centre County was received on
      September 14, 2013. The call related to a female who had
      briefly been held against her will by an occupant of the trailer.
      The caller indicated a gun was in the trailer, but she did not
      believe the other occupant had possession of the firearm at the
      time she called the police.

      Officer Shaffer, Officer Albright, and Officer Chambers all
      responded to [Scholl’s] address. Officer Shaffer spoke with
      Brianna Baxter, [Scholl’s] girlfriend. Officer Shaffer testified he
      went around to the side of the trailer to determine whether a
      side door was unlocked and observed [Scholl] briefly look out
      the window, then retreat back into the trailer. Officer Shaffer
      attempted to notify the other officers he had observed [Scholl],
      but they could not hear him because of the volume of the music
      coming from the trailer. As Officer Shaffer rounded the trailer
      and approached the front porch, he testified he heard one of the
      officers ordering [Scholl] to drop his weapon. Officer Chambers
      testified he was standing in front of the door when [Scholl]
      opened the door with the firearm. When [Scholl] saw Officer
      Chambers, he raised the gun and pointed it at Officer Chambers,
      who immediately placed his hands over the weapon and
      attempted to wrestle it from [Scholl].


                       _______________________
(Footnote Continued)

and one to two years’ imprisonment on the count of person not to possess a
firearm. The court imposed a concurrent term of nine to eighteen months
on the count for resisting arrest. On the summary charge of harassment,
the court ordered Scholl to pay all costs.



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     As Officer Shaffer entered the trailer, he observed Officers
     Albright and Chambers struggling on the floor with [Scholl] in
     the living room area. [Scholl] was holding the gun and Officer
     Chambers was clasping it with both hands, attempting to gain
     control of it and keep it from pointing at any of the officers.
     [Scholl] continued to attempt to point the gun at the officers
     while they struggled with him. All three officers testified the gun
     was pointed at each of them at least once during the encounter,
     and they felt it was a “life and death” struggle – they were all in
     fear of [Scholl] discharging the weapon at them. Officer Albright
     testified he observed [Scholl’s] finger on the trigger of the
     weapon during the encounter, and all three officers testified the
     gun was pointed at each of them at least once during the
     incident.

     After officers were able to secure the gun, they testified [Scholl]
     continued to struggle, refusing to put his hands behind his back,
     tensing his muscles, and attempting to keep his hands at his
     side to prevent the officers from handcuffing him. [Scholl] did
     not cease struggling until officers were able to secure one hand
     with a handcuff.        At that point, [Scholl] complied with
     instructions and officers were able to handcuff him.

     Sergeant Ryan Hendrick testified he responded to the call after
     the struggle. He took [Scholl] into custody and questioned him.
     Sergeant Hendrick is the Centre County Alcohol Task Force
     Coordinator, and has extensive experience with intoxicated
     individuals. He noticed an odor of an alcoholic beverage about
     [Scholl’s] person, but did not feel [Scholl] was so intoxicated
     that he was unable to comprehend questions or engage in an
     interview.    [Scholl] answered all questions coherently and
     appropriately, and was not stumbling or otherwise unable to
     physically navigate.

     The Commonwealth played the audio recording of the interview
     for the jury. In the interview, [Scholl] indicated he took the
     pistol from the drawer and put the clip in it, but did not actually
     pull the slide on the weapon back to chamber a round. This is
     consistent with the testimony from Officer Chambers, who
     testified when he cleared the weapon after the struggle with
     [Scholl], the clip was in the weapon but there was not a round in
     the chamber.




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       [Scholl] maintained he took the gun to the door because he
       heard a noise outside and suspected someone was stealing his
       girlfriend’s purse, which he had placed on the porch earlier in the
       evening during their argument.       He testified he pointed the
       weapon at the officers because he was startled to see them
       standing on the porch when he opened the door, and was unable
       to drop the gun when ordered because Officer Chambers was
       pressing it into his hand. He also testified he was extremely
       intoxicated throughout the period in question, but the Court
       notes he appeared able to recall almost the entire incident when
       testifying. The only significant part of the encounter [Scholl]
       alleged he had no recollection whatsoever of was when he gave
       a statement to Sergeant Hendrick after the incident.

Trial Court Opinion, 5/21/2014, at 2-4 (record citations omitted).

       A jury convicted Scholl of the above stated charges and, following the

denial of post sentence motions, this appeal followed.3

       Initially, we state our standard of review:

       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. In applying [this] 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. 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
____________________________________________


3
 Scholl timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.



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       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. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (citation

omitted), appeal denied, 62 A.3d 379 (Pa. 2013).

       Scholl first challenges the sufficiency of the evidence to sustain his

three convictions of aggravated assault, 18 Pa.C.S. § 2702(a)(1), graded as

a felony of the first degree.4

       Under Section 2702(a)(1), a person may be convicted of aggravated

assault if he “attempts to cause serious bodily injury to another, or causes

such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life. 18 Pa.C.S. §

2702(a)(1). “Serious bodily injury” means “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S. § 2301. “For aggravated assault purposes, an ‘attempt ’

is found where the accused, with the required specific intent, acts in a

manner which constitutes a substantial step toward perpetrating a serious

bodily injury upon another.” Commonwealth v. Gray, 867 A.2d 560, 567

(Pa. Super. 2005), appeal denied, 879 A.2d 781 (Pa. 2005). Such intent
____________________________________________


4
  See 18 Pa.C.S. § 2702(b) (“Aggravated assault under subsection (a)(1),
(2) and (9) is a felony of the first degree. Aggravated assault under
subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the second
degree.”).



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may be proven circumstantially. Commonwealth v. Rightley, 617 A.2d

1289, 1295 (Pa. Super. 1992).

      Scholl claims “[t]he evidence was insufficient to prove beyond a

reasonable doubt that [he] possessed the requisite specific intent to cause

serious bodily injury to Officer Chambers, Sergeant Albright, and Officer

Shaffer, and that he took a ‘substantial step’ towards inflicting serious bodily

injury.” Scholl’s Brief, at 21. Specifically, Scholl argues that he

      never fired the gun, nor did he ever attempt to discharge the
      gun. Upon examination, the clip or magazine contained one
      single round. There were no rounds in the chamber as the
      firearm was unprimed. In order for [Scholl] to actually fire the
      gun, he would have had to rack the slide with his hand to
      chamber a round from the clip or magazine into the chamber.
      [Scholl] never uttered any verbal threats to fire the gun or to
      harm the officers. In fact, from the time the trailer door opened
      until he was placed in handcuffs, [Scholl] did not say anything at
      all.

Id. at 28 (record citations omitted). In support of his argument, Scholl cites

to case authority for the proposition that the mere act of pointing a gun at

another, without more, does not constitute aggravated assault. See Scholl’s

Brief at 25-28, citing Commonwealth v. Matthew, 909 A.2d 1254 (Pa.

2006), Commonwealth v. Alford, 880 A.2d 666 (Pa. Super. 2005), and

Commonwealth v. Savage, 418 A.2d 629, 632 (Pa. Super. 1980).

      In Alford, the defendant, a jail escapee, was convicted under

§ 2702(a)(1) of aggravated assault after he pounded on a woman’s door,

was refused entry, and then momentarily pointed a gun through her front-

door window, after which she fled the house through the back door. In


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reversing that conviction, this Court noted, “It is well settled that merely

pointing a gun at another person in a threat to cause serious bodily injury

does not constitute an aggravated assault.” 880 A.2d at 671; see

also Savage, supra.

      Alford was followed by our Supreme Court’s later pronouncement in

Matthew, supra. In Matthew, the defendant was convicted of aggravated

assault under § 2701(a)(1) after he first placed a loaded gun against the

victim’s throat, continued to restrain the victim throughout the encounter by

pointing the gun at him, and threatened to kill him. The Supreme Court

upheld the sufficiency of the evidence supporting that conviction.           The

Matthew Court reaffirmed that the totality of the circumstances are

examined to determine if a defendant demonstrated the intent to inflict

serious bodily injury. Matthew, 909 A.2d at 1258. The Court concluded that

the defendant “attempted to inflict serious bodily injury upon [the victim]

and intended to do so” in light of the fact that he “placed a loaded gun

against [the victim’s] throat, repeatedly pointed it at him, and threatened to

kill him seven to ten times.” Id. at 1258. Significantly, the Matthew Court

continued that, if the “threats alone were not enough to establish his intent,

the fact-finder could determine his intent from pushing the loaded gun

against [the victim’s] throat and otherwise pointing it at him.” Id. at 1259.

      Here, the trial court rejected Scholl’s argument, as follows:

      The evidence showed [Scholl] pointed the loaded weapon at the
      officers. The Court acknowledges this alone is insufficient to
      infer the specific intent to injure required for aggravated assault.

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       However, when combined with the testimony of [Scholl’s] finger
       on the trigger and continued attempts to direct the firearm at
       the officers, the evidence was sufficient to establish the required
       intent to cause serious bodily injury … to the officers. The mere
       fact that the officers were able to overpower [Scholl] and take
       the weapon from him before he was able to fire it does not
       negate his actions nor the intent they demonstrate.

       Further, the act of pointing the loaded gun with his finger on the
       trigger and his continuing attempt to direct the weapon at
       officers while they were attempting to disarm him was also [a]
       substantial step toward perpetrating serious bodily injury upon
       them.     Again, simply because the officers were able to
       overpower [Scholl] and stop him from firing the weapon does
       not negate the intent demonstrated by his actions. Therefore,
       the evidence is sufficient to support the “intent” and “substantial
       step” elements ….

Trial Court Opinion, 5/21/2014, at 5 (citation omitted).           Based on our

review, we agree with the trial court that Scholl’s sufficiency challenge fails.

       “Where the intention of the actor is obvious from the act itself, the

[fact-finder] is justified in assigning the intention that is suggested by the

conduct.”    Matthew, 909 A.2d at 1259 (citation omitted).          The evidence

showed Scholl pointed the loaded gun at three police officers, redirecting it
                              5
at each one individually.         Scholl kept his finger on the trigger of the gun

____________________________________________


5
  Officer Shaffer testified: “The gun was sort of moving around in front of
everybody’s face as [Scholl] was attempting to struggle to keep hold of the
weapon while Officer Chambers was trying to remove it from his hands.”
N.T., 3/24/2014, at 56. He further stated that the gun “came right across
my face at least once[.]” Id. Sergeant Albright testified that Scholl pointed
the gun at Officer Chambers and at himself. Id. at 89, 91, 96. Officer
Chambers also testified that Scholl pointed the gun at him, “a foot from his
face.” Id. at 118.




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and refused to disarm even though police ordered him to drop the weapon

25 or 30 times. N.T., 3/24/2014, at 64. The officers wrestled Scholl on the

ground for approximately 30 seconds to a minute 6 before seizing the gun

from him. The gun had one bullet in the clip or magazine.7 This evidence,

viewed in the light most favorable to the Commonwealth as verdict winner,

was sufficient to support the jury’s conclusion that Scholl had the intent to

cause serious bodily harm to the officers, and that he took a substantial step

towards inflicting serious bodily injury, as required by Section 2702(a)(1).

Therefore, Scholl’s first argument warrants no relief.

        Scholl also challenges the sufficiency of the evidence to sustain his

conviction for resisting arrest.       A defendant may be convicted of resisting

arrest if he, “with the intent of preventing a public servant from effecting a

lawful arrest or discharging any other duty, ... creates a substantial risk of

bodily injury to the public servant or anyone else, or employs means

justifying or requiring substantial force to overcome the resistance.” 18

Pa.C.S. § 5104. This statutory language “does not require the aggressive
____________________________________________


6
    N.T., 3/24/2014, at 57, 121.
7
    While we acknowledge Scholl’s argument that no bullet was in the
chamber of the gun, the magazine did contain one live round. Scholl
indicated to police he had taken the pistol and put the magazine in it,
thereby intentionally loading the weapon. See N.T., 3/24/2014, at 148, 162
(Commonwealth Exhibit 5), 223. Had Scholl operated the slide, chambering
the round, he could have fired the gun. The actions of the police in placing
their hands on the weapon prevented that from happening.




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use of force such as a striking or kicking of the officer.” Commonwealth v.

McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011) (quotations and citation

omitted), appeal denied, 29 A.3d 372 (Pa. 2011).

      We note, initially, that a lawful arrest is an element of resisting arrest,

Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007), and that, in

this case, police had probable cause to arrest based upon Scholl’s actions

when he confronted police. With regard to the remaining elements, Scholl

claims he did not create a “substantial risk of bodily injury” to the officers or

require “substantial force” to overcome. Scholl’s Brief at 31.

      We recognize that, in general, a “minor scuffle” is insufficient to

support a charge of resisting arrest. Commonwealth v. Rainey, 426 A.2d

1148, 1150 (Pa. Super. 1981). However, the evidence in this case showed

more than a minor scuffle.     Officer Shaffer testified that after the officers

had wrested the gun from Scholl, Scholl continued to “actively resist” and he

had to use a “shoulder lock.”       N.T., 3/24/2014, at 63.      Officer Shaffer

explained that Scholl was “wrestling trying to keep us from being able to get

his hand … tensing up … keeping us from being able to get control of it …

and we’re just trying to wrench his hands to get them into a position where

we can actually apply handcuffs at that point.” Id. He further testified that

Scholl “did not acquiesce to anything until we finally had a handcuff on one

hand and had him rolled over and bellied out.” Id. at 64. Sergeant Albright

confirmed that Scholl “was actively resisting … even after Officer Chambers


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got the firearm away[,]” and that “Officer Shaffer was the one who was

actually able to arm bar [Scholl].” Id. at 106. Likewise, Officer Chambers

also testified that after he took hold of the gun from Scholl and stood up, the

struggle continued. See id. at 123. He estimated that after the gun was

removed from Scholl, it took “maybe another 30 [seconds] to get him

secured[.]” Id. at 121.

        The statutory language of Section 5104 criminalizes resistance

behavior that requires substantial force to surmount. Although Scholl cites

Sergeant Albright’s testimony that Scholl may have just been struggling in

the limited space of the trailer to get his arms behind his back, and that had

he truly felt Scholl was resisting arrest, he would have tasered him, 8 our

standard of review requires that we view the evidence in the light most

favorable to the Commonwealth as verdict winner. Here, we conclude that

the evidence was sufficient for the jury to conclude that the officers had to

employ substantial force to overcome Scholl’s resistance, and to find him

guilty of resisting arrest. See Commonwealth v. Thompson, 922 A.2d

926, 928 (Pa. Super. 2007) (appellant guilty of resisting arrest where she

would not allow police officer to handcuff her and refused order to put her

hands behind her back; officer’s efforts to restrain her left him exhausted).

Accordingly, this claim likewise fails.

____________________________________________


8
    See Scholl’s Brief at 31–32.



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       Nonetheless, it appears from the record that the trial court imposed a

mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712, a statute that

has been found to be constitutionally infirm in light of the United States

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct 2151 (U.S.

2013). See Commonwealth v. Ferguson, 107 A.3d 206 (Pa. Super.

2015); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).

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

Therefore, in an abundance of caution, we consider the issue of the

mandatory minimum sentences imposed on the counts of aggravated

assault, pursuant to Section 9712.9

       Although Scholl did not contest the imposition of the mandatory

minimum sentences on appeal, “a challenge to a sentence premised upon

Alleyne … implicates the legality of the sentence and cannot be waived on

____________________________________________


9
  The trial court did not cite 42 Pa.C.S. § 9712 in its sentencing orders on
the aggravated assault counts, but only stated that the court “finds that a
deadly weapon was used.” Orders (Count 1, Count 2, Count 3), dated
5/8/2014, filed 5/19/2014. However, the Commonwealth notified Scholl
that he was subject to the mandatory minimum sentence of five years for
the aggravated assault counts at Count 1, Count 2, and Count 3, pursuant to
42 Pa.C.S. § 9712. See Commonwealth’s Notice of Mandatory Sentence
Under 42 Pa.C.S. § 9712, 3/26/2014. Moreover, both Commonwealth
counsel and trial counsel referenced the mandatory five-year sentences for
Counts 1 through 3 in argument to the court at sentencing. See N.T.,
Sentencing, 4/29/2014, at 5, 10. Finally, we note that relevant, proposed
sentencing guideline forms that were prepared for and included in the
presentence investigation report reflect a mandatory minimum of 60 months
and include citation to 42 Pa.C.S. § 9712. See Presentence Investigation
Report, 6/4/2014.



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appeal.”   Newman, supra, 99 A.3d at 90.             Moreover, this Court may

address the legality of a defendant’s sentence sua sponte. Commonwealth

v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc), appeal denied,

95 A.3d 277 (Pa. 2014).

     In Alleyne v. United States, 133 U.S. 2151 (2013), the United

States Supreme Court held “[a]ny fact that, by law, increases the penalty for

a crime is an ‘element’ that must be submitted to the jury and found beyond

a reasonable doubt.”   Id. at 2155. Applying this mandate, this Court has

held that Alleyne renders unconstitutional mandatory minimum sentencing

statutes that permit the trial court to increase a defendant’s minimum based

upon a preponderance of the evidence, as opposed to utilizing the beyond a

reasonable doubt standard.     See Newman, supra (finding 42 Pa.C.S. §

9712.1 unconstitutional). See also Commonwealth v. Vargas, 108 A.3d

858 (Pa. Super. 2014) (en banc) (applying Newman to 18 Pa.C.S. § 7508);

Ferguson,     supra    (applying   Newman       to    42   Pa.C.S.   §   9712);

Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014) (applying

Newman to § 6317); Valentine, supra (applying Newman to 42 Pa.C.S.

§§ 9712 and 9713).

     While, in this case, the jury determined, via the verdict slip, the factual

predicate under section 9712, this Court has found that by such efforts to

comply with the dictates of Alleyne, the courts perform “an impermissible

legislative function.” Commonwealth v. Mosley, ___ A.3d ___, ___ [2015


                                    - 13 -
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PA Super 88] (Pa. Super. April 20, 2015); Ferguson, supra; Valentine,

supra. Accordingly, we are constrained to vacate the judgment of sentence

and remand for resentencing.10

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




____________________________________________


10
   We note that application of the deadly weapon enhancement does not
violate Alleyne. See Commonwealth v. Buterbaugh, 91 A.3d 1247,
1269 n.10 (Pa. Super. 2014) (discussing deadly weapon enhancement),
appeal denied, 104 A.3d 1 (Pa. 2014). See also Commonwealth v. Ali,
2015 PA Super 45 (Pa. Super.            2015) (discussing school zone
enhancement).



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