J-A04023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                   Appellee                    :
                                               :
            v.                                 :
                                               :
CHRISTOPHER BAJ,                               :
                                               :
                   Appellant                   :   No. 1186 EDA 2019


      Appeal from the Judgment of Sentence Entered December 19, 2018
            in the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0000834-2018

BEFORE:      PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.:                            FILED MAY 4, 2020

        Christopher Baj (Appellant) appeals from the judgment of sentence

imposed following his convictions for aggravated assault, simple assault,

recklessly endangering another person (REAP), and endangering the welfare

of children (EWOC). We affirm.

        The trial court provided the following background.

        The events unfolded in the early evening on January 29, 2018,
        after [Appellant] was served divorce papers by his wife, Mia [],
        at their residence at 2272 Toursdale Drive in Bethlehem
        Township, Northampton County, Pennsylvania.         Apparently,
        [Appellant] did not anticipate the divorce filing.

             According to the testimony, in the early evening hours,
        [Appellant] and [Mia] calmly discussed the divorce until around
        midnight, when she went to bed. [Appellant] remained awake at

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     this time and went into his home office. While in his office[,
     Appellant] completed an online transfer of approximately
     $75,000 from a marital account into an account that he shared
     with his adult daughter, Natalie ([Mia’s stepdaughter]). He also
     consumed a bottle of vodka and sent a cryptic email to both of
     his adult daughters from his previous marriage. In the email,
     [Appellant] expressed that he had no desire to proceed with the
     divorce.

            On January 30, 2018, at approximately 2:30 a.m.[, Mia]
     awoke because she heard [Appellant] coming up the stairs.
     [Mia] got out of bed. [Appellant] approached [Mia] with the
     divorce papers in his left hand. At that time[, Mia] became
     alarmed because she observed a firearm in the waistband of
     [Appellant’s] gym shorts. [Mia] alleged that she attempted to
     grab the firearm.     [Appellant] swatted away [Mia’s] hand,
     removed the gun from his shorts and raised the gun to her head.
     [Mia] ran into the master bathroom and locked [the] door. She
     then dialed 911. [Appellant] tried to open the locked door and
     then proceeded to shoot his gun three times through the
     bathroom door, at varying heights, twice near the locking
     mechanism and once near the door frame, at head height.
     [Appellant] then attempted to break the door open, at that time
     [Mia] was able to run out of the bathroom, down the stairs, and
     outside the home, all the while she remained on the phone with
     the 911 operator. [Mia] recounted that as she ran down the
     stairs she saw her son, J.B.[,] come to the doorway of his room
     and say, “Daddy?” and she heard [Appellant] instruct J.B. to get
     back in his room.

           The Commonwealth played the 911 call for the jury, in
     which [Mia] could be heard desperately crying for help,
     screaming to her husband on the other side of the door that she
     was calling the police and begging for the operator to send the
     police because she was fearful that [Appellant] was going to kill
     her. After which, three gun shots can be heard. The jury heard
     the three shots taken by [Appellant] into the door that [Mia] was
     cowering behind, after she cried out in fear, and asked for help.

            The police responded to the scene, along with a SWAT
     team and a hostage negotiator. For several hours, [Appellant]
     refused to respond to police phone calls and loudspeaker
     instructions. The hostage negotiator was unable to defuse the
     situation or to safely get the two minor children out of the

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       residence. Eventually, the police were able to monitor the
       children and then contact the children by accessing the speaker
       for the parent’s monitor/surveillance system stationed in the
       children’s bedroom. After the boys woke up around 6:30 a.m.,
       the older son, J.B., who was 7 years old at the time, was
       instructed by officers to get his 4-year-old brother and leave
       through the front door of the home. The boys were able to leave
       the residence on their own accord; however, [Appellant] did not
       assist in the safe exit of the two boys and refused to comply with
       all police directives. Apparently, after pacing in the home for
       hours, [Appellant] sat catatonically on a living room chair for
       several hours.

              After repeated attempts to ask [Appellant] to leave the
       home by his own volition, around 12:00 p.m. the police
       performed a “brake and rake” where they broke a window in
       [Appellant’s] home to distract him, and the SWAT team entered
       the home and took [Appellant] into custody without injury. The
       police then obtained a search warrant. The police located and
       seized a Taurus revolver that was used in the shooting, as well
       as the bullet fragments in the bathroom and casings in the
       bedroom.      The revolver was found in a cabinet above the
       refrigerator.

Trial Court Opinion, 5/15/2019, at 2-5 (citations omitted).      Upon further

investigation, police located a storage locker which contained several

firearms and a bottle of vodka, and discovered Appellant made a $75,000

transfer of funds held in a trust with Mia to Appellant’s other adult daughter,

Kristina.   Both the rental and the transfer occurred two days before the

shooting.    Additionally, Appellant, Mia, and their two children, were

scheduled to travel to Poland on the morning of January 30, 2018.           On

January 29, 2018, Appellant cancelled their car service to the airport, and

later in the day, rescheduled via a blocked phone number transportation for

one.


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       As a result of this incident, Appellant was arrested and charged with

the aforementioned crimes, as well as attempted murder.                     Appellant

proceeded to a jury trial, where the aforementioned facts were developed.

At the conclusion of the trial, the jury convicted Appellant of one count each

of aggravated assault, simple assault, and REAP, and two counts of EWOC,

but the jury was hung as to the attempted murder charge and a mistrial was

declared as to that charge.

       On December 19, 2018, the trial court sentenced Appellant to an

aggregate term of 6 to 17 years of incarceration. For sentencing purposes,

the trial court merged Appellant’s convictions for simple assault and

aggravated     assault.      Appellant     timely   filed   a   post-sentence   motion

challenging the sufficiency of the evidence to sustain his convictions for

aggravated assault and simple assault. The trial court denied the motion on

March 25, 2019.

       This timely-filed appeal followed.1 On appeal, Appellant challenges the

sufficiency of the evidence to sustain his convictions for aggravated assault

and simple assault. Appellant’s Brief at 4.

       To address a challenge to the sufficiency of the evidence, we must

determine

____________________________________________


1Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.



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      whether, viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as 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
      [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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      In the instant case, Mia did not suffer physical injury as a result of

Appellant’s   shooting.    Therefore,   the   Commonwealth      proceeded    on

aggravated assault and simple assault charges on the basis of attempt. To

prove that Appellant committed aggravated assault, the Commonwealth had

to establish that Appellant “attempt[ed] to cause serious bodily injury to

another, [] under circumstances manifesting extreme indifference to the

value of human life.” 18 Pa.C.S § 2702(a)(1). As applied to the offense of

aggravated assault, “serious bodily injury” is defined as “[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. “Where the victim does not sustain

serious bodily injury, the Commonwealth must prove that the [defendant]




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acted with specific intent to cause serious bodily injury.” Commonwealth

v. Lewis, 911 A.2d 558, 564 (Pa. Super 2006).

      In order to prove that Appellant committed simple assault, the

Commonwealth had to prove that Appellant attempted to cause bodily injury

to another. 18 Pa.C.S. § 2701(a)(1).       “Bodily injury” is “[i]mpairment of

physical condition or substantial pain.” 18 Pa.C.S. § 2301.

      “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). “Intent can be proven by

direct or circumstantial evidence; it may be inferred from acts or conduct or

from the attendant circumstances.”     Commonwealth v. Miller, 172 A.3d

632, 641 (Pa. Super. 2017).     In determining whether the Commonwealth

proved Appellant had the requisite specific intent, the fact-finder is free to

conclude “the accused intended the natural and probable consequences of

his actions to result therefrom.” Commonwealth v. Rosado, 684 A.2d

605, 608 (Pa. Super. 1996).

      The crux of Appellant’s argument is that the evidence was insufficient

to sustain his convictions because the Commonwealth failed to prove that

Appellant acted with the requisite specific intent. Appellant’s Brief at 11-15.

Specifically, Appellant claims “he fired each shot for the purpose of opening

the door and not with the specific intent to hurt [Mia].”      Id. at 11.   To

support his contention, Appellant essentially argues that if it was his


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intention to cause his wife serious bodily injury, he would have done so after

he finally broke the door open. Id. Lastly, Appellant contends his conviction

on the charge of aggravated assault was inconsistent with the jury’s hung

verdict as to attempted murder. Id. at 14.

      As stated supra, the intent to commit aggravated assault is established

when the accused intentionally acts in a manner that constitutes a

substantial or significant step toward perpetrating serious bodily injury upon

another.   Rosado, 684 A.2d at 608.        This Court has found the requisite

intent to commit aggravated assault when the accused has fired a gun into a

building he knew was occupied. Id. at 609-10.

      Reviewing   the   evidence    in   the   light   most   favorable   to   the

Commonwealth, we conclude the evidence was sufficient to enable the jury

to find Appellant guilty of aggravated assault.        Specifically, the jury was

permitted to find the evidence established Appellant intended to cause

serious bodily injury when he fired his weapon at the bathroom door, at

varying heights, behind which he knew Mia was hiding. See Rosado, 684

A.2d at 609-10. The foregoing, together with the events in the preceding

days that culminated in Appellant’s being served divorce and custody

papers, in context, allow one to infer that Appellant intended to cause

serious bodily injury to Mia.      Accordingly, we conclude the evidence is

sufficient to establish that Appellant acted with the requisite intent, and

therefore, sustain Appellant’s conviction of aggravated assault.


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       Because we have determined that the evidence was sufficient to

sustain Appellant’s conviction of aggravated assault, and simple assault is a

lesser included offense of aggravated assault, we also conclude the evidence

is sufficient to sustain Appellant’s conviction of simple assault.           See

Commonwealth v. Sirianni, 428 A.2d 629, 632-33 (Pa. Super. 1981)

(explaining that simple assault as an attempt to cause bodily injury is a

lesser included offense of aggravated assault, which is an attempt to cause

serious bodily injury).2

____________________________________________


2     In Appellant’s Brief, he alludes to an argument that the verdict was
inconsistent. “[I]t is hard to reconcile how a jury could have found that
Appellant had the conscious object to seriously harm but not to kill.”
Appellant’s Brief at 14.

      Such an argument fails on numerous grounds. First, it is waived. If
Appellant is claiming attempted murder and aggravated assault have
identical elements of intent, and therefore the failure to convict Appellant on
the attempted murder charge should have also resulted in a failure to
convict on the aggravated assault charge, Appellant never raised this in his
1925(b) Statement.

       [T]he United States Supreme Court has recognized that a court’s
       review of the evidentiary sufficiency of a particular conviction is
       separate from its review of inconsistent verdicts, as sufficiency
       review entails an assessment of whether the evidence was
       sufficient for the jury to convict a defendant of a particular
       offense and is “independent of the jury’s determination that
       evidence on another count was insufficient.” United States v.
       Powell, 469 U.S. 57, 67, [ ] (1984). Thus, the Supreme Court
       has explicitly cautioned that sufficiency review “should not be
       confused with the problems caused by inconsistent verdicts.”
       Id. Accordingly, in line with the [H]igh Court, we emphasize
       that such challenges are more appropriately characterized as
       challenges to the inconsistency of the jury’s verdict, rather than
(Footnote Continued Next Page)


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      Based on the foregoing, we affirm Appellant’s judgment of sentence.
(Footnote Continued) _______________________

      to the sufficiency of the evidence to sustain a particular
      conviction.

Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014).

Second, the trial judge in his opinion explained that the jury verdict was not
inconsistent. Trial Court Opinion, 5/15/2019, at 8-12. Third, a jury verdict
is not required to be consistent.

      “Inconsistent verdicts, while often perplexing, are not considered
      mistakes and do not constitute a basis for reversal.
      Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super.
      2004) (citations omitted). Rather, “[t]he rationale for allowing
      inconsistent verdicts is that it is the jury’s sole prerogative to
      decide on what counts to convict in order to provide a defendant
      with sufficient punishment.” Commonwealth v. Miller, 657
      A.2d 946, 948 (Pa. Super. 1995) (citations omitted). “When an
      acquittal on one count in an indictment is inconsistent with a
      conviction on a second count, the court looks upon the acquittal
      as no more than the jury’s assumption of a power which they
      had no right to exercise, but to which they were disposed
      through lenity. Thus, this Court will not disturb guilty verdicts
      on the basis of apparent inconsistencies as long as there is
      sufficient evidence to support the verdict. Petteway, 847 A.2d
      at 718.

Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa. Super. 2005)
(citations modified); see also Commonwealth v. Miller, 35 A.3d
1206, 1208, 1213 (Pa. 2012) (“inconsistent verdicts ... are allowed to
stand so long as the evidence is sufficient to support the conviction”;
“an acquittal cannot be interpreted as a specific finding in relation to
some of the evidence, and that even where two verdicts are logically
inconsistent, such inconsistency alone cannot be grounds for a new
trial or for reversal”; “the ‘special weight’ afforded the fact of an
acquittal plays no role in the analysis of inconsistent verdicts, because,
by definition, one of the verdicts will always be an acquittal”).




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J-A04023-20


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/04/2020




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