Opinion
1263 WDA 2022
01-10-2024
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM CONCINI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
Appeal from the Judgment of Sentence Entered March 18, 2022 In the Court of Common Pleas of Erie County Criminal Division at No: CP-25-CR-0001415-2021
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM
STABILE, J.
Appellant, William Concini, appeals from his judgment of sentence of 54-108 months' imprisonment for aggravated assault under 18 Pa.C.S.A. § 2702(a)(1), claiming that the verdict was against the weight of the evidence and that defense counsel failed to request proper jury instructions at the close of evidence. We affirm.
At approximately 6:30 a.m. on March 31, 2021, Appellant shot Mike Ropelewski while he was inside the mobile home of Brian Grice. Ropelewski sustained wounds to the head and torso.
The evidence relating to this shooting is as follows. Grice testified that Ropelewski and Edwin Dolson arrived at his home on the evening of March 30, 2021 and stayed the night. N.T., 1/12/22, at 21-23. Sometime after they arrived, Grice learned from his girlfriend that Mike Mitchell was planning to rob Grice at gunpoint. Id. Mitchell had shot at Grice several weeks before with a handgun. Id. at 52. Grice stated that Appellant was aware that Mitchell had shot at Grice. Id. at 54.
In response to the tip about Mitchell, Grice, Ropelewski, and Dolson kept their eyes on the mobile home's surveillance system, which consisted of a 43-inch monitor and Wi-Fi cameras that connected to Grice's phone. They also armed themselves with crossbows, revolvers, and rifles. Id. at 22-23.
The three men were alarmed upon observing Mitchell drive into the mobile home's parking lot later that night. Id. at 23-24. Grice feared that Mitchell was intent on violence and did not know if any other individuals were in the car with him. No confrontation took place at that point, however, because Mitchell abruptly left the trailer park.
Grice testified that at 6:06 a.m. in the morning, another friend of his, Cash, texted that he was coming "with power," and that Shred (Appellant) was coming as well. Id. at 34. Although Grice knew Cash and Appellant were coming, id. at 54, he did not call the police. Id. at 35. Further, even with Ropelewski and Dolson present, Grice was unsure whether he had enough manpower to withstand an attack by Mitchell. Id. at 35.
Appellant testified in his own defense. He described his years in the military and working as a corrections officer. N.T., 1/13/22, at 74-81. Appellant testified that he knew about threats Mitchell previously had made against Grice. Appellant claimed that on the morning of the shooting, he was at a gas station about ten minutes away from Grice's residence when Cash informed him that Grice was being robbed at that moment and that his life was in danger. Id. at 83. Appellant immediately drove to Grice's residence. He stated that he was defending his friends when he shot Ropelewski. Id. at 100-02. He maintained that he did not call the police because he believed he could make it before the police and was in a dead zone for making calls in transit to Grice's house. Id. at 96-99.
Upon his arrival, Appellant thought it suspicious that Grice's pit bulls appeared to be missing and that none of the outside lights were on, something that is unusual for Grice. Id. at 85. Appellant went to the backdoor, which was normal behavior for him, but could only see in from the first window on the right. He testified that he brought his shotgun to the residence with him because "it's better to have it and not need it than need it and not have it." Id. at 99. At that moment, Appellant saw a man he "did not readily recognize" holding an object that Appellant believed was a handgun; he did not know the man was actually holding a crossbow until after the shooting. At the sight of the object, Appellant shot Ropelewski, believing that Ropelewski was a random person robbing Grice. Although he had met Ropelewski a year earlier, he was unable to identify him because he had not seen him in a year and his appearance had changed since that time. Id. at 87. Appellant denied being able to see that Ropelewski's back was turned away from Grice at the time of he pulled the trigger. Id. at 102.
When Ropelewski was on the ground, Appellant called out to Grice to make sure he was okay. Grice said, "no, dude, you just shot Mike." Id. at 89. Appellant claimed that it was at this moment that he realized he shot someone by mistake. Appellant testified that he did not want Ropelewski to die and asked Grice to hold the gun so he could render aid. Grice declined, so Appellant placed the shotgun on the couch. Appellant stayed for a minute to render aid, but when he detected no pulse, he left the residence and fled to Ripley, New York, where Cash lived. He was emotional and panicky and destroyed the gun. He testified that if he was thinking clearly in the aftermath of the incident, he would not have fled or destroyed the gun. Id. at 111. He surrendered that day when sheriffs in Chautauqua County, New York arrived at Cash's residence at 1:15 pm.
Appellant was charged with attempted murder, two counts of aggravated assault (one under Section 2702(a)(1) and one under Section 2702(a)(4)), two counts of reckless endangerment and tampering with or fabricating physical evidence. During trial, the Commonwealth withdrew the reckless endangerment charges, and the court dismissed the tampering charge. Appellant defended against the remaining charges on the ground that he was acting in defense of another person, Grice. The jury found Appellant guilty of aggravated assault under Section 2702(a)(1) but not guilty of attempted murder and aggravated assault under Section 2702(a)(4).
We provide the full text of Sections 2702(a)(1) and (a)(4) below in our discussion of Appellant's challenge to the weight of the evidence.
On February 22, 2022, Appellant filed a motion for extraordinary relief in which he argued that the verdict was against the weight of the evidence due to the inconsistency between the verdict of guilt for aggravated assault under Section 2702(a)(1) and the verdicts of acquittal for attempted murder and aggravated assault under Section 2702(a)(4). On March 15, 2022, the court denied Appellant's motion on the ground that the "verdicts are not inconsistent." Order, 3/15/22.
On March 18, 2022, the court imposed sentence. Appellant filed post-sentence motions raising, inter alia, the same challenge to the weight of the evidence that he raised in his motion for extraordinary relief. On September 29, 2022, the court denied Appellant's post-sentence motions. On the same date, Appellant filed a notice of appeal to this Court. Appellant filed a timely Pa.R.A.P. 1925 statement of matters complained of on appeal, and thecourt filed a Rule 1925 opinion incorporating its opinion denying Appellant's post-sentence motions.
On March 24, 2022, six days after sentencing, counsel for Appellant filed a motion to withdraw representation and to continue the deadline for filing post-sentence motions. On March 29, 2022, the court granted counsel's motion to withdraw, appointed substitute counsel, and granted a thirty-day extension "for any supplemental post-sentence motion." Order, 3/29/22. On April 26, 2022, new counsel filed a motion for another extension of time to file post-sentence motions, asserting that the court reporter had not yet completed transcribing the notes of testimony. On April 27, 2022, the court extended the deadline for filing post-sentence motions until 21 days after the court reporter filed the trial transcript. On June 10, 2022, Appellant filed post-sentence motions contesting the weight of the evidence and objecting to trial counsel's failure to request proper jury instructions, the same issues Appellant raises in this appeal. In an order docketed on September 29, 2022, the court denied these motions and stated that Appellant had the right to appeal to the Superior Court within the next thirty days. It appears that the court treated Appellant's March 24, 2022 motion as a post-sentence motion under Pa.R.Crim.P. 720(A)(1) and his June 10, 2022 motion as a supplemental post-sentence motion under Pa.R.Crim.P. 720(B)(1)(b). Pa.R.Crim.P. 720(B)(3)(a) prescribes that the original and supplemental post-sentence motions were denied by operation of law on July 22, 2022 (120 days after the original motion), and that the thirty-day appeal period began to run on that date. Appellant did not file this appeal until September 29, 2022, over one month after the thirty-day appeal period expired. Nevertheless, we conclude that this appeal is properly before us, since the court did not order denial of the post-sentence motions until September 29, 2022 and informed Appellant in its order that he had thirty days after September 29th to file his appeal. See Commonwealth v. Khalil, 806 A.2d 415, 421 (Pa. Super. 2002) (exercising jurisdiction over appeal where clerk of courts failed to enter order on date defendant's post-sentence motions were denied by operation of law, and defendant appealed within thirty days of date court issued order denying motions; thus, untimely appeal resulted from "breakdown of the processes of the trial court"); Commonwealth v. Cradle, 299 A.3d 914, 2023 WL 3578541, *2 n.1 (Pa. Super., May 22, 2023) (where post-sentence motion was denied by operation of law on September 8, 2022, but Appellant did not file appeal until November 7, 2022, untimely appeal excused where clerk of courts did not enter and serve an order denying motion until November 4, 2022 and court informed Appellant that he had thirty days after November 4thto file appeal).
Appellant raises two issues in this appeal:
[1] The verdict in this case was against the weight of the evidence, in that the verdicts in this case were inconsistent when the jury decided that [Appellant] did not have the specific intent to kill as required for criminal attempt/homicide thus the jury should also have decided that [Appellant] could not have formed the specific intent to assault anyone with a deadly weapon, as is required by the Aggravated Assault statute.
[2] Trial counsel erred in failing to request, and the trial court erred in failing to give, a jury instruction for culpability, ignorance, or mistake of fact and self-defense of others/the castle doctrine, as self-defense of others and mistake of fact could both have been entered by defense counsel as a defense to aggravated assault causing serious bodily injury.Appellant's Brief at 2.
Appellant challenges the weight of the evidence underlying his conviction for aggravated assault under Section 2702(a)(1), claiming that his conviction for this offense is inconsistent with the verdict of acquittal for attempted murder and aggravated assault under Section 2702(a)(4). We hold that the trial court properly rejected this argument.
A motion seeking a new trial based on the weight of the evidence is
addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
It is "unclear" whether Appellant can challenge the weight of the evidence on the ground that the jury returned inconsistent verdicts. See Commonwealth v. Hess, 281 A.3d 1053, 2022 WL 2048401, *5 n.8 (Pa. Super. 2022) ("it is unclear whether [the defendant's] inconsistent verdicts challenge is appropriately described as a weight of the evidence claim"). It is not necessary to resolve that question here, however, since the trial court correctly concluded that the verdict of guilt for aggravated assault under Section 2702(a)(1) was not inconsistent with the verdicts of acquittal for aggravated assault under Section 2702(a)(4) and attempted murder.
A person is guilty of aggravated assault under Section 2702(a)(1) 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." Id. (emphasis added). A defendant is guilty of aggravated assault under Section 2702(a)(4) if he "attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon." Id. Lastly, attempted murder requires proof of specific intent. 18 Pa.C.S.A. § 901; Commonwealth v. Geathers, 847 A.2d 730, 736 (Pa. Super. 2004).
Comparison of the elements of these offenses makes clear that the verdicts were not inconsistent. The jury could have determined that there was insufficient proof of the requisite mental states for attempted murder (intent) or Section 2702(a)(4) (intent or knowledge), but that there was sufficient proof of a lesser mental state under Section 2702(a)(4) (recklessness). The trial court correctly recognized this point in its order denying extraordinary relief. Order, 3/15/22, at 1 ("[t]he different verdicts were not inconsistent. The Jury may have concluded that [Appellant] did not have the specific intent to kill as required for Criminal Attempt/Homicide, and similarly may have concluded that the Commonwealth did not prove that [he] acted intentionally or knowingly as those terms are defined for Aggravated Assault - Deadly Weapon").
Even if we had determined that the verdicts were inconsistent, this would not have entitled Appellant to relief. See Commonwealth v. Thomas, 65 A.3d 939, 944-45 (Pa. Super. 2013) ("Inconsistent verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal. Rather, the rationale for allowing inconsistent verdicts is that it is the jury's sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment").
Furthermore, there was ample evidence to support a finding of recklessness against Appellant. The evidence shows that on the night of March 30, 2021, Grice received a text message that Mitchell, who had recently shot at Grice, was coming to Grice's mobile home to rob him. Grice, Ropelewski and a third man stayed up that night waiting for Mitchell. Just after 6:00 a.m. on the morning of March 31, 2021, Cash texted Grice that he and Appellant were coming to Grice's rescue "with power." Appellant testified that he learned about the threat against Grice while he was ten minutes away from Grice's mobile home. Without calling the police, Appellant immediately drove to Grice's home, where he walked around to the back door, armed with a shotgun, and peered inside. Appellant saw someone inside whom he did not recognize holding what Appellant thought was a handgun. Appellant claimed that he believed this person was a random individual who was robbing Grice. He fired his shotgun and severely injured the individual, who turned out to be Ropelewski, Grice's friend. The item in Ropelewski's hands was a crossbow.
This Court recently observed:
For the degree of recklessness contained in the aggravated assault statute to occur, an offensive act must be performed under circumstances which almost assure that injury or death will ensue. The recklessness must, therefore, be such that life threatening injury is essentially certain to occur. This state of mind is, accordingly, equivalent to that which seeks to cause injury.Commonwealth v. Palmer, 192 A.3d 85, 96 n.8 (Pa. Super. 2018). Although Appellant insisted during trial that he was acting in Grice's defense, there was abundant evidence from which the jury could conclude that Appellant's act of firing a shotgun into Grice's mobile home at Ropelewski, while standing directly outside the back door, "almost assure[d] that injury or death will ensue" and that Appellant's state or mind was "equivalent to that which seeks to cause injury." Id.
Appellant also contends that the Commonwealth "concede[d]" that Appellant did not behave recklessly by withdrawing the charges of reckless endangerment during trial. We disagree. The fact that the Commonwealth withdrew charges of reckless endangerment does not overcome the facts that (1) the Commonwealth successfully prosecuted a separate charge under Section 2702(a)(1) that itself included the element of recklessness, and (2) there is abundant proof of Appellant's recklessness in the record.
For these reasons, the trial court acted within its discretion by denying Appellant's challenge to the weight of the evidence.
In his second argument, Appellant contends that trial counsel erred in failing to request, and the trial court erred in failing to give, jury instructions for culpability, ignorance, or mistake of fact and self-defense of others/the castle doctrine. Since this amounts to a claim of ineffective assistance of trial counsel, we will not review it in this direct appeal.
This Court has written:
Generally, a criminal defendant may not assert claims of ineffective assistance of counsel on direct appeal. See Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562, 577-80 (2013). Instead, such claims are to be deferred to PCRA review. Id. However, our Supreme Court has recognized three exceptions to the general rule. In Holmes, the Court held that a trial court has discretion to address ineffectiveness claims on direct review in cases where (1) there are extraordinary circumstances in which trial counsel's ineffectiveness is apparent from the record and "meritorious to the extent that immediate consideration best serves the interests of justice;" or (2) "there is good cause shown," and the defendant knowingly and expressly waives his entitlement to seek subsequent PCRA review of his conviction and sentence. Id. at 563-64. More recently, our Supreme Court adopted a third exception, which requires "trial courts to address claims challenging trial counsel's performance where the defendant is statutorily precluded from obtaining subsequent PCRA review." Commonwealth v. Delgros, 646 Pa. 27, 183 A.3d 352, 361 (2018).Commonwealth v. James, 297 A.3d 755, 760-61 (Pa. Super. 2023).
In its opinion denying post-sentence motions (and again in its Pa.R.A.P. 1925 opinion), the trial court held that Appellant waived his challenge relating to these jury instructions because he failed to preserve it with a contemporaneous objection. Opinion and Order, 9/29/22, at 2. The court added another paragraph stating, without elaboration, that its jury instructions were proper. Id. There are no "extraordinary circumstances" here in which "trial counsel's ineffectiveness is apparent from the face of the record." James, 297 A.3d at 761. Nor has Appellant waived his entitlement to seek subsequent PCRA review of his conviction or sentence. Finally, nothing indicates that Appellant is statutorily precluded from obtaining subsequent PCRA review. Accordingly, we decline to consider Appellant's ineffectiveness claim in this direct appeal.
For these reasons, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.