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Commonwealth v. Hartzell

December 9, 2009

COMMONWEALTH OF PENNSYLVANIA
v.
JERE DAVID HARTZELL, APPELLANT



Appeal from the Judgment of Sentence, July 22, 2008, in the Court of Common Pleas of Monroe County Criminal Division at No. CP-45-CR-0001283-2007

The opinion of the court was delivered by: Ford Elliott, P.J.

BEFORE: FORD ELLIOTT, P.J., PANELLA AND FREEDBERG, JJ.

OPINION

¶ 1 This is an appeal from a judgment of sentence imposed upon appellant after he was convicted in a jury trial of two counts each of recklessly endangering another person ("REAP") and harassment. We affirm.

¶ 2 On April 28, 2007, Vernon Barlieb traveled from his home to an approximately 140-acre piece of property he owned nearby, located off of Kunkletown Road, in Monroe County. Barlieb was accompanied by his neighbor, Jonathan Strohl, and had enlisted Strohl's company due to fears he had about visiting his property alone; a fear that was the product of several encounters with appellant, who owned, and lived upon, property adjacent to Barlieb's parcel. Access to both properties was provided by a dirt road which was situated upon Barlieb's property and proceeded from Kunkletown Road approximately 1000 feet to the Buchwa Creek, where a bridge is located. The bridge was gated and provided access to the bulk of the Barlieb tract. Appellant's nearly one-acre plot fronted the dirt road and abutted Buchwa Creek. On several occasions, when anyone would come down the dirt road or approach the gate, appellant would exit his property, snap photos of the "intruders," and utter curse words in their direction. Occasionally, Barlieb also believed he heard gunshots fired as he drove away, although he had never actually observed appellant firing a gun.

¶ 3 On April 28, 2007, Barlieb and Strohl arrived at the gate, opened it, and proceeded across the bridge then returned on foot to lock the gate. While standing on the bridge, the two men were observing the creek and surrounding area for a few moments. At that time, appellant, as before, exited his house while shouting obscenities and approached Barlieb and Strohl's location. However, on this occasion, when appellant was approximately 30 yards from the bridge and near the bank of the creek, he suddenly began discharging a semi-automatic rifle into the stream below the bridge near where the two men were standing, as evidenced by Barlieb's observation of the splashes created by the bullets entering the stream. After shooting several bullets into the stream, appellant stopped, entered the house, and returned shortly thereafter with another clip of ammunition and discharged several more rounds into the creek. During this time, Barlieb remained on the bridge "petrified," not sure of what to do in response to the situation. When the shots ceased, Barlieb quickly locked the gate and the two men entered the vehicle and drove away from that location, ultimately exiting his property through a neighbor's parcel of land.*fn1 Within a few hours, Barlieb went to the local Pennsylvania State Police barracks and reported the incident.

¶ 4 Appellant was not charged in relation to the incident until August 1, 2007. At that time, a criminal complaint was filed charging appellant with simple assault, REAP, and harassment. On May 12, 2008, appellant was convicted of the above-listed offenses; he was acquitted of the two counts of simple assault. On July 22, 2008, appellant was sentenced to two years' probation. A timely post-sentence motion filed, which was denied on October 16, 2008. The present, timely appeal followed.

¶ 5 Appellant lists seven numbered issues in his statement of questions involved; however, issues one, four, five, and six essentially raise, in various iterations, challenges to the sufficiency of the evidence. Prior to addressing this issue, we will recite our standard of review:

The standard we apply when 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 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. . . . 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. Furthermore, when reviewing a sufficiency claim, our Court is required to give the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. McClendon, 874 A.2d 1223, 1228-1229 (Pa.Super. 2005).

¶ 6 Recklessly endangering another person is defined as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705. Appellant primarily argues that the offense of REAP was not made out because the Commonwealth failed to establish that Barlieb and Strohl were placed in danger by appellant's actions. We disagree. The testimony established that from a distance of approximately 30 yards, appellant fired into the creek near the bridge, approximately 25 to 30 feet away from the men's location on the bridge. Although appellant may not have pointed the weapon directly at the two men, it was pointed in their general direction. Moreover, the evidence established that the water was rather shallow and there were rocks in the stream. (Notes of testimony, 5/12/08 at 29.) Thus, it is hardly inconceivable that a bullet fired into the stream nearby could have struck a rock or other object and deflected up and hit one of the two men. The act of merely pointing a loaded gun at another has been deemed sufficient to support a conviction for REAP, Commonwealth v. Reynolds, 835 A.2d 720 (Pa.Super. 2003), as has the brandishing of a loaded handgun during the commission of a crime. Commonwealth v. Hopkins, 747 A.2d 910 (Pa.Super. 2000). Given these two examples, it is not difficult to conclude that the actual discharging of a weapon numerous times in the vicinity of others constitutes a sufficient danger to satisfy the REAP statute.

ΒΆ 7 Appellant further points out that the Commonwealth must establish a conscious disregard of a known risk. (Appellant's brief at 16.) Here, once the risk of serious bodily injury or death is established, conscious disregard flows readily from the evidence as appellant not only purposefully shot into the water near the men but he reloaded the weapon and fired a second salvo of shots. Moreover, the cursing and shouting of obscenities at the men demonstrates that appellant was fully aware the men were on the bridge. These facts establish that appellant acted not ...


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