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Commonwealth of Pennsylvania v. James Marvin Martuscelli

October 4, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JAMES MARVIN MARTUSCELLI, APPELLANT



Appeal from the Judgment of Sentence September 16, 2011 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001423-2010

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

J-S55014-12

BEFORE: STEVENS, P.J., OTT, J., and COLVILLE, J.*fn1

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Luzerne County following Appellant's conviction by a jury on the charges of aggravated assault, assault of law enforcement officer-(Police Officer Brent Brown), terroristic threats, two counts of simple assault, and recklessly endangering another person.*fn2 Contemporaneously with this appeal, Appellant's counsel has filed a petition to withdraw his representation and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

The relevant facts and procedural history are as follows: Appellant was arrested and, represented by counsel, he proceeded to a jury trial on July 18, 2011. At trial, Judi Smith, who was married to Appellant for thirty-five years, testified she and Appellant resided together in a house in Drums, Pennsylvania. N.T. 7/18/11 at 26-27. On July 10, 2009, at approximately 4:30 p.m., the couple went to the Nescopeck Gun Club, and upon their return home, Ms. Smith went upstairs to her bedroom. N.T. 7/18/11 at 29. At around 8:00 p.m., she heard what sounded like fireworks, and as she looked out of the bedroom window, she saw Appellant sitting on a stump.

N.T. 7/18/11 at 30-32. Ms. Smith called out to Appellant, who turned towards her pointing a gun at his chest with a vacant look in his eyes. N.T. 7/18/11 at 32, 36. Ms. Smith asked Appellant to come inside of the house; however, she then noticed him speaking to a neighbor, Melvin Grovich. N.T. 7/18/11 at 34. Ms. Smith moved away from the window, and a short time later, she heard Appellant enter the house like a "bull-in-a-china shop." N.T. 7/18/11 at 36.

Sensing danger, she ran and locked the door to Appellant's bedroom where Appellant stored his gun collection and ammunition. N.T. 7/18/11 at 35-36. Ms. Smith then locked herself in her bedroom and called 911. N.T. 7/18/11 at 37-38. At some point, Ms. Smith unlocked the door to Appellant's bedroom and then she went back into her bedroom. N.T. 7/18/11 at 38-39. After a period of time, she safely left the house, and as she was doing so, she noticed Appellant was now in his bedroom. N.T. 7/18/11 at 39-40. Ms. Smith encountered police officers outside of her house and she said, "Please don't hurt [Appellant.]" N.T. 7/18/11 at 41.

Carlyle T. Robinson, an emergency medical technician (EMT) who worked at the 911 call center, testified he was on duty on July 10, 2009, at 8:41 p.m., when he received a call from Ms. Smith. N.T. 7/18/11 at 62-63. Ms. Smith told EMT Robinson her husband was outside firing a gun into the woods, he had pointed a gun at his own chest, and she was in her bedroom unable to leave the house. N.T. 7/18/11 at 63-68. Ms. Smith then announced her husband had entered the house, and she hung up the phone.

N.T. 7/18/11 at 64-65. EMT Robinson dispatched police to the residence.

Melvin Grovich testified he is Appellant's neighbor and, on July 10, 2009, he was sitting on his front porch when he heard gunshots. N.T. 7/18/11 at 73-74. Mr. Grovich yelled, "[Appellant], what the hell are you doing?" N.T. 7/18/11 at 74. Appellant replied, "Mel, is that you?" N.T. 7/18/11 at 75. After Mr. Grovich replied affirmatively, Appellant invited him to his backyard to talk. N.T. 7/18/11 at 75. As Mr. Grovich approached Appellant, he noticed Appellant was holding a shiny object in his hand and he looked disturbed. N.T. 7/18/11 at 75. Appellant said to Mr. Grovich, "Mel, do you know how hard it is to commit suicide?" N.T. 7/18/11 at 75.

Appellant then told Mr. Grovich he was scheduled to have an operation and he was afraid to live with a colostomy bag. N.T. 7/18/11 at 75-76. Appellant held out the gun and asked Mr. Grovich to shoot him. N.T. 7/18/11 at 76. When Mr. Grovich refused, Appellant indicated he was going to shoot over any responding police officers' heads in the hope that they would shoot him.

N.T. 7/18/11 at 76. Appellant took a shot at a tree and then walked towards his house. N.T. 7/18/11 at 76. Mr. Grovich went back to his porch, and shortly thereafter, two police officers arrived at his door. N.T. 7/18/11 at 77. The officers told Mr. Grovich to go inside of his house, and Mr. Grovich told the police they should "get out of here and go home and come back tomorrow." N.T. 7/18/11 at 78. Mr. Grovich told the police Appellant was disturbed and "not right tonight." N.T. 7/18/11 at 78. The police then told Mr. Grovich he should evacuate his property, and Mr. Grovich acquiesced.

N.T. 7/18/11 at 78.

Sugarloaf Township Police Officer Brent Brown testified he was familiar with Appellant's residence, and he had responded to prior calls at the residence regarding domestic incidents and suicide attempts. N.T. 7/18/11 at 84. At 8:40 p.m. on July 10, 2009, he received a dispatch to proceed to Appellant's house based on reports of shots being fired, a woman barricading herself in her home, and a man threatening suicide in his front yard. N.T. 7/18/11 at 84. Suspecting Appellant had various types of weapons, including assault rifles, in his residence, Officer Brown requested back-up officers and directed the surrounding residences be evacuated. N.T. 7/18/11 at 88-89. The police positioned themselves on Appellant's property tree line, and Officer Brent telephoned the residence. N.T. 7/18/11 at 90. Ms. Smith answered the call, indicating her husband was scaring her. N.T. 7/18/11 at 90. As Officer Brent discussed with Ms. Smith possible ways for her to escape, he suddenly saw her exit the house via the front door. N.T. 7/18/11 at 91. The police assisted Ms. Smith, and, shortly thereafter, Officer Brent observed Appellant walking around in front of his bedroom window. N.T. 7/18/11 at 96. Appellant yelled out, asking who was on the property. N.T. 7/18/11 at 97. Officer Brown identified himself, and he asked Appellant to put his gun down and come outside to talk. N.T. 7/18/11 at 97. Appellant responded, "Fuck you, I'm not coming out....This is going to be suicide by cop. It's my way or the highway." N.T. 7/18/11 at 97. Officer Brown replied, "[Appellant] come on, nobody wants that to happen." N.T. 7/18/11 at 97. Appellant responded, "Why don't you walk up in my driveway and I'll shoot you, and then once I shoot you,...your buddies will have to kill me." N.T. 7/18/11 at 97. Officer Brown told Appellant "[n]obody wants that kind of hurt tonight," and Appellant said, "Brownie, I have to go; I have to go load two more mags." N.T. 7/18/11 at 100.

After approximately twenty minutes passed, at approximately 9:20 p.m., when it was dark outside, Appellant suddenly shone a spotlight, which was attached to a handgun, on the tree line where the police had taken their position. N.T. 7/18/11 at 102, 114. Officer Brown testified he "literally felt like a deer in headlights," and observed as Appellant panned the spotlight up and down the tree line. N.T. 7/18/11 at 102. Appellant suddenly turned the spotlight off and, in a split second, he started shooting a handgun from the window. N.T. 7/18/11 at 102-108. The officers returned fire, which lasted approximately five seconds, as Appellant receded to the side of the window.

N.T. 7/18/11 at 106-107. The shooting ceased and Officer Brown yelled for Appellant to put his gun down and come out. N.T. 7/18/11 at 106. Appellant immediately started firing his weapon again, and the officers returned fire, again with Appellant receding to the side of the window. N.T. 7/18/11 at 106-107. Officer Brown testified that, at the point Appellant began hiding himself when the police returned shots, he concluded ...


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