Appeal from the Order Entered of September 25, 2012, In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000261-2011
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and COLVILLE, J. [*]
Dustin Scott ["Appellant"] appeals the judgment of sentence imposed following a jury trial on charges of attempted murder,  conspiracy, aggravated assault,  and recklessly endangering another person ["REAP"].Appellant was convicted of aggravated assault and REAP, and sentenced to five to ten years of incarceration. Upon review, we reverse.
The charges arose from a curious and violent episode that occurred in Huntingdon Borough on May 11, 2011. Appellant was in the basement apartment of his friend, Bill Ledford, along with additional friends Josh Lemin and Rex Cuff. Notes of Testimony ["N.T."], 3/22/12, at 66-67. The group was engaged in smoking, snorting, and injecting bath salts, a lawful practice at the time. Id. at 67, 69. The men were fearful because an individual named Jeremiah Shoop had attempted to "rob" Appellant's house the night before, and because Shoop now was making death threats against the men. Id. at 182-84. While the group was in the apartment, Ledford received threatening phone calls from Shoop. Id. at 269.
Shoop soon arrived at Ledford's apartment, began yelling threats at the occupants, and tried to pry the front door open. Id. at 270-71, 281. That door did not have a doorknob. Rather, a belt was tied through the hole where the doorknob should have been, and was secured to nearby water pipes inside of the apartment. Id. at 188, 194, 271, 290. Ledford, who was "well-armed" (id. at 269), and who had distributed guns to his friends upon Shoop's arrival (id. at 270), fired warning shots at the bottom of the door. Id. at 274. At some point, someone turned the lights off, and the apartment became dark. Id. at 200, 224. Ledford instructed everyone inside to lie down. Id. at 198, 275-76. Ledford then ran to the back of the apartment, saying that he was out of bullets. Id. at 275-76. As Ledford was running, he also was yelling, "They're in, " and "shoot, shoot!" Id.
Appellant looked around a corner and saw the standing silhouette of a man. Id. at 276. The silhouette's arm was extended, and was pulling the trigger of a gun that was either misfiring or "dry-firing." Id. At 277. Appellant believed that his other friends were lying on the ground, as he was. Id. at 276. Appellant testified that he believed the standing silhouette was Shoop and that he believed Shoop was shooting at him. Id. at 276-277. Appellant fired shots back for protection. Id. at 276-81. The silhouette actually was that of Appellant's friend, Lemin. Upon discovering that he had shot his friend, Appellant grabbed a towel and gave it to the aptly named Cuff to tie off Lemin's bullet wound. Id. at 281-82.
Appellant was charged with attempted murder, conspiracy, aggravated assault, and REAP. The Commonwealth identified Shoop as the victim in regard to Appellant's attempted murder and conspiracy charges, and Lemin as the victim in regard to the aggravated assault and REAP charges. The Commonwealth alleged that Appellant had acted recklessly in shooting at Lemin.
The case proceeded to a jury trial. With respect to the aggravated assault charge, the trial court instructed the jury only as to recklessness, omitting the other mental states that can establish aggravated assault. Id. at 361-62. At Appellant's request, the trial court provided the jury with a self-defense instruction, but refused Appellant's additional request to instruct the jury regarding mistake-of-fact. Appellant was found not guilty of attempted murder and conspiracy, but was convicted of aggravated assault and REAP.
Appellant appealed. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. He raises a single issue for our review: "Did [Appellant] present sufficient evidence to warrant an instruction regarding Pa.S.S.J.I. § 8.304 — Ignorance or Mistake when [Appellant] mistakenly believed he was shooting an armed intruder threatening to kill his friend but later learned that he shot his friend?" Appellant's Brief at 4.
In reviewing a jury charge, we are to determine "whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case." Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006). In so doing, we must view the charge as a whole, recognizing that the trial court is free to use its own form of expression in creating the charge. Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001). "[Our] key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations." Id. It is well-settled that "the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal." Brown, 911 A.2d at 583.
Significantly, Appellant proffered the theory of self-defense as to the charges related to Shoop, but proffered the theory of mistake-of-fact as to the charges related to Lemin. Appellant asserts that he was entitled to the jury charge on mistake because the record showed he mistook Lemin for Shoop, and shot at Lemin, believing that in doing so he was protecting himself and his friends. Appellant asserts that he shot Lemin by mistake, and necessarily lacked the mens rea required for aggravated assault and REAP.
Aggravated assault and REAP both encompass a mens rea of recklessness, which can be negated by a mistake-of-fact defense.
Aggravated assault is defined, in relevant part, as follows:
(a) Offense defined.— A person is guilty of aggravated assault if he:
(1) 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.A. § 2702(a)(1) (emphasis added).
REAP 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 (emphasis added).
The defense of mistake-of-fact is defined as:
Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required to establish a ...