Com. v. Micucci, J.

J-S30039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH A. MICUCCI, :
:
Appellant : No. 1268 EDA 2018

Appeal from the Judgment of Sentence April 11, 2018
in the Court of Common Pleas of Montgomery
County Criminal Division at No(s): CP-46-CR-0002527-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 30, 2019

Joseph A. Micucci (“Micucci”) appeals from the judgment of sentence

imposed following his conviction of simple assault and recklessly endangering

another person (“REAP”).1 We affirm.

In its Opinion, the trial court set forth the relevant factual and procedural

history underlying this appeal, which we incorporate as though fully stated

herein. See Trial Court Opinion, 8/9/18, at 1-6.

Micucci now raises the following issues for our review:

1. Whether the trial court committed an error of law and abuse of
discretion in finding [Micucci] guilty of [REAP] because the
Commonwealth failed to present sufficient evidence[,] beyond a
reasonable doubt[,] to prove the element of reckless conduct by
[Micucci,] which placed or may have placed another person in
danger of death or serious bodily injury: to wit[, Micucci] simply
pointing a lawfully owned and possessed gun in his home at Tracy

____________________________________________

1 18 Pa.C.S.A. §§ 2701(a)(1), 2705.
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Thomson [(“Thomson”)] did not amount to reckless conduct that
placed someone in danger of death or serious bodily injury[?]

2. Whether the trial court committed an error of law and abuse of
discretion in prohibiting [Micucci] from cross[-]examining the
complaining witness[, ] Thom[]son[,] regarding her past mental
health history and drug use, as it was relevant to show motive
and bias against [Micucci?]

3. The trial court committed an error of law and abuse of discretion
in imposing the deadly weapon [] sentencing guidelines for the
charge of [REAP], when the actual weapon being used was the
basis for the guilty verdict of the crime[?]

Brief for Appellant at 4-5 (some capitalization omitted).

In his first claim, Micucci argues that the evidence was insufficient to

sustain his REAP conviction. Id. at 11. Micucci acknowledges that he briefly

pointed his gun at Thomson’s head, but states that “the brandishing of the

weapon was fleeting in nature….” Id. at 13. According to Micucci, there is no

evidence that he threatened to kill Thomson, and the two never struggled over

the gun. Id. Micucci also claims that pointing a loaded firearm at Thomson,

without more, does not support a finding that he consciously disregarded a

known risk. Id. at 14-15; see also id. (wherein Micucci states his apparent

belief that his knowledge of how to operate a firearm precludes the possibility

of an accidental discharge).

In its Opinion, the trial court set forth the relevant law, addressed

Micucci’s first claim, and concluded that it lacks merit. See Trial Court

Opinion, 8/9/18, at 7-10. The trial court highlighted the “highly charged and

emotionally unstable atmosphere in which the underlying episode occurred.”

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Id. at 9. The trial court further noted that Micucci had pointed his gun at

Thomson’s head while she was kneeling on the floor, defenseless. Id. at 10.

We agree with the trial court’s analysis, and conclude that the evidence,

viewed in the light most favorable to the Commonwealth as the verdict winner,

was sufficient to sustain Micucci’s REAP conviction. See id. at 7-10. We

therefore affirm on the basis of the trial court’s analysis as to Micucci’s first

claim. See id.

In his second claim, Micucci challenges the trial court’s preclusion of

testimony, during cross-examination, regarding Thomson’s mental health

history and drug use. Brief for Appellant at 16. Micucci argues that such

evidence would have impeached Thomson’s credibility. Id. at 17-18.

According to Micucci, Thomson’s mental health had a major impact on the

parties’ custody proceedings, and Micucci’s proposed “impeachable line of

questioning” would explain Thomson’s motive to exaggerate or fabricate

information in an attempt to gain custody of their daughter, as well as her

bias against Micucci. Id. at 18-19.

Initially, we observe that Micucci has provided only a cursory citation to

the Rules of Evidence, and points to only one specific portion of Thomson’s

testimony, which, he believes, was an exaggeration or fabrication of

information. Micucci fails to support his claim with citation to, and discussion

of, relevant case law. See Pa.R.A.P. 2119(a) (stating that the argument shall

include “such discussion and citation of authorities as are deemed pertinent.”).

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Therefore, this claim is waived. Commonwealth v. Johnson, 985 A.2d 915,

924 (Pa. 2009) (stating that “where an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.”).2

In his third claim, Micucci challenges the trial court’s imposition of the

deadly weapon enhancement. Brief for Appellant at 20. Micucci asserts that

because his conviction was based on the use of a firearm, “imposition of the

deadly weapon [] enhancement amounts to a double penalty….” Id. at 20;

see also id. at 21-22 (asserting that the limited exception set forth at 204

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2 In its Opinion, the trial court determined that Micucci’s evidentiary claim was
likewise waived because he failed to adequately preserve it at trial. See Trial
Court Opinion, 8/9/18, at 10-12; see also id. at 12 (indicating that, during
trial, Micucci intended to question Thomson regarding her mental health
history and the impact of taking—or not taking—medications in order to attack
her credibility; however, Micucci did not raise an argument concerning
Thomson’s motive or bias at any time during trial). The trial court
nevertheless addressed the merits of Micucci’s claim, and concluded that it
lacks merit because (1) Micucci did not adequately develop the record with
expert testimony, reports, or any other evidence to substantiate a claim that
Thomson’s mental health affected her credibility; and (2) even without such
testimony, the record contains ample evidence concerning the parties’
potential biases and motivations, i.e., undisputed testimony by both Micucci
and Thomson regarding the volatile nature of their relationship and their
custody battle. See id. 13-14. Even if Micucci had not waived this claim, we
would conclude that it lacks merit for the reasons stated by the trial court in
its Opinion. See id.

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Pa. Code § 303.10(a)(3)(xi)3 should extend to the instant case, because his

possession of a deadly weapon, although not an element of REAP, was the

basis for his conviction).

Micucci’s claim raises a challenge to the discretionary aspects of his

sentence. See Commonwealth v. Tavarez, 174 A.3d 7, 9-10 (Pa. Super.

2017). “It is well-settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.” Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).

An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether the
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

Here, Micucci filed a timely Notice of Appeal, preserved his sentencing

claim in a timely post-sentence Motion, and included a Rule 2119(f) Statement

____________________________________________

3 Section 303.10(a)(3)(xi) of the Sentencing Guidelines provides that the
deadly weapon enhancement shall not be applied to “[a]ny other offense [i.e.,
other than those otherwise enumerated under Section 303.10] for which
possession of a deadly weapon is an element of the statutory definition.” 204
Pa. Code § 303.10(a)(3)(xi).

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in his brief.4 Additionally, Micucci’s claim raises a substantial question for our

review. Tavarez, 174 A.3d at 10 (stating that “a substantial question is raised

where an appellant alleges his sentence is excessive due to the sentencing

court’s error in applying the deadly weapon enhancement.” (citation,

quotation marks and brackets omitted)).

While Micucci has raised a substantial question, he fails to adequately

develop his argument, or provide citation to or discussion of any relevant case

law in support of his claim. See Pa.R.A.P. 2119(a). Because Micucci’s final

claim is not properly developed for our review, it is waived. See Johnson,

supra.5

Judgment of sentence affirmed.

____________________________________________

4 We note that Micucci combines his Rule 2119(f) Statement with the
Argument, rather than including a separate section in his brief. See Pa.R.A.P.
2119(f) (providing that an appellant challenging the discretionary aspects of
his sentence must include a separate section setting forth a concise statement
of the reasons relied upon for allowance of appeal).

5 Even if Micucci had not waived this claim, we would conclude that it lacks
merit. The Sentencing Code provides that the deadly weapon enhancement
“shall apply to each conviction offense for which a deadly weapon is possessed
or used.” 204 Pa. Code § 303.10(a)(4). “The trial court may not disregard
an applicable enhancement when determining the appropriate sentencing
ranges.” Tavarez, 174 A.3d at 10. Further, as the trial court stated in its
Opinion, “[t]he record in this case amply reflects the violence, requisite
recklessness, and tremendous potential for serious injury, if not death[,]”
which would merit the enhanced penalties. See Trial Court Opinion, 8/9/18,
at 16-17.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/19

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 Circulated 07/03/2019 03:09 PM

IN THE COURT OF COMI\ION PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION �
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COYJ.MONWEAL TH OF PENNSYLVANIA : NO. 2527-17
1268 EDA 2018�