Com. v. James, B.

J-A23023-21

2021 PA Super 256

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRAD A. JAMES :
:
Appellant : No. 1392 MDA 2020

Appeal from the Judgment of Sentence Entered July 6, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004587-2017

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.: FILED: DECEMBER 22, 2021

Appellant, Brad A. James, appeals from the judgment of sentence of an

aggregate term of 27 to 54 months’ incarceration, imposed after he was

convicted by a jury of simple assault (18 Pa.C.S. §2701(a)(1)), recklessly

endangering another person (REAP) (18 Pa.C.S. § 2705), and discharging a

firearm into an occupied structure (18 Pa.C.S. § 2707.1(a)). Appellant

challenges the sufficiency and weight of the evidence to sustain his

convictions. After careful review, we affirm.

The trial court summarized the facts established at Appellant’s jury trial,

as follows:

The eyewitnesses who testified at trial were Gina Longo, Edward
Miller[,] and … Appellant. … Longo was a former romantic partner
of … Appellant and mother to their then approximately (7) year
old child, A.J. During the relationship, … Longo and … Appellant
lived at 922 Scott Street in Wilkes-Barre City. The residence at
____________________________________________

* Former Justice specially assigned to the Superior Court.
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922 Scott Street was built atop a large garage which fronted onto
an intersecting street. The mailing address for the garage is 35
Govier Street. … Appellant and … Longo ended their relationship
in 2011 and since that time[,] they were engaged in a lengthy and
contentious custody action.

On the date of the incident which gave rise to this case, … Longo
had brought their daughter A.J. from her home in Fort
Washington, PA[,] to Wilkes-Barre[,] PA[,] for a scheduled
custody exchange with … Appellant. These exchanges had
previously occurred in public at a local supermarket. … Longo
characterized … Appellant’s behavior at prior exchanges as hostile.

Upon arriving in Wilkes-Barre that day, … Longo and her daughter
went to the garage and residence of Edward Miller, who … Longo
described as a friend. … Miller purchased the 922 Scott Street/35
Govier Street property from … Appellant after his relationship with
… Longo ended. From … Miller’s garage, … Longo texted …
Appellant and advised him that she was “at Eds.” In the same
text message exchange, she asked … Appellant when he was
expected to leave work so the former couple could meet at the
custody exchange location. … Longo sent two such text messages
to … Appellant[,] but he did not text or call in response.

Instead, … Appellant drove to … Miller’s residence and began
walking to the then open garage. Seeing this, … Miller closed and
locked his garage doors. … Appellant approached the door and
tried the knob to open it. Finding the door locked, he began to
pound his fist and kick at the door. Ultimately, the door frame
broke. As the door came open, opening into the garage, … Miller
and … Appellant met and immediately began to fight. … Miller had
picked up a hammer from the garage and he tried to hit …
Appellant over the head with it as the pair struggled at the
threshold. During the fight, which quickly spilled into the driveway
away from the door, a firearm holstered under the waistband of …
Miller found its way into the hands of … Appellant.

Appellant took the gun by the barrel in his left hand, then moved
it to hold the grip in his right. He stepped back, put his finger
inside the trigger guard[,] and fired at pointblank range toward …
Miller and his garage. … Appellant testified that he fired the shot
by accident.

After the shot was fired, … Miller retreated into his garage where
he lay on the floor holding the now broken, and hence unlockable,
door closed with his foot while asking … Longo to call 911.

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Fortunately, he discovered that he was not injured. The bullet
passed through the front breast pocket of his flannel shirt narrowly
missing his body. Later that same day[,] a piece of a projectile[]
was recovered from the inside of the garage where … Longo and
her daughter cowered in panic.

Officer Alan Gribble of the Wilkes-Barre City Police Department
responded to the scene. He first encountered … Appellant holding
the gun in his open hand. … Appellant surrendered the firearm and
cooperated with Officer Gribble[,] who he knew from prior
interactions when the two would discuss classic cars at …
Appellant’s auto shop. Officer Gribble then proceeded to watch …
Miller’s video surveillance footage which recorded the entire
incident and was later admitted into evidence as Commonwealth’s
Exhibits 10(a) and 10(b). … Appellant was subsequently arrested
and charged with aggravated assault[], burglary, simple assault,
three counts of [REAP,] and discharge of a firearm into an
occupied structure.[1]

***

Miller testified that he purchased his garage and residence from …
Appellant a few years prior to the shooting. The property was on
a corner lot and it included an 1,800 square foot home over an
1,800 square foot main garage with a second garage addition
attached to that. The corner lot property had two mailing
addresses, [with] the garage located at 35 Govier Street, and the
residence[,] which fronted on the intersecting street[,] with an
address of 922 Scott Street. There was no opening or door to
access the interior of the garage from the residence. Similarly,
there was no access between the main garage and the garage
addition. Prior to selling the property to … Miller, … Appellant
operated a motorcycle shop from the garage where this incident
occurred. … Miller had on prior occasions made purchases from …
Appellant at that motorcycle shop.

***

Appellant testified that he was “upset” that … Longo had taken
their daughter to … Miller's residence and garage. He agreed that
he went to … Miller’s garage, tried the knob to open the door and
finding it locked, he proceeded to pound on the door. When the
____________________________________________

1 Appellant was ultimately acquitted of aggravated assault and burglary.

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occupants did not open the door in response to his pounding on
it, he walked toward … Longo’s car and began to use his phone to
take pictures of the license plate and vin number on her vehicle.
He held the camera on his phone up to the garage window to
photograph the occupants inside. He went back to the door and
checked the knob again only to find it remained locked. Then he
gave the door a “toe kick.” At that[,] … Appellant said the door
opened so fast that he was pulled inside.

Appellant testified that he was met at the now open door by …
Miller holding a hammer. He continued, saying[,] “I don't know
exactly what happened.” When asked again on direct[-]
examination if he realized that he pulled the trigger[,] he said that
it, “happened so fast, it was like a car crash. I didn’t have any
idea.” Next, he said that the gun “just went off as he was starting
to aim.” He was asked again how the gun went off and he said,
“[a]ccidentally[.”]

[Appellant] agreed that he owned eighteen firearms, that he was
experienced with handling them, and that he had fired handguns
prior to the incident, including a Glock. He agreed that he was
right[-]handed. He acknowledged and explained the text
messages between him and Gina Longo. He also conceded that
he was not invited to … Miller’s garage and residence on that day.

***

Corporal Gober of the Pennsylvania State Police was offered as an
expert firearm and tool mark examiner. Corporal Gober testified
that he examined the firearm, a Glock model 27 .40 caliber
handgun, one spent .40 caliber shell casing, and a bullet fragment,
particularly the steel jacket from a mutilated bullet. He was not
able to state with certainty whether the mutilated bullet jacket
was fired from the Glock .40 model 27 that he examined.

Corporal Gober also examined the firearm and subjected it to a
drop test to determine whether the gun could discharge without
pressing the trigger. The test determined that the firearm did not
discharge during the testing and was highly unlikely to discharge
without pressing the trigger. He said the gun was functioning
properly and that it was “highly unlikely” that it would discharge
upon being dropped. He also pointed out that the Glock 27 has a
safety such that the gun will not fire unless a second trigger/lever
in front of the trigger is also depressed.

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The [t]rooper next examined the amount of pressure which had
to be applied to the trigger before the gun would discharge and
fire the projectile. His testing also determined that 7.6 pounds of
pressure had to be applied to the trigger before the gun would
fire. He said that this trigger pull weight was “about right where
it should be.”

Trial Court Opinion (TCO), 1/29/21, at 4-15 (footnotes and citations to the

record omitted).

Based on this evidence, Appellant was convicted of simple assault,

REAP, and discharging a firearm into an occupied structure. He was acquitted

of all other charges. On July 6, 2020, the court sentenced Appellant to the

aggregate term set forth supra. He filed a timely post-sentence motion, which

the court subsequently denied.2 Appellant then filed a timely notice of appeal,

and he also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The court

thereafter filed its Rule 1925(a) opinion on January 29, 2021. Herein,

Appellant states three issues for our review:

[I.] Was the evidence sufficient to prove beyond a reasonable
doubt that [Appellant] discharged a firearm into a structure that
was adapted for overnight accommodations of persons or used for
the carrying on of a business therein at the time of the incident to
sustain his conviction for [d]ischarging a [f]irearm into an
[o]ccupied [s]tructure under 18 Pa.C.S.[] § 2707.1?

[II.] Did the [t]rial [c]ourt abuse its discretion in finding that the
verdict of guilty of [d]ischarging a [f]irearm into an [o]ccupied
[s]tructure was not against the weight of the evidence?

____________________________________________

2 We note that the trial court misstates that Appellant filed his post-sentence
motion on September 14, 2020. See TCO at 1. However, the docket shows
that Appellant’s motion was filed on July 14, 2020.

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[III.] Was the evidence sufficient to prove that the discharge of
the firearm by [Appellant] was not the result of a mistake or
accident to sustain his convictions for [s]imple [a]ssault, [REAP,]
and [d]ischarg[ing] … a [f]irearm into an [o]ccupied [s]tructure?

Appellant’s Brief at 2.

Appellant first argues that the evidence was insufficient to sustain his

conviction for discharging a firearm into an occupied structure. Our standard

of review of this is as follows:

In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

“A person commits an offense if he knowingly, intentionally or recklessly

discharges a firearm from any location into an occupied structure.” 18 Pa.C.S

§ 2707.1(a). An “occupied structure” is defined by the statute as “[a]ny

structure, vehicle or place adapted for overnight accommodation of persons

or for carrying on business therein, whether or not a person is actually

present.” 18 Pa.C.S. § 2707.1(d).

In this case, Appellant claims that the garage into which he fired the

gun did not constitute an occupied structure. Appellant argues that the garage

was a separate structure from Miller’s residence. He stresses that the two

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properties had different addresses. Additionally, “[t]here was no direct access

from the house to the garage,” and “[t]o get to the garage from the house, a

person would have to walk around the corner of the street and come into the

driveway.” Appellant’s Brief at 12-13. Appellant acknowledges that “Miller

referred to 35 Govier Street and 922 Scott Street as ‘collectively being his

home[,’]” but he stresses that Miller also stated that the “properties were

‘separate[.’]” Id. at 13. Thus, Appellant insists that the garage is a separate

structure from the house and, consequently, we must assess whether the

garage, itself, was ‘adapted for overnight accommodation’ to make it an

‘occupied structure’ under the statute. In arguing that it was not an occupied

structure, Appellant contends that there was no evidence “that the garage

contained bedding, furniture, running water, refrigerator, bathroom, heating

and mechanical equipment[, or] other belongings common to a residential

structure.” Id. Therefore, he concludes that the garage was not ‘adapted for

overnight accommodation’ and cannot be considered an ‘occupied structure.’

We cannot agree with Appellant’s argument. This Court has explained

that “[t]o determine whether a structure is adapted for overnight

accommodation, a court considers ‘the nature of the structure itself and its

intended use, and not whether the structure is in fact

inhabited.’” Commonwealth v. Rivera, 983 A.2d 767, 769-70 (Pa. Super.

2009) (quoting Commonwealth v. Nixon, 801 A.2d 1241, 1247 (Pa. Super.

2002) (holding that an unoccupied row-house, undergoing renovation, that

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had no electricity or running water, constituted structure adapted for

overnight accommodation)).

In Rivera, this Court deemed the evidence sufficient to prove that an

attached basement was an ‘occupied structure’ under the burglary statute, 18

Pa.C.S. § 3501. In reaching our decision, we began by observing that,

[r]egarding whether a basement accessed only through an
exterior entrance is a place adapted for overnight accommodation,
other jurisdictions interpreting similar statutory provisions have
held that an attached basement is included in the definition of a
place adapted for overnight accommodation. See State v.
Maykoski, 583 N.W.2d 587, 588–89 (Minn. 1998) (holding
basement built as part of house was part of dwelling, although
occupant had to exit his home to access basement); Stewart v.
Commonwealth, 793 S.W.2d 859, 861 (Ky. App. 1990) (holding
basement accessible only from exterior of house was part of
“dwelling” within meaning of burglary statute, where owner had
laundry room, refrigerator, and workshop in basement); Burgett
v. State, 161 Ind. App. 157, 314 N.E.2d 799, 803 (1974)
(stating: “Basements are located directly under the living area of
a residence and are used for a variety of purposes connected with
family living, such as storage of various household items, location
of hearing and mechanical equipment, and laundering of clothing.
Being under the same roof, functionally interconnected with and
immediately contiguous to other portions of the house, it requires
considerable agility to leap over this fulsome interrelationship to
a conclusion that a basement is not part of a dwelling house
because no inside entrance connects the two”).

Id. at 770. The Rivera panel then explained that,

[t]he complainant’s house contains three apartments, all of which
are occupied. The basement sits below the apartments under the
same roof, and the complainant uses it to store personal
belongings. The fact that the basement is accessible only through
an exterior entrance does not sever it from the rest of the house.
Moreover, the basement contains a bed, television, portable radio,
and washing machine. The basement is habitable. As the
basement is functionally connected to the rest of the house and

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habitable, it meets the definition of a “place adapted for overnight
accommodation.” See 18 Pa.C.S. § 3502.

Rivera, 983 A.2d at 771.

In line with Rivera, we conclude that the fact that Miller’s garage has a

separate entrance does not sever it from the rest of the house. Instead, the

garage is part of the residential structure as a whole, and is akin to an attached

basement. For instance, the garage is directly beneath Miller’s living quarters,

and under the same roof as the rest of Miller’s home. Additionally, the

evidence indicated that Miller uses the garage as part of his residence.

Specifically, Miller was visiting with Longo and A.J. inside the garage when

Appellant arrived at the scene.3 The garage also contains a chair and a couch,

further indicating that it is used as part of Miller’s home. See N.T. Trial,

1/21/20, at 63. Miller also testified to as much when he explained that,

although the garage has a separate “business address” from his residence, it

is “one contiguous parcel,” and that the residence and the garage are

“collectively” his home. Id. at 114. Given the totality of this evidence, the

jury was free to conclude that the garage was part of the structure containing

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3 We need not reach the question of whether the court erred by concluding
that the evidence was sufficient to prove the structure was occupied because
it was, in fact, occupied at the time of the shooting. We only consider the
presence of Miller, Longo, and A.J. in the garage as circumstantial evidence
supporting that the garage was part of the residential structure, which was
adapted for overnight accommodation.

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Miller’s residence, which constitutes an ‘occupied structure’ as defined by the

statute.4,5

Appellant next contends that the jury’s verdict was contrary to the

weight of the evidence.

A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well[-]settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.

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4 Appellant unconvincingly contends that the Commonwealth conceded that
the garage was not an “occupied structure” by charging Appellant in the
criminal information with burglary of a structure not adapted for overnight
accommodations. See Appellant’s Brief at 15. As the Commonwealth points
out, Appellant “has cited no authority for his claim that a [c]riminal
[i]nformation acts as an ‘admission’ for purposes of a challenge to [the]
sufficiency of the evidence.” Commonwealth’s Brief at 40. Moreover, the
criminal information was not stipulated to, or admitted at trial. Consequently,
it does not constitute evidence or an admission by the Commonwealth.

We also do not examine Appellant’s claim that the Commonwealth’s using the
address of the garage in the charging documents precludes us from
considering whether the garage and Miller’s residence are attached. See
Appellant’s Reply Brief at 1-2. Appellant raised this argument for the first
time in his reply brief and, thus, it is waived. See Commonwealth v.
O’Berg, 880 A.2d 597, 599 n.2 (Pa. 2005).
5 Based on our conclusion, we need not address the trial court’s alternative
decision that the garage was adapted for the carrying on of a business at the
time of the incident.

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Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

Here, the thrust of Appellant’s weight claim is a reiteration of his

argument that the court erred by concluding that the garage was an ‘occupied

structure.’ We will not reiterate our above discussion of how the evidence

proved that the garage was part of Miller’s residence and, thus, constituted

an occupied structure for purposes of the statute. Appellant’s weight claim

warrants no relief.

Next, Appellant claims that the evidence was insufficient to support any

of his crimes because the Commonwealth failed to prove that he fired Miller’s

gun intentionally, knowingly, or recklessly.6 Appellant contends that, instead,

the evidence demonstrated that the shooting was accidental. In support, he

points to his own trial testimony “that when the shot was fired[,] he did not

know that Miller’s gun was loaded or that he actually pulled the trigger causing

the gun to discharge[,] and that his only intent was to scare Miller in order to

prevent him from continuing his attack with a deadly weapon.” Appellant’s

Brief at 22. According to Appellant, numerous factors supported that the

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6 The crime of simple assault requires that one “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another[.]” 18
Pa.C.S. § 2701(a). For the offense of REAP, the Commonwealth must prove
a person “recklessly engage[d] in conduct which place[d] … another person in
danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. To have the
mens rea for the crime of discharging a firearm into an occupied structure,
the individual must act knowingly, intentionally, or recklessly. 18 Pa.C.S. §
2701.1(a).

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shooting was accidental, including that the fight lasted only 18 seconds, that

he only fired one shot, he did not flee the scene, and he was compliant when

police arrived. See id. at 26-27. Appellant also points to certain aspects of

the gun as supporting his claim that it fired accidentally, such as “the passive

safety which could be disengaged simply by pulling the trigger[,] … the short

trigger pull distance of 0.49 inches[, and the] average trigger pull weight of

7.6 [pounds,] which is 2.4 [pounds] less than what the [New York City] police

department uses for its Glock pistols to prevent accidental discharge by

trained police officers[.]” Id. at 26.

Appellant’s arguments are unconvincing. First, the jury was free to

reject Appellant’s testimony that the gun fired accidentally. See

Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998)

(“The determination of the credibility of a witness is within the exclusive

province of the jury.”). Second, the Commonwealth presented sufficient

evidence to prove that Appellant shot the weapon intentionally. For instance,

Miller testified that Appellant was irate when he arrived at Miller’s home. See

N.T. Trial at 136. Appellant pounded and kicked on the locked door of the

garage until the door frame broke. Id. at 137. Appellant and Miller then

physically struggled. Id. at 141. Appellant grabbed Miller’s gun with his left

hand, and then switched the gun to his right hand. Id. He stood and braced

the side of the gun with his left hand as he aimed the weapon at Miller. Id.

Appellant then fired the gun. Id. at 138. Appellant also admitted that he was

an experienced gun owner and that, at the time of the shooting, he owned 18

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guns, including “a few handguns.” Id. at 409. He also testified that he has

fired a Glock handgun before. Id. at 403. Additionally, the Commonwealth’s

evidence demonstrated that Miller’s gun did not fire unless the trigger was

pulled, that the gun was functioning properly, and that the “trigger pull

weight” was normal. See id. at 248-49. Given this evidence, the jury was

free to reject Appellant’s claim that the gun accidentally fired and conclude,

instead, that Appellant intentionally pulled the trigger.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2021

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