J-S32009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SCOTT LEE SARGENT : : Appellant : No. 506 MDA 2021 Appeal from the Judgment of Sentence Entered February 1, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000228-2016

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 23, 2022 Scott Lee Sargent engaged in a shooting rampage outside of a Walmart store that quickly turned into a police standoff. He now brings a second nunc pro tunc direct appeal and asks us to review evidentiary determinations made by the trial court and to consider the legality of his sentence. We affirm.

On October 17, 2015, after having visited a local casino, Sargent and his girlfriend went to a Walmart in Wilkes-Barre Township, Pennsylvania.

Sargent stayed in the parking lot while his girlfriend went into the store.

Believing that he was being followed by two individuals, Sargent used an AR- rifle to open fire into the garage doors at the rear of the store. Police responded to the scene, and Sargent opened fire in the direction of the officers. During a fifteen-minute standoff, Sargent continued to shoot at the various officers as they took positions around the area. When Sargent tried to J-S32009-22

flee the area, he continued to shoot at the police as they followed him. Sargent was ultimately subdued when he was shot in the abdomen.

Sargent was charged with multiple counts of attempted murder and related crimes. On October 16, 2017, a jury convicted Sargent of five counts of attempted murder of a law enforcement officer, six counts of assault of a law enforcement officer, one count of aggravated assault, nine counts of recklessly endangering another person (“REAP”), and one count of harassment.1 On December 14, 2017, the trial court sentenced Sargent to serve an aggregate term of incarceration of 179 to 358 years, with an additional 90 days, to be served consecutively. Sargent failed to take a direct appeal. Nevertheless, he filed a petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and the PCRA court reinstated his direct appeal rights. However, in his nunc pro tunc direct appeal, Sargent only raised claims of ineffective assistance of trial counsel. Because such issues must await collateral review, this Court affirmed Sargent’s judgment of sentence without prejudice to raise the ineffective assistance claims in a timely PCRA petition. Commonwealth v. Sargent, 1989 MDA 2018, 226 A.3d 629 (Pa. Super. filed January 13, 2020) (unpublished memorandum).

On July 24, 2020, Sargent filed a pro se PCRA petition, and appointed counsel filed an amended petition seeking permission to file post-sentence

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1 18 Pa.C.S.A. §§ 901(a), 2507(a), 2702.1(a), 2702(a)(1), 2705, 2709(a)(1).

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motions nunc pro tunc and a direct appeal nunc pro tunc. On April 14, 2021, the PCRA court granted Sargent’s request to file a direct appeal but denied his request to file post-sentence motions. This appeal followed in which Sargent raises multiple issues pertaining to the exclusion of evidence, as well as issues relating the legality of his sentence.

Sargent first argues that the trial court improperly precluded him from cross-examining Officer Mitchell Rennick about the officer’s familiarity with the effects of crystal meth on an individual’s judgment and perception. See Appellant’s Brief at 11-12. Specifically, Sargent claims “[t]he testimony which was attempted to be [elicited] dealt with understanding the effect of drugs and alcohol on [Sargent’s] actions. Because intent is a fact at issue, the answers could help the jury in its determination of [Sargent’s] intent at the time of the incident.” Id. at 12.

“[Q]uestions concerning the admissibility of evidence are committed to the sound discretion of the trial judge, whose rulings will not be disturbed on appeal absent an abuse of that discretion.” Commonwealth v. Reed, 990 A.2d 1158, 1167-68 (Pa. 2010) (citation omitted). The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant.

See Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

One of a trial judge’s broad powers is controlling the scope of the examination of witnesses. We are mindful that [o]n cross-examination, an attorney is entitled to question the witness about subjects raised during direct examination as well as -3- J-S32009-22

any facts tending to refute inferences arising from matters raised during direct testimony. Similarly, an attorney may discredit a witness by cross-examining the witness about omissions or acts that are inconsistent with his testimony. However, the scope and limits of cross-examination is [sic] vested in the trial court’s discretion and that discretion will not be reversed unless the trial court has clearly abused its discretion or made an error of law.

Commonwealth v. Ogrod, 839 A.2d 294, 322 (Pa. 2003).

Here, the trial court prevented Sargent from cross-examining Officer Rennick about Sargent’s use of crystal meth prior to the rampage. Generally, “[n]either voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge.” 18 Pa.C.S.A. § 308.

However, evidence of voluntary intoxication “may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.” Id. Our Supreme Court has long stated that “[e]vidence of substantial intoxication ... [, i]f believed, [] may negate the intent to kill necessary for a conviction of murder in the first degree, and a defendant is entitled to an instruction to that effect.” Commonwealth v. Rose, 344 A.2d 824, 826 (Pa. 1975) (citation omitted). Nonetheless, § 308 acts to exclude evidence of voluntary intoxication to a charge of attempted homicide. See Commonwealth v. Williams, 730 A.2d 507, 511 (Pa. Super. 1999).

As the trial court here correctly stated, “defense counsel acknowledged on the record that voluntary intoxication was not a defense at issue[.]” Trial Court Opinion, 12/29/21, at 8 (citing N.T., 10/16/17, at 393-394, 398-401).

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“[A]ny evidence that [Sargent] was voluntarily intoxicated or drugged was not relevant to the issue of intent.” Id. Likewise, “Officer Rennick’s familiarity with the effects of crystal meth on a person’s judgment and perception, or [the officer’s] dealings with people under the influence [was not relevant].” Id. We agree with this assessment by the trial court. Because voluntary intoxication was not a defense to the crimes charged against Sargent, any such evidence lacks relevance. Accordingly, the trial court did not abuse its discretion in limiting the cross-examination of Officer Rennick and precluding testimony pertaining to the officer’s knowledge of the effects of particular drugs.

In a similar vein, Sargent’s issues 2, 3, 4, and 5,2 raise challenges to the trial court’s rulings that precluded him from offering testimony about his voluntary intoxication at the time of the rampage. See Appellant’s Brief at 12- 16. The underlying theory in each of these issues is that evidence of Sargent’s impaired condition should have been permitted to negate any element of specific intent to shoot at the officers.

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2 Issue 2 pertains to the trial court precluding testimony concerning Sargent’s condition at the time of the incident. Issue 3 addresses the trial court sustaining the Commonwealth’s objection to Sargent’s testimony about his drug use on the day of the incident. Issue 4 concerns the trial court sustaining the Commonwealth’s objection to Sargent’s attempt to testify that he was under the influence of alcohol on the day of the incident. Issue 5 returns to the claim that Sargent was improperly precluded from offering testimony regarding his intoxicated state, which would have negated the element of intent.

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As set forth above, neither evidence of voluntary intoxication nor voluntary drugged condition may be introduced to negate the element of intent of an offense. See 18 Pa.C.S.A. 308. As we explained in Williams, “[Section] 308 clearly dictates the only legal significance of the voluntary consumption of alcohol is when it ‘is relevant to reduce murder from a higher degree to a lower degree of murder.’ In an attempted murder case the lowering of the degree is logically impossible. There simply is no such crime as attempted second or third degree murder.” Williams, 730 A.2d at 511 (citation omitted).

We have reviewed the briefs of the parties, the pertinent legal authority, the certified record, and the trial court’s thorough opinion. We agree with the trial court that it did not abuse its discretion in declining to permit testimony concerning the extent of Sargent’s allegedly impaired condition from either alcohol or drugs. Sargent has cited no legal authority to support his theory that the element of intent necessary for attempted murder convictions is negated by voluntary impairment. Therefore, we agree with the trial court that these issues lack merit, adopt the reasoning set forth by the trial court in its written opinion and affirm on its basis. See Trial Court Opinion, 12/29/21, at 16-19.

In his final two issues, Sargent argues that his sentence is illegal. See Appellant’s Brief at 16-17. In each issue, Sargent asserts that various convictions should have merged for the purpose of sentencing.

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A claim that the trial court imposed an illegal sentence by failing to merge sentences is a question of law. See Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa. Super. 2003). Accordingly, our standard of review is plenary. Id. Our legislature has addressed the mandatory merger of crimes for the purpose of sentencing in section 9765 of the sentencing code, which provides as follows: § 9765. Merger of sentences No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. Concerning the appropriate test for merger of crimes for sentencing, “[t]he statute’s mandate is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). However, “there is no merger if each offense requires proof of an element the other does not.” Commonwealth v. Quintua, 56 A.3d 399, 401 (Pa. Super. 2012) (citations omitted).

In issue 6, Sargent claims that, for sentencing purposes, his convictions of assault of a law enforcement officer should have merged with his

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convictions of attempt to commit murder of a law enforcement officer. 3 See Appellant’s Brief at 16-17. Sargent alleges the two sets of crimes dealt with a single criminal act. See id. at 17. He further posits that “[b]ecause the attempted murder of a law enforcement officer and assault of a law enforcement officer both have the element in the offense of being committed upon a police officer, aggravated assault would be a lesser included offense of attempted murder of a police officer.” Id. (citation omitted). We disagree with Sargent’s argument.

“When considering whether there is a single criminal act or multiple criminal acts, the question is not whether there was a break in the chain of criminal activity[, but] … whether the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime[.]” Commonwealth v. Petterson, 49 A.3d 903, 912 (Pa. Super. 2012). Sargent is not entitled to a “volume discount” on his crimes “simply because he managed to accomplish all the acts within a relatively short period of time.” Id. As the record reflects, Sargent’s crimes did not arise from a single criminal act. Our review indicates Sargent fired multiple times upon the five

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3 Although not detailed by Sargent in his brief, this argument involves five convictions of attempted murder of a law enforcement officer, Counts 1 through 5, and five convictions of assault of a law enforcement officer, Counts through 8, and 10 and 11. See Information, 3/29/16, at 1-2. The crimes were committed against Officers Jude Allen, Dana Pulchaski, Brian Bouton, Alan Gribble, and Joseph Sinavage. See id. -8- J-S32009-22

different police officers during the entire course of this incident. 4 As the trial court cogently concluded, “Because [Sargent] fired on each officer more than once during the course of the standoff, the crimes did not arise from a single criminal act[.]” Trial Court Opinion, 12/29/21, at 25.

We agree with the trial court’s determination and likewise conclude that merger of the convictions of assault of a law enforcement officer and attempt to commit murder of a law enforcement officer is not appropriate because the crimes did not arise from a single criminal act. Although the incident on the day in question, i.e., the random shooting of a Walmart store followed by a standoff with the responding police officers, may be characterized as a single criminal episode, the event was comprised of multiple criminal acts as Sargent shot at the five police officers as he and the officers moved about the area.

Consequently, Sargent has not met the first part of the merger test.

Moreover, regarding the second part of the test, we conclude that all of the statutory elements of assault of a law enforcement officer, 18 Pa.C.S.A. § 2702.1(a), are not included in the statutory elements of attempted murder of a law enforcement officer, 18 Pa.C.S.A. §§ 901 and 2507(a).

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4For a detailed account of the testimony describing the events of the incident as they pertain to each of the five officers, we direct the reader to the trial court’s opinion, which sets forth the narrative of the incident and explains that Sargent was committing multiple criminal acts against each of the officers during the criminal episode. See Trial Court Opinion, 12/29/22, at 22-25.

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Notably, the crime of assault of a law enforcement officer requires the Commonwealth to prove that the defendant discharged a firearm. See 18 Pa.C.S.A. § 2702.1(a). Attempted murder of a law enforcement officers is defined by reading the attempt statute, 18 Pa.C.S.A. § 901(a), in conjunction with the murder of a law enforcement officer statute, 18 Pa.C.S.A. § 2502(a) (murder of a law enforcement officer of the first degree). Accordingly, the elements of attempted murder of a law enforcement officer are (1) the taking of a substantial step, (2) towards an intentional killing of a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer. See 18 Pa.C.S.A. §§ 901(a), 2507(a). Therefore, review of the elements of the two crimes reveals at least one element in each that is not present in the other. Specifically, assault of a law enforcement officer requires the discharge of a firearm. Criminal attempt to murder a law enforcement officer requires a specific intent to kill. Because the two crimes each have an additional element not included in the other offense, they do not merge for sentencing purposes. Therefore, Sargent fails to meet the second part of the merger test.

In his final issue, Sargent argues that, for sentencing purposes, his multiple convictions of REAP merge with his convictions of attempted murder of a law enforcement officer, assault of a law enforcement officer, and aggravated assault. See Appellant’s Brief at 17. After careful review, we conclude this claim lacks merit.

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Again, merger is only appropriate when “two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other.” Baldwin, 985 A.2d at 833. Concerning the second prong, merger is not applied “if each offense requires proof of an element the other does not.”

Quintua, 56 A.3d at 401 (citation omitted).

We first consider whether five of Sargent’s convictions of REAP, which were committed against police officers at the scene, merge with the five convictions of attempted murder of a law enforcement officer that were committed against the same officers.5 As discussed above, these crimes arose from individual criminal acts that Sargent committed during the course of a criminal episode. For this reason, merger is not appropriate because Sargent has not met the first part of the merger test. Nevertheless, assuming for the sake of argument that Sargent met the first prong of the merger test, we conclude that the second part of the test has not been met.

The crime of REAP is satisfied where a defendant “recklessly engages in conduct which places or may place another person in danger of death or

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5 This argument involves the five convictions of attempted murder of a law enforcement officer, Counts 1 through 5, and five convictions of REAP, Counts through 18, and 23. See Information, 3/29/16, at 1, 3-4. Again, both sets of crimes were committed against Officers Allen, Pulchaski, Bouton, Gribble, and Sinavage. See id. - 11 - J-S32009-22

serious bodily injury.” 18 Pa.C.S.A. § 2705. Again, the elements of attempted murder of a law enforcement officer are (1) the taking of a substantial step, (2) towards an intentional killing of a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer. See 18 Pa.C.S.A. §§ 901(a), 2507(a).

A close analysis of the statutory language in the two offenses indicates that they differ in pertinent respects. REAP requires reckless conduct that places a person in danger of death or serious bodily injury. However, the convictions of attempted murder of a law enforcement officer require steps towards an intentional killing of an officer while on duty. Accordingly, a person could recklessly place another in danger of death without attempting to murder a police officer. Conversely, a person could take steps toward intentionally killing an officer without placing them in danger of death.

Consequently, we do not agree with Sargent that the elements of these offenses are the same and thus subsumed within each other for purposes of sentencing. Therefore, Sargent’s claim of merger with regard to the convictions of REAP and attempted murder of a law enforcement officer fails.

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We next consider whether six of Sargent’s convictions of REAP, which were committed against the police officers, merge with the six convictions of assault of a law enforcement officer committed against those same officers.6 Again, these crimes arose from individual criminal acts that Sargent committed during his rampage. Therefore, merger is not applied because Sargent has not met the first part of the merger test. Regardless, assuming for the sake of argument that Sargent met the first prong of the merger test, we conclude that the second part of the test has not been met.

Again, REAP is satisfied where a defendant “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. However, the crime of assault of a law enforcement officer requires the Commonwealth to prove that the defendant discharged a firearm while attempting to cause or intentionally or knowingly causing bodily injury. See 18 Pa.C.S.A. § 2702.1(a).

As the trial court aptly stated, “A person could recklessly engage in conduct, without using a firearm, which placed or may have placed a civilian in danger of death or serious bodily injury, thereby committing REAP but not assault of a law enforcement officer. Conversely, a person could cause bodily

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6 This claim involves the six convictions of assault of a law enforcement officer, Counts 6 through 9, 10, and 11, and six convictions of REAP, Counts 15 through 18, 21, and 23. See Information, 3/29/16, at 1-2, 3-4. Both sets of crimes were committed against Officers Allen, Pulchaski, Bouton, Gribble, Sinavage, and Rennick. See id. - 13 - J-S32009-22

injury, but not serious bodily injury or death, to a law enforcement officer by discharging a weapon, thereby committing assault of [a] law enforcement officer but not REAP.” Trial Court Opinion 12/29/21, at 30-31. We agree with this assessment of the elements of the two crimes and conclude Sargent’s claim that the crimes merge for sentencing purposes lacks merit.

We last consider whether two of Sargent’s convictions of REAP merge with two convictions of aggravated assault.7 A conviction of aggravated assault requires the Commonwealth to prove that Sargent “attempt[ed] to cause serious bodily injury to another, or caus[ed] such injury intentionally, knowingly, or recklessly ….” 18 Pa.C.S.A. § 2702(a)(1). Again, REAP requires proof that another person was placed in danger of death or serious bodily injury. 18 Pa.C.S.A. § 2705. We have held that aggravated assault and REAP do not merge for purposes of sentencing because “each offense requires proof of an element that is absent from the other offense, and one offense can be committed without committing the other offense.” Commonwealth v. Cianci, 130 A.3d 780, 783 (Pa. Super. 2015) (holding that aggravated assault conviction under section 2702(a)(1), requiring that a defendant attempts to cause or intentionally, knowingly, or recklessly causes serious bodily injury to another, does not merge with REAP conviction because an individual could

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7This issue involves two convictions of aggravated assault, Counts 12 and 13, and two convictions of REAP, Counts 19 and 20. See Information, 3/29/16, at 2-3. Both sets of crimes were committed against Walmart employees Zachary McNeil and Edward Vasquez. See id. - 14 - J-S32009-22

attempt to cause bodily injury without placing a person in actual danger, and likewise, could create an actual danger without attempting or intending to cause bodily injury). Therefore, because all of the elements of REAP are not included in the elements of aggravated assault, this claim lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2022

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