Com. v. Cole, K.

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2024
• Docket: 156 EDA 2023
• Status: Unpublished

Opinion

J-A14028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH J. COLE : : Appellant : No. 156 EDA 2023

Appeal from the Judgment of Sentence Entered July 15, 2022 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0003724-2019

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 25, 2024

Appellant, Kenneth J. Cole, appeals from the judgment of sentence

imposed on July 15, 2022, as made final by the denial of his post-sentence

motion on December 13, 2022. He challenges the sufficiency and weight of

the evidence to support his convictions of endangering the welfare of children,

resisting arrest and summary harassment. Concluding Appellant’s claims to

be waived, as well as meritless, we affirm.

On May 23, 2019, Nicole Gantt was sleeping in bed with her minor

daughter when her husband, Appellant, came home drunk. N.T., 8/31/21, at

40-41. Appellant woke up Ms. Gantt by slapping her buttocks and using

profanity in the presence of the child to get out of bed. Id. Initially, Ms. Gantt

and her daughter got up and went into a different room. Id. at 41. Ms. Gantt

went back into the bedroom to retrieve her cell phone, and an argument

ensued between her and Appellant. Id. Appellant, who had been sitting on J-A14028-24

the bed, jumped up and hit Ms. Gantt, who defended herself. Id. Appellant

punched her in the “head, face, everywhere.” Id. at 42. Ms. Gantt estimated

that Appellant punched her six or seven times, but she was unsure of the

exact number. Id. While Ms. Gantt was on the ground, Appellant “was

standing over top of [her and] just came down with his one knee into [her]

ribs.” Id.

Ms. Gantt called 911.1 Id. She informed dispatch that Appellant struck

her repeatedly, and that her ribs were possibly broken. Id., at Exhibit C-2.

She was unsure if there were weapons in the home and reported that she

believed Appellant was intoxicated. Id. While Ms. Gantt was on the phone

with the 911 operator, a responding officer arrived at the home. Id.

Officer Michael Kinsman of the City of Coatesville Police Department was

dispatched to Appellant’s residence, and he arrived about two minutes after

Ms. Gantt called 911.2 N.T., 9/1/21, at 5, 8-9. Before he exited his vehicle,

the dispatch was upgraded to an assault with injuries based on the 911 call

from Ms. Gantt. Id. at 9-10.

When Officer Kinsman knocked on the door, he could hear Ms. Gantt on

the phone with the 911 operator. Id. at 12. The officer observed that Ms.

Gantt was visibly distressed and that it was painful for her to walk. Id. She

____________________________________________

1 The 911 call was admitted into evidence at trial. N.T., 8/31/21, at 49.

2 A neighbor of the adjoining duplex had also called 911 to report a domestic

disturbance. N.T., 9/1/21, at 7-8.

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held her cell phone in one hand and clutched the left side of her upper torso

with the other. Id.

Ms. Gantt informed Officer Kinsman that Appellant had violently

assaulted her. Id. at 13. Officer Kinsman was only partially able to see inside

the home, so he asked Ms. Gantt to step outside for her safety as Appellant

was still inside, standing at the top of the stairs to the second floor. Id. at

13-14. As Ms. Gantt stepped out, Appellant ran down the stairs “very

aggressively,” only stopping at the front door, within feet of Officer Kinsman

and Ms. Gantt. Id. at 14-15. Officer Kinsman believed Appellant intended to

attack him or Ms. Gantt, and Appellant was directed to back away. Id. When

Appellant did not comply, Officer Kinsman unholstered his firearm and pointed

it at Appellant. Id.

Officer Kinsman continued to command Appellant to show his hands, as

it was difficult for the officer to see what, if anything, Appellant was holding.

Id. at 16. Appellant ignored the order and instead ran to the front door,

pushed it shut and tried to lock it. Id. Officer Kinsman kicked the door open

because it had been reported that children were in the home, and he wanted

to ensure their safety. Id. at 16-17. As the door was kicked, the glass in the

top half of its windowpane shattered. Id. at 17-18.

Around this time, Officer Samuel Snyder arrived at the home. N.T.,

8/31/21, at 57. When he saw Officer Kinsman draw his firearm, Officer Snyder

did so too, but he did not point it at Appellant. Id. at 57-58. As Officers

Kinsman and Snyder entered the home, Appellant fled upstairs. Id. at 58.

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Officer Snyder put his firearm away and drew his taser to ensure the officers

had a non-lethal option. Id. at 58-59.

Once inside the home, Officers Kinsman and Snyder observed Appellant

standing at the top of the stairs holding his minor son, K.C., in front of him.

Id. at 59. Appellant seemed angry, and he demanded to know why officers

were in the home. Id. at 60. From the bottom of the stairs, the officers

continued to yell commands at Appellant to show his hands and release K.C.

Id. Ms. Gantt, who was downstairs behind the officers, and the parties’ minor

daughter who was upstairs, were also yelling at Appellant to let K.C. go. Id.

at 61-62. Appellant was yelling at the minor daughter to record what was

happening. Id. at 62.

Throughout this entire encounter, Officer Kinsman had his firearm, and

Officer Snyder had his taser, pointed at Appellant. Id. at 65. The taser held

by Officer Snyder emitted a targeting laser, and when K.C. saw the laser on

Appellant, the child began screaming. Id. Shortly thereafter, Appellant

released K.C., who then moved away from Appellant. Id.

Two more officers then arrived at the home – Corporal Jared Davis3 and

Lieutenant Kenneth Michaels.4 Appellant started to come down the stairs after

Corporal Davis commanded him to, and when he was about halfway down the

stairs, the officers ordered him to get on the ground. Id. at 67. Appellant

3 Davis’ title was “Officer” at the time of the incident. N.T., 8/31/21, at 66.

4 Michaels’ title was “Corporal” at the time of the incident. Id.

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refused and retreated back to the top of the steps. Id. Once it was

determined that Appellant was not armed with a weapon, the officers decided

to go upstairs to attempt to detain him. Id. at 69.

Officer Snyder was the first up the stairs and upon reaching the landing,

he forcefully shoved Appellant backwards. Id. Appellant thrashed around

and yelled for his children to record what was happening. Id. at 70.

“Eventually [Appellant] curled up with his hands up underneath his body as

he laid sort of facedown and was holding them tight to his chest to prevent us

from pulling his hands out so that he could be placed in handcuffs.” Id. Officer

Kinsman stunned Appellant using the drive stun feature. N.T., 9/1/21, at 38.

However, Appellant was not subdued, as he was able to grab the taser, pull it

away from his body, and strike Lieutenant Michaels with it. Id.

The police managed to handcuff Appellant, and during the struggle, he

was thrashing, kicking, yelling and telling his children to record him. N.T.,

8/31/21, at 72. As soon as the handcuffs were secured, Appellant “went limp

and just laid there.” Id. at 72. Officers moved Appellant onto his side into a

recovery position, and eventually to a seated position. Id. at 72-73. Once

he was placed in a seated position, Appellant appeared to be unconscious. Id.

at 73.

Emergency medical services (“EMS”) were nearby when the responding

officers called for assistance, and they responded almost immediately. N.T.,

9/1/21, at 48. An emergency medical technician, Kevin Collette arrived to

render aid, and when he did so, he observed Appellant in a seated position

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with his hands behind his back. Id. at 49. There was some blood on

Appellant’s face, and he refused to answer any questions. Id. EMS checked

and confirmed Appellant had a very strong pulse and he did not appear to be

suffering from any major medical issue. N.T., 8/31/21, at 74. Appellant was

merely not responding. Id. Mr. Collette testified that he did not believe

Appellant was unconscious because “he responded by opening his eyes and

looking around on occasion.” N.T., 9/1/21, at 49. Had he believed Appellant

lost consciousness, he would have requested a medic per protocol. Id. at 49-

50.

Officers requested EMS to bring a stair chair, which is a device used to

transport a patient downstairs. Id. at 48. When officers and EMS attempted

to put Appellant on the stair chair, he went stiff, preventing him from being

secured in the device. Id. at 49. Once it became clear that EMS could not

utilize the stair chair safely, a Reeves stretcher was brought in. Id. at 50. A

Reeves stretcher is “a large orange flexible stretcher. It enables [EMS] to

strap patients in using three straps. It’s got flaps on either end to hold the

patient in and secure their head. It’s got board slats that go down the length

of the stretcher to keep it firm.” Id. “It also enables [EMS] to slide the patient

on hard surfaces and makes it a little easier for getting people out.” Id.

(Cleaned up).

Once Appellant was secured in the Reeves stretcher, he again yelled at

his children to record, and rolled his body around while officers and EMS

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carried him downstairs. Id. at 75. While being carried downstairs, Appellant

was yelling, and blood was spraying all over. N.T., 9/1/21, at 53.

When they got to the first floor, Appellant “essentially rolled out of the

Reeves [stretcher].” N.T., 8/31/21, at 76. Appellant was asked to stand up

and walk on his own, but he refused and continued to yell for his children to

record the incident. Id. Officer Snyder, Lieutenant Michaels, and another

individual had to pick Appellant up and carry him through the front door. Id.

In doing so, Officer Snyder’s arm was cut by the broken glass from when

Officer Kinsman broke the door open. Id. at 76-77. Officer Snyder had a

four-inch, U-shaped laceration that required eight stitches to close the wound.

Id. at 77.

After EMS tended to Officer Snyder, they put Appellant back on the

Reeves stretcher because he was still kicking and thrashing. N.T., 9/1/21, at

53. Eventually, they were able to get Appellant into the ambulance, and an

officer placed leg shackles on him. Id. at 53-54. Officer Kinsman

accompanied Appellant to the hospital, where he declined treatment. Id. at

25. Thereafter, Lieutenant Michaels arrived at the hospital to transport

Appellant to the police station. Id. Appellant’s hospital bed was wheeled out

to the police car, but Appellant refused to get in because he claimed he would

not fit. Id. at 26. Officer Kinsman re-handcuffed Appellant in front of his

body, and Appellant got into the back of the vehicle unassisted. Id. at 26.

Once at the police station, Appellant exited the vehicle, walked inside

and sat on a bench unassisted. Id. at 26. “The only thing that delayed or

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altered his movements was simply the fact that he was wearing shackles.”

Id. This occurred approximately one and a half hours after Appellant was

placed in the ambulance on the Reeves stretcher. Id. at 27.

The entire incident – from when Officer Kinsman first arrived on scene

until Appellant arrived at the police station – was recorded on the officers’

body worn cameras.5 See N.T., 8/31/21, at 80-81; N.T, 9/1/21, at 28.

Appellant was arrested and charged with nine counts of aggravated assault,

endangering the welfare of children (“EWOC”), simple assault, six counts of

recklessly endangering another person (“REAP”), resisting arrest, unlawful

restraint and five counts of summary harassment. The case proceeded to a

jury trial on EWOC, simple assault, six counts of REAP, and resisting arrest,

where the above facts were adduced.

At the end of the trial, the jury found Appellant guilty of EWOC and

resisting arrest, and not guilty of simple assault and all six counts of REAP.

The trial court found Appellant guilty on the five counts of summary

harassment.

On July 15, 2022, Appellant was sentenced to an aggregate term of

eighteen to thirty-six months of incarceration, consecutive to his sentence at

an unrelated docket. On July 21, 2022, Appellant filed a timely post-sentence

motion. On July 27, 2022, the trial court ordered the parties to brief the

motion within thirty days. Thereafter, on August 29, 2022, the trial court

5 Portions of the recordings from the body worn cameras were played at trial.

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granted Appellant’s request for a sixty-day extension of the briefing deadline,

and a thirty-day extension of time under Rule of Criminal Procedure

720(B)(3)(b) for the trial court to decide the motion before it is denied by

operation of law.6

The trial court denied Appellant’s post-sentence motion on December

13, 2022. This timely appeal followed. Both the trial court and Appellant have

complied with Pa.R.A.P. 1925. Appellant raises the following issues for our

review:

1. Whether the trial court erred in denying Appellant’s Motion to Suppress based upon the police’s unlawful entry into Appellant’s home[.]

2. Whether the evidence presented at trial was legally insufficient to support the jury’s verdict and the trial court’s summary verdict[.]

3. Whether the jury’s verdict and the trial court’s summary verdict were against the weight of the evidence, requiring a new trial [.]

Appellant’s Brief at 8.

Appellant first challenges the denial of his motion to suppress. We

conclude this issue waived as Appellant has failed to provide us a full and

complete record, specifically, the transcript of the suppression hearing. “The

fundamental tool for appellate review is the official record of what happened

6 Generally, the trial court has 120 days to rule on a post sentence motion

before it is denied by operation of law. Pa.R.Crim.P. 720(B)(3)(a). However, the trial court “may grant one 30-day extension for decision on the motion” upon good cause. Pa.R.Crim.P. 720(B)(3)(b).

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at trial, and appellate courts are limited to considering only those facts that

have been duly certified in the record on appeal.” Commonwealth v.

Williams, 715 A.2d 1101, 1103 (Pa. 1998). “To ensure that the appellate

courts have all necessary records, the Pennsylvania Rules of Appellate

Procedure provide for the transmission of certified records from trial courts to

appellate courts.” Id.

Rule 1911 of the Pennsylvania Rules of Appellate Procedure requires

appellants to order any transcripts necessary to complete the records for their

appeals, and provides as follows:

(a) General Rule. The appellant shall request any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 4001 et seq. of the Pennsylvania Rules of Judicial Administration

****

(d) Effect of failure to comply. If the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal.

Pa.R.A.P. 1911. Thus, “[w]hen the appellant . . . fails to conform to the

requirements of Rule 1911, any claims that cannot be resolved in the absence

of the necessary transcript or transcripts must be deemed waived for the

purpose of appellate review.” Commonwealth v. Preston, 904 A.2d 1, 7

(Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007).

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When examining the ruling of a motion to suppress, “appellate courts

are limited to reviewing only the evidence presented at the suppression

hearing.” Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super. 2019)

(citation omitted). Here, there is no indication on the docket that a request

for the transcript of the suppression hearing was ever filed. Without the

benefit of that transcript, this Court cannot conduct a meaningful review of

the issue. Therefore, we conclude that Appellant’s first issue is waived.7

In his second issue, Appellant challenges the sufficiency of the evidence

to support his convictions of EWOC, resisting arrest and summary harassment.

Our standard of review is:

whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

7 The trial court determined Appellant’s suppression issue was waived for the

same reason. See Trial Court Opinion, 3/15/23, at 52-54.

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Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc)

(internal citations omitted).

“In order to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient.” Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super.

2015). “Such specificity is of particular importance in cases where, as here,

the appellant was convicted of multiple crimes each of which contains

numerous elements that the Commonwealth must prove beyond a reasonable

doubt.” Id. When an appellant fails to identify the specific elements of the

specific crimes that are being challenged in a 1925(b) statement, the issue is

waived. Id.; see also Commonwealth v. Bonnett, 239 A.3d 1096, 1106-

07 (Pa. Super. 2020), appeal denied, 250 A.3d 468 (Pa. 2021) (finding waiver

due to a blanket statement in the Rule 1925(b) statement that there was

“insufficient evidence to sustain a verdict of guilty of each charge in each

case”).

Here, Appellant’s 1925(b) statement of errors includes the following

claims:

1. The evidence presented at trial was legally insufficient to support the jury’s verdict.

2. The evidence presented at trial was legally insufficient to support the summary convictions of harassment.

Appellant’s Concise Statement, 1/26/23, at ¶¶ 1-2. These boilerplate,

conclusory statements are deficient as a matter of law to preserve a

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sufficiency challenge for appellate review. Appellant was convicted of three

different offenses, but he has failed to identify the specific element of each

offense that he believed was not supported by sufficient evidence. Instead,

he has simply objected to the sufficiency of “the jury’s verdict” and “summary

convictions of harassment,” assertions that were no more specific than the

sufficiency claims we found waived in Bonnett. Accordingly, we hold that

Appellant has waived his challenge to the sufficiency of the evidence.

Even if the sufficiency claims were not waived, Appellant would not be

entitled to relief for the reasons given by the trial court in its 1925(a) opinion.

See Trial Court Opinion, 3/15/23, at 43-49. The trial court found that the

Commonwealth presented sufficient evidence to support the EWOC conviction

because Appellant had a duty to protect his son, K.C., and used him as a shield

for “well over a minute during which time there were both a gun and a taser

pointed in their direction.” Id. at 45. Appellant’s actions “endangered both

the physical and psychological welfare of his child.” Id.

Regarding resisting arrest, the trial court found that Appellant “not only

deployed passive resistance to the officers, but he also struggled with them

to the point that substantial force was required to overcome [Appellant’s]

resistance to being taken into custody.” Id. at 46-47. Lastly, the trial court

found the harassment convictions were supported by sufficient evidence

because Appellant “intended to harass, annoy, or alarm the officers by

struggling with them as they attempted to take him into custody.” Id. at 48.

Moreover, “the evidence revealed that [Appellant] slapped [Ms. Gantt’s]

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buttocks, hit and tussled with her, punched her at least six times” indicating

that Appellant “intended to harass, annoy, or alarm Ms. Gantt.” Id. at 49.

Alternatively, Appellant contends that the verdicts were against the

weight of the evidence. He claims that

the jury’s verdict is against the weight of the evidence based upon two fundamental inconsistencies. The first is the inconsistency between the [trial court’s] summary verdict and the jury’s verdict. Appellant was convicted of the harassment summaries yet acquitted of REAP on the same facts. The second inconsistency is within the jury’s verdict itself. The jury convicted Appellant of endangering the welfare of children and resisting arrest, yet acquitted Appellant of [REAP]. This goes against the weight of the evidence. These staggering and irreconcilable inconsistencies shock the conscience.

Appellant’s Brief at 22.

A challenge to the weight of the evidence concedes that there was

sufficient evidence to sustain the verdict. See Commonwealth v. Widmer,

744 A.2d 745, 751-52 (Pa. 2000). We employ an abuse of discretion

standard:

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing the trial court’s determination that the verdict is against the weight of the evidence.

Id. at 753. Additionally, “where an appellate brief fails to provide any

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

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

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).

Here, Appellant’s “argument” consists only of boilerplate case law that

explains our scope and standard of review for a weight of the evidence

challenge. Appellant fails to make any specific argument or reference to the

record. Thus, we find this claim waived.

Even if not waived, Appellant’s argument fails. Our Supreme Court has

held:

While recognizing that the jury’s verdict appears to be inconsistent, we refuse to inquire into or speculate upon the nature of the jury’s deliberations or the rationale behind the jury’s decision. Whether the jury’s verdict was the result of mistake, compromise, lenity, or any other factor is not a question for [appellate courts] to review. We reaffirm that an acquittal cannot be interpreted as a specific finding in relation to some of the evidence, and that even where two verdicts are logically inconsistent, such inconsistency alone cannot be grounds for a new trial or for reversal.

Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012) (emphasis added).

This reasoning applies in the present case. While the jury’s acquittal of the

REAP charges may have been logically inconsistent with the guilty verdicts for

EWOC, such inconsistency does not warrant relief. Therefore, no relief is due.

Judgment of sentence affirmed.

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Date: 9/25/2024

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