OPINION
Branca, J. August 9, 2018
I. INTRODUCTION
Joseph A. Micucci ("Defendant") appeals to the Superior Court from the sentence
imposed by this Court on April 11, 2018, and its denial of Defendant's Post-Sentence Motion.
For the reasons that follow, Defendant's appeal is without merit.
II. ·STATEMENT OF THE CASE
A. Factual History .I
By way of background, Defendant and the victim in this case, Ms. Thomson, have shared
a volatile on-again, off-again relationship since the 2006 birth of their daughter, I.M. [N.T.
1/18/18, at 24-25].1 In 2011, Defendant was awarded primary custody of I.M., with Ms.
Thomson being permitted supervised visitation, [N.T. 1/18/18, at 25, I 06]. For the first few
years of the custody arrangement, Ms. Thomson and Defendant had no relationship. At some
point, she and Defendant developed a "casual" sexual relationship, lasting approximately one
month from March 2015 to April 2015, from which they opted to shield I.M. for her own
wellbeing given their tumultuous past. During this period, Ms. Thomson spent a few nights per
week at Defendant's home, located at 205 Cadwalader Avenue, Abington, Montgomery County,
I Ms. Thomson testified that Defendant "drug her down the stairs" in or about September 2015. [N.T. 1118/18, at 44-45, 149-151).
1 Pennsylvania, without I.M's knowledge. [N.T. 1/18/18, at 26-29, 252]. In approximately March
2016, Defendant encouraged Ms. Thomson, who had been employed, to quit her job and begin
caring for I.M. fulltime to alleviate demands on Defendant's work schedule, and simultaneously
fulfill Ms. Thomson's long-time desire to be a fulltime mother. By the time Ms. Thomson quit
her job to take care of I.M., the parties' physical relationship had apparently ceased, and she slept
on the couch in Defendant's home. [N.T. 1/18/18, at 28-29].
By Spring 2017, Ms. Thomson admitted that her relationship with Defendant began to
significantly deteriorate. [N.T. 1/18/18, at 104]. More specifically, Ms. Thomson recalled an
occasion in February or March 2017, in which she had commented to Defendant how 'stressed
out' he had been, and in response, in his daughter's presence, he smashed his coffee mug on the
table, cutting himself in the process. [N.T. 1/18/18, at 1 OS]. Making matters worse, Defendant,
a contractor who owned his own business, had told Ms. Thomson that he and his company were
the subject of a significant civil lawsuit, about which he was "extremely stressed" out of concern
for its potentially devastating financial impact. According to Ms. Thomson, the environment in
the home was "very, very tense." [N.T. 1/18/18, at 36-37]. In light of that tension, Ms.
Thomson had begun to avoid Defendant as much as possible.
Despite her efforts, however, Ms. Thomson soon became the target of Defendant's
frustration and violent temper. More specifically, on March 24, 2017, at approximately 10:00
pm, Ms. Thomson returned to Defendant's home, where she had been staying for approximately
the last year. [N.T. 1/18/18, at 37]. She had avoided going home that evening, lingering in a
nearby park after dropping her daughter at a friend's for a sleepover. Eventually, Ms. Thomson
decided she would go home in hopes of not further aggravating Defendant. Upon arriving home,
she tried to avoid Defendant by going directly upstairs, intending to use the bathroom, and
change into sweatpants. [N.T. 1/18/18, at 38]. When she approached the bathroom, however,
2 she found Defendant leaning in its archway and blocking its entrance. Ms. Thomson
approached, and asked if she could use the bathroom, at which point she "smelled alcohol" on
Defendant [N.T. 1/18/18, at 39]. Defendant crassly responded "number one or number two?" At
which point, sensing Defendant's angst, Ms. Thomson abandoned her attempt to use the
bathroom, retreated and closed the door to her daughter's bedroom where she kept her own
clothes to change from her jeans into sweatpants. Ms. Thomson explained she was somewhat ·
taken aback, when Defendant, who customarily respected her privacy while changing, thrust
open the bedroom door while she was putting on her sweatshirt, and told her to "get the fuck
out" [N.T. 1/18/18, at 40]. Ms. Thomson responded that she would leave but wanted to get her
shoes on. Defendant told her to get her "fucking shoes and get out." As she tried to grab her
clothes and throw them in a backpack, Defendant, who was yelling that she was a "fucking
loser," grabbed her by the back of her sweatshirt, her hair tangled in his grasp, dragged her down
the stairs, and dropped her crying on the floor. [N.T. 1/18/18, at 42]. As Ms. Thomson got
herself to her feet to leave, Defendant pushed her back down onto a nearby loveseat, while
calling her a "fucking loser," a "really bad mom," and a "deadbeat." [N.T. 1118/18, at 42-43].
Ms. Thomson testified that while she could have run from the house at that moment she hesitated
out of fear for herself and her daughter that, if she left then, she would not be able to come back
and live with her daughter; and that she would be denied all the time she longed so dearly to
spend with her. Once Defendant stopped yelling at her, Ms. Thomson finally exited the home.
Ms. Thomson drove away and ultimately pulled over, crying hysterically, to read a text
message she noticed Defendant had sent her. During trial she reflected on a prior occasion when
Defendant had dragged her down the stairs and kicked her out of the house, and how Defendant
had called her within a minute after she had driven away, to tell her she was hysterical and
should not drive in that condition, and asking her to 'come back.' [N.T. 1/18/18, at 104, 45].
3 Ms. Thomson testified that she had hoped Defendant's instant text would be of similar tone and
that she would not have to prepare herself to return to the courts for the chance to see her
daughter again. Instead, Defendant's hortative text said only, "next time you'll choose your
words more wisely." [N.T. 1/18/18, at 44]. Ms. Thomson texted back to Defendant that what
had just happened was awful, that she had only wanted to get her stuff, and that she would be
back to get her things; as she extrapolated from Defendant's reference to there being a 'next ' time' to mean that she was not really barred from returning to the home. [N.T. 1/18/18, at 45).
At trial, Ms. Thomson confirmed that she texted Defendant before she returned to the home that
she was coming back and that he had not responded. (N.T. 1/18118, at 45-46].
Sometime later that same night, Ms. Thomson returned to the home to retrieve some of
her belongings including important financial documents. When she returned the house was dark,
so she set about retrieving her mail, at which point she was startled by Defendant, lurking in the
dark seated in his massage chair which was not operating. To avoid Defendant, she immediately
went upstairs to her daughter's room to pack her bag. Then, while she was kneeling on that
bedroom floor, quickly cramming her belongings into a backpack, no doubt still shaken from
Defendant's earlier physical assault, Ms. Thomson looked up to see Defendant, hovering
menacingly over her, pointing his loaded handgun two feet from her head, telling her to "get the
fuck out." [N.T. 1/18/18, at 50-51).
Terrified that Defendant was going to shoot her, Ms. Thomson sprung back from the
weapon. [N.T. 1/18/18, at 52). Hoping to dissuade Defendant from further action, she warned
him that she was recording his threats with her phone. A struggle for the phone, which was in
the front pocket of her hoody, quickly ensued as Defendant tucked his loaded weapon into his
waistband. [N.T. 1/18/18, at 53). Ms. Thomson managed to open a nearby bedroom window
and yell for help to a neighbor, as Defendant seized her phone and exited the bedroom. After
4 yelling for help, Ms. Thomson followed Defendant to retrieve her phone. When Defendant was
not able to unlock the phone he snapped the phone in half, cutting himself in the process.
Defendant then retreated to his bedroom, unloading the bullets from the clip of his
handgun and placing the bullets and handgun in the drawer of his nightstand. fN.T. 1/18/18, at
57]. Defendant and Ms. Thomson continued to fight, with Defendant kicking and dragging her
down the steps, throwing her to the floor and screaming at her. Defendant ultimately physically
threw Ms. Thomson out of the house and down the back stairs to the ground where she saw her
neighbor on the phone, gesturing for her to come to safety. Police arrived on the scene and Ms.
Thomson eventually returned with them to the station to make a statement and have her injuries
photographed. [N.T. 1/18/18, at 76-77, Ex. C-1 through C-15 ("Photographs")].
On Bill of Information 2527-2017, the Commonwealth charged Defendant with Count
One-Strangulation (blocking of nose and mouth,) Count Two-Simple Assault, Count Three--
Recklessly Endangering Another Person,) and Count Four-Strangulation (Throat/Neck).2
B. Procedural History
The case proceeded to a two-day bench trial before the undersigned wherein Defendant
was found guilty of Simple Assault and Recklessly Endangering Another Person.3 On April 11,
2018, after reviewing the Presentence Investigation (PSI) report, the undersigned conducted a
sentencing hearing. Defendant exercised his right to allocution, stating:"
Thank you, Your Honor. I just want to start off by saying that I do take full accountability for the crimes that I have committed [sic] of. I want to apologize to you, to the D.A., and I guess most importantly Ms. Thomson for my actions.
My whole life is my daughter. I just want to have the ability to protect her and, again, I'm sorry. I am honestly a good person and I can assure you that nothing
2 18 Pa. C.S. § 2701(a)(J); 18 Pa. C.S. § 2705; L8 Pa. C.S. § 27l8(a)(l). 3 The Court granted Defendant's Motion for Judgment of Acquittal on Count One (Strangulation) and the Commonwealth withdrew Count Four (Strangulation). 4 [N.T. 4/11/18, at 30].
5 like this will ever happen again. I mean this from the bottom of my heart. Thank you.
At the hearing's conclusion, the Court sentenced Defendant on Count Three (Recklessly
Endangering Another Person) to undergo imprisonment of six (6) to twenty-three (23) months,
with a two (2) year concurrent probation on Count Two (Simple Assault).' On April 17, 2018,
Defendant filed a Post-Sentence Motion, asserting therein a Motion to Modify Sentence and A
motion for Judgment of Acquittal; which the Court denied by Order dated April 23, 2018. On
April 27, 2018, Defendant timely filed a Notice of Appeal challenging the imposition of his
sentence. On May 22, 2018, upon the Court's request and pursuant to Pa. R.A.P. 1925(b),
Defendant filed a 'Concise Statement of Matters Complained on Appeal," enumerating the
following issues for review:
1. The Trial Court committed an error of law and abuse of discretion in finding defendant guilty of Recklessly Endangering Another Person because the Commonwealth failed to present sufficient evidence beyond a reasonable doubt to prove the element of reckless conduct by the Defendant which placed or may have placed another person in danger of death or serious bodily injury: to wit Defendant simply pointing a lawfully owned and possessed gun in his home at Tracy Thomson did not amount to reckless conduct that placed someone in danger of death or serious bodily injury.
2. The Trial Court committed an error of Jaw and abuse of discretion in prohibiting Defendant from cross examining the complaining witness Tracy Thomson regarding her past mental health history and drug use, as it was relevant to show motive and bias against the Defendant.
3. The Trial Court committed an error of law and abuse of discretion in imposing the deadly weapon used sentencing guidelines for the charge of Recklessly Endangering Another Person, when the actual weapon being used was the basis for the guilty verdict of the crime.
III. DISCUSSION
On appeal, Defendant asserts that the Court erred in finding sufficient evidence of
recklessly endangering another person, denying Defendant the opportunity to cross-examine the
s [N.T. 4/11/18, at 36, Ex. D· l (Post Sentence Rights Form)].
6 victim on her alleged history of mental health and drug use issues, as well as discretionary
aspects of the Court's sentence in imposing the deadly weapon enhancement ("DWE")
sentencing guideline. As addressed hereinafter, Defendant's claims are rneritless.
The standard of review applied to claims raised on appeal is limited to determining
whether the trial court abused its discretion or committed an error of law. See Commonwealth v.
West, 937 A.2d 516, 521 (Pa. Super. Ct. 2007). In evaluating a trial court's decision, an "abuse
of discretion may not be found merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Greer, 951
A.2d 346, 355 (Pa. 2008) (internal quotation omitted).
A. The Commonwealth's Evidence Is Sufficient To Sustain Defendant's Conviction For Recklessly Endangering Another Person.
Preliminarily, Defendant claims that the Commonwealth failed to set forth sufficient
evidence to sustain Defendant's conviction for Recklessly Endangering Another Pcrson.6 As
discussed below, the Commonwealth's evidence, including the victim's testimony, corroborated by
her medical records as well as the testimony of first responders, sufficiently support the Court's
finding that Defendant engaged in reckless conduct which placed or might have placed Ms.
Thomson in danger or serious bodily injury or death.
The standard of review for sufficiency of the evidence claims is as follows:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material clement of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offcred to support the verdict is in · contradiction to. the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter oflaw. When
6 In accordance with Pa. R. Crim. P. 720, Defendant preserved his underlying claim by filing a Post-Sentence Motion, which included therein a Motion for Judgment of Acquittal. [Def.'s Post-Sentence Mot. (4/l 7/18)).
7 reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Stahl, 175 AJd 301, 303-304 (Pa. Super. Ct.2017) (internal citation omitted).
Moreover, the Commonwealth "may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v.
Dellavecchia, 725 A.2d I 86, 188 (Pa. Super. Ct. 1998) (en bane). More specifically:
(t]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the fact finder unless the evidence is so weak and inconclusive that, as a matter oflaw, no probability of fact can be drawn from the combined circumstances.
The proper application of this standard requires us to evaluate the entire trial record, and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence.
Commonwealth v. Hopkins, 74 7 A.2d 910, 913-14 (Pa. Super. Ct. 2000) (internal citations
omitted). Finally, the trier of fact is free to believe all, some, or none of the testimony presented
and the appellate court is precluded from reweighing the evidence and substituting its own
judgment for that of the finder of fact. Commonwealth v. Martuscelli, 54 A.3d 940,947 (Pa.
Super. Ct.2012). "If the factfinder reasonably could have determined from the evidence
adduced that all of the necessary elements of the crime were established, then that evidence will
be deemed sufficient to support the verdict." Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa.
Super. Ct. 2000) (internal citations omitted).
Pursuant to Title 18, Section 2705, "[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." 'Serious bodily injury' is defined as "bodily injury
which creates a substantial risk of death or which causes serious, permanent disfigurement or
protracted loss or impairment of the function of any bodily member or organ." Commonwealth
8 v. Hopkins, 747 A.2d at 915 (citing 18 Pa. C.S. § 2301). It is well settled thatto sustain a
conviction for recklessly endangering another person, the Commonwealth is required to prove
that the defendant had an actual present ability to inflict harm. Id. at 916. The mens rea for
recklessly endangering another person requires "a conscious disregard of a known risk of death
or great bodily harm to another person." Commonwealth v. Peer, 684 A.2d 1077, 1080 (Pa.
Super. Ct. 1996). Defendant's claim that "simply pointing a lawfully owned and possessed gun
in his home at Tracy Thomson did not amount to reckless conduct that placed someone in danger
of death or serious bodily injury," is factually and legally inconsistent. Factually, Defendant
fails to accurately characterize the highly charged and emotionally unstable atmosphere in which
the underlying episode occurred. More specifically, he neglects to clarify that his weapon was
loaded; he was acting in the midst of a frustration-fueled fit which had begun some time earlier
that evening when he violently physically assaulted the mother of his child by dragging her down
the stairs by her hair; and he had been drinking alcohol while brandishing his loaded weapon.
With ·, those complete facts, Defendant's legal assertion clearly fails.
In Commonwealth v. Hopkins, the Court held that the fact that defendant was visibly in
possession of a gun which was loaded and operable throughout the underlying incident supported
the trial court's verdict against him for recklessly endangering another person. Id. at 916. In
Commonwealth v. Peer, the Court held that brandishing a loaded firearm during the commission
of a crime, after consuming alcohol, set forth a sufficient basis on which a fact-finder could find
both that a defendant proceeded with conscious disregard for the safety of other, and that he had
the present ability to inflict great bodily harm or death. Id. at I 080-81. Similarly, in
Commonwealth v. Rivera, the Court held that "knowingly pointing a loaded weapon at another
person may be sufficient to convict a defendant for reckless endangerment." Id. 597 A.2d 690,
695 (Pa. Super. Ct. 1991).
9 Likewise, in this case, Ms. Thomson's testimony that Defendant, on whom she detected
the smell of alcohol, recklessly pointed his loaded handgun to her head as she knelt, defenseless,
on the floor of her daughter's bedroom, rushing to throw a handful of her clothing into her
backpack adequately demonstrated he had the requisite present ability to inflict serious bodily
harm upon her, as well as, the conscious disregard that his weapon could discharge, seriously
injuring or killing Ms. Thomson.
Moreover, similar to the Court in Peer, where defendant asserted that his firearm safety
training essentially rendered his loaded weapon harmless, this Court cannot countenance
Defendant's instant justification that his lawful possession of his loaded weapon in his home
negated the recklessness of his conduct in pointing it inches from Ms. Thomson's head. See
Peer, at l 080-81.
In light of the ample credible testimony and evidence set forth by the Commonwealth, the
Court appropriately determined that Defendant recklessly endangered Ms. Thomson when he
pointed a loaded firearm inches from her head while verbally threatening her. As such,
Defendant's sufficiently claim is meritless .
.B. The Court Properly Precluded Defendant From Cross Examining Ms. Thomson Regarding Her Alleged Past Mental Health History And Medical Treatment Without Any Properly Articulated Basis.
Next, Defendant claims that the Court erred when it denied him the ability to cross
examine Ms. Thomson "regarding both her past mental health history and drug use," for
depression and/or bipolar disorder.7 Defendant further contends that such cross-examination was
relevant to reveal Ms. Thomson's alleged motive and bias against Defendant. Having failed,
however, to adequately develop the record, this claim is waived. In the alternative, the Court
1 [See Def.'s 1925(b), at12; N.T. 1/18/18, at 174].
10 properly excluded the alleged proffered evidence where Defendant failed to demonstrate its
relevance.
To preserve a claim. of error in a ruling to exclude evidence, such as that claimed here, a
party must assert either assert a timely objection, specifying its ground or provide the Court with
an offer of proof .... " Pa. R.E. 103(a)(l)-(2). With regard to challenges to the admissibility of
evidence, our Courts have applied the following rubric:
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion. Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. Ct. 20 I 0). "Relevance is the threshold
for admissibility of evidence." Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. Ct.
2015); see also Pa. R.E. 402. "Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action." Pa. R.E. 401; see Tyson, 119 A.3d at 3 58 ( "Evidence is relevant if it
logically tends to establish a material fact in the case, tends to make a fact at issue more or less
probable or supports a reasonableinference or presumption regarding a material fact.").
Pursuant to Pa. R.E. 403, "[tjhe Court may exclude relevant evidence if its probative value is
outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, ' misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
Before the Commonwealth's case-in-chief, the parties brought certain evidentiary issues
to the Court's attention. At the parties' request, the Court conducted an off-the-record
conference to address the parties' concerns, and when proceedings were reconvened, the
following was made part of the record:
11 THE COURT: All right. Let's see if we can summarize the argument that l heard off the record in conference .
.So there are two issues that were raised. One had to do with the victim's taking a medication and mental health treatment. l guess to summarize the argument by Mr. DiPippo, he proposes to question the victim on her - on the medications that she takes and her mental health treatment, for purposes of attacking her credibility. The evidence in that regard that he proposed was strictly to elicit evidence, based on cross-examination of the victim. And effectively ask the Court to take recognition of the impact of those medications, taking them or not taking them, without any other medical supporting evidence of any kind, or expert testimony of any kind, or any reports of any kind. And I've indicated I will grant the Commonwealth's motion to exclude that line of questioning in that regard.
Certainly, as with anything else, should something open up and you want to address that, Mr. DiPippo, that somehow that's been opened up by the Commonwealth in some way, I will address it at that point.
Did that adequately summarize that argument?
THE COMMONWEALTH: Yes, Your Honor.
DEFENSE COUNSEL: Yes, Your Honor.
(N.T. 1118/18, at 6-7].
Preliminarily, Defendant frames the instant issue as one involving Ms. Thomson's
alleged bias and motive, contrary to his prior characterization at trial as one involving her
credibility. 8 Commonwealth v. Tomasso, 457 A.2d 514, 515 (Pa. Super. Ct. 1983), affd, 485
A.2d 395 (Pa. 1984) ("Failure to so preserve the distinct grounds for an issue deprives the trial
court of the opportunity to make a fully informed evaluation of the issue.") Thus, in the first
instance, Defendant failed to assert his instant bias and/or motive rationale at trial, thereby,
failing to preserve the same for appellate review.9
8 [See e.g., Pa. R.E. 60l(b) (Addressing competency to testify and mental health), compare, Pa. R.E. 607 (Addressing impeachment and credibility)]. 9 The record reflects that Defense Counsel agreed unequivocally with the Court's characterization of his evidentiary argument which related only to Ms. Thomson's credibility; as opposed to the bias and motive contentions asserted for the first time on appeal. See PA. R.A.P. 903
12 Putting aside Defendant's objective waiver, and post facto revisionist characterization of
the claim, he failed to adequately develop the record in terms of substantiating his legal
reasoning and evidentiary basis for seeking to cross examine Ms. Thomson regarding her alleged
mental health, and/or her prescribed medication to address such issues. The only statement of
record that Defendant even sought to introduce the proffered evidence is set forth in its entirety
above. Defense counsel's sole proffer was to cross examine Ms. Thomson based on information
from Defendant that Ms. Thomson suffered from mental health issues for which she was treated.
As the Court noted on the record, Defendant had no reports, expert testimony, or any other
evidence to lend credence, let alone substantiate, a finding that Ms. Thomson's "mental health
condition" and/or medication, affected her credibility in any respect whatsoever. But see
Commonwealth v. Davis, 674 A.2d 214, 216 (Pa. 1996) (Therapist's diagnosis of victim as a
"pathological liar" was relevant and admissible to impeach victim's credibility.) As presented by
defense at trial, his attempt to cross examine the victim in this case was nothing more than a
fishing expedition intended to create impermissible bias as to Ms. Thomson, while
simultaneously subjecting her to embarrassment. Moreover, Defendant failed both to make an
offer of proof, beyond proposing to cross examine Ms. Thomson in this regard, or clarify the
issue for the Court and/or appellate review. Without offering some supporting contextual
evidence, the fact that Ms. Thomson had a past mental health history and/or corresponding
medical treatment is meaningless. Having baldy claimed, without any ratiocination, that his line
of inquiry was intended to undermine Ms. Thomson's credibility, Defendant neglected to
adequately develop the record.
Defendant's implicit bald assertion that Ms. Thomson was either not credible, and/or
biased, and/or had ulterior motives, is simply not substantiated by his allegation that she received
mental health treatment and/or took medications prescribed as part of that treatment. Contrary to
13 Defendant's claim, such evidence does not, in and of itself, logically tend to establish that Ms.·
Thomson was not credible, biased, and/or had ulterior motives. See Pa. R.E. 403. Given
Defendant's failure to establish the relevance of the proffered evidence, the Court properly
precluded Defendant from cross-examining Ms. Thomson on these issues. Moreover, even if
Defendant had met his relevance burden, the Court had discretion to exclude that evidence on the
basis that it would unfairly prejudice the victim, confuse the issues, create undue delay, and/or
waste time. See Pa. R.E. 403.
Finally, even without delving into Ms. Thomson's alleged mental health history and
related medical treatment, therecord in this case contained ample evidence of each party's
potential ulterior motives and biases. Given the ample, undisputed testimony presented by both
parties regar�ing the acrimonious and volatile nature of the parties' relationship and lengthy
custody battle over their daughter, the Court was well aware of the parties' biases and
motivations. Much, if not all, of the Commonwealth's case-in-chief focused on the parties'
tenuous relationship and the ripple effects on the custody status of their daughter. The evidence
at trial revealed that each parent's priority was primary custody and contact with their daughter.
In addition, the Commonwealth introduced and admitted evidence that Ms. Thomson's desire to
spend time with her daughter had even, at times, apparently clouded her judgment, resulting in
her being held in contempt for kidnapping her daughter.'? As such, the record already aptly
reflected each party's potential underlying biases and motivations in this case even without
Defendant's alleged impeachment evidence.
Based on Defendant's failure to meet his burden to establish Ms. Thomson's alleged
mental health history was relevant, the Court properly precluded his cross-examination on the
issue.
10 fN.T. 1/18/18, at 181).
14 C. The Court Properly Applied The Deadly Weapon Enhancement.
Finally, Defendant asserts that the Court's improperly imposed the DWE (used)
sentencing enhancement on the charge of Recklessly Endangering Another Person, "when the
actual weapon being �sed was the basis for the guilty verdict of the crime."11 Contrary to
Defendant's assertion, however, the Court's imposition of the DWE (used) was not only proper,
but required statutorily. As such, Defendant's final claim fails.
It is well-settled that "[sjentencing is a matter vested in the sound discretion of the
sentencing judge, , and a sentence will not be disturbed on appeal absent a manifest abuse of
discretion." Commonwealth v. Raybuck, 915 A.2d 125, 128 (Pa. Super. Ct. 2006)(intemal
quotation omitted). Title 18 Section 2301 defines "deadly weapon' as "[ajny firearm, whether
loaded or unloaded, or any device designed as a weapon and capable of producing death or
serious bodily injury, or any other device or instrumentality which, in the manner in which it is
used or intended to be used, is calculated or likely to produce death or serious bodily injury."
Pursuant to 204 Pa. Code§ 303.10(a)(2)(i):
When the court determines that the offender used a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Used Matrix(§ 303. l 7(b)). An offender has used a deadly weapon if any of the following were employed by the offender in a way that threatened or injured another individual:
(i) Any firearm, ( as defined in 42 Pa. C.S. § 9712) whether loaded or unloaded, or
While Defendant failed to articulate upon what legal and/or statutory authority he relies
in asserting this particular allegation of error, the case law interpreting the Legislature's DWE
(used) sentencing guidelines deny the Court any discretion, whatsoever, in applying the
enhancement in the present context, where the fact finder determined Defendant used a deadly
11 [SeeDef's J925(b), atf3].
15 weapon during the commission ofan underlying offense. See 204 Pa. Code§ 303.JO(a)(2)
(referencing 204 Pa. Code§ 303.17(b)). The sentencing court has no discretion to refuse to
apply the deadly weapons enhancement when it is appropriate." Raybuck, 915 A.2d at 129
(internal quotation omitted). Guided by the precepts set forth above, the Court correctly
determined that Defendant's actions in pointing his loaded handgun to Ms. Thomson's head
triggered imposition of the OWE (used) sentencing enhancement.
While not clear, Defendant seems to argue that he has been unfairly and/or doubly
penalized for pointing a loaded gun at the victim's head in a menacing and raged-fueled fit. The
instant circumstances, however, are no doubt the type contemplated and for which the OWE
(used) enhancements were drafted, as Defendant's use of a loaded gun here drastically raised the
mortal stakes for both he and his victim in this case. .Moreover, while not explicitly referenced,
if Defendant is attempting to argue that the use of the deadly weapon, was an element of the
crime at issue, he is misguided. Glaringly absent from the elemental enumeration of the crime of
Recklessly Endangering Another Person, is any mention of "possession of a deadly weapon."
204 Pa. Code§ 303.10(a)(3)(ix). (Title 18, Section 2705, "[aJ 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." ) As such, the Jimited exception, set forth in 204 Pa.
Code§ 303.10(a)(3)(ix), which prohibits imposition of the D\VE for any offense "for which
possession of a deadly weapon is an element of the statutory definition," has no application to
the case subjudice.
Defendant's rationale for contesting the OWE enhancement, at least as articulated at his
Sentencing Hearing, relied upon his subjective perspective that the underlying circumstances did
16 , not rise to the level of violence to merit enhanced penalties.12 Defendant's characterization,
however, wherein he claimed that his weapon was "only very remotely involved," is belied by
the record and no doubt vigorously contested by his victim who found herself on her knees
looking up the barrel of a loaded gun. 13. The record in this case amply reflects the violence,
requisite recklessness, and tremendous potential for serious injury, if not death. As such, the
Court's imposition of the DWE (used) was entirely appropriate. As such, Defendant's third issue
on appeal is deemed meritless.
IV. CONCLUSION
Accordingly, the trial court requests that the judgment of sentence imposed on Defendant,
Joseph A. Micucci, on April 11, 2018, be AFFIRMED.
13Y THE COURT: �HOMASC.B�b�
Copies of the above Opinion , Mailed on: 8/ c.111 s By First Class Mail: Gregory P. DiPippo, Esquire By Interoffice Mail: Montgomery County District Attorney - Appellate Division Deputy Court Administrator-Criminal
0h� (N\MJJ\ Secretary \.
12 [N.T.4/11/18, at 21-22]. 13 (N.T. 4/l 1/l 8, at 21 ].