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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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-
15 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
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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.
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
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 6 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.
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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).
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
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 15 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.
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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
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.
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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
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.
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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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