Com. v. Serio, D.

• Court: Superior Court of Pennsylvania
• Decided: May 13, 2025
• Docket: 1073 MDA 2024
• Status: Unpublished

Opinion

J-S10015-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID CHARLES SERIO : : Appellant : No. 1073 MDA 2024

Appeal from the Judgment of Sentence Entered June 27, 2024 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001043-2023

BEFORE: BOWES, J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED MAY 13, 2025

David Charles Serio appeals from the aggregate sentence of eight years

and three months to eighteen years and six months of imprisonment, followed

by five years of probation, imposed for multiple convictions for shooting his

ex-girlfriend. We affirm.

We glean the following background from the certified record. In the

early morning hours of February 1, 2023, Appellant’s former girlfriend, Linda

Spicer, was getting ready for work in Appellant’s house. While she was doing

so, Appellant was “hounding her” about a recent hack of his computer,

accusing her of orchestrating the breach. See N.T. Trial, 3/4-7/24, at 110.

He continued to follow her around the house and eventually out to her car in

the driveway as she was leaving for her shift. After she entered her vehicle,

Ms. Spicer “immediately” heard gunshots and felt a stinging pain in her left J-S10015-25

shoulder. Id. at 117. When she turned around, she saw Appellant standing

ten to fifteen feet away, pointing a gun at her. The victim quickly put keys

into the ignition and started the car when she was shot in the hand. Blood

was “dripping” as she “floored it in reverse” to escape. Id. at 118.

A few minutes later, Ms. Spicer arrived at a factory parking lot and called

911. Her right hand continued to bleed, and she had severe pain in her left

shoulder. Emergency personnel and officers from the Northern York County

Regional Police responded. Upon arrival, Officer Daniel Paz confirmed that

Ms. Spicer had been shot in the hand, with a bullet still lodged inside. After

removing several layers of clothing, he also saw that she had “a large amount

of . . . deep-colored bruising on her left shoulder[,] but no penetrating

trauma.” Id. at 160-61. Officer Paz then inspected the victim’s thick winter

coat and “noticed there was a hole in the left shoulder . . . [with] a bullet still

inside.” Id. at 161. Officer Michael Hine examined the vehicle. He observed

that there were “two [bullet] holes in the door on the driver’s side and two

holes in the window just above the driver’s door.” Id. at 167.

In the meantime, Sergeant Noah Pottinger and Officer Patrick Gartrell

were dispatched to Appellant’s house. They had a general description of

Appellant but were unaware that his father was also inside the home. The

two officers, along with several others, approached with shields and other

protective gear. They knocked and announced themselves and heard a male

respond. When Appellant’s father opened the door, he was forced to the

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ground, and officers quickly realized that they had tackled a man that was not

Appellant. Officer Gartrell then looked up to see Appellant sitting on a bed in

an adjacent room, pointing a firearm at him. He announced that Appellant

had a gun, and the officers drew their weapons and ordered Appellant to put

his firearm down. Instead, Appellant “rolled off the bed and [laid] down . . .

on the far side[,]” out of sight. Id. at 225. The officers were concerned that

Appellant “could have at any point shot under the bed, shot through the bed,

or shot over the bed at [them].” Id. at 226. Twenty to thirty seconds later,

Appellant stood with his empty hands up and surrendered. Sergeant Pottinger

and Officer Gartrell wore body cameras that day, which captured some of this

encounter.

After Appellant was taken into custody, Officer Stephen Lebo

interviewed him. Appellant admitted to shooting at the victim three to four

times when she was sitting in the front seat of her car, but indicated that he

only wanted to frighten her. He further explained that after he shot at Ms.

Spicer, he returned to his room and laid in bed with the gun to his head.

Shortly thereafter, officers showed up at his door, and he “assumed it was the

police based on what had just . . . happened in the driveway.” Id. at 309. He

claimed that he immediately complied with the officers’ orders to put down his

firearm, and denied that he pointed it at them.

Detective Isaiah Emenheiser conducted a further investigation of the

bullet holes on the driver-side door of Ms. Spicer’s vehicle, which confirmed

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that “someone definitely fired into the vehicle from the outside . . . four times.”

Id. at 177. He observed that “the two bullets that struck just below the door

handle did not come through to the inside of the door panel[,]” but “the two

rounds that went through the glass went all of the way through to the interior

of the car.” Id. at 178. He also noted spatters, smears, and pools of blood

on the steering wheel, gear shift, and center console. Detective Emenheiser

then found a bullet fragment inside the passenger-side sun visor and

concluded that “from the trajectory of that round and how it was embedded

in the sun visor, it was obvious that it came from the driver’s side.” Id. at

183.

Based on the aforementioned events, Appellant was charged with one

count each of attempted murder, propelling a missile into an occupied vehicle,

recklessly endangering another person, and simple assault, as well as three

counts of aggravated assault. The matter proceeded to a jury trial wherein

the victim and several officers outlined the above facts. The Commonwealth

presented Corporal Joseph Horton of the Pennsylvania State Police as an

expert in firearms and tool mark examination. He confirmed that the bullet

fragments found over the course of the investigation were discharged from

Appellant’s gun. The jury was able to view the photographs of the damage to

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Ms. Spicer’s car and the officers’ body camera footage.1 The victim testified

that she had surgery to remove the bullet that was stuck inside her right hand.

After this procedure, she had to attend physical therapy for several weeks,

and as of the date of trial, she could not shut her hand all of the way and

continued to feel pain.

The jury convicted Appellant of all charges, and the court sentenced him

as indicated above. This timely appeal followed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925. Appellant presents the following

questions for our determination:

I. Was there insufficient evidence to support the guilty verdict for criminal attempt homicide because there was no evidence that [Appellant] had the requisite intent to kill [Ms.] Spicer?

II. Was there insufficient evidence to support the guilty verdict[s] for aggravated assault because there was no evidence that [Appellant] had the requisite intent to (1) cause serious bodily injury to [Ms.] Spicer or (2) cause bodily injury to [Ms.] Spicer with a deadly weapon?

III. Was there insufficient evidence to support the guilty verdict for aggravated assault because there was no evidence that [Appellant] had the requisite intent to use physical menace to put officers in fear of imminent serious bodily injury?

Appellant’s brief at 4 (unnecessary capitalization omitted).

____________________________________________

1 Although these videos were presented to the jury, Appellant failed to include

them in the certified record. See Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006) (en banc) (“Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty.”). Nonetheless, this Court obtained and reviewed this evidence.

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All of Appellant’s claims implicate the sufficiency of the evidence, which

we review “de novo and our scope of review is plenary.” Commonwealth v.

Jenkins, 328 A.3d 1076, 1082 (Pa.Super. 2024). We also consider

Appellant’s arguments mindful of the following legal principles:

The standard we apply in reviewing the sufficiency of the evidence 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 established 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.

Id. (cleaned up).

Appellant first challenges his conviction for attempted homicide. “A

person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

that crime.” 18 Pa.C.S. § 901(a). Attempted homicide is attempted first-

degree murder, which requires a “specific intent to kill.” Commonwealth v.

Predmore, 199 A.3d 925, 929 n.1 (Pa.Super. 2018). Thus, “for the

Commonwealth to prevail in a conviction of criminal attempt to commit

homicide, it must prove beyond a reasonable doubt that the accused[,] with

a specific intent to kill[,] took a substantial step towards that goal.”

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Commonwealth v. Sheets, 302 A.3d 145, 151 (Pa.Super. 2023) (cleaned

up).

The requisite mens rea may be established through circumstantial

evidence, and “the fact finder [may] infer that one intends the natural and

probable consequences of his acts.” Commonwealth v. Cannavo, 199 A.3d

1282, 1292 (Pa.Super. 2018). For instance, “the use of a deadly weapon

directed at a vital organ of another human being justifies a factual

presumption that the actor intended death unless the testimony contains

additional evidence that would demonstrate a contrary intent.” Predmore,

199 A.3d at 931 (cleaned up). Additionally, “firing of a bullet in the general

area in which vital organs are located can in and of itself be sufficient to prove

specific intent to kill beyond a reasonable doubt.” Id. at 933 (emphasis

omitted).

Appellant argues that the Commonwealth did not prove that he had a

specific intent to kill the victim based on the statement he relayed to Officer

Lebo that he only meant “to scare the hell out of” her. See Appellant’s brief

at 16. He indicates that the jury could not presume an intent to kill where he

“fired four shots at fairly close range where [Ms. Spicer] was seated in a

vehicle, yet shots missed any area near a vital portion of her body.” Id. at

17. Appellant claims that only the victim’s hand was injured, and there was

no other evidence indicating that he intended to kill her where he did not

verbally threaten or scream at her. Id. at 15-16.

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Upon review, we conclude that the evidence was sufficient to sustain

Appellant’s conviction for attempted homicide. Appellant aimed at the victim’s

driver-side door where she was seated and fired his weapon four times, with

two rounds landing just under the handle and two others going through the

window, ultimately striking her shoulder and perforating her hand. Although

Appellant did not successfully penetrate a vital part of her body, that does not

negate the presumption that Appellant intended to kill Ms. Spicer where he

shot in the general vicinity of her vital organs. See Predmore, 199 A.3d at

933 (summarizing cases where evidence was sufficient to establish an intent

to kill where a defendant shot a store clerk in the shoulder, which is “in the

general area in which vital organs are located[,]” and where a defendant fired

into an occupied vehicle and a “bullet had penetrated the outer panel of the

automobile door at a height near the stomach of the victim”). Ms. Spicer

further testified that Appellant was “hounding” her that morning, accusing her

of hacking his computer and accordingly providing an impetus for the

shooting. See N.T. Trial, 3/4-7/24, at 110. The jury thus had sufficient

evidence to conclude that Appellant intended to murder the victim. This

argument affords no relief.

Appellant next challenges the sufficiency of the evidence for two of his

aggravated assault convictions stemming from his actions against Ms. Spicer.

As to the first, a person commits aggravated assault when he “attempts to

cause serious bodily injury to another, or causes such injury intentionally,

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knowingly or recklessly under circumstances manifesting extreme indifference

to the value of human life.” 18 Pa.C.S. § 2702(a)(1). Serious bodily injury is

defined as “[b]odily 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.” 18 Pa.C.S. § 2301.

Where a victim has established that she sustained serious bodily injury,

“the Commonwealth can, but does not necessarily have to, establish specific

intent to cause such harm.” Commonwealth v. Williamson, 330 A.3d 407,

417 (Pa.Super. 2025). Rather, “the Commonwealth need only prove the

defendant acted recklessly under circumstances manifesting an extreme

indifference to the value of human life.” Id. To satisfy this degree of

recklessness, “the offensive act must be performed under circumstances

which almost assure that injury or death will ensue.” Id. (cleaned up).

Relating to the second conviction, a defendant may also be guilty of

aggravated assault where he “attempts to cause or intentionally or knowingly

causes bodily injury to another with a deadly weapon.” 18 Pa.C.S.

§ 2702(a)(4). Bodily injury is defined as “[i]mpairment of physical condition

or substantial pain.” 18 Pa.C.S. § 2301. A deadly weapon includes ”[a]ny

firearm, whether loaded or unloaded[.]” Id.

Appellant argues that because he was not “fighting with [the victim] or

threatening her” before he fired his gun, he could not have had the intent to

cause Ms. Spicer either serious bodily injury or bodily injury with a deadly

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weapon. See Appellant’s brief at 20. He claims that “he was overwhelmed,

tired, and just trying to scare the hell out of [her].” Id. Appellant further

contends that there was “no [other] direct evidence” of his intent. Id.

The evidence was sufficient to sustain both of Appellant’s convictions for

aggravated assault against Ms. Spicer. First, the victim established that she

suffered serious bodily injury where she had to have surgery to remove a

bullet lodged inside her hand, and as of the date of trial, she suffered

“protracted loss or impairment of the function of” it and continued to

experience pain. 18 Pa.C.S. § 2301; see also Williamson, 330 A.3d at 418-

19 (holding that sufficient evidence supported a finding that the victim

suffered serious bodily injury where the defendant stabbed her in the neck,

bicep, and hand where some areas contained vital blood vessels, and she lost

use of and feeling in a finger). The Commonwealth further demonstrated that

Appellant took action that would assure that injury or death would ensue

where he intentionally pointed and shot his firearm multiple times at Ms.

Spicer’s driver-side door where she was sitting. See id. at 417.

As to the remaining aggravated assault conviction directed to Ms.

Spicer, the Commonwealth proved that Appellant caused her bodily injury

using a deadly weapon where he pointed and shot a loaded gun at her four

times, resulting in severe bruising and pain from the bullet that nearly struck

her. See N.T. Trial, 3/4-7/24, at 160-61; see also Commonwealth v.

Wroten, 257 A.3d 734, 744 (Pa.Super. 2021) (holding that an appellant

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caused bodily injury to a victim where he pushed her against a wall and caused

bruising); Commonwealth v. Bailey, 245 A.3d 1075, 2020 WL 7386196, at

*4 (Pa.Super. 2020) (non-precedential decision) (affirming a conviction for

aggravated assault where the defendant shot at the victim as she was entering

her vehicle). Ms. Spicer’s coat was the only barrier that prevented the

projectile from penetrating her shoulder. Accordingly, no relief is due.

Appellant lastly avers that the evidence was insufficient to sustain his

conviction for aggravated assault against the officers who responded to his

home. A defendant is guilty of aggravated assault where he “attempts by

physical menace to put any [police officer], while in the performance of duty,

in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2702(a)(6), (c)(1).

This Court has found sufficient evidence to support a conviction for aggravated

assault where the defendant pointed a firearm at a uniformed police officer

and refused an instruction to drop the weapon. See Commonwealth v.

Sheppard, 837 A.2d 555, 558 (Pa.Super. 2003).

Appellant claims his actions demonstrate that he was cooperative with

officers considering their “chaotic” entry into his home. See Appellant’s brief

at 23. He points out that since it was early in the morning, his house was

dark, and his gun did not have a light attached to it. Id. at 22-23. Appellant

maintains that officers were also in protective gear, he did not threaten them,

and he “quickly” complied with their commands to put his gun down and

surrender himself “once he understood the situation.” Id. at 23. Therefore,

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he declares that the jury could not have inferred that he intended to put the

officers in fear of imminent serious bodily injury. Id.

The record supports Appellant’s conviction for aggravated assault

against the officers. His assertion that he immediately complied with

commands to put his weapon down is belied by the officers’ testimony. As

they explained, Appellant pointed his firearm at them upon their entry into his

house. They had knocked and announced themselves and were in uniform.

Appellant also told Officer Lebo that he assumed the police were at his home.

Rather than placing his gun down when ordered to do so, Appellant rolled off

the side of his bed, concerning the officers that he could shoot at them while

he was out of sight. See N.T. Trial, 3/4-7/24, at 225-26. Only twenty to

thirty seconds later did Appellant stand up and surrender. Id. at 230. Thus,

the evidence was sufficient for the jury to find Appellant guilty of aggravated

assault against the officers. See Sheppard, 837 A.2d at 558.

Overall, Appellant has not demonstrated that the evidence was

insufficient to sustain his convictions. Accordingly, we affirm his judgment of

sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 05/13/2025

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