Com. v. Bauer, K.
Com. v. Bauer, K. No. 1721 MDA 2016
| Pa. Super. Ct. | Jun 16, 2017Background
- Off-duty Corporal McDonald, a drug interdiction officer, observed a white KIA and a white Audi in a grocery‑store lot; he approached the Audi after seeing a man exit the KIA and enter the Audi.
- McDonald identified himself and asked to speak; Bauer (Audi driver) reversed, striking another car (driven by Greenwald), then pulled forward; McDonald opened Bauer’s passenger door and ordered Bauer to park and shut off the engine.
- Bauer again reversed at speed, the open passenger door struck and pinned McDonald between the Audi and Greenwald’s vehicle; Bauer fled. McDonald later identified Bauer and Bauer was arrested following a separate incident at his home.
- Bauer was tried: convicted by jury of aggravated assault (against an officer), two counts REAP, two counts simple assault, resisting arrest, and accident involving damage; pled guilty to disorderly conduct in a related case; aggregate sentence 39–96 months.
- On appeal Bauer raised suppression (illegal stop), evidentiary/propensity testimony, insufficiency of evidence for assault/REAP convictions (against McDonald and Greenwald), and challenges to discretionary sentencing (consecutive sentences, severity).
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Bauer) | Held |
|---|---|---|---|
| Validity of initial stop / suppression | McDonald’s approach was a permissible mere encounter that later became a detention justified by Bauer’s vehicle collisions and unsafe conduct | Stop was an illegal seizure; McDonald acted on hunch (no observed drug sale); evidence flowing from stop should be suppressed | Held encounter was a mere encounter until McDonald ordered Bauer to park; detention thereafter supported by reasonable suspicion (vehicle collisions/MVC violations); suppression denied |
| Admissibility of testimony about drug activity | Testimony explained why McDonald approached — admissible as background; jury instructions mitigated prejudice | Testimony about drug activity and informants was prejudicial propensity evidence | Held claim waived (no contemporaneous trial objection); even if preserved testimony admissible to explain officer’s conduct and jury was instructed accordingly |
| Sufficiency: aggravated assault, simple assault, REAP (McDonald) | Circumstantial evidence (Bauer saw open door and officer; backing struck and pinned officer) allowed inference of intent or reckless disregard | Bauer’s backing was not purposeful to harm; lacked mens rea to support aggravated assault/REAP | Held evidence sufficient for aggravated assault, simple assault and REAP as to McDonald (intent/recklessness inferred from conduct) |
| Sufficiency: simple assault and REAP (Greenwald) | Multiple intentional reversals hitting Greenwald’s car despite its position and officer’s warnings supported intent/recklessness | The contact was an accident/parking mishap; no bodily injury and no criminal intent | Held evidence sufficient: convictions sustained (no bodily injury required; intent/recklessness inferred from repeated dangerous reversals) |
| Discretionary sentencing (concurrent v. consecutive, excessiveness) | Trial court properly considered PSI, factors, and explained sentencing; within guideline ranges for most counts | Sentences excessive; court misapplied facts at sentencing and improperly ran resisting arrest consecutively | Held sentencing claims didn’t present a substantial question; even if considered, no abuse of discretion — court considered factors and PSI; sentences affirmed |
Key Cases Cited
- Commonwealth v. Downey, 39 A.3d 401 (Pa. Super. 2012) (distinguishes mere encounter, investigative detention, arrest)
- Commonwealth v. Cooper, 994 A.2d 589 (Pa. Super. 2010) (objective test whether a reasonable person would feel free to leave)
- Commonwealth v. Au, 42 A.3d 1002 (Pa. 2012) (badge display and request to talk can remain a mere encounter)
- Commonwealth v. Beasley, 761 A.2d 621 (Pa. 2000) (initial badge display and ask to talk was a mere encounter)
- Commonwealth v. Farnan, 55 A.3d 113 (Pa. Super. 2012) (reasonable suspicion to stop vehicle for Vehicle Code violation)
- Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008) (reasonable suspicion of Vehicle Code violation justifies stop regardless of officer motive)
- Commonwealth v. Klein, 795 A.2d 424 (Pa. Super. 2002) (using a vehicle to hit a person supports assault and REAP convictions)
- Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001) (assault on police officer in performance of duties meets aggravated assault elements)
- Commonwealth v. Miller, 955 A.2d 419 (Pa. Super. 2008) (high‑speed flight and disregard for officer commands can support aggravated assault)
- Commonwealth v. Sunealitis, 153 A.3d 414 (Pa. Super. 2016) (standard for sufficiency review)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (four‑part test and what constitutes a substantial question for sentencing review)
- Commonwealth v. Downing, 990 A.2d 788 (Pa. Super. 2010) (standard of review for discretionary sentencing)
- Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006) (presumption that sentencing court considered PSI and relevant factors)
- Commonwealth v. Ventura, 975 A.2d 1128 (Pa. Super. 2009) (trial court’s awareness of PSI satisfies requirement to place reasons on record)