J-S11027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES ROBERT SCHOLL

Appellant No. 908 MDA 2014

Appeal from the Judgment of Sentence May 8, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0001683-2013

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED JUNE 02, 2015

James Robert Scholl brings this appeal from the judgment of sentence 

imposed May 8, 2014, in the Court of Common Pleas of Centre County. A 

jury found Scholl guilty of aggravated assault — attempted serious bodily

injury (three counts), aggravated assault — official in fear (three counts), 

terroristic threats (three counts), simple assault (three counts), recklessly 

endangering another person (three counts), and resisting arrest (one 

count).1 The trial court sentenced Scholl to an aggregate term of 16 to 32 

years’ imprisonment.2 Scholl challenges the sufficiency of the evidence to 

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1 18 Pa.C.S. §§ 2702(a)(1), 2702(a)(6), 2706(a)(1), 2701(a)(1), 2705, and 

5104(a)(1), respectively. The trial court found Scholl guilty of the summary 

offense of harassment, 18 Pa.C.S. § 2709.

2 The trial court sentenced Scholl to consecutive terms of five to ten years’ 

imprisonment on the three counts of aggravated assault under § 2702(a)(1), 

(Footnote Continued Next Page)
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sustain his convictions for aggravated assault as a felony of the first degree, 

and his conviction for resisting arrest. Based upon the following, we vacate 

the judgment of sentence and remand the case for resentencing.

The trial court has aptly stated the facts underlying this appeal: 

[Scholl’s] charges stem from an incident in which Officers 

Chambers, Albright, and Shaffer responded to a call regarding a 

domestic incident. Testimony from each officer indicated a call 

to respond to 112 Zurich Road in Centre County was received on 

September 14, 2013. The call related to a female who had 

briefly been held against her will by an occupant of the trailer. 

The caller indicated a gun was in the trailer, but she did not 

believe the other occupant had possession of the firearm at the 

time she called the police.

Officer Shaffer, Officer Albright, and Officer Chambers all 

responded to [Scholl’s] address. Officer Shaffer spoke with 

Brianna Baxter, [Scholl’s] girlfriend. Officer Shaffer testified he 

went around to the side of the trailer to determine whether a 

side door was unlocked and observed [Scholl] briefly look out 

the window, then retreat back into the trailer. Officer Shaffer 

attempted to notify the other officers he had observed [Scholl], 

but they could not hear him because of the volume of the music 

coming from the trailer. As Officer Shaffer rounded the trailer 

and approached the front porch, he testified he heard one of the 

officers ordering [Scholl] to drop his weapon. Officer Chambers 

testified he was standing in front of the door when [Scholl] 

opened the door with the firearm. When [Scholl] saw Officer 

Chambers, he raised the gun and pointed it at Officer Chambers, 

who immediately placed his hands over the weapon and 

attempted to wrestle it from [Scholl].

(Footnote Continued) _______________________

and one to two years’ imprisonment on the count of person not to possess a 

firearm. The court imposed a concurrent term of nine to eighteen months 

on the count for resisting arrest. On the summary charge of harassment, 

the court ordered Scholl to pay all costs.
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As Officer Shaffer entered the trailer, he observed Officers 

Albright and Chambers struggling on the floor with [Scholl] in

the living room area. [Scholl] was holding the gun and Officer 

Chambers was clasping it with both hands, attempting to gain 

control of it and keep it from pointing at any of the officers. 

[Scholl] continued to attempt to point the gun at the officers 

while they struggled with him. All three officers testified the gun 

was pointed at each of them at least once during the encounter, 

and they felt it was a “life and death” struggle – they were all in 

fear of [Scholl] discharging the weapon at them. Officer Albright 

testified he observed [Scholl’s] finger on the trigger of the 

weapon during the encounter, and all three officers testified the 

gun was pointed at each of them at least once during the 

incident.

After officers were able to secure the gun, they testified [Scholl] 

continued to struggle, refusing to put his hands behind his back, 

tensing his muscles, and attempting to keep his hands at his 

side to prevent the officers from handcuffing him. [Scholl] did 

not cease struggling until officers were able to secure one hand 

with a handcuff. At that point, [Scholl] complied with 

instructions and officers were able to handcuff him.

Sergeant Ryan Hendrick testified he responded to the call after 

the struggle. He took [Scholl] into custody and questioned him. 

Sergeant Hendrick is the Centre County Alcohol Task Force 

Coordinator, and has extensive experience with intoxicated 

individuals. He noticed an odor of an alcoholic beverage about 

[Scholl’s] person, but did not feel [Scholl] was so intoxicated 

that he was unable to comprehend questions or engage in an 

interview. [Scholl] answered all questions coherently and 

appropriately, and was not stumbling or otherwise unable to 

physically navigate.

The Commonwealth played the audio recording of the interview 

for the jury. In the interview, [Scholl] indicated he took the 

pistol from the drawer and put the clip in it, but did not actually 

pull the slide on the weapon back to chamber a round. This is 

consistent with the testimony from Officer Chambers, who 

testified when he cleared the weapon after the struggle with 

[Scholl], the clip was in the weapon but there was not a round in 

the chamber.
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[Scholl] maintained he took the gun to the door because he 

heard a noise outside and suspected someone was stealing his 

girlfriend’s purse, which he had placed on the porch earlier in the 

evening during their argument. He testified he pointed the 

weapon at the officers because he was startled to see them 

standing on the porch when he opened the door, and was unable 

to drop the gun when ordered because Officer Chambers was 

pressing it into his hand. He also testified he was extremely 

intoxicated throughout the period in question, but the Court 

notes he appeared able to recall almost the entire incident when 

testifying. The only significant part of the encounter [Scholl] 

alleged he had no recollection whatsoever of was when he gave 

a statement to Sergeant Hendrick after the incident.

Trial Court Opinion, 5/21/2014, at 2-4 (record citations omitted).

A jury convicted Scholl of the above stated charges and, following the 

denial of post sentence motions, this appeal followed.3

Initially, we state our standard of review:

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 [this] 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. 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 

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3 Scholl timely complied with the order of the trial court to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal.
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passing upon the credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none of the 

evidence.

Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (citation 

omitted), appeal denied, 62 A.3d 379 (Pa. 2013).

Scholl first challenges the sufficiency of the evidence to sustain his 

three convictions of aggravated assault, 18 Pa.C.S. § 2702(a)(1), graded as 

a felony of the first degree.4

Under Section 2702(a)(1), a person may be convicted of aggravated 

assault if he “attempts to cause serious bodily injury to another, or causes 

such injury intentionally, knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of human life. 18 Pa.C.S. § 

2702(a)(1). “Serious bodily injury” means “[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. “For aggravated assault purposes, an ‘attempt ’ 

is found where the accused, with the required specific intent, acts in a 

manner which constitutes a substantial step toward perpetrating a serious 

bodily injury upon another.” Commonwealth v. Gray, 867 A.2d 560, 567 

(Pa. Super. 2005), appeal denied, 879 A.2d 781 (Pa. 2005). Such intent 

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4 See 18 Pa.C.S. § 2702(b) (“Aggravated assault under subsection (a)(1), 

(2) and (9) is a felony of the first degree. Aggravated assault under 

subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the second 

degree.”).
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may be proven circumstantially. Commonwealth v. Rightley, 617 A.2d 

1289, 1295 (Pa. Super. 1992).

Scholl claims “[t]he evidence was insufficient to prove beyond a 

reasonable doubt that [he] possessed the requisite specific intent to cause 

serious bodily injury to Officer Chambers, Sergeant Albright, and Officer 

Shaffer, and that he took a ‘substantial step’ towards inflicting serious bodily 

injury.” Scholl’s Brief, at 21. Specifically, Scholl argues that he 

never fired the gun, nor did he ever attempt to discharge the 

gun. Upon examination, the clip or magazine contained one 

single round. There were no rounds in the chamber as the 

firearm was unprimed. In order for [Scholl] to actually fire the 

gun, he would have had to rack the slide with his hand to 

chamber a round from the clip or magazine into the chamber. 

[Scholl] never uttered any verbal threats to fire the gun or to 

harm the officers. In fact, from the time the trailer door opened 

until he was placed in handcuffs, [Scholl] did not say anything at 

all. 

Id. at 28 (record citations omitted). In support of his argument, Scholl cites 

to case authority for the proposition that the mere act of pointing a gun at 

another, without more, does not constitute aggravated assault. See Scholl’s 

Brief at 25-28, citing Commonwealth v. Matthew, 909 A.2d 1254 (Pa. 

2006), Commonwealth v. Alford, 880 A.2d 666 (Pa. Super. 2005), and 

Commonwealth v. Savage, 418 A.2d 629, 632 (Pa. Super. 1980). 

In Alford, the defendant, a jail escapee, was convicted under 

§ 2702(a)(1) of aggravated assault after he pounded on a woman’s door, 

was refused entry, and then momentarily pointed a gun through her frontdoor window, after which she fled the house through the back door. In 
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reversing that conviction, this Court noted, “It is well settled that merely 

pointing a gun at another person in a threat to cause serious bodily injury 

does not constitute an aggravated assault.” 880 A.2d at 671; see 

also Savage, supra.

Alford was followed by our Supreme Court’s later pronouncement in 

Matthew, supra. In Matthew, the defendant was convicted of aggravated 

assault under § 2701(a)(1) after he first placed a loaded gun against the 

victim’s throat, continued to restrain the victim throughout the encounter by 

pointing the gun at him, and threatened to kill him. The Supreme Court 

upheld the sufficiency of the evidence supporting that conviction. The 

Matthew Court reaffirmed that the totality of the circumstances are 

examined to determine if a defendant demonstrated the intent to inflict 

serious bodily injury. Matthew, 909 A.2d at 1258. The Court concluded that 

the defendant “attempted to inflict serious bodily injury upon [the victim] 

and intended to do so” in light of the fact that he “placed a loaded gun 

against [the victim’s] throat, repeatedly pointed it at him, and threatened to 

kill him seven to ten times.” Id. at 1258. Significantly, the Matthew Court 

continued that, if the “threats alone were not enough to establish his intent, 

the fact-finder could determine his intent from pushing the loaded gun 

against [the victim’s] throat and otherwise pointing it at him.” Id. at 1259. 

Here, the trial court rejected Scholl’s argument, as follows:

The evidence showed [Scholl] pointed the loaded weapon at the 

officers. The Court acknowledges this alone is insufficient to 

infer the specific intent to injure required for aggravated assault. 
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However, when combined with the testimony of [Scholl’s] finger 

on the trigger and continued attempts to direct the firearm at 

the officers, the evidence was sufficient to establish the required 

intent to cause serious bodily injury ... to the officers. The mere 

fact that the officers were able to overpower [Scholl] and take 

the weapon from him before he was able to fire it does not 

negate his actions nor the intent they demonstrate.

Further, the act of pointing the loaded gun with his finger on the 

trigger and his continuing attempt to direct the weapon at 

officers while they were attempting to disarm him was also [a] 

substantial step toward perpetrating serious bodily injury upon 

them. Again, simply because the officers were able to 

overpower [Scholl] and stop him from firing the weapon does 

not negate the intent demonstrated by his actions. Therefore, 

the evidence is sufficient to support the “intent” and “substantial 

step” elements ....

Trial Court Opinion, 5/21/2014, at 5 (citation omitted). Based on our 

review, we agree with the trial court that Scholl’s sufficiency challenge fails. 

“Where the intention of the actor is obvious from the act itself, the 

[fact-finder] is justified in assigning the intention that is suggested by the 

conduct.” Matthew, 909 A.2d at 1259 (citation omitted). The evidence 

showed Scholl pointed the loaded gun at three police officers, redirecting it 

at each one individually. 5 Scholl kept his finger on the trigger of the gun 

____________________________________________

5 Officer Shaffer testified: “The gun was sort of moving around in front of 

everybody’s face as [Scholl] was attempting to struggle to keep hold of the 

weapon while Officer Chambers was trying to remove it from his hands.” 

N.T., 3/24/2014, at 56. He further stated that the gun “came right across 

my face at least once[.]” Id. Sergeant Albright testified that Scholl pointed 

the gun at Officer Chambers and at himself. Id. at 89, 91, 96. Officer 

Chambers also testified that Scholl pointed the gun at him, “a foot from his 

face.” Id. at 118.
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and refused to disarm even though police ordered him to drop the weapon 

25 or 30 times. N.T., 3/24/2014, at 64. The officers wrestled Scholl on the 

ground for approximately 30 seconds to a minute6 before seizing the gun 

from him. The gun had one bullet in the clip or magazine.7 This evidence, 

viewed in the light most favorable to the Commonwealth as verdict winner, 

was sufficient to support the jury’s conclusion that Scholl had the intent to 

cause serious bodily harm to the officers, and that he took a substantial step 

towards inflicting serious bodily injury, as required by Section 2702(a)(1). 

Therefore, Scholl’s first argument warrants no relief.

Scholl also challenges the sufficiency of the evidence to sustain his 

conviction for resisting arrest. A defendant may be convicted of resisting 

arrest if he, “with the intent of preventing a public servant from effecting a 

lawful arrest or discharging any other duty, ... creates a substantial risk of 

bodily injury to the public servant or anyone else, or employs means 

justifying or requiring substantial force to overcome the resistance.” 18 

Pa.C.S. § 5104. This statutory language “does not require the aggressive 

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6 N.T., 3/24/2014, at 57, 121.

7

 While we acknowledge Scholl’s argument that no bullet was in the 

chamber of the gun, the magazine did contain one live round. Scholl 

indicated to police he had taken the pistol and put the magazine in it, 

thereby intentionally loading the weapon. See N.T., 3/24/2014, at 148, 162 

(Commonwealth Exhibit 5), 223. Had Scholl operated the slide, chambering 

the round, he could have fired the gun. The actions of the police in placing 

their hands on the weapon prevented that from happening.
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use of force such as a striking or kicking of the officer.” Commonwealth v. 

McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011) (quotations and citation 

omitted), appeal denied, 29 A.3d 372 (Pa. 2011). 

We note, initially, that a lawful arrest is an element of resisting arrest, 

Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007), and that, in 

this case, police had probable cause to arrest based upon Scholl’s actions 

when he confronted police. With regard to the remaining elements, Scholl 

claims he did not create a “substantial risk of bodily injury” to the officers or 

require “substantial force” to overcome. Scholl’s Brief at 31. 

We recognize that, in general, a “minor scuffle” is insufficient to 

support a charge of resisting arrest. Commonwealth v. Rainey, 426 A.2d 

1148, 1150 (Pa. Super. 1981). However, the evidence in this case showed 

more than a minor scuffle. Officer Shaffer testified that after the officers 

had wrested the gun from Scholl, Scholl continued to “actively resist” and he 

had to use a “shoulder lock.” N.T., 3/24/2014, at 63. Officer Shaffer 

explained that Scholl was “wrestling trying to keep us from being able to get 

his hand ... tensing up ... keeping us from being able to get control of it ... 

and we’re just trying to wrench his hands to get them into a position where 

we can actually apply handcuffs at that point.” Id. He further testified that 

Scholl “did not acquiesce to anything until we finally had a handcuff on one 

hand and had him rolled over and bellied out.” Id. at 64. Sergeant Albright 

confirmed that Scholl “was actively resisting ... even after Officer Chambers 
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got the firearm away[,]” and that “Officer Shaffer was the one who was 

actually able to arm bar [Scholl].” Id. at 106. Likewise, Officer Chambers 

also testified that after he took hold of the gun from Scholl and stood up, the 

struggle continued. See id. at 123. He estimated that after the gun was 

removed from Scholl, it took “maybe another 30 [seconds] to get him 

secured[.]” Id. at 121. 

The statutory language of Section 5104 criminalizes resistance 

behavior that requires substantial force to surmount. Although Scholl cites 

Sergeant Albright’s testimony that Scholl may have just been struggling in 

the limited space of the trailer to get his arms behind his back, and that had 

he truly felt Scholl was resisting arrest, he would have tasered him,8our 

standard of review requires that we view the evidence in the light most 

favorable to the Commonwealth as verdict winner. Here, we conclude that 

the evidence was sufficient for the jury to conclude that the officers had to 

employ substantial force to overcome Scholl’s resistance, and to find him 

guilty of resisting arrest. See Commonwealth v. Thompson, 922 A.2d 

926, 928 (Pa. Super. 2007) (appellant guilty of resisting arrest where she 

would not allow police officer to handcuff her and refused order to put her 

hands behind her back; officer’s efforts to restrain her left him exhausted). 

Accordingly, this claim likewise fails.

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8 See Scholl’s Brief at 31–32.
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Nonetheless, it appears from the record that the trial court imposed a 

mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712, a statute that 

has been found to be constitutionally infirm in light of the United States 

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct 2151 (U.S. 

2013). See Commonwealth v. Ferguson, 107 A.3d 206 (Pa. Super. 

2015); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). 

Cf. Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc). 

Therefore, in an abundance of caution, we consider the issue of the 

mandatory minimum sentences imposed on the counts of aggravated 

assault, pursuant to Section 9712.9

Although Scholl did not contest the imposition of the mandatory 

minimum sentences on appeal, “a challenge to a sentence premised upon 

Alleyne ... implicates the legality of the sentence and cannot be waived on 

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9 The trial court did not cite 42 Pa.C.S. § 9712 in its sentencing orders on 

the aggravated assault counts, but only stated that the court “finds that a 

deadly weapon was used.” Orders (Count 1, Count 2, Count 3), dated 

5/8/2014, filed 5/19/2014. However, the Commonwealth notified Scholl 

that he was subject to the mandatory minimum sentence of five years for 

the aggravated assault counts at Count 1, Count 2, and Count 3, pursuant to 

42 Pa.C.S. § 9712. See Commonwealth’s Notice of Mandatory Sentence 

Under 42 Pa.C.S. § 9712, 3/26/2014. Moreover, both Commonwealth 

counsel and trial counsel referenced the mandatory five-year sentences for 

Counts 1 through 3 in argument to the court at sentencing. See N.T., 

Sentencing, 4/29/2014, at 5, 10. Finally, we note that relevant, proposed 

sentencing guideline forms that were prepared for and included in the 

presentence investigation report reflect a mandatory minimum of 60 months 

and include citation to 42 Pa.C.S. § 9712. See Presentence Investigation 

Report, 6/4/2014. 
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appeal.” Newman, supra, 99 A.3d at 90. Moreover, this Court may 

address the legality of a defendant’s sentence sua sponte. Commonwealth 

v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc), appeal denied, 

95 A.3d 277 (Pa. 2014). 

In Alleyne v. United States, 133 U.S. 2151 (2013), the United 

States Supreme Court held “[a]ny fact that, by law, increases the penalty for 

a crime is an ‘element’ that must be submitted to the jury and found beyond 

a reasonable doubt.” Id. at 2155. Applying this mandate, this Court has 

held that Alleyne renders unconstitutional mandatory minimum sentencing 

statutes that permit the trial court to increase a defendant’s minimum based 

upon a preponderance of the evidence, as opposed to utilizing the beyond a 

reasonable doubt standard. See Newman, supra (finding 42 Pa.C.S. § 

9712.1 unconstitutional). See also Commonwealth v. Vargas, 108 A.3d 

858 (Pa. Super. 2014) (en banc) (applying Newman to 18 Pa.C.S. § 7508); 

Ferguson, supra (applying Newman to 42 Pa.C.S. § 9712); 

Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014) (applying 

Newman to § 6317); Valentine, supra (applying Newman to 42 Pa.C.S. 

§§ 9712 and 9713).

While, in this case, the jury determined, via the verdict slip, the factual 

predicate under section 9712, this Court has found that by such efforts to 

comply with the dictates of Alleyne, the courts perform “an impermissible 

legislative function.” Commonwealth v. Mosley, ___ A.3d ___, ___ [2015 
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PA Super 88] (Pa. Super. April 20, 2015); Ferguson, supra; Valentine, 

supra. Accordingly, we are constrained to vacate the judgment of sentence 

and remand for resentencing.10

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2015

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10 We note that application of the deadly weapon enhancement does not 

violate Alleyne. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 

1269 n.10 (Pa. Super. 2014) (discussing deadly weapon enhancement), 

appeal denied, 104 A.3d 1 (Pa. 2014). See also Commonwealth v. Ali,

2015 PA Super 45 (Pa. Super. 2015) (discussing school zone 

enhancement).