J-S63014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KUEON DIEDRICK,

                            Appellant               No. 1809 MDA 2013


            Appeal from the Judgment of Sentence August 28, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002343-2013


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 08, 2014

       Kueon Diedrick appeals from his August 28, 2013 judgment of

sentence of twelve to twenty-four months incarceration, which was imposed

following his conviction by a jury of simple assault and terroristic threats.

Appellant claims that his convictions were against the weight of the evidence

and that the trial court improperly instructed the jury on the terroristic

threats charge. We affirm in part and reverse in part, and remand for a new

trial on the terroristic threats charge.

       The trial court delineated the following facts that gave rise to

Appellant’s conviction:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S63014-14


            In the early morning hours of April 7, 2013, Appellant was
     present at Vice Martini Lounge, a bar located at 528 East
     Lancaster Avenue in Shillington, Berks County. At some point
     during the evening, a friend of Appellant tried to exit the building
     with a drink in hand. The friend was angered when a security
     guard asked him to put the glass on top of a table near the front
     entrance. Appellant angrily “walked up on” the security guard
     and was “starting to give him some lip.” Another security guard
     escorted Appellant out of the establishment. Security guards
     demanded multiple times that Appellant leave the property.
     Police, already outside the building to conduct surveillance and
     to maintain order, informed Appellant that he would need to
     leave the premises or be at risk of trespassing. The officers
     repeated this instruction multiple times. Officer Duane Witman
     testified that Appellant drove away but quickly returned:

     Q:    And about how many times did you have to tell
           [Appellant] to leave?

     A:    It was several. I escorted him to his vehicle, and he
           kept turning around. . . . He kept turning around to
           like go back, and I kept telling him, listen, just leave.
           It is not worth it. Go away. He walked over and got
           into a silver Nissan Altima. And I thought that was
           the end of it. But as I returned to the front of Vice
           Martini Lounge he drove his vehicle around me and
           got out of his car again. And this time he parked in
           front of the front doors.

     Q:    And then did you see the car leave?

     A:    Eventually it did leave. He got into his vehicle.
           Another black male got into the vehicle, the
           passenger’s side. He actually got out of the vehicle a
           second time, and I said I told you to leave. Now
           leave. And then the vehicle he got back in and the
           vehicle sped away.

     This occurred around 2:00 am, the bar’s closing time.

           That evening’s staff – eight to ten individuals – left the bar
     at approximately 2:15 a[.]m. The police were still outside but
     indicated that they had to leave because of another call. Within
     minutes of the police departing, Appellant pulled up in a silver
     Nissan Altima and parked perpendicularly across several parking
     spaces near the entrance of the bar. Appellant deactivated the

                                     -2-
J-S63014-14


     vehicle’s lights and exited the vehicle, brandishing a handgun in
     his left hand – “walking up and waving it”. The bar’s staff
     ushered everyone present to the back of the bar. Appellant was
     recognized by staff as having been involved in the earlier
     incident, and also from his patronage of the bar on several
     previous occasions.

            Appellant demanded to see the security guard who had
     earlier removed him from the bar.        On-scene witnesses
     described Appellant as angry and clearly looking for a
     confrontation:

     Q:   What did he say to you?

     A:   He wants the big man out. He wanted to settle this
          and that.

     Q:   Can you slow down and repeat that?

     A:   He was calling the one security guy out that kicked
          him out.

     Q:   And what did he say?

     A:   He said he wants him out, step up. He pretty much
          wanted to fight him out front.

     Q:   Do you remember any specific things that he said?

     A:   Big man. Kept saying big man. I want big man, I
          want big man now. He has no – he doesn’t have
          balls now to come outside now, stuff like that.

     Q:   And were you fearful at all?

     A:   When he first walked up, yeah. When I saw the gun.
          I wasn’t the main target, but I wasn’t sure. I don’t
          know who he is. When he put it away I was a little
          better, but he still had it on him. And when he
          asking for big man, if he would have came out, I
          don’t know what would have happened.             He
          obviously had [a gun] on him.

           Staff members insisted that the guard in question had
     already left, though he had actually been hidden in the back of
     the bar. After hearing this, Appellant put the handgun behind
     his back, placing it “in his waistband up his pants.” Appellant


                                    -3-
J-S63014-14


      returned to his car and got in the driver’s seat.     An employee
      testified as to what happened next:

            They came right in front of us in the fire lane, and
            then turned back into the parking lot. We have a
            shack that sells newspapers and everything in our
            parking lot. It is about 50 feet from – I mean 50
            yards from us. And he pulls in between the shack
            and the establishment, and fired one into what I
            believe was the air from the driver’s side from the
            firearm, and then took off through the stop sign and
            stop lights on Lancaster Avenue, going back towards
            Reading.

            At least one witness also saw the muzzle flash.
      Defendant’s car was pulled over shortly thereafter, at 2:37
      a[.]m., approximately three blocks from the bar. No gun or shell
      casings were recovered.

Trial Court Opinion, 12/6/14, at 3-5 (citations omitted).

      The jury found Appellant guilty of simple assault and terroristic

threats; the trial court found Appellant guilty of driving while operating

privilege is suspended or revoked and disorderly conduct.       Appellant was

sentenced to concurrent terms of incarceration of twelve months to twenty-

four months for the simple assault and terroristic threats charges. He filed a

post-sentence motion alleging that the verdict was against the weight of the

evidence and challenging the harshness of his sentence, which was denied

by order dated September 12, 2013.

      Appellant filed a timely appeal and complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained on

appeal, and subsequently amended that concise statement. The trial court




                                     -4-
J-S63014-14


authored its 1925(a) opinion addressing all issues.     On appeal, Appellant

pursues two issues:

      1.    Whether the Trial Court erred by not granting a new trial
            on the basis that the guilty verdicts for [sic] were contrary
            to the weight of the evidence, where the inconsistent
            testimony of the witnesses was the only evidence linking
            the Defendant to the alleged crime, and no firearm, shell
            casing, or other evidence were found and or presented as
            to the defendant’s involvement of the crimes charged and
            several inconsistencies regarding type of automobile and
            time of the alleged crime were presented at trial.

      2.    Whether the Trial Court erred by instructing the jury as the
            elements of terroristic Threats, 18 Pa C.S.A. § 2706(a)(3),
            where the Information was amended to charge defendant
            with 18 Pa. C.S.A. § 2706(a)(1), and the trial court failed
            to give the jury the proper instruction prior to deliberation
            thereby causing prejudice to the Defendant because the
            jury was not instructed on the proper law to apply to the
            facts.

Appellant’s brief at 6.

      When reviewing a challenge of the weight of the evidence we apply the

following standard:

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, “the
      role of the trial judge is to determine that ‘notwithstanding all
      the facts, certain facts are so clearly of greater weight that to
      ignore them or to give them equal weight with all the facts is to
      deny justice.’” It has often been stated that “a new trial should
      be awarded when the jury’s verdict is so contrary to the
      evidence as to shock one’s sense of justice and the award of a
      new trial is imperative so that right may be given another
      opportunity to prevail.

Commonwealth v. Clay, 64 A.3d 1049, 1054 (Pa. 2013) (internal citations


                                     -5-
J-S63014-14


omitted).

      Appellant claims that the trial court erred because the weight of the

evidence    did    not   support    his   simple   assault   and   terroristic   threats

convictions.      He maintains that his convictions were based on “incredible

testimony” concerning his possession of a firearm, uncertain and vague

identification evidence, and inconsistent witness testimony. Appellant’s brief

at 17.     He argues that the eyewitness testimony offered by the security

personnel, Jason Spotts and Richard Nesbitt, lacked sufficient credibility to

sustain his guilty verdicts.       Appellant asserts that Spotts was speaking on

the telephone and distracted when he ostensibly observed Appellant with a

firearm.     Nesbitt testified that Appellant was driving a white vehicle,

although Appellant was driving a silver vehicle when he was stopped by

police. Appellant focuses on the fact that neither Spotts nor Nesbitt could

specifically describe the firearm in question.        Id. at 18. Finally, he points

out that there was a discrepancy in the timing of events presented at trial,

and a lack of physical evidence to support the testimony regarding his

possession of a firearm. Id.

      The trial court correctly noted that it cannot order a new trial based on

the weight of the evidence unless the “verdict is so contrary to the evidence

as to shock one’s sense of justice.”          Trial Court Opinion, 6/10/14, at 8.

Additionally, the trial court recognized that the “credibility of witnesses and

the weight to be accorded to the evidence produced are within the province



                                          -6-
J-S63014-14


of the trier of fact, who is free to believe all, some or none of the evidence.”

Id. The court characterized the testimony deemed inconsistent by Appellant

as “almost entirely consistent” and found that minor discrepancies in the

timing of the events “only lends credence to the testimonies.” Id. The trial

court concluded that the verdict did not shock one’s sense of justice and was

not contrary to the weight of the evidence.

      We find that the trial court applied the appropriate legal standard in

ruling on the weight of the evidence claim. Appellant has not provided any

compelling support for his claim that the trial court abused its discretion, and

it is not the role of this Court to reweigh the credibility of witnesses. Thus,

Appellant’s challenge to the weight of the evidence fails.

      Appellant’s second issue involves error in the trial court’s terroristic

threats instruction to the jury.      When a reviewing court considers a

challenge to a jury instruction, the court must first review the charge as a

whole, not just isolated portions, to determine if it fairly conveys the legal

principles at issue.   Commonwealth v. Sepulveda, 55 A.3d 1108, 1141

(Pa. 2012); Commonwealth v. Jones, 683 A.2d 1181, 1196 (Pa. 1996). A

jury instruction will be found to be proper if it “clearly, adequately and

accurately reflects the law.” Sepulveda, supra at 1141. We afford the trial

court broad discretion when choosing the language and phrasing of jury

instructions calculated to complicated legal concepts to the jury. Id. A jury

charge should not be rigidly inspected by a reviewing court, and reversible


                                     -7-
J-S63014-14


error should not be found for every technical inaccuracy; error should only

be found if taken as a whole, the jury charge inadequately and inaccurately

set forth the applicable law.   Commonwealth v. Daniels, 963 A.2d 409,

430 (Pa. 2009); Commonwealth v. Thompson, 647 A.2d 217 (Pa. 1996).

     The Commonwealth argues that Appellant’s challenge to the terroristic

threats charge is waived because he did not object below. According to the

Commonwealth, “no portions of the charge nor any omissions therefrom

may be assigned as error, unless specific objections are made thereto before

the jury retires to deliberate.” Pa.R.Crim.P. 647(B). Furthermore, “issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”     Pa.R.A.P. 302(a).      The trial court agreed with the

Commonwealth     and   concluded    that,   although   Appellant   had   ample

opportunity to object to the jury instruction, he chose not to do so and any

objection is waived. We disagree.

     At the close of jury charge, the court asked counsel, “are there any

additions or corrections?”   N.T., 8/7/13, at 124.     Defense counsel asked

permission to address the court at sidebar, which the court granted.       Id.

Counsel took issue with a portion of the trial court’s instruction that was

critical of defense counsel’s closing argument regarding the burden of proof




                                    -8-
J-S63014-14


and to which the Commonwealth had not objected.1            The court countered

that it would have sustained a Commonwealth objection for defense

counsel’s “grotesquely inappropriate” argument, which was “almost to a

level that would support disciplinary action[,]” and noted defense counsel’s

objection for the record. Id. at 125. At that moment, the Commonwealth’s

attorney spoke up and the following exchange occurred:

       [The Commonwealth]: I have one thing, your Honor.             The
       charge of terroristic threats with the (a)(1) was the commit [sic]
       any crime of violence with the intent to terrorize another. You
       read the (a)(3) section.

       The Court: Well that is what the Information says.

       [The Commonwealth]: I know. But we amended it in court.
       Wording and/or employees. And we amended the section of
       count 3 to the (a)(1).

       The Court: Well that was not apparent from the documents that
       I have. Let me see. Why didn’t you bring this up after I gave
       you copies at noon?

       [The Commonwealth]: I missed it until you read it.

       The Court: Well, you are going to live with it.

N.T., 8/7/13, at 125-26.



____________________________________________


1
   Defense counsel was objecting to the trial court’s ad lib addition to the
charge on the beyond a reasonable doubt standard. The trial court informed
the jury: “No part of that concept involves the production of evidence strong
enough that you would convict your mother and father of offenses or your
best friend. One of the reasons that we ask jurors the questions that we ask
you at the outset here is if you were related to anyone, or you had a close
personal relationship with them is because we don’t put jurors in the position
to do that.” N.T., 8/7/13, at 112.



                                           -9-
J-S63014-14


      Appellant concedes that he did not specifically object to the charge.

However, he maintains that the Commonwealth, in objecting based on the

parties’ prior stipulation and the entry of an order amending the information,

was speaking for both parties. The Commonwealth’s objection then was the

same as Appellant’s alleged error herein, and Appellant contends that the

Commonwealth’s objection was sufficient to bring this error to the trial

court’s attention so that it could be corrected before the jury was dismissed

to deliberate.   Commonwealth v. Martinez, 380 A.2d 747 (Pa. 1977)

(recognizing primary purpose of Pa.R.Crim.P. 119(b), predecessor to

Pa.R.Crim.P. 647(B), was to ensure that the trial court was provided the

opportunity to avoid error).    He argues that the purpose of the objection

requirement of Rule 647(B) was satisfied by the Commonwealth: to avoid

appellate review of easily correctable errors and issues. Commonwealth v.

Pressley, 887 A.2d 220, 224 (Pa. 2005).         Appellant maintains that an

objection was timely made, the error was brought to the court’s attention,

the court declined to correct it, and that any further objection on his part

would have been superfluous.

      We agree with Appellant that the Commonwealth merely took the lead

in pointing out an error regarding a matter to which both parties and the

trial court had earlier agreed.    Furthermore, Pa.R.Crim.P. 647(B), by its

terms, only requires a specific objection to the charge to preserve an issue

involving a jury instruction.   That rule provides in pertinent part: “(B) No


                                     - 10 -
J-S63014-14


portions of the charge nor any omissions therefrom may be assigned as

error, unless specific objections are made thereto before the jury retires to

deliberate.    All such objections shall be made beyond the hearing of the

jury.” Nowhere in the rule is it stated that the party complaining on appeal

must be the same party who objected below.2 The defense did not oppose

the Commonwealth’s efforts to seek correction of the instruction and any

defense objection would have been duplicative.          The purpose of the

objection requirement was satisfied by the discussion at sidebar: it provided

an opportunity for the trial court to correct the mistake.      Objection by

defense counsel would only have served to further anger the court that had

just soundly rebuked him. Thus, we decline to find the issue waived, and we

turn to the merits.

       Appellant argues that the trial judge improperly instructed the jury on

18 Pa.C.S. § 2706(a)(3), instead of subsection (a)(1). He contends this is

reversible error because the jury was not provided with the correct law

governing the crime charged. Appellant was initially charged with terroristic

threats, 18 Pa.C.S. § 2706(a)(3). By court order, the charge was amended

____________________________________________


2
  Our Supreme Court noted in Commonwealth v. Pressley, 887 A.2d 220,
224 (Pa. 2005), that, “[t]he Rules of Criminal Procedure are to ‘be construed
in consonance with the rules of statutory construction[,]’ Pa.R.Crim.P.
101(C), which require, inter alia, that provisions be interpreted in
accordance with the plain meaning of their terms.            See 1 Pa.C.S.
§ 1903(a).”



                                          - 11 -
J-S63014-14


to terroristic threats pursuant to 18 Pa.C.S. § 2706(a)(1). Order of Court,

8/6/13, at 1. The crime of terroristic threats is defined as follows:

      (a) Offense defined. A person commits the crime of terroristic
      threats if the person communicates, either directly or indirectly,
      a threat to:

            (1) commit any crime of violence with intent to
            terrorize another;

            (2) cause evacuation of a building, place of assembly
            or facility of public transportation; or

            (3) otherwise cause serious public inconvenience, or
            cause terror or serious public inconvenience with
            reckless disregard of the risk of causing such terror
            or inconvenience.

18 Pa.C.S. § 2706.

The trial court read the following instruction to the jury:

      The defendant has also been charged with the offense of
      terroristic threats. To find the defendant guilty of this offense,
      you must find that the following elements have been proven
      beyond a reasonable doubt.           First, that the defendant
      communicated either directly or indirectly a threat. The term
      communicate means in the context of the evidence in this case
      conveyed in person.

      Second, the defendant communicated the threat in order to
      cause serious public inconvenience, or caused terror or serious
      public inconvenience with reckless disregard of the risk of
      causing such terror or inconvenience. A person acts recklessly
      when he consciously disregards a substantial and unjustifiable
      risk that such terror or inconvenience will result from his
      conduct.

      The risk must be of such a nature and degree that considering
      the nature and intent of the defendant’s conduct and the
      circumstances known to him, its disregard involves a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the defendant’s situation.

N.T., 8/7/13, at 115-16.

                                     - 12 -
J-S63014-14


     This instruction was sourced from the Pennsylvania Suggested

Standard Criminal Jury Instructions for 18 Pa.C.S. § 2706(a)(3).            The

suggested standard jury instruction for subsection (a)(1) provides that in

order to find the defendant guilty of the offense of terroristic threats, the

jury would have to find the following “elements have been proven beyond a

reasonable doubt:

     First, the defendant communicated, either directly or indirectly, a
     threat. The term "communicates" means conveys in person or by
     written or electronic means, including telephone, electronic mail,
     Internet, facsimile, telex, and similar transmissions.

     Second, the defendant communicated the threat to:

     a. commit any crime of violence, specifically [crime of violence],
     with intent to terrorize another;

Pa.SSJI (Crim.) 15.2706(a) (brackets omitted).

     Appellant asserts that the record clearly reflects that the trial court did

not accurately state the law applicable to subsection (a)(1) when instructing

the jury prior to deliberation. He argues that the failure to charge the jury

under the proper subsection of 18 Pa.C.S. § 2706 was prejudicial and

constituted reversible error.   Appellants brief at 20.   The Commonwealth

does not address the merits of Appellant’s claim.

     On the record before us, it is apparent that the jury instructions as a

whole did not apprise the jury of the elements that were required to be

proven beyond a reasonable doubt for the subsection (a)(1) terroristic




                                    - 13 -
J-S63014-14


threats offense charged.3 Specifically, the jury was not told that a conviction

of terroristic threats required communication of a threat to commit a crime

of violence with the intent to terrorize another.               In contrast, subsection

(a)(3) focuses on a general threat communicated in order to cause public

inconvenience,      or   with    reckless      disregard   of   the   risk   of   causing

inconvenience and terror. The Commonwealth argues, however, that since

Appellant was sentenced concurrently to imprisonment on the simple assault

and terroristic threats convictions, and Appellant does not challenge the

instructions regarding simple assault, the erroneous jury instruction on

terroristic threats constitutes harmless error. Commonwealth’s brief at 11.

       The Commonwealth’s harmless error argument is meritless. Although

Appellant’s time spent incarcerated may be unaffected by this error, a

conviction based on a legally erroneous jury instruction is not harmless.

Thus, we conclude that since the jury was improperly instructed on the law

applicable, and the error was not harmless, a new trial is required.

       Judgment of sentence on the simple assault conviction is affirmed.

Judgment of sentence entered on the terroristic threats conviction is

____________________________________________


3
  The record reflects that the trial court also sent out with the jury a three-
page document marked as Court’s Exhibit 1, which the court represented
contained the “word-for-word description of the elements of the two offenses
that the defendant is charged with here.” N.T., 8/7/13, at 127. The court
then excused the jury to deliberate. Court’s Exhibit 1 erroneously contained
the elements of terroristic threats under subsection (a)(3), not subsection
(a)(1) as charged.



                                          - 14 -
J-S63014-14


reversed and we remand for a new trial on this charge.   Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




                              - 15 -
