J-S11018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARA AMANDA LEAVY                          :
                                               :
                       Appellant               :   No. 731 WDA 2019

          Appeal from the Judgment of Sentence Entered April 5, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0005169-2018


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 13, 2020

        Mara Amanda Leavy (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted her of terroristic threats and resisting

arrest.1 We affirm.

        The trial court accurately detailed the evidence presented at trial as

follows:

        [O]n April 16, 2018, [Appellant] was being discharged from the
        emergency department at UPMC Hospital. She was apparently
        displeased with being discharged and the charge nurse, Robyn
        Fabian, was asked to assist in getting [Appellant] to leave. [Ms.
        Fabian] asked [Appellant] if she understood that she was
        discharged, and [Appellant] replied that she did but was “...not
        leaving until she was provided with a cab slip.” Ms. Fabian
        explained that the hospital could not provide her with one but said
        that she would permit [Appellant] to wait in the ER waiting room
        until busses began to run in a couple of hours. She offered to
        provide her with a blanket, some food and obtain a ticket for the
        bus. [Appellant] responded with “profanities and aggressive
____________________________________________


1   18 Pa.C.S.A. §§ 2706(a)(1) and 5104.
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     movements.” This resulted in her being told that she could not
     wait in the ER because her conduct was affecting other patients
     and their families. Instead of leaving, [Appellant] returned to the
     waiting area. After Ms. Fabian told her that she had to leave, and
     as she was being escorted from the waiting room by UPMC police,
     she looked directly at Ms. Fabian and said: “Fuck you. You won’t
     be talking shit when I come back and shoot you.” Ms. Fabian
     testified that, based on her past experience with [Appellant], she
     considered her threat to be a “valid threat” and that it caused her
     to fear being physically assaulted as she walked to her car at the
     end of her shift.

           Sean Kundrat testified that he was employed as a Police
     Sergeant for UPMC and was on duty during the early morning
     hours of April 16, 2018. He was called to a disturbance in the
     waiting room at about 2:10 a.m. and, upon arriving, observed
     [Appellant] at the registration desk, refusing Ms. Fabian’s requests
     that she leave the waiting room.            He intervened, telling
     [Appellant] that “hostile, belligerent and abusive language and
     behavior” were not permitted in the hospital. He reiterated that
     she was being asked to leave. When she ignored him, he asked
     her again to leave and told her she would be subject to arrest if
     she did not. [Appellant] then stood up, moved to his right and,
     looking back at Ms. Fabian, said: “Bitch won't be talking shit when
     I come back and shoot you.”

            Sgt. Kundrat determined that he would arrest [Appellant]
     for terroristic threats. When he advised her of this, she continued
     moving away from the officer. As he was attempting to handcuff
     her, she crashed through a sliding door, breaking it off its track
     and hinges. She continued resisting outside, breaking free before
     Sgt. Kundrat was able to grab her again and place both cuffs on
     her. Even after she was in custody and being escorted to the
     police office, handcuffed, she managed to reach Sgt. Kundrat’s
     arms and scratch him.

            [Appellant] also testified.     Her descriptions of what
     happened that morning were markedly different than what the
     Commonwealth witnesses described. According to her, Ms. Fabian
     was being loud and belligerent, not her. When told that the
     hospital could not provide transportation, [Appellant] said that her
     and her boyfriend stopped in the ER waiting room where both were
     calling around to see if they could get rides. While sitting there,
     texting, she claimed that Sgt. Kundrat suddenly grabbed her arm.

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       She responded with some vulgarity, but, when he told her she had
       to leave, proceeded towards the door. She claims that as she
       approached the door, someone slammed into her, pushing her into
       the wall. She did not know who hit her. She said that she passed
       where Ms. Fabian was standing but said nothing to her. She was
       then grabbed again by the officer and slammed into the door.
       Once outside, she said she was told she was under arrest.

              [Appellant’s] boyfriend, Antone Williams also testified. He
       said that when he was sitting in the waiting room with [Appellant],
       “[T]he officer had come over and asked us to, you know - well, he
       was talking directly to [Appellant], asking her to leave.” As they
       were leaving, he said that there was a verbal altercation between
       [Appellant] and the officer. He said a garbage can got knocked
       down and [Appellant] was pushed into the door by the officer. The
       officer then tried to handcuff [Appellant] and, when he did, took
       her into a side room. When asked if he heard [Appellant] threaten
       anyone, he said: “I could not hear the verbal altercation so, no,
       I cannot say for certain.”

Trial Court Opinion, 7/30/19, at 2-5 (citations to notes of testimony and

footnotes omitted).

       After hearing this evidence, the trial court found Appellant guilty of

terroristic threats and resisting arrest.2          Appellant waived a pre-sentence

investigation report, and on April 5, 2019, the trial court sentenced her to an

aggregate five years of probation.             Appellant filed a timely post-sentence

motion which the trial court denied on April 22, 2019.            On May 16, 2019,

Appellant filed this appeal. Both the trial court and Appellant have complied

with Pennsylvania Rule of Appellate Procedure 1925.

       Appellant presents two sufficiency issues for review:


____________________________________________


2The trial court granted Appellant’s motion for acquittal on a charge of criminal
mischief. See N.T., 4/4/19, at 84.

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      I.    WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
            CONVICTION AT COUNT 1 – TERRORISTIC THREATS
            BECAUSE THE COMMONWEALTH DID NOT PROVE, BEYOND
            A    REASONABLE    DOUBT,    THAT    [APPELLANT]
            COMMUNICATED A THREAT TO FABIAN WITH THE INTENT
            TO TERRORIZE HER, AS OPPOSED TO MERE TRANSITORY
            ANGER?

      II.   WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
            CONVICTION FOR RESISTING ARREST AT COUNT 2
            BECAUSE THE COMMONWEALTH DID NOT PROVE, BEYOND
            A REASONABLE DOUBT, THAT [APPELLANT] CREATED A
            SUBSTANTIAL RISK OF SERIOUS BODILY INJURY TO
            SERGEANT KUNDRAT, OR THAT ANY USE OF SUBSTANTIAL
            FORCE WAS JUSTIFIED?

Appellant’s Brief at 5.

      “We review claims regarding the sufficiency of the evidence by

considering 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.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations

omitted). “Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence.” Id. “In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder.” Id.

      With regard to terroristic threats, we recently reiterated:

      A person commits the crime of terroristic threats if the person
      “communicates, either directly or indirectly, a threat to ... commit
      any crime of violence with intent to terrorize another.” 18 Pa.C.S.
      § 2706(a)(1). “[T]he term ‘communicates’ means conveys in

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      person or by written ... means.” 18 Pa.C.S. § 2706(e). Moreover,
      “[n]either the ability to carry out the threat nor a belief by the
      person threatened that it will be carried out is an essential element
      of the crime.” Commonwealth v. Fenton, 750 A.2d 863, 865
      (Pa. Super. 2000). “Rather, the harm sought to be prevented by
      the statute is the psychological distress that follows from an
      invasion of another’s sense of personal security.” Id.

Commonwealth v. Kline, 201 A.3d 1288, 1290, appeal denied, 216 A.3d

1038 (Pa. 2019).

      Ms. Fabian testified that Appellant, with whom she had had “violent

interactions with in the past, . . . most specifically . . . [said]: Fuck you. You

won’t be talking shit when I come back and shoot you.” N.T., 4/4/19, at 14.

In her brief, Appellant does not deny that she made the comment to Ms.

Fabian. Rather, Appellant argues that the evidence was insufficient for the

trial court to convict her of terroristic threats because her comment evidenced

“mere transitory anger,” and when she “called over her shoulder,” her “spur-

of-the-moment expression of frustration” was not a remark which “seriously

impaired personal security.”       Appellant’s Brief at 12, 22.         Appellant

emphasizes that she “did not intend to terrorize Fabian; her comments were

mere transitory anger.” Id. at 13. Appellant faults the trial court for “failing

to acknowledge in its opinion that mere expressions of transitory frustration

or anger are insufficient to sustain a conviction for Terroristic Threats.” Id.

at 15. We are not persuaded by Appellant’s argument.




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      The trial court sat as the factfinder at Appellant’s bench trial. At the

conclusion of trial, the court expressly addressed the element of intent,

stating:

      The interesting thing about the terroristic threat, and that’s why
      it’s so rarely used when it comes to police officers, is, frankly,
      because it’s the intent of the defendant to terrorize. And often
      times things like that are said to police officers, and they slough
      them off because it didn’t terrorize them at all because they knew
      they had the upper hand.

            It doesn’t make it any less the intent of the defendant to
      place someone, who may or may not even be capable of being
      afraid of her. That’s the law.

N.T., 4/4/19, at 87-88.

      The following day, the trial court reconvened to announce its verdict and

stated that it “carefully listened to the evidence . . . and I find the best

testimony is of the victim and the police officer involved here [and] of the

highest credibility.”   N.T., 4/5/19, at 2.      The court then announced its

determination that Appellant was guilty of terroristic threats.        Id.   As the

factfinder, the trial court did not abuse its discretion by inferring that Appellant

possessed the intent to terrorize Ms. Fabian. This Court has explained that

intent may be shown by circumstantial evidence. Commonwealth v. Pasley,

743 A.2d 521, 524 (Pa. Super. 1999), citing Commonwealth v. Chance, 458

A.2d 1371 (Pa. Super. 1983) (holding that specific intent may be inferred from

the words or the actions of the defendant in light of all attendant

circumstances). Appellant’s first issue lacks merit.




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      In her second issue, Appellant argues that the evidence was insufficient

to support her conviction of resisting arrest because she “did not place

Sergeant Kundrat at risk of serious bodily injury, and if the officer used

substantial force, it was not justified.”   Appellant’s Brief at 23.   Appellant

claims she only “pulled her hands away and rushed out of a door.” Id. at 24.

Appellant states that she “merely attempted to escape from Sergeant Kundrat

for about 45 seconds, and made no significant assertion of physical force

against him.” Id. at 23.

      A person is guilty of resisting arrest if “with the intent of preventing a

public servant from effecting a lawful arrest or discharging any other duty, the

person 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.A. § 5104. This Court has held that

even passive resistance that requires the use of substantial force is sufficient

to sustain a conviction for resisting arrest. See, e.g., Commonwealth v.

McDonald, 17 A.3d 1282, 1286 (Pa. Super. 2011) (sustaining conviction

where defendant refused to comply with police when they attempted to

handcuff him, and police officers tased him after threatening to taser him if

he did not comply); See also Commonwealth v. Thompson, 922 A.2d 926,

928 (Pa. Super. 2007). However, “minor scuffling which occasionally takes

place during an arrest” is not sufficient to establish resisting arrest.     18




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Pa.C.S.A. § 5104 cmt. See Commonwealth v. Rainey, 426 A.2d 1148, 1150

(Pa. Super. 1981).

      Appellant emphasizes that she “merely attempted to escape from

Sergeant Kundrat for about 45 seconds” and made no “dangerous or violent

actions towards Sergeant Kundrat.” Appellant’s Brief at 23, 25. She concedes

that she “may have exited the door in an aggressive manner,” but states that

she “was a few steps ahead of Sergeant Kundrat at this time, so it cannot be

said that he was in danger of being hit by the door.” Id. at 24-25. However,

the trial court found otherwise, stating:

             Sgt. Kundrat’s testimony was that once he advised
      [Appellant] that she was under arrest, she resisted.           Her
      resistance used enough force to knock a sliding door off of its
      hinges as she pushed through it. This resistance certainly
      required substantial force to overcome it and created a
      substantial risk of bodily injury to Sgt. Kundrat.             Her
      continued resistance outside as he tried to bring her under control
      also established that she was resisting with enough force to
      require substantially more force to subdue her. The fact that the
      officer apparently suffered no injury is of no moment. Her conduct
      placed him at substantial risk for injury and that is sufficient to
      support the verdict of guilty at this count.

Trial Court Opinion, 7/30/19, at 7-8 (emphasis added).

      Our review supports this conclusion.      Sergeant Kundrat testified that

when he advised Appellant that he would be placing her under arrest, she

“proceeded straight through the three-partitioned door.         And when I say

straight through, she proceeded through and broke it off its hinges.” N.T.,

4/4/19, at 35. The sergeant described the door as “glass and steel-aluminum

. . . approximately 12 feet long. . . . It’s a solid piece of door.” Id. at 36. He

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added, “[u]pon inspection by our maintenance department, they found the

bolts that held the door up were actually sheared off.” Id. Sergeant Kundrat

testified that he followed Appellant 20 to 25 feet, until he was “able to pin”

her against a wall and apply handcuffs. Id. at 37-38. He stated:

      There was a significant amount of force that was again, reasonable
      – reasonable force used, obviously. At that point she had broken
      free of my control at least two times and gone through a solid
      portioned door. . . . After we had actually broken through the
      door together, she had ripped her arm away from me. . . . Two
      additional officers arrived at the scene to assist me. We began to
      escort [Appellant] to our back office for processing. . . . En route
      back to our office, another sergeant and I were escorting her,
      [Appellant] kept trying – kept attempting to pinch our hands and
      our arms. And I actually got - . . . She actually was able to reach
      her hand up around and scratch the top of my hand.

N.T., 4/4/19, at 38-39.

      Although the encounter only lasted 45 seconds, on this record, and

viewing the evidence in a light most favorable to the Commonwealth, we find

no error in the trial court’s determination that Appellant resisted arrest by

preventing Sergeant Kundrat from effecting the arrest, and creating a

substantial risk of bodily injury to Sergeant Kundrat “or anyone else” by

breaking down the hospital door, and causing the officer to use substantial

force to arrest Appellant. See 18 Pa.C.S.A. § 5104. Thus, Appellant’s second

issue lacks merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2020




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