J-A20027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KENNETH L. PLANK, JR.

                            Appellant                  No. 3198 EDA 2013


             Appeal from the Judgment of Sentence July 30, 2013
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0004604-2012


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                             FILED AUGUST 25, 2014

        Appellant, Kenneth L. Plank, Jr., appeals1 from the July 30, 2013



followed by one year of probation, imposed after a jury found him guilty of

simple assault, possessing an instrument of crime (PIC), and disorderly

conduct.2 After careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts of this case as follows.
____________________________________________


1
   We note that although Appellant purports to appeal from the May 15, 2013
verdict, a direct appeal in a criminal case is properly taken from a judgment
of sentence. Commonwealth v. Borovichka, 18 A.3d 1242, 1246 n.1 (Pa.
Super. 2011). Additionally, the Superior Court Prothonotary mistakenly
listed the incorrect trial court docket number on the Superior Court Appeal
Docket Sheet. The correct trial court docket number is CP-15-CR-0004604-
2012. Thus, we have amended the caption accordingly.
2
    18 Pa.C.S.A. §§ 2701, 907, and 5503, respectively.
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                  [On August 11, 2012, Appellant] drove his car

          cut in front of the victim as the public road on which
          both were proceeding changed from two lanes to one
          lane of travel, causing the victim to slam on his
          brakes to a
          The victim became angry and anxious because he
          had his eight[-]week[-]old daughter in the car with
          him. When [the] victim pulled close to the rear of

          complaint of [Appel

          words    in   his   interior    rear   view   mirror,   which

          [Appellant]  immediately   twice   brandished  a
          handgun, first by holding it in his hand out the

          .40 caliber semiautomatic handgun back and forth
          and up and down for approximately 5 seconds,

          [Appellant] then proceeded to brandish the weapon
          by displaying it in front of the passenger

          with his other hand to pull back on top of the gun,
          simulating a cocking motion, at which point the
          fearful victim called 911 on his cell phone. [The
          v]ict


          sure the weapon had been actually cocked by
          [Appellant], as there was testimony by the arresting
          officers that no round was found in the chamber
          when they recovered it. Two township police officers

          car, where they found the holstered weapon on the
          floor of the front-seat passenger compartment. One
          of these officers, Officer Hollis, removed the
          magazine from the weapon, and found no bullet in
          the chamber, suggesting the gun may not have been
          cocked. However, the victim was not sure
          [Appellant] had physically cocked the weapon, rather
          than merely simulating that action.        [Appellant]
          admitted to these officers that he had the weapon on
          this lap during the road rage incident, but admitted

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J-A20027-14


              nothing else. A State Trooper, John Marsteller also
              responded to the scene of the carstop, and spoke
              with [Appellant], who told him that he had had the
              weapon in his waistband, and because it was causing
              him discomfort, he removed it from his waistband
              and threw it on the floor of the passenger seat.
              Trooper Marsteller had [Appellant] display to him his
              physical actions in so doing, and testified that the
              gun could have been seen by the victim, as it was
              raised above the front seat-back.

Trial Court Order, 10/25/13, at 3-4, n.1.

        Appellant was subsequently arrested in connection with this incident,

and charged with simple assault, PIC, disorderly conduct, and recklessly

endangering another person (REAP)3 on September 28, 2012. On May 14,

2013, Appellant proceeded to a jury trial.           Following a two-day trial,

Appellant was found guilty of simple assault, PIC, and disorderly conduct.4

As noted, on July 30, 2013, the trial court sentenced Appellant to an

aggregate term of

probation. On August 9, 2013, Appellant filed a timely post-sentence motion

arguing, inter alia, that the verdict was against the weight of the evidence.

Following a hearing, the trial court entered an order on October 25, 2013,

                             -sentence motion. This timely appeal followed.5

        On appeal, Appellant raises the following issues for our review.
____________________________________________


3
    18 Pa.C.S.A. § 2705.
4
    The REAP charge was withdrawn by the Commonwealth prior to trial.
5
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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              [1.]   Was the evidence insufficient to convict
                     Appellant [] on charges of Simple Assault []
                     and [PIC], where a conviction of Simple
                     Assault by Physical Menace requires the
                     Commonwealth to prove that (1) [] Appellant
                     intended to put the [victim] in fear of imminent
                     serious bodily injury, (2) he took a substantial
                     step toward that end, (3) that [] Appellant
                     used physical menace to do this, and (4) that

                     to cause fear of bodily injury [], and where
                     Appellant [] merely brandished a firearm and
                     did not point it at anyone or otherwise take
                     any substantial steps toward a goal of putting
                     the alleged victim in fear of imminent bodily
                     harm, and the firearm was not intended to be
                     or actually employed criminally?

              [2.]   Were the convictions of Appellant [] on charges
                     of Simple Assault and [PIC] against the weight
                     of the evidence, where a conviction of Simple
                     Assault by Physical Menace requires the
                     Commonwealth to prove that (1) [] Appellant
                     intended to put the [victim] in fear of imminent
                     serious bodily injury, (2) he took a substantial
                     step toward that end, (3) that [] Appellant
                     used physical menace to do this, and (4) that

                     to cause fear of bodily injury [], and where
                     Appellant [] merely brandished a firearm and
                     did not point it at anyone or otherwise take
                     any substantial steps toward a goal of putting
                     the alleged victim in fear of imminent bodily
                     harm, and the firearm was not intended to be
                     or actually employed criminally?

                        -4 (citations omitted).6


____________________________________________


6
    For the ease of our discussion, we have separated our analysis of




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J-A20027-14




evidence to sustain his conviction for simple assault.      Id. at 9.     When

reviewing a sufficiency of the evidence claim, our standard of review is well

                   review the evidence admitted during the trial along with

any reasonable inferences that may be drawn from that evidence in the light

                                          Commonwealth v. Crawford, 24

A.3d 396, 404 (Pa. Super. 2011) (citation omitted).



evidence was so weak and inconclusive that no probability of fact could be

                       Commonwealth v. West, 937 A.2d 516, 523 (Pa.

Super. 2007), appeal denied,

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

              Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.

                            [T]he trier of fact, in passing upon the credibility



Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and

internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania,

560 U.S. 909 (2010).

     The crime of simple assault is codified in the Pennsylvania Crimes

Code and provides, in pertinent part, as follows.

                           by physical menace to put another in fear of


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death or which causes serious, permanent disfigurement, or protracted loss

                                                               Id. § 2301.



which must be proven are intentionally placing another in fear of imminent

serious bodi

Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003), citing

Commonwealth v. Little, 614 A.2d 1146, 1151 (Pa. Super. 1992), appeal

denied, 618 A.2d 399 (Pa. 1992).



                          Id.

     Instantly, Appellant contends that the Commonwealth failed to

                                                          ictim] in fear of

imminent serious bodily injury, that he took a substantial step to do so, or



support of this contention, Appellant maintains that he cannot be found to

have possessed the requisite intent for simple assault by physical menace



                          Id. at 11. Relying on Little, Appellant avers that

                                     totality of the circumstances something

more than merely brandishing a gun is required to occur to establish [his]


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J-A20027-14


                                                  Id. at 10.       For the following

reasons, we disagree.

      Little involved an appellant who was found guilty of simple assault by

physical menace after she

                                                            towards police officers

when they were attempting to serve her with foreclosure papers.                Id. at

1148, n.2.    The Little

regarding sufficiency of the evidence to prove simple assault by physical

menace. Id. at 1151-1154 (Appendix). In reaching this decision, the Little

Court concluded that,       lthough appellant never pointed the gun at

the deputies, we find that her overall demeanor and actions were designed

to, and did in fact, put the deputies in fear of imminent serious bodily

         Id. at 1148, n.2 (emphasis added). The Little Court further noted

that the intent place to place another in fear of imminent serious bodily

injury by physical menace can be proven by circumstantial evidence, and



circumstances.    Id.                    hether merely brandishing a weapon

constitutes   physical   menace,   we    must   look   to    the   totality   of   the

                                                               Id. at 1152.

      Instantly, our review of the evidence, viewed in the light most

favorable to the Commonwealth as the verdict winner, reveals that there

was sufficient evidence to establish that Appellant intentionally put the


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J-A20027-14


victim in fear of imminent serious bodily injury on the day in question, and

did so by the use of physical menace.                                        n,

there is no case law in this Commonwealth that mandates that an individual

cannot be found guilty of the crime of simple assault by physical menace,

absent having pointed a firearm directly at the victim.         Appellant has

acknowledged as much in his appel

weapon or physical threats are not necessary [to establish simple assault by

                                                              Little, we must

                                                                brandishing of



                                                 Little, supra at 1151.

       Upon review, we conclude that the jury could reasonably infer that

                           taken as a whole,

                                                                  Id. at 1148,

n.2.   Specifically, the record establishes that Appellant twice brandished a

firearm at the victim after he made an obscene gesture at Appellant for

cutting his vehicle off, placing the victim in imminent fear.     At trial, the

victim testified that after he gave Appellant the middle finger, Appellant held



se

                                                  -29, 32. The victim further




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J-A20027-14


testified that Appellant brandished the firearm a second time after he

attempted to call 911.

            Q.    After [Appellant] waved the gun out of the
                  window for about five seconds, what happened
                  next?

            A.    At that point, while [Appellant] was waving it, I
                  think I reached down into the center console to
                  pick up my cell to call 911. At that point, I
                  guess I looked up again and at that point I saw
                  him hold the gun up in front of the rearview
                  mirror and reach up with this other hand and
                  cock back the gun.

Id. at 30. The victim later clarified that although he was not entirely certain

whether Appellant had actually cocked the firearm when he held it up a

second time, or that Appellant had merely simulated this action, the incident

                              e bit scared that [the firearm] was potentially

         Id. at 33, 38.

      Based on the foregoing, we conclude the jury could reasonably infer



with the requisite intent so to place the victim in fear of imminent serious

bodily injury by physical menace.       See, e.g., Little, supra at 1153



a person may indeed commit simple assault by physical menace without

verbally threatening the victim. Neither must the defendant actually point a




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J-A20027-14




conviction for simple assault by physical menace must fail.

     Appellant next argues there was insufficient evidence to sustain his




           Brief at 13 (emphasis omitted). Again, we disagree.

     A person will be found guilty of PIC if they possess a firearm or other

weapon concealed upon his person with intent to employ it criminally.

Pa.C.S.A. § 907(b).    An instrument of crime is defined



criminal purposes and possessed by the actor under circumstances not

                                                     Id. § 907(d).

                 Our Supreme Court has held

           liability for possessing an instrument of crime. Such
           purpose may be inferred from the circumstances
           surrounding the possession.         Our courts have
           emphasized that mere possession of an instrument
           of crime, standing alone, cannot support an
           inference that the defendant intended to use the
           instrument of crime for a criminal purpose.
           Commonwealth v. Hardick, [380 A.2d 1235, 1237

           more than p               Commonwealth v.
           Foster, [651 A.2d 163, 165 (Pa. Super 1994)]

           beyond a reasonable doubt from the surrounding
           circumstances, it cannot be inferred from mere




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J-A20027-14


In re A.V., 48 A.3d 1251, 1253-1254 (Pa. Super. 2012) (some citation and

internal quotation marks omitted; citation formatting corrected).

      Instantly, our review of the record reveals that the Commonwealth

presented sufficient evidence to establish that Appellant possessed the

requisite mens rea for PIC.    As discussed, the testimony at trial revealed

that Appellant did not merely possess a concealed firearm in his vehicle on

the day in question, but twice brandished said firearm at the victim after he

made an obscene gesture towards Appellant, in an apparent attempt to

place said victim in fear of imminent bodily injury.    See N.T., 5/14/13, at

28-

Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super. 2011).

Moreover, this Court has recognized that brandishing a weapon in the

direction of a victim is sufficient to establish that the appellant possessed an

instrument of crime for the purpose of employing it criminally.      See e.g.,

Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006), appeal

denied                                                                         -

                                                                  Based on the

foregoing, we conclude that

evidence to sustain his conviction for PIC must also fail.




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J-A20027-14


       Lastly, Appellant argues, albeit in the alternative, that the verdict was

                                                                -20.7 This Court

                                   true weight of the evidence challenge concedes

that sufficient evidence exists to sustain the verdict but questions which

                                   Commonwealth v. Lewis, 911 A.2d 558, 566

(Pa. Super. 2006) (citation omitted). Where the trial court has ruled on a



question of whether the verdict is against the weight of the evidence.

                                                                   bly abused its

                                                   Commonwealth v. Tharp, 830

A.2d 519, 528 (Pa. 2003), cert. denied, Tharp v. Pennsylvania, 541 U.S.

1045 (2004).

       In the instant matter, the record reveals that the Commonwealth

presented the testimony of four witnesses at trial, including that of the

victim. See N.T., 5/14/13, at 22-80. Appellant, in turn, testified on his own

behalf, and denied threatening the victim with his firearm.       Id. at 83, 94.
____________________________________________


7
  Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part,
that a claim that the verdict was against the weight of the
raised with the trial judge in a motion for a new trial: (1) orally, on the
record, at any time before sentencing; (2) by written motion at any time
before sentencing; or (3) in a post-
          rpose of this rule is to make it clear that a challenge to the weight
                                                                             In
re J.B., 69 A.3d 268, 276 n.8 (Pa. Super. 2013) (citation omitted). In the
instant matter, Appellant properly preserved his weight of the evidence
claim by raising it in his August 9, 2013 post-sentence motion.



                                          - 12 -
J-A20027-14


Appellant presented an alternative factual scenario to the jury as to the

reasons the victim observed the firearm on the day in question, testifying as

follows.

             A.   When I moved to the lefthand lane, I put my
                  seat back. As I did that, the seat buckle came
                  in contact with my hip and I then picked up my
                  handgun by the clip and put it in the center
                  console, flipped the console up. It was full all
                  the way with paperwork.

                        When I tried to close that, the gun fell to
                  the passenger floor. That is when I took a
                  quick glance back and picked it up and put it
                  back in the holster and put it on the passenger
                  seat.

Id. at 88.

      The jury, as fact-finder, found the testimony of the victim credible, and

                                                                      It is well

established that this Court is precluded from reweighing the evidence and

substituting our credibility determination for that of the fact-finder.     See

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

                                                                        e finder

of fact who is free to believe all, part, or none of the evidence and to

                                                 cert. denied, Champney v.

Pennsylvania, 542 U.S. 939 (2004). Accordingly, we decline to disturb the

                        inations on appeal, and discern no error on the part




                                    - 13 -
J-A20027-14


      For all the foregoing reasons, we conclude that Appellant is not

entitled to relief in the instant appeal.

July 30, 2013 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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