J-S16008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AR RAHEEM DURANT-EL                        :
                                               :
                       Appellant               :   No. 1633 MDA 2018

       Appeal from the Judgment of Sentence Entered August 15, 2018
                In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000407-2018


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

MEMORANDUM BY OTT, J.:                                    FILED JULY 09, 2019

       Ar Raheem Durant-El appeals from the judgment of sentence imposed

August 15, 2018, in the Berks County Court of Common Pleas, made final by

the denial of post-sentence motions on September 10, 2018. On August 15,

2018, a jury convicted Durant-El of aggravated harassment by a prisoner and

harassment (engages in a course of conduct or repeatedly commits acts which

serve no legitimate purpose).1          That same day, the trial court sentenced

Durant-El to a term of 15 months to three years’ incarceration. On appeal,




____________________________________________


1   See 18 Pa.C.S. §§ 2703.1 and 2709(a)(3).
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Durant-El raises sufficiency and weight of the evidence claims. 2       For the

reasons below, we affirm the judgment of sentence.

       The trial court set forth the facts as follows:

               Here, Shantay McPherson testified that she is employed as
       a monitor at the Wernersville Community Corrections Center
       [(“WCCC”)], which is located in Berks County, Pennsylvania. Ms.
       McPherson stated that on October 24, 2017, at approximately
       6:20 p.m., [Durant-El] passed behind her while re-entering the
       facility. Ms. McPherson testified that when she told [Durant-El]
       not to do that, he became angry and upset. According to Ms.
       McPherson, [Durant-El] then used profanity and told her that
       nobody wanted her. After [Durant-El] walked through a metal
       detector, Ms. McPherson asked him to submit to a breathalyzer
       test. Ms. McPherson testified that instead of lightly blowing air
       into the breathalyzer, [Durant-El] put his head back and then spat
       in her face. The Commonwealth admitted video surveillance of
       the incident into evidence as Commonwealth’s Exhibit 1 and
       played the video for the jury.

              Rachel McDonnell, who is also employed by the Department
       of Corrections as a monitor at the Wernersville facility, testified
       that upon re-entry, [Durant-El] became belligerent and spat in Ms.
       McPherson’s face when she attempted to administer a
       breathalyzer test. In addition, Sonya Wentzel and Courtney
       Phillips testified that they also observed [Durant-El] spit in Ms.
       McPherson’s face. Ms. Wentzel described [Durant-El]’s demeanor
       at the time as “argumentative” while Ms. Phillips described him as
       “not happy.”
____________________________________________


2  We note Durant-El raised a discretionary aspect of sentencing issue in the
“statement of questions involved” (“SOQI”) section of his brief as well as a
Pa.R.A.P. 2119(f) statement. However, in a footnote at the end of the SOQI
section, counsel indicated the discretionary aspect of sentencing issue would
not be addressed in the brief as “counsel [wa]s unable to find a meritorious
argument to support this assertion[.]” Durant-El’s Brief at 12 n.1. As such,
we are compelled to find Durant-El has effectively abandoned the claim and
we need not address it further. See Commonwealth v. Puksar, 951 A.2d
267, 293 (Pa. 2008) (determining claim was waived where defendant failed
to make or develop his argument).



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Trial Court Opinion, 12/3/2018, at 3-4 (record citations omitted).

       Durant-El was then charged with one count of aggravated harassment

by a prisoner and harassment. As noted above, on August 15, 2018, a jury

convicted Durant-El of aggravated harassment. The court found him guilty of

harassment. That same day, the trial court sentenced him to a term of 15

months to three years’ incarceration.3 On August 27, 2018, Durant-El filed

post-sentence motions, raising sufficiency, weight, and discretionary aspects

of sentencing claims.4        The court denied the post-sentence motions on

September 10, 2018. This appeal followed.5

       In his first argument, with respect to his aggravated harassment

conviction, Durant-El claims there was insufficient evidence to demonstrate

he “intentionally or knowingly spat on a security guard while taking a

breathalyzer.” Durant-El’s Brief at 19. Specifically, he states:

       [T]he circumstances and evidence point towards reckless
       behavior, rather than intentional or knowing behavior. The
       surrounding circumstances show that [Durant-El] was agitated,
       but he cooperated with the re-entry procedure. Additionally, the
       evidence only affirms that saliva got on the Victim while [Durant-
____________________________________________


3 The harassment offense merged with the aggravated harassment crime for
sentencing purposes.

4The post-sentence motion was timely filed as the 10th day fell on a weekend.
See 18 Pa.C.S. § 1908.

5  On October 3, 2018, the trial court ordered Durant-El to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Durant-El filed a concise statement on October 22, 2018. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 3, 2018.

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     El] blew into a breathalyzer, yet fails to establish [Durant-El]’s
     true intent.

            Unlike in [Commonwealth v.] Rodriguez[,673 A.2d 962
     (Pa. Super. 1996),] where defendant showed his intent through
     the act of continuously beating a vulnerable victim, here there is
     no clear-cut indication that [Durant-El] would audaciously spit on
     [] McPherson. Nevertheless, the prosecution attempted to show
     that [Durant-El] was hostile towards that Victim, especially after
     [] she ordered him to not go around the metal detector. Such
     hostility then prompted him to intentionally spit on her. But being
     annoyed cannot not [sic] then infer intentional spitting.

           Rather, the video surveillance and the surrounding
     circumstances were unclear about [Durant-El]’s intent. First,
     witness testimony recalled that [Durant-El] was agitated at the
     time, but despite his agitation several of his actions diminished
     the notion that he intentional[ly] spit at the Victim. [Durant-El]
     complied with the re-entry procedure and followed the security
     guards’ orders. He even stood by and took the breathalyzer a
     second time, despite his disagreement with taking the test.
     Additionally, the prosecution failed to show whether [Durant-El]
     actually looked at the Victim while blowing, or if he looked at the
     breathalyzer. This fact would certainly infer his intent while
     blowing out air.

           Next, the other guards did not react when [Durant-El]
     supposedly spit on the Victim; rather, [] McPherson wiped her face
     and continued to administer a breathalyzer.              Unlike in
     [Commonwealth v.] Hecker[,153 A.3d 1005 (Pa. Super 2016),]
     where defendant’s repeated spitting for twelve minutes
     undoubtedly conveyed his intent, here the alleged spitting was not
     so egregious as to compel the other guards to react, admonish, or
     immediately detain [Durant-El].       Instead, the act appeared
     unintended, and the guards interpreted it so. Therefore, the
     testimonial evidence failed to evince that [Durant-El] intentionally
     or knowingly spit on the Victim.

           Finally, the testimony affirms that [Durant-El] was agitated
     when he re-entered WCCC, but this fact alone fails to prove intent.
     Instead, video surveillance and [Durant-El]’s testimony infer that
     he was singled out to go through the metal detector with his bags,
     even though none of the other residents were. He also was
     singled out for a breathalyzer, as seen in the video surveillance.

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      These things deviated from the regular re-entry procedure that
      [Durant-El] knew, and yet he was reprimanded for doing what he
      knew.

Durant-El’s Brief at 22-25 (footnote and citations omitted).

      Our standard of review regarding a sufficiency claim is well-settled:

      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 the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note 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
      finder of fact[,] while 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. Stiles, 143 A.3d 968, 981 (Pa. Super. 2016) (citation

omitted).

      The crime of aggravated harassment by prisoner is defined as follows:

      A person who is confined in or committed to any local or county
      detention facility, jail or prison or any State penal or correctional
      institution or other State penal or correctional facility located in
      this Commonwealth commits a felony of the third degree if he,
      while so confined or committed ... intentionally or knowingly
      causes or attempts to cause another to come into contact with
      blood, seminal fluid, saliva, urine or feces by throwing, tossing,
      spitting or expelling such fluid or material.




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18 Pa.C.S. § 2703.1.6         “As intent is a subjective frame of mind, it is of

necessity difficult of direct proof. Intent can be proven by direct or

circumstantial evidence; it may be inferred from acts or conduct or from the

attendant circumstances.”        Commonwealth v. Miller, 172 A.3d 632, 641

(Pa. Super. 2017) (citations and quotation marks omitted). Moreover, we are

guided by 18 Pa.C.S. § 302, in relevant part:

       (1) A person acts intentionally with respect to a material element
       of an offense when:

          (i) if the element involves the nature of his conduct or a
          result thereof, it is his conscious object to engage in conduct
          of that nature or to cause such a result; and

          (ii) if the element involves the attendant circumstances, he
          is aware of the existence of such circumstances or he
          believes or hopes that they exist.

       (2) A person acts knowingly with respect to a material element of
       an offense when:

          (i) if the element involves the nature of his conduct or the
          attendant circumstances, he is aware that his conduct is of
          that nature or that such circumstances exist; and

          (ii) if the element involves a result of his conduct, he is
          aware that it is practically certain that his conduct will cause
          such a result.

18 Pa.C.S. § 302.



____________________________________________


6  “[I]t is unnecessary for the Commonwealth to conduct a chemical analysis
of the fluid or material to determine whether it is one of the fluids/materials
listed in Section 2703.1.        Rather, the Commonwealth may rely on
circumstantial evidence to prove the identity of the fluid or material.”
Commonwealth v. Boyd, 763 A.2d 421, 424 (Pa. Super. 2000).

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       Initially, we note the surveillance video, which captured the incident, is

not included in the certified record. It is an appellant’s responsibility to ensure

that the certified record contains all the items necessary to review his claims.

See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008).

“When a claim is dependent on materials not provided in the certified record,

that claim is considered waived.” Commonwealth v. Petroll, 696 A.2d 817,

836 (Pa. Super. 1997) (citation omitted), affirmed, 738 A.2d 993 (Pa. 1999).

Nevertheless,     as   discussed     below,    the   testimony   presented   by   the

Commonwealth at trial, by itself, was sufficient to establish the crime of

aggravated harassment by prisoner beyond a reasonable doubt, and

therefore, we will not find that Durant-El has waived this claim.

       A review of the trial testimony reveals the following:        On the day in

question, McPherson, employed as a community corrections center monitor at

WCCC,7 was processing re-entrants when Durant-El returned to the facility.

N.T., 8/15/2018, at 41-43. McPherson indicated that part of her normal job

duties was to conduct pat-down searches, searches of property, and

Breathalyzer tests8 with respect to re-entrants. Id. at 44. She described the

re-entry process as follows:

____________________________________________


7 WCCC is similar to a halfway house, where people to reside after he or she
leaves prison and has nowhere to stay. N.T., 8/15/2018, at 89.

8  McPherson described the breathalyzer device as follows: “The Breathalyzer
is -- it's shaped sort of like a rectangle, and across the top there’s a little piece



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              The procedure coming into the building, [the re-entrants]
       come to the front door. It’s a secured building, so we have to let
       them in. They will sign in with the monitor who is in Control. They
       will put their property on the search table. They must empty out
       all their pockets, put all bags up, remove jackets. They have to
       clear the metal detector. When they clear the metal detector,
       they are pat searched, given a Breathalyzer.

Id. at 45.

       McPherson testified that Durant-El did not go through the metal detector

but tried to pass behind her. Id. She instructed Durant-El not to pass behind

her and she said he became “angry and upset.” Id. Additionally, he told her

that “nobody wanted to be that close to [her].” Id. at 46. Durant-El then

went through the metal detector. After going through the detector without

incident, McPherson described the following: “When I asked [Durant-El] for

the Breathalyzer, I held it out at arm’s length. And when he went to take the

Breathalyzer, he put his head back and, like, instead of lightly blowing air like

he should have, he spit on my face.” Id. at 46-47.9 McPherson indicated that

to her knowledge, Durant-El would have previously submitted to a

Breathalyzer test since he had signed out before this day. Id. at 47.10




____________________________________________


that sticks out, and you can just blow air gently across the top, and it reads
the air, and you get an alcohol or no alcohol reading.” Id. at 47.

9At the same time as Durant-El was taking the Breathalyzer test, another
employee was conducting a pat-down search of his person. Id. at 54.

10  McPherson could not remember if she specifically gave Durant-El a
Breathalyzer prior to this incident. Id. at 56.

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         McPherson asked Durant-El to retake the Breathalyzer test and he

complied without any issue. Id. at 48. She went into the Control Room and

washed her face. Id. McPherson stated Durant-El was yelling and aggressive,

and the other monitors were trying to calm him down. Id. at 49.

         Rachel McDonnell, another employee at WCCC, testified to the following

regarding the incident: “[Durant-El] was … argumentative with staff. We told

him, you know, calm down, tried to de-escalate the situation.                 And

[McPherson] tried to get a Breathalyzer off him, and he spit in her face.” Id.

at 63.

         Sonya Wentzel, an additional employee at WCCC, stated she called

Durant-El to do a pat-down search while McPherson requested the

Breathalyzer test.      Id. at 71.     She testified to her following observation:

“[Durant-El] reared back, like to take a deep breath, and then blew into the

[Breathalyzer], but I was behind him, so I thought he was blowing into the

[Breathalyzer], and then I saw [McPherson], like, move back and wipe her

face and say, That was disgusting.” Id. at 72. Wentzel could not remember

specifically what Durant-El was saying but she knew “he was not happy at the

moment.” Id. at 73.11




____________________________________________


11 Wentzel stated that every re-entrant that comes into the center should be
subjected to a Breathalyzer test but, on cross-examination, she indicated that
on the video, it showed another re-entrant who was not subjected to the test.
Id. at 75-76.

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      Courtney Phillips, a third employee at WCCC, described Durant-El’s

demeanor with respect to the incident as follows:

            Agitated. I’m not particularly sure what [Durant-El]’s issue
      was, but during his approach to the metal detector, … he just got
      too close -- he wasn’t a safe distance for him to be from the other
      monitor. So when [McPherson] had asked him to approach the
      metal detector a different way, he became agitated further, and it
      seemed to escalate from there. And then the same monitor had
      asked for a breath sample, and it seemed everything we asked for
      was agitating him further.

                                       …

            [McPherson] held it, I would say, directly -- it was up in line
      with his face, and he just moved his head back a little bit and just
      forcefully blew into it, which is not the necessary procedure.

                                       …

            It only takes a small amount of breath, only (indicating).
      You can obtain the sample by simply holding the Breathalyzer
      over, like a bottle and just squeezing just a bottle to produce an
      appropriate level.

                                       …

            Prior to asking for the Breathalyzer, the other monitor had
      asked him to go around because he was too close to her, and he
      said, Nobody wants to be that f’in close to you anyway.

Id. at 83-84.

      Lieutenant Jason Matthew Sommers testified that he spoke with Durant-

El after the incident and Durant-El said something to the effect that it was “an

accident … he didn’t mean to, it was just a spray…. It was never meant to be

that way. He would never do something like that.” Id. at 94. Trooper Ethan

Brownback also spoke with Durant-El following the incident and indicated


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Durant-El was “rather agitated,” “[h]e was venting for a while,” and his “big

thing he was trying to get across to [the trooper] was that he blew too hard

and that saliva came out of his mouth.” Id. at 100-101.12

       Lastly, Durant-El took the stand in his defense. He explained that on

the evening in question, he was coming back from getting dinner and was

waiting in line to re-enter the facility. Id. at 108-109. When asked about the

Breathalyzer test with respect to other individuals staying at the facility, he

stated, “Nobody done a Breathalyzer test, which was supposed to be

standard.” Id. at 110. He then testified:

              Shantay McPherson, who’s the only one that week who has
       given me a Breathalyzer test, never puts the Breathalyzer test in
       my mouth. I never took a Breathalyzer test at the Wernersville
       CCC Center. On 10/23, Ms. McPherson gave me a Breathalyzer
       test, on my son’s birthday, and was willing to help me fill out my
       menu for work that week, and the next day she’s standing in my
       pedestrian walkway when no monitor does that. So we are not
       allowed to walk through the metal detector with our bags because
       if you have change or anything in your pocket, or a belt, or metal,
       it would set the metal detector off.

             So that side was being occupied. The only way to go was
       to walk through that little leeway. In my right hand is my bag
       with food. All I did was walk past her, put my bags on the table,
       as instructed, and walk and proceed to take my stuff off to have
       the pat search done, which is Ms. Woodland[13] doing right there.
       How I ended up on that side, I can’t even remember that far back,
       how I ended up on that side, but I do recall me going this way and
       putting my bags on this table so when I’m going through the metal
       detector I have nothing in my pocket.
____________________________________________


12 The trooper also spoke with the other witnesses, and he indicated the
video was consistent with those individuals’ statements. Id. at 102.

13   Woodland was not further identified in the trial testimony.

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            I’m adhering to what protocol is. I’m patting, make sure
      there’s nothing that will set the metal detector off. I’m following
      instructions. My hand is up in the air, submitting to the pat
      search, which is standard coming in the halfway house. My
      objective was to make it past this point and get to my station,
      take my clothes off, get my food in the kitchen[.]

Id. at 110-111.

      Based on this evidence, the trial court found the following:

      [I]n addition to the circumstantial evidence of [Durant-El]’s
      knowledge and intent to commit aggravated harassment by
      prisoner, namely the testimony about his belligerent demeanor
      prior to being asked to submit to the breathalyzer test, the jury
      was also able to view a video of the incident itself. This evidence
      was hardly so weak and inconclusive that the jury, as finder of
      fact, could not make a determination as to [Durant-El]’s guilt.

Trial Court Opinion, 12/3/2018, at 4-5 (citation omitted).

      It merits mention that while Durant-El presents this as a sufficiency

claim, a substantial part of his argument is primarily challenging the weight

of the evidence, insofar as he is asking this Court to reweigh the evidence,

and view it in his favor as “reckless” behavior by focusing on certain evidence

(i.e., his cooperation with staff, the lack of immediate reaction by staff

members). We decline to do so. See Commonwealth v. Olsen, 82 A.3d

1041, 1049 (Pa. Super. 2013) (“The fact-finder is free to believe all, part, or

none of the evidence; an appellate court will not make its own assessment of

the credibility of the evidence.”).

      Moreover, viewing the facts in the light most favorable to the

Commonwealth as the verdict winner, we conclude the testimony at trial


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established Durant-El        was responsible for aggravated harassment         of

McPherson pursuant to Section 2703.1. The evidence demonstrated that on

the day in question, Durant-El attempted to bypass the re-entry procedure at

the corrections center by going around McPherson. When she objected, he

made a derogatory remark towards her. He subsequently spat in her face

when she required in him to take a Breathalyzer test. Durant-El was familiar

with the process of taking a Breathalyzer test as he testified that McPherson

required him to take a Breathalyzer test on the previous day.            Several

witnesses testified that Durant-El seemed hostile and agitated, and appeared

to use more force than was necessary when blowing into the breathalyzer

device. Based on the totality of the evidence, one can reasonably infer when

Durant-El spat saliva at McPherson while committed at WCCC:               (1) he

“intentionally” did so as it was his conscious object to engage in conduct of

that nature and/or (2) he “knowingly” did so as he was aware that it was

practically certain that his conduct would cause such a result. See 18 Pa.C.S.

§ 2703.1; 18 Pa.C.S. § 302.14

____________________________________________


14   Durant-El’s reliance on Rodriguez, supra, and Hecker, supra, is
misplaced. In Rodriguez, a panel of this Court determined the “jury could
infer intent to inflict serious bodily injury from evidence that appellant and his
confederates punched and kicked the lone victim while the victim was on the
ground, stopping only when a police officer arrived.” Rodriguez, 673 A.2d at
966-967. This does not suggest, as Durant-El would like us to find, that the
conduct at issue must be repeated in order for it be considered intentional. In
Hecker, the sufficiency issue on appeal was whether “evidence establishing
he spat water upon [the corrections officer] could not, alone, ‘support a



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       Furthermore, to the extent Lieutenant Sommers and Trooper Brownback

testified that Durant-El told them it was either accidental or he just blew too

hard, or his own testimony that McPherson was holding the device incorrectly

or singling him out, the jury was free to accept or reject his statements and

testimony.     In finding Durant-El guilty of aggravated harassment by a

prisoner, the jury clearly did not believe his version of how the incident

transpired. As noted above, we are not permitted to substitute the fact-

finder’s judgment with our own. See Stiles, 143 A.3d at 981. Therefore, we

conclude there was sufficient evidence to support Durant-El’s aggravated

harassment conviction. Accordingly, his first claim fails.

       Durant-El’s second issue on appeal challenges the weight of the

evidence supporting his convictions. See Durant-El’s Brief at 25. Specifically,

he claims “the video surveillance refuted the testimonial evidence to such a

substantial degree that the verdicts were against the weight of the evidence.”

Id. While Durant-El properly preserved his weight claim in a post-sentence

____________________________________________


reasonable conclusion that this water was or even contained any amount of
saliva[,]’ where [the defendant] had been spitting water continuously for
approximately twelve minutes beforehand.” Hecker, 153 A.3d at 1009. A
panel of this Court concluded, “Testimonial and video evidence that [the
defendant] spat a mouthful of water on the corrections officer supplied
sufficient circumstantial evidence from which to infer that a mixture of water
and saliva landed on the officer.” Id. Again, while intent can be inferred
based on specific facts concerning the defendant’s conduct, Hecker does not
stand for the proposition that repetitious and protracted acts are required to
prove intent.




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motion,15 we are constrained to find that because the issue was dependent on

the video, he has waived this argument for failure to ensure that the

surveillance video was included in the certified record. See Petroll, 696 A.2d

at 836 (Pa. Super. 1997) (citation omitted), affirmed, 738 A.2d 993 (Pa.

1999). Accordingly, we need not address Durant-El’s second and final claim

further.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/09/2019




____________________________________________


15   See Pa.R.Crim.P. 607(A)(3).


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