J-A30018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DAVID L. ALBRIGHT JR.,

                         Appellant                    No. 360 MDA 2016


        Appeal from the Judgment of Sentence of October 14, 2015
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0003573-2014


BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 14, 2017

      Appellant, David L. Albright, Jr., appeals from the judgment of

sentence entered on October 14, 2015, as made final by the denial of

Appellant’s post-sentence motion on February 4, 2016. We affirm.

      The trial court provided us with an able and well-written summary of

the underlying facts of this case. As the trial court explained:

        [Appellant] was originally charged with aggravated assault,
        criminal solicitation to commit aggravated assault,
        terroristic threats, ethnic intimidation, stalking, simple
        assault, recklessly endangering another person, disorderly
        conduct[,] and public drunkenness for an incident that
        occurred in June 2014. The aggravated assault charge was
        dropped, and [the trial] court dismissed the stalking and
        recklessly endangering another person charges. A [jury]
        trial was held [in August] 2015 [and, during this trial, the
        following evidence was presented]. . . .

        From 2007 to December 2013, [Appellant] was employed by
        Vistar[,] where he was supervised by [K.L.]
J-A30018-16


       [Appellant] was terminated in December 2013 following a
       dispute with another employee and in March of 2014
       [Appellant] made a few unsuccessful attempts via text
       message to [K.L.] to get his job back. At some point, [K.L.]
       received notice that [Appellant] may have a weapon [and]
       intended to harm him.

       In June of 2014, [K.L.] was at his home late [Father’s Day]
       night with his fiancée and son. At approximately 9:00
       p.m.[, K.L.] heard pounding on his front door. As he
       approached the door, he turned on the light and saw the
       person at the door move off to the side of the door, but
       continue knocking with the back of his fist. [K.L.] then went
       to the front door and saw [Appellant] there. [Appellant]
       indicated he was there to discuss the job he had lost, but
       [K.L.] said “David, I have nothing to say to you. Just
       leave.” [Appellant] demanded that [K.L.] come out and talk
       to him man to man but [K.L.] refused as he was afraid
       [Appellant] had a weapon and was there to hurt him.
       [Appellant] did not attempt to break into the apartment or
       enter it. . . .

       After [K.L.] told [Appellant] several times to leave,
       [Appellant] said “that was seven years of my life” in
       reference to his time at Vistar. [K.L.] replied “you dug your
       own grave over at work.” [Appellant] then replied “what
       about your grave[, K.L.], let’s talk about your grave.”
       [K.L.] interpreted this as a threat and told his fiancée to call
       the police. Ultimately, [K.L.] himself called the police and
       [Appellant] left.   [K.L.] believe[d Appellant] must have
       heard him on the phone with the police.

       Officer Wade Bloom arrived at [K.L.’s] apartment to speak
       to [K.L.]. He left the house to try to find [Appellant], but
       was unable to do so and returned. He then received a call
       from the dispatcher that there was a man a couple of blocks
       away at a different apartment building “wielding a knife and
       causing a disturbance.”

       At Willow Garden apartments, Dwayne Davis was sitting in
       the courtyard outside of his apartment [with] his fiancée
       and their friend. Davis noticed [Appellant] approaching
       straight toward their group. [Appellant] introduced himself,
       asked if he could sit down and engaged in small talk. After

                                    -2-
J-A30018-16


          a bit of talk, [Appellant] told the group he was “on a
          mission to kill” and when asked who, he replied “my boss.”
          [Appellant] then pulled a knife out of his pants, and asked
          Davis if he would do it. [Davis] took this seriously and
          believed that [Appellant] had just asked him to use the
          knife to kill his boss. Apparently not everyone at the table
          heard this comment. Davis said no and then walked over to
          his neighbor, Tracey Strickland, to ask her to call the police
          because he thought they needed to be involved. Tracey
          called the police and Officer Bloom arrived.

          Officer Bloom drew his weapon and slowly entered the
          courtyard as he was uncertain of the suspect’s location.
          Davis pointed Bloom toward [Appellant] and Bloom
          approached with his firearm drawn[.            He] identified
          [Appellant] and aimed his gun.       Officer Bloom ordered
          [Appellant] to drop to his knees and asked where the
          weapon was. [Appellant] refused to drop to his knees and
          denied having a weapon. Bloom got closer, holstered his
          firearm and switched to his [TASER]. [Appellant] then
          cooperated by dropping to his knees, though he still denied
          having a knife. Bloom handcuffed [Appellant] and then
          found the knife approximately [six to eight] feet away.

Trial Court Opinion, 2/4/16, at 1-4 (internal citations omitted) (some internal

capitalization omitted).

        The jury found Appellant guilty of criminal solicitation to commit

aggravated assault, terroristic threats, and disorderly conduct1 and, on

October 14, 2015, the trial court sentenced Appellant to serve an aggregate

term of six-and-a-half to 13 years in prison for his convictions.




____________________________________________


1
    18 Pa.C.S.A. §§ 902, 2706(a)(1), and 5503(a)(4), respectively.




                                           -3-
J-A30018-16



      The trial court denied Appellant’s post-sentence motion on February 4,

2016 and Appellant filed a timely notice of appeal.     Appellant raises three

claims on appeal:

        [1.] Was not the evidence insufficient to establish the
        offense of solicitation to commit aggravated assault when
        the Commonwealth did not prove that [Appellant] requested
        another person to “engage in specific conduct” within the
        meaning of 18 [Pa.C.S.A.] § 902?

        [2.] Did not the [trial] court err in overruling [Appellant’s]
        objection to the admission of certain out-of-court
        statements during the testimony of the complainant when
        such statements constituted hearsay not subject to any
        exception and when there was no relevant non-hearsay
        basis for their admission?

        [3.] Did not the [trial] court err in denying [Appellant’s]
        objection to presentation of anti-character evidence during
        rebuttal from a professional investigative witness hired by
        the corporate employer of the complainant when [Appellant]
        did not open the door to such evidence and when such
        evidence exceeded the bounds of proper anti-character
        evidence under Pa.R.E. 404(a)(2)(A) and 405?

Appellant’s Brief at 6 (some internal capitalization omitted).

      We have reviewed the briefs of the parties, the relevant law, the

certified record, the notes of testimony, and the opinions of the able trial

court judge, the Honorable Deborah E. Curcillo. We conclude that there has

been no error in this case and that Judge Curcillo’s opinions, entered on

February 4, 2016 and April 18, 2016, meticulously and accurately dispose of

Appellant’s issues on appeal.    Therefore, we affirm on the basis of Judge

Curcillo’s opinions and adopt them as our own. In any future filings with this




                                     -4-
J-A30018-16



or any other court addressing this ruling, the filing party shall attach a copy

of the trial court opinions with the victim’s name redacted.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Bowes, J. joins this memorandum.

      Stabile, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




                                      -5-
                                                                                         Circulated 01/17/2017 02:30 PM


                                                                                          APR 19 2016
 C.OMM.ONWEt\.L TH OF PENNSYLV A.NIA                       IN THE COURT OF COMMON PLEAS,
                                                         : DAUPHIN COUNTY, PENNSYLVANlJ\

                     v.                                  .: 360.M.DA 2016
                                                          : 3573 CR 201.4

 DA VlDA£BRIGHT
     .                     .                             : CRtMINAL MATTER


 TRIAL COURT MEMORANDUM OPINION PURSUANT TO PENNSYLVANIA RULE
                          ..   OF APPELLATE PROCEUURE 1925(a}

         Presently before the Superior Court of Pennsylvania is the appeal of'David Albright

(hereinafter "Appellant") from.thejudgment ofsentence entered by this          Court following ajury
trial.

                                              Procedural History

         Appellant was originally charged with aggravated assault, criminal.solicitation. to commit

 aggravated assault, terroristic
                      .
                                 threats,
                                 .       .
                                           ethnic; intimidation,
                                                    ..           stalking,
                                                                    .    .
                                                                           simple
                                                                              .
                                                                                  assault, recklessly.

 endangering another person, disorderly conduct and public drunkenness for an incidentthat:

 occurredin Juiie.2014. The agzj-avated assault charge was dr~Ypped, and-thisCourt          dismissed the

 stalking and recklessly endangering another person charges, A trial was held August 19, 2015.

 Appe.llantwas found guilty ofcriminal solicitation, terroristic threats and disorderly conduct, He

 was found not guilty.ofethnic intimidation. and simple assault. The Court found him not guilty of

 public drunkenness; Sentencing was deferred to October 14, 2015, at which time he was,

. sentenced to S. ~ toll years in... a state correctional Institute
                                          :                     . for the solicitation
                                                                             .         to commit

 aggravated assault charge and.a consecutiveI-z yearsin
                                                   ·,: astate correctional institutefor th~
 terroristicthreats charge.

          A post sentence motion.was filed on October 23, 2015; and this Court ordered briefs on

 the matter. Th~ parties filed H111ely briefs. Thi& Court denied the post sentence motior, on




                                                                                                                          l
February 4, .2016. On March .1, 20.16, we received a Notice ofAppeal from the appellant and on

March 2, 2016, we ordered a statement of matters complained of on appeal. The appellant

provided a timely statement on March 21, .2016.

                                           Factual Background

        The factual background was add!essed in our order and opinion denying the Post

Sentence Motion filed February 4, 2016; We adopt. it in full
                                                         .   here.

                    Appeliant's Statement of Matters Complnined of on Appeal

    •   The evidence    was insufficient
                                       to.sustain a conviction for the.offense ofcriminal
        solicitation to commit aggravated assault.

    •   The Court erred in overruling Defendant's objection to admission of certain out-of ..co~111
        statements during the direct examination of' ·k:. L · .,, the complaining witness.

    •   The Court erred indenying Defendant's objection to the Co1timonwealth's introduction
        of rebuttal testimony though a witness named Andrew Katerman.

                                               Uiscussion

        The insufficiency of the evidence claim was addressed in our Post Sentence Motion

 Order and Memorandmn Opinion. We adopt that reasoning in full here.

        Appellant also contends that this Court erred in overruling his objection to "certaln out-

 of-court statements during the direct examinetionofLr,        .l..   :.:i·. ."   Specifically, appellant

 indicates that l'=,1.l.J testified on direct examination that he "had knowledge [that App.ellant] may
               1




 have a weapon and that he may intend to do harm to me.'; (Notes of Testimony, Jury Trial, p.
         ,                       r.   .



 33).

                   The term "hearsay" is defined as ~h out .. of-court statement, which is·
                   offered iii evidence to prove the truth of the matter asserted,
                   Commonwealth V; Ramtaha], -       Pa.·-·-, 33 A..3d 602, 610
                   (2011);   Pa.R.E; 80l(c). Hearsay statements                   are generally
                   inadmissible unless· they fall under an enumerated exception,
                   Pa.R.E. 802. An out-of-court statement    is not hearsay when.it has. a




                                                                                                            i
                      purpose. . .othet than to convince the fact finder of the truth of the
                      statement.

Com'. v. Busanet,.618 Pa.I, 56, 54 A.3d 35, 68(2012)~

                      However, where the statement Js being offered to show its .effect             011
                      . a listener; it is not befog offered for the truth of the matter. and is
                      non-hearsay, See Commonwealth l( DeHart, 512 Pa. 235, 516 A.2d
                      656, 666 _(l986) ("an out-of.. court· statement offered to explain a
                      course of eonductisnot hearsay."); Commonwealth. v, Smith, 523
                      Pa.: 577, 568 A.2d 600, 609 (J989); Gunter v, Constitution State
                      &i-v.ice          c«   432 Pa.Super. 295, 638 k2d 233, 235 (1994):
                       Commonwealth .v. Blough; 369 Pa.Super, 230, 535 A.2d.134, 138·n.·
                       1 t (1987) (citing McCorm.ick, Bvidence § 249, which provides that
                       statements· introduced to show the effect oh a listener are not
                       hearsay).

Schmalz        V;   Manufacturers & Traders Trust           Co.,2013 PA Super     52, 67 AJd 800, 803 (2013) (n.
3)                                                                                               .
     . Defense counsel Immediately objected and at the time the obj ectionwas made, the

Commonwealth argued thatthe statement regarding r:..L..;,'s knowledge was merely to show its

effect   011    t. ~;..( and why        he acted as he did iii notletting appellant in the house and. calling the

police and not offered for the truth of the matter asserted. We agreed With that argument and the
statement that he.had knowledge that regarding Appellant's possible acquisition of a.weapon was

permitted. Defense counsel asked for a limiting instruction which would limit any information

regarding what. · ·        ·\t .1....    J knew tram a third party to only go towards his state ofmind and riot

the terroristic threats charge. The Court agreed to this.

          The next day however, the matter of how tl.,l.3 acquired this knowledge was brought ou_t

on. cross-examiuatiouby                  defense couns~l. In particular, defense counsel specifically asked ~.,._.

 ifhe had received an email conveying that information, Defense counsel went                       onto ask whether
 the author of that emailheard it him or herselfor.iftheyheerd it from another person. l il.~·

 answered that he had            received an email and       that   the author of the emailhad   heard it from

 someone else. (N.T. 72-43).
         Quite fran~ly, we have a hard     time accepting this as.error when (1) the objection was
made at the time· the Commonwealth introduced evidence that ne:._t.:..J had.knowledge o.f a __possible

threat.and used .it merely to show its effect on him and why he reacted .as hedid that .evening (1)'

the Court.agreed to a Iimiting instruction and, most importantly, {3) defense'. counsel questioned.

thewitnesson how he.acquired thatknowledge.Defense.eounsel opened the doortothat
                   .                                          .       .    .
testimony and neither this Court 'nor the Commonwealth have. any duty to do defense 'counsel' s
job.

          Appellant's third 'issueis.m regard to th~.te.stimoJiy ofAndrew Katerman, S.pedfically,

appellant contends thathe did not.put.liiscbaracter in issue and theactual testfmonyKaterman

provided was not confined to statements ofreputationas required.ibut rather contained sped fie

Instances of conduct in violation df-Pa;R)~. 404.

          However, .Pa.R.E. 404(2)(A) reads: "Exceptions for a Defendant cr-Vicfim in a Criminal

Gase: The following exceptions apply        in a criminal case: a defendant may offer..evidence.of.the
·defend~nt1s pertinent trait, -and   if the evidence fa admitted, 'the prosecutor may 'offer.evidence   to

rebut.it],']"

          Katerman · is a private mvestigator who was: hired by Vistac' to investigate into def endant' s

'reputation at work foil owing his .separation from. employment, .(N .T.. 26.9).. 0n direej examination

 of Katerman, the following exchange between Katerman and the prosecutor rook place:

                  Q Now did you also ask about his reputation for   « he's accused of

                  violence in this case. Ha:ve you asked abouthrsreputatlon for violent
                 · behavior?                                          ·
                  AYes, :I did,
                  Q And what did you learn about that?
                  A Tharh,e had threatened some employeespreviously.
                  Mr. Roberts: Objection, Your Honor. It's got to be limited ro
                  reputation.     ··       ·
                  The WitnessrOkay.
                  Mr. Roberts: That;s a speclficoccurrence. He can't testify to that:
               The Court: WeH, he opened.the door as to not ·having a violent.
               nature, so 1 will-allow it.
·(N.T. 27l~i72).. .

       Appellant had- taken the sta~d i11 his owa defense, On.direct examination, app~Ilan,t

t:~~ti:6.ed "I don't tty to threatenpeople.J
                                        .    have.no history
                                                           . of violence with people."
                                                                                 .     (N .T, .249).

By making that statement, appellant opened the door as to .his character with regards to violence

'and the prosecutor is·pehnit~~dto offerevidence    to rebut   it. In this case, the prosecutor djcl call a

rebuttal witness.

        for jhese.reasons, we askthe-Superior Courtto uphold and affirm our judgment of

sentence entered by thisCourt following a jury trial,




                                                                             Respectfully submitted:




                                                                           . Deborah E. ·eurcillo, Judge




                                                                                                         . ..
                                                                                                         v-.
                                                                                                         '"
D istributlon:                       .                                                               . '•
                                                                                             ""':)   ~,.
 The Superior-Court of Pennsylvania                             .                           ;-;-., ;:;·.:
                                                                                            ;,t:.;'":'
 Jack Canavan, Esquire, Dauphin County District ;\.ttom~y' s Office                                                                  ~-.
 IamesKarl, .Bsquire, Dauphin CoUi;i.ty Pupli.c Defender's Office~-                        :;;:.~.::.-                       ···~.~:-:;·    .
                                                                                                                          . · ~)
                                                                                                                           . . . . ...
                                                                                                                                       ,. . :
                                                                                                                 ..
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           ·I
             t                                                                                                     Circulated 01/17/2017 02:30 PM
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                       'S)'.·-····--.. ..•
..           '




                       COMMON\VEALTli OF :PE1\1NSYL VANIA                              : IN THE COURT OF COMMON PLEAS,
                                                                                       : DAUPHIN COUNTY, PE:i'i'NSYLVANIA

                                                           v ..                        : NO. 3573 CR.2014

                      . DAVID ALBRIGHT                                                  : CRIMINAL
                                                                                                .   .
                                                                                                   MATTER
                                                                                                        .




                                      POST SENTENCE MOTION ORDER A.~'1)MEMORA.1'tDUM OPINION

                                             ~D    NOW, this 4th day of February, 2016, upon consideration of the Post

                          Sentence Motion - filed. by: Dav.id Albright (hereinafter "Defendant")                  it is HEREBY

                              ORDERED that the Motion is DENlED.

                                             Defendant is hereby notified of the right to appeal this order within 30 days ofthe

                              date of this order, Defendant is 'entitled to the assistance of counsel.in preparation of the

                              appeal. If Defendant cannot afford counsel, Defendant has the right          to proceed informa
                          pauperis and proceed withassigned counsel. Pa:R.CJ:iin.P. 720.

                                             Defendant was originally charged with aggravated assault, criminal solicitation to.

                              commit aggravated assault, terroristic threats, ethnic intimidation, stalking, simple

                              assault, recklessly endangering another person, disorderly conduct arid public

                              drunkenness for an incident that. occurred in June 20}4; The aggravated assault charge

                              was dropped, and this ~ourt dismissed the stalking and recklessly endangering another

                              person charges. A trial was held.August 19, 2014. Defendant was found guilty of

                              criminal solicitation, terroristic threats and disorderly conduct. He was found nof guilty of

                              ethnicintimidation.and simple assault The.Court found.him not guilty ofpublic

                              drunkenness.         He was sentenced to 5 .Yi to 11 years in a state correctional institute forthe
"'




     solicitation Jo commit aggravated assault charge and a consecutive 1-2. years in a state

     correctional institute· for the terroristip threats charge.

             From 2007 to December 2013, Defendant was employed by Vistarwhere he was

     supervised by I, ~- i,...    (the victim.). (Notes of Testimony, 8/19-8120~2015, p. 23~24);

             He was terminated mDecernber 2013 following a dispute with another employee

     and.in March of2014 he·rri~de a few unsuccessful attempts via text message to ~~l::;_ to

     get his job back. (N:T. 25-31 ). At some point, f'.I;.~ received notice, that Defendant may

     have had a weapon ad intended to harm him. (N .T. 33),

             In June of2014)J K:.qWas at.his home Iatefather's Day night with his fiancee

     and son. At approximately 9:00 p.rn. he heard pounding on his front door. (N.T. 34).               As
     he approached the door, heturned        on the   light and saw the person at the door moveoffto

     the side of the door, but continue knocking with the back.ofhis fist (N.T. 37) He then

     went to the front door and sawDefendant there .. (N.T. 38). Defendant Indicated he was

     there to discuss the job he had lost,    but l   lCi:: said "David,   I have nothing to.say to you ..

     Justleave," (N.T. 38} Defendant demanded that I 1(.t., come out and talk to him man. to

     man but .l<J.w refused as he was afraid Defendant had a weapon and was there. to hurt

     him, (N.T. 39~40). Defendant did not attempt to break into the apartment or enter it. Aft.er

      ,i:C .(.:;; told Defendant several times to leave, Defendant said "that was. seven years of my

     life" in reference to his time at Vistar. (N. T. 40). h.'..L'.jreplied "you dug your own grave

      over. at work."   (N.'f. 40). Defendantthen replied       "whatabout your grave ·~;t.,t,Jet's talk

      about your grave." (N. T. 41). . t~.t.,..... interpreted this as a threat and told his. fiancee to call




                                                           z.
the. police .. (N.T. 41}. Ultimately, J f..:·.4 himself called the police and-Defendant .left. ·1L.(.:~:

believesDefendant must have heard him onthe phonewith the police.                 (N.T.   41-42).

         OfficerWade Bloom arrived a:t :'.j;_.k.;'s apartment to speak to' ~L.:,. 9N,T:        ~0-51).

He: left fhe.houseto   try to find Defendant, bnt was unable to do sci and retuned . .(N.J. -51}.

He then received a call from the dispatcher that there was         a man a couple of blocks .' away
ata differentapartment.building "wielding.a knife arid causing-a-disturbance." (N.T.

20:0).

         At Willow Garden apartments.Dwayne Davis'was sitting in the courtyard outside

of his apsrtmen; which his fiancee and their friend, ~.T. 770, Davis noticed Defendant

approaching straight toward their group.        (N.T.   83). Defendant introduced'himself       asked

.ifhe could sitdown and engaged in small talk. (N.T.]:4-85).. After a bitoftalk,

·uefendarittcild the group he was "on a 1hissionto kill" and whenasked who, he replied

"my boss," (N.T. 8~). Defendant. then pulled a knifeout of his pants, and asked Davis if

he would do it. (N.T .. 85). Davidtook this· seriously ·and believed that Defendant' hag just

askedhim to.usethe knife.to kill. hisboss ... (N.T. 87). Apparently not.everyone atthe

table heard.this comment. Davis said noandthen walked over to.his neighbor, Tracey

Strickland, lo, ask her to call the policebecause hethoughtthey.needed-to"l>e·involv.eq .

.(N.T, 87) .. Tracey called thepolice and Officer 'f?looin arrived .. (N.T. 16:6-167).

         Officer Bl90~ -drew his weapon and slowly entered the.courtyard as he was.

uncertain of thesuspect's location . (N.T. 203). Da,vis pointed BloomtowardsDefendant
'and Bloom approached with his firearm, drawn law ..... he identified Defendant, arid ..aimed

'his gun; (N.T; 205,.206).. Officer Bloom ordered Defendant to drop.to hi$· knees and asked
where the weapon was. (N.T. 206). Defendant refused to drop to his knees and denied

having a weapon: Id. Bloom got closer, holstered bis.firearm and switchedto his taser.

(N:T. 207-209). Defendant then cooperated by dropping to his knees, though ht: siill

denied having a knife. (N'T, 209). Bloom handcuffed Defendant and then found theknife

approximately 6-8 feet away. (N.T. 210).

        Defendant contends that the evidence was insufficient to sustain a conviction for

criminal solicitation.

        In   an. insufficiency   of the-evidence claim, the standard applied is, whether viewing ·

all theevidence admi tted 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, ''µ1 applying the above test, wemay not weigh.the evidence and.

substitute our judgment for the fact finder. In addition, we note that.tlre facts.and

circumstances established by the Commonwealth
                                       .      need not.
                                                   .    preclude very. possibility of

innocence. Any doubts regarding a defendant' s guilt may be-resolved by the. fact finder

unless the evidence is so Weak arid inconclusive that as· a matter oflaw no probability of

fact may be drawn from the combined circumstances .. The. Commonwealth may sustain

its burden ofproofby proving everyelernerit of the crimebeyond a.reasonable doubt by

means of wholly ci'rcmmstantial evidence. Moreover, in applying.the above test, the entire
                                                                                  .      .
record m:ust be evaluated and all evidence actually received must be considered; Finally,

the trier of fact while passing upon the credibility of witnesses and the weight ofthe

evidence produced> is free to believe all, part, or none of the evidence." Commonwealth
v. DiStefaho,    782 A.2d $74, 582 (Pa. Super. ,200..1).
       According   to   18 Pa.C.S.A. · § 902(a}, a person is guilty of solicitation to commit a

crime if, with the intent of'promoting or facilitating its commission, he commands,

encourages, or requests another person to enga&e in specific conduct            which. would

constitute the crime or ari attempt to commit the crime, or which would establish his

complicity in its. commission or attempted commission.

       Defendant contends that he provided 11:0 specific details, requested no specific

conduct; nor offered any money or factors in exchange for acquiescing ln his request He

merely made a comment without any details. He never specified who he wanted to kill or

who he wanted Davis. to kill- he merely said "boss" and Davis had no knowledge of who

his boss was or where.he lived or how he was supposed to .kill him.

        However, a.t trial, the   evidence produced and apparently         believed bythe jury

based upon their verdict; was that Defendant hadjust left his former boss's home and

Went to anotherlocation     where he pulled    01,1t a knife   and asked a stranger to ltj,11 his   boss.
Davis, a stranger, testifiedthat he-interpreted the Interaction as a request to kill the boss

using the 'knife.Davis cut the interaction.short bysaying no, thus no other information

regarding the boss's name or whereabouts was exchanged.               We acknowledge      that no

name was given, but common sense tells us that Defendant's. identifying              o_fl,1is boss was

 identifying a specific person that Defendant was asking to be killed.

        A claim that a verdict is contrary to the weight of the evidei1ce concedes that there

 is sufficient evidence to. sustain the verdict. Commonwealthv. Widmer, 744A.2d 745, ·

 751 (Pa.. Super. 2000).. A verdictis against.the weight.of the evidence           only when it is so
 contrary to the evidence as   to. s}i.ock:onets   sense of justice. Commonwea:l!h v .. Cousar,
9i8   A.2c::I "i:0.2~, 1:o:{6·(11a. Super. 2007). A new trial should not be granted-merely

because of a: conflict in testimony or because the court on the same facts. would have

arrived ara.different conclusion,:Widmer, at:752.
                                            .     . In this claim, the trial
                                                                         .   Courtmust

"assess the credibility <"if the testimonyofferedby the Commonwealth." Corninonwealth

v. Marks, 704 A.2d 1095, 1098 (Pa. Super. 1997).

         Defendant contendsthat the verdict of guilty oh the      criminal solicitation charge.

was against the weight of the evidence, Again, his contention is. th a the did. hot request

anyspecific conductatthetime be spoke about his boss- no specific nanre, place.time, or

favors were-. asked, We.reiterate our analysis under sufficiency of'the 'evidehce-

Defendant identified his boss as someone he. wanted killed while he pulled out a knifeas

.hespoke to a small
                .   grQU.P of people.
                                  .   Our sense of justice.is not shocked that he was .

convicted of criminal solicitationunder these circumstances. He clearly intended to

         Defendant contends· that the verdict \va~ .agairist the weight· of the -evidence .OH the.
                               .·.


terroristicthreats.charge. per 18    Pa.c.s:A.   § 270.6(a)(l), a person commitsthe crime       of
terroristic threats i:t'the person communicates, either directly or- indirectly, a threat to.

commit any crime of violence with intent to terrorize another.

         The purpose .of a law against terroristic threats "is to impose criminal.liability on

persons who make threats which seriouslyimpair personal security .. .itisnot intendedby

tlii~ section to penalizemere spur-of-the-moment threats which result from anger."

Commonwealthv:.Anneski,525 AZd ~7~.,.374 (Pa. Super, 19:87). However a situation.

which give the defendant time for reflection about what.he intends to saycan be
Co,mmomvealth v. Gotckm, Nd. 1452:WDkZ014, 201~ wt, 6954:3'79, at "'4.(P:a:. Super.

Ct. Nov: 9, 2015). However; being angry doesnot render a person incapable of forming

the intent to terrorize. Inte J.H., 797 A.2d:260 (Pa. Super. 2002). We must look etthe

circumstances surrounding f_he statement to _detemune whether.it is a terroristic threat.

Commonwealthv. Griffii1,456A.2d 171, T74 (Pa. Super. 1983.)..

        ThE> circumstances surrounding th~·threat made 'toy __ E,·C.... .:,· are as follows.

About· six. months after being terminated by Vi star, Defendant.appeared at K         i(   .t;.   .../s
home ~t about 9~00 pm, He knocked or pounded on · it,'.c...:./s door in order· to get · fl,~ to

'talk to him about his. termination. .. Defendant refused to 'leave even though I 'le·'-~ would

not open the.door and-refused to discuss it with him. After :.i:'..L.,:. fina!1y said "you dug

your own grave over at' work" Defendantthen said "what about-your grave ··.1c0,, let"s

talk about your grave.''. ~1..; immediately felt threatened and instructed his fianceeto              call
the police.

        Unlike the Anneski casecited by Defendant, there was not <ctn on-going argument

here, In fact, ; l<'·l:. had been ignoring Defendant's text message for the last six. -mouths.

He also refused to engage with Defendant When Defendant appearedunannounced athis

borne' late in the evening.Whenhe did ultimately make a statement to Defendant about

digging his own grave.at work ¥,:.,l. wasusinga common idiom meaning Defendant's

own actions caused him harm. It was in n(,) way a threat that Defendant was responding to

when he said "let's talk about your grave." Defendant' was clearly angry ~n~ upset about

losing his job, however, he had six months to makepeace with his job loss and move on .

.Instead, he showed up late in the evening at his formerboss 's home and refused to Ieave
I   '




        ijh~il the. police were called. His actions· and words that night were.clearly   int:en4ed to
        terrorize LL- Lt




                                                                       ·BY· THE C€>UI{T;



                                                                          ;J0w._, t"- -~~
                                                                       ·Deborah E~_Cur<;Ulo, .r;




        Di~~ributi~n: .    J-_L\ ~:ll_p~~@;   ~rr\
        Hon. Deborah E. Curc11lo~
        Jack Canavan, Esq., Dauphin County District Attorney's Offi:ce·--:Il.5
        Richard Roberts.Esq., ssoi VartanWay, 211d floor,. Harrisburg, PA 17110 l'\f\~
