J-S60010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID DIAZ                                 :
                                               :
                       Appellant               :   No. 835 MDA 2019

          Appeal from the Judgment of Sentence Entered May 8, 2019
     In the Court of Common Pleas of Wyoming County Criminal Division at
                       No(s): CP-66-CR-0000098-2018


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                      FILED: MARCH 5, 2020

        Appellant, David Diaz, appeals from the judgment of sentence entered

following his conviction of various crimes pertaining to a confrontation he had

with a former paramour. We affirm.

        The trial court set forth the history of this case as follows:

        The charges stem from an altercation between [Appellant] and
        Debra Nunez (hereinafter “Ms. Nunez”) and Steven Noel
        (hereinafter “Mr. Noel”) that occurred on October 9, 2017 in a
        parking lot located at 420 West Tioga Plaza, Tunkhannock
        Township, Wyoming County, Pennsylvania. [Appellant] and Ms.
        Nunez have two (2) children together. (H.T. 11/13/18, pp. 38,
        89, 95). According to the Reporting Officer Narrative [Appellant]
        and Ms. Nunez recently broke up and [Appellant] was infuriated
        that Ms. Nunez was dating Mr. Noel. As Ms. Nunez was dropping
        off Mr. Noel at work with her two (2) year old grandson,
        [Appellant’s] car approached Ms. Nunez with [Appellant] beeping
        the horn erratically.     (H.T. 11/13/18, pp. 42-[4]7, 93).
        [Appellant] followed Ms. Nunez’s vehicle into the parking lot of the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S60010-19


       Tractor Supply and Ms. Nunez exited her vehicle. (H.T. 11/13/18,
       pp. 49, 90). [Appellant] was travelling with Ms. Nunez’s sister,
       Patricia Hernandez, and the parties’ two (2) minor children. (H.T.
       11/13/18, pp. 49-50).        As Ms. Nunez exited her vehicle,
       [Appellant] got out of his car and was calling her names, lifted his
       shirt and pulled out a gun. (H.T. 11/13/18, pp. 51-[5]2, 97, 129-
       131). Ms. Nunez was aware that [Appellant] carried a loaded gun
       every day. (H.T. 11/13/18, pp. 53-[5]4).

              Ms. Nunez testified that when [Appellant] pulled out his gun,
       her children were screaming and that she went to the rear of her
       vehicle so that if [Appellant] did shoot his gun, it would not hit her
       car or her grandson. (H.T. 11/13/18, pp. 54-[5]5). [Appellant]
       held the gun to Ms. Nunez’s face and she feared he was going to
       kill her. (H.T. 11/13/18, pp. 56-[5]9). [Appellant] told Ms. Nunez
       he wanted her to die. (H.T. 11[/]13/18, p. 59). After [Appellant]
       pulled his gun towards Ms. Nunez, Mr. Noel exited the vehicle and
       [Appellant] pointed the gun at him. (H.T. 11/13/18, pp. 59-61).
       Mr. Noel testified that he feared for his life. (H.T. 11/13/18, p.
       98). Sometime shortly thereafter, [Appellant] got in his vehicle
       and left. (H.T. 11/13/18, pp. 61-[6]2).

Trial Court Opinion, 7/10/19, at 2-3.

       A criminal complaint was filed on October 10, 2017, and a criminal

information was filed on April 5, 2018.          On November 14, 2018, at the

conclusion of a jury trial, Appellant was convicted of one count each of

terroristic threats, recklessly endangering another person (“REAP”), simple

assault, and two counts each of disorderly conduct (engaging in fighting to

threatening behavior), disorderly conduct (creating a hazardous or physically

offensive condition), and harassment.1 On January 14, 2019, the trial court

entered an order permitting trial counsel to withdraw and appointed current


____________________________________________


1 18 Pa.C.S. §§ 2706(a)(1), 2705, 2701(a)(3), 5503(a)(1), 5503(a)(4), and
2709(a)(4), respectively.

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counsel to represent Appellant. On May 8, 2019, the trial court sentenced

Appellant to serve an aggregate term of incarceration of one to twenty-three

and one-half months. Appellant filed timely post-sentence motions on May 9,

2019, which the trial court denied on May 10, 2019.         This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. DID THE TRIAL COURT ERR IN DENYING DEFENSE COUNSEL’S
      REQUEST TO QUESTION OFFICER SIDOREK REGARDING
      STATEMENTS MADE BY THE ALLEGED VICTIM’S DAUGHTER
      REGARDING THE VICTIM’S VIOLENT CHARACTER?

      2. DID THE TRIAL COURT ERR IN FAILING TO DISMISS COUNT 3
      OF THE CRIMINAL INFORMATION, RECKLESSLY ENDANGERING
      ANOTHER, 18 PA. C.S. §2705 WHERE THE COMMONWEALTH
      FAILED TO PRESENT EVIDENCE THAT THE FIREARM ALLEGEDLY
      UTILIZED BY [APPELLANT] IN THE PERPETRATION OF SAID CRIME
      WAS EITHER FUNCTIONING OR LOADED WITH AMMUNITION?

      3. DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE
      CHARGE OF TERRORISTIC THREATS AS AGAINST DEBRA NUNEZ,
      18 Pa. C.S. §2706, WHERE THE EVIDENCE PRESENTED FAILED TO
      DEMONSTRATE THAT APPELLANT POSSESSED A SETTLED
      PURPOSE TO TERRORIZE THE ALLEGED VICTIM?

      4. WAS THE TESTIMONY OF THE COMMONWEALTH’S WITNESSES
      SO INHERITELY INCONSISTENT SUCH THAT THE JURY’S VERDICT
      AS TO EACH COUNT FOR WHICH APPELLANT WAS CONVICTED
      COULD ONLY HAVE BEEN ARRIVED AT THROUGH SPECULATION
      AND CONJECTURE?

Appellant’s Brief at 5.

      Appellant first argues that the trial court erred in failing to permit

defense counsel to question a police officer regarding Ms. Nunez’s daughter’s

statements, which the officer had included in a police report. Appellant’s Brief


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at 14-16. Appellant alleges that language in the police report evinces that

Ms. Nunez, the victim, is violent. Appellant contends that the “character trait

of violence was relevant where the crux of the Commonwealth’s prosecution

was that Appellant was violent and threatening to the victim.”        Id. at 15.

We disagree.

      The decision to admit or exclude evidence is committed to the trial

court’s sound discretion, and its evidentiary rulings will be reversed only upon

a showing that it abused that discretion. Commonwealth v. Laird, 988 A.2d

618, 636 (Pa. 2010). Such a finding may not be made “merely because an

appellate court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support so as to be clearly erroneous.”            Id. (quoting

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)).

      Pa.R.E. 402 provides that generally, “[a]ll relevant evidence is

admissible” and “[e]vidence that is not relevant is not admissible.”

Furthermore, Pa.R.E. 401 provides the following test for relevancy:

      Evidence is relevant if:

            (a) it has any tendency to make a fact more or less probable
      than it would be without the evidence; and

            (b) the fact is of consequence in determining the action.

Pa.R.E. 401.

      The basic requisite for the admissibility of any evidence is that it be

competent and relevant. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa.

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Super. 2003). Thus, in determining whether evidence should be admitted,

the trial court must weigh the relevance and probative value of the evidence

against the prejudicial effect of that evidence. Commonwealth v. Barnes,

871 A.2d 812, 818 (Pa. Super. 2005). Evidence is relevant if it logically tends

to establish a material fact in the case or tends to support a reasonable

inference regarding a material fact. Id. Although relevance has not been

precisely or universally defined, the courts of this Commonwealth have

repeatedly stated that evidence is admissible if, and only if, the evidence

logically or reasonably tends to prove or disprove a material fact in issue,

tends to make such a fact more or less probable, or affords the basis for or

supports a reasonable inference or presumption regarding the existence of a

material fact. Freidl, 834 A.2d at 641.

      “Although relevant, evidence may be excluded if its probative value is

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Pa.R.E. 403.

      Under the Pennsylvania Rules of Evidence, character evidence is

governed by Rule 404, which provides:

Rule 404. Character Evidence; Crimes or Other Acts

      (a) Character Evidence.

      (1) Prohibited Uses. Evidence of a person’s character or character
      trait is not admissible to prove that on a particular occasion the
      person acted in accordance with the character or trait.


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      (2) Exceptions for a Defendant or Victim in a Criminal Case. The
      following exceptions apply in a criminal case:

            (A) a defendant may offer evidence of the defendant’s
            pertinent trait, and if the evidence is admitted, the
            prosecutor may offer evidence to rebut it;

            (B) subject to limitations imposed by statute a
            defendant may offer evidence of an alleged victim’s
            pertinent trait, and if the evidence is admitted the
            prosecutor may:

                   (i) offer evidence to rebut it; and

                   (ii) offer evidence of the defendant’s same
                   trait; and

            (C) in a homicide case, the prosecutor may offer
            evidence of the alleged victim's trait of peacefulness
            to rebut evidence that the victim was the first
            aggressor.

Pa.R.E. 404 (emphasis added).

      “[S]pecific instances of a victim’s prior conduct are admissible to show

a victim’s character trait only if the trait in question is probative of an element

of a crime or a defense.” Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa.

Super. 2010).    In Minich, we explained that “evidence relating to specific

instances of a victim’s prior conduct must be probative of the victim’s conduct

during the alleged criminal episode upon which the current charges are

based.” Id. at 1072. Under Rule 404(2)(B), evidence of “the alleged victim’s

pertinent trait” is “limited to a character trait of the victim that is relevant to

the crime or defense at issue in the case.”         Id.   “[C]riminal defendants

asserting self-defense may introduce evidence of a victim’s prior conduct


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tending to establish the victim’s violent propensities.”         Id.; see also

Commonwealth v. Miller, 634 A.2d 614, 622 (Pa. Super. 1993) (where self-

defense was properly at issue in the case, then expert testimony regarding

“battered woman syndrome” was relevant to prove the defendant’s state of

mind as it relates to an element of a theory of self-defense).

      In Commonwealth v. Sasse, 921 A.2d 1229 (Pa. Super. 2007), the

trial court excluded evidence of a victim/witness’s use of drugs and alcohol,

sexual promiscuity, mental illness, and her father’s criminal status, which the

defendant had argued was relevant to his state of mind on the night of the

incident. Sasse, 921 A.2d at 1238. We affirmed, stating that these traits of

character were not pertinent to the incident in question, and “their only

purpose would be to attempt to paint [the victim/witness] in a negative light

at trial and, therefore, to discredit her testimony improperly.” Id.

      The following is the language in question from the police report:

      It should be noted that while speaking with [O.] she stated when
      she stays at her mother’s residence she in constant fear for her
      and her brother’s safety because her mother gets highly
      intoxicated and verbally harasses her. [O.] also stated once her
      mother got so drunk she hit her Aunt ([Ms.] Hernandez)
      repeatedly giving her two (2) black eyes then laughed about it.
      Chief Carpenter stated he has witnessed the severe intoxication
      of Nunez. Chief Carpenter contacted Wyoming County Children
      and Youth who initiated an investigation on behalf of the children.




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Trial Court Opinion, 7/10/19, at 4.2

       After reviewing the police report and hearing oral argument from the

parties, the trial court stated:

       The court, on break, reviewed a motion from defense counsel …
       to include in the police report the final paragraph regarding prior
       acts not related to the case at bar. The court’s reviewed the same
       and the motion to enter the last paragraph of Officer Sidorek’s
       police report is denied due to the fact that it is not relevant to the
       incident at bar.

N.T., 11/13-14/18, at 173.

       Because Appellant did not raise self-defense in this case, it was within

the court’s discretion to exclude evidence of Ms. Nunez’s bad character traits

because such evidence was not pertinent to any crime or defense being raised.

Minich, 4 A.3d 1072.           Moreover, Appellant has not explained how the

evidence was related to the criminal episode at issue or was probative of an

element of a crime or a defense. We see no difference between Sasse and

the instant matter. Hence, we discern no abuse of the trial court’s discretion

in precluding evidence. Therefore, this issue lacks merit.


____________________________________________


2    We note that Appellant also claims that the language in the report
establishes a motive for the victim to lie about the incident because the report
suggests that the chief of police had witnessed the victim’s intoxication and
initiated an investigation by Wyoming County Children and Youth Services.
Id. at 15-16. However, during the trial, Appellant’s counsel conceded that
the language in the report should be redacted, stating, “I would understand
the court’s reluctance to put Chief Carpenter’s statement that was listed in
there. I think that is hearsay, and I would agree that it should be redacted if
it goes to the jury.” N.T., 11/13-14/18, at 168. Accordingly, we decline to
consider this portion of Appellant’s argument.


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      Appellant’s second and third issues present challenges to the sufficiency

of the evidence to support his convictions of REAP and terroristic threats. Our

standard of review is well established:

             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[’s].   In addition, we note that 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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      In his second issue, Appellant argues that the Commonwealth failed to

establish that he committed the crime of REAP. Appellant’s Brief at 16-18.

Specifically, Appellant “contends that the Commonwealth’s evidence fails to

establish that Appellant possessed the actual present ability to place

Ms. Nunez in danger of death or serious bodily injury.” Id. at 16. Appellant

asserts that there was no evidence to suggest that the firearm was either

operable or loaded. Id. Appellant claims there was no testimony to establish

that the loaded firearm discovered in Appellant’s vehicle was the same firearm

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used in the incident.    Id. at 16-17.     Appellant concludes that “[a]bsent

evidence that the firearm in question was both loaded and operational, the

Commonwealth failed to establish that Appellant created a danger of death or

serious bodily harm.” Id. at 17-18.

      The crime of REAP is defined in the Crimes Code as follows:

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.

      Section 2705 is satisfied where a defendant’s conduct “places or may

place another person in danger of death or serious bodily injury.” 18 Pa.C.S.

§ 2705. Further, we have held that “[t]he crime of REAP is a crime of assault

which requires the creation of danger.         As such, there must be an actual

present ability to inflict harm. . . . [T]he mere apparent ability to inflict harm

is not sufficient. Danger, and not merely the apprehension of danger, must

be created.”   Commonwealth v. Reynolds, 835 A.2d 720, 727-728 (Pa.

Super. 2003) (internal quotations and citations omitted).       Under the plain

terms of the statute, a REAP conviction is supportable even where the victim

suffered no actual injury whatsoever. See Commonwealth v. Hartzell, 988

A.2d 141, 143-144 (Pa. Super. 2009) (explaining that the evidence was

sufficient to support the appellant’s two REAP convictions because: “The

testimony established that from a distance of approximately 30 yards,

appellant fired into the creek near the bridge, approximately 25 to 30 feet


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away from the [victims’] location on the bridge. Although appellant may not

have pointed the weapon directly at the two [victims], it was pointed in their

general direction.   Moreover, the evidence established that the water was

rather shallow and there were rocks in the stream. . . . Thus, it is hardly

inconceivable that a bullet fired into the stream nearby could have struck a

rock or other object and deflected up and hit one of the two men”); Reynolds,

835 A.2d at 729 (pointing a loaded gun at an individual created the danger of

death or serious bodily injury and the evidence was thus sufficient to support

the defendant’s REAP conviction).

      Our review of the record reflects that Ms. Nunez testified regarding the

incident. She explained that when Appellant came toward her, he lifted his

shirt and then he pulled out his gun. N.T., 11/13-14/18, at 51. She clarified

that she and Appellant had lived together, and she knew that he carried a

loaded handgun every day. Id. at 52-53. Ms. Nunez further testified:

      Q. Did he ever talk about whether or not the gun was loaded?

      A. Yes.

      Q. Can you tell us what he may have said?

      A. The gun was always load-loaded because I had asked him that
      if he napped or something like that, if he could at least put it into,
      you know, a safe. I thought it was unsafe for a gun to be loaded
      while he slept with it.

      Q. And would he accommodate your request?

      A. No.




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Id. at 53. In addition, Ms. Nunez stated that during the incident Appellant

pointed the gun at her face. Id. at 58.

     The Commonwealth also presented the testimony of Officer Corey

Sidorek of the Tunhannock Township Police Department.           Officer Sidorek

stated that he was dispatched to the scene of the incident and that Appellant

was not present when he arrived.     N.T., 11/13-14/18, at 139-140.        After

receiving another 911 call indicating that Appellant was at a particular

address, Officer Sidorek went to the residence and met with Appellant. Id. at

141-142. The officer then provided the following testimony:

     Q. When you spoke to him at that time, tell me about the
     conversation.

     A. I asked [Appellant] if he had been in to the Tractor Supply
     parking lot that day. He stated no. He went straight to the school,
     dropped the kids off. I asked him if he had a firearm. He said
     yes, it was a Sig Sauer, which he didn’t-

     Q. I’m sorry. I didn’t hear the last part. He said what?

     A. He said yes, I have a Sig-I have a conceal carry, which was a
     Sig Sauer 9 millimeter handgun.

     Q. What’s Sig Sauer?

     A. Sig Sauer is a make of a handgun.

     Q. OK, so he told you he had this?

     A. Yes, it was located in the trunk of his Volkswagen GTI vehicle.

     Q. At that time?

     A. At that time.

     Q Did he show it to you?

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     A. We located it in the trunk of the vehicle. We used the serial
     number, ran a records check, it was registered to [Appellant]. He
     did have a proper conceal carry permit.

     Q. OK, so let’s back up for a second. How did you get to finding
     the gun in the trunk?

     A. [Appellant] told me that’s where it was located.

     Q. And did you ask if you could see it?

     A. Yes.

     Q. And did he take you to it?

     A. Yes.

     Q. And did he open the trunk?

     A. Yes.

     Q. And he voluntarily showed it to you?

     A. Yes.

     Q. Did he take it out?

     A. We took it out.

     Q. Why?

     A. Officer safety.

     Q. What else did you do for officer safety?

     A. We unloaded the handgun.

     Q. You what?

     A. Unloaded the handgun.

     Q. It was loaded?

     A. Yes.

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Id. at 142-144.

      Under the totality of the circumstances, the evidence presented at trial,

viewed in the light most favorable to the Commonwealth as the verdict winner,

establishes that Appellant pointed a loaded handgun at Ms. Nunez face. This

evidence is sufficient to sustain Appellant’s conviction of REAP. Accordingly,

Appellant’s claim lacks merit.

      Appellant next argues that the Commonwealth failed to present

sufficient evidence to sustain his conviction of terroristic threats. Appellant’s

Brief at 18-19. Appellant contends that the facts of the case indicate that he

was making a “spur of the moment threat” arising out of anger, which was

insufficient to sustain the conviction. Id. We disagree.

      The crime of terroristic threats is set forth at 18 Pa.C.S. § 2706(a) and

provides, in relevant part, as follows:

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

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

18 Pa.C.S. § 2706(a)(1).

      As this Court has previously explained, for a defendant to be convicted

of terroristic threats:

      “the Commonwealth must prove that 1) the defendant made a
      threat to commit a crime of violence, and 2) the threat was
      communicated with the intent to terrorize another or with reckless
      disregard for the risk of causing terror.” Commonwealth v.
      Tizer, … 684 A.2d 597, 600 ([Pa. Super.] 1996). “Neither the

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      ability to carry out the threat, nor a belief by the person
      threatened that the threat will be carried out, is an element of the
      offense.” In re J.H., 797 A.2d 260, 262 (Pa. Super. 2002).
      “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.” Tizer, 684 A.2d at 600.

Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016) (quoting

Reynolds, 835 A.2d at 730). Moreover, we have long held that a defendant’s

intent to terrorize can be inferred from his actions and from the message he

communicated. Commonwealth v. Kelley, 664 A.2d 123, 128 (Pa. Super.

1995). Therefore, a direct communication of a threat between the perpetrator

and the victim is not a requisite element of the crime of terroristic threats.

Id. at 127. Also, the Commonwealth is not required to produce evidence that

the person to whom the defendant communicated the threat was actually

frightened. Id.

      Our review of the record reflects Ms. Nunez testified that, when she

pulled her car into a parking lot, Appellant followed in his vehicle and parked

next to her. N.T., 11/13-14/18, at 47-49. Ms. Nunez further explained that,

after she exited her vehicle, Appellant exited his vehicle, charged toward her,

pulled his gun, and pointed it at her face. Id. at 49-58. Ms. Nunez stated

that she thought Appellant was about to kill her.     Id. at 47, 54, 58. She

explained that Appellant had threatened her numerous times stating, “He’s

told me he-he wanted me to die. He would kill me. He wanted to kill me.”

Id. at 58-59. Ms. Nunez also testified to various instances in the past in which

Appellant had threatened to kill her. Id. at 59.

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      Based on the foregoing, we are satisfied that the jury properly

determined that the Commonwealth established all the elements of the crime

of terroristic threats beyond a reasonable doubt. This testimony, which was

found credible by the jury, with the inferences therefrom, was sufficient to

prove beyond a reasonable doubt that Appellant intended to terrorize the

victim with his prior threats to kill her coupled with his action of charging the

victim and pointing a loaded gun at her. Therefore, the evidence was sufficient

to sustain Appellant’s conviction of terroristic threats.    Hence, Appellant’s

contrary claim lacks merit.

      Appellant last argues that the guilty verdicts were against the weight of

the evidence. Appellant’s Brief at 19-20. Appellant contends that, although

the two victims testified that Appellant pointed a gun at them, another witness

denied seeing Appellant with a gun, and a fourth eyewitness did not see

Appellant point a gun. Id. at 19. Appellant also claims that the evidence

regarding the actual firearm was specious because one victim described the

gun as a 9mm Berretta, and the police recovered a Sig Sauer handgun from

Appellant’s possession. Id. Essentially, Appellant claims that the verdicts of

guilty rendered by the jury are so contrary to the weight of the evidence that

they shock one’s sense of justice such that his convictions should be reversed

and a new trial ordered.




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     In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
     744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown,
     538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
     not be granted because of a mere conflict in the testimony or
     because the judge on the same facts would have arrived at a
     different conclusion. Widmer, 560 A.2d at 319-[3]20, 744 A.2d
     at 752. Rather, “the role of the trial judge is to determine that
     ‘notwithstanding all the facts, certain facts are so clearly of greater
     weight that to ignore them or to give them equal weight with all
     the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
     omitted). It has often been stated that “a new trial should be
     awarded when the jury’s verdict is so contrary to the evidence as
     to shock one’s sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented with
     a weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence. Brown, 648 A.2d at 1189. Because the
           trial judge has had the opportunity to hear and see
           the evidence presented, an appellate court will give
           the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial
           court’s determination that the verdict is against the
           weight of the evidence.          Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
           One of the least assailable reasons for granting or
           denying a new trial is the lower court’s conviction that
           the verdict was or was not against the weight of the
           evidence and that a new trial should be granted in the
           interest of justice.

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      Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
      added).

             This does not mean that the exercise of discretion by the
      trial court in granting or denying a motion for a new trial based on
      a challenge to the weight of the evidence is unfettered. In
      describing the limits of a trial court’s discretion, we have
      explained:

            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055 (emphasis in original). “Thus, the trial court’s

denial of a motion for a new trial based on a weight of the evidence claim is

the least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873,

879-880 (Pa. 2008).

      The trial court addressed the challenge to the weight of the evidence as

follows:

           As repeatedly stated above, the Commonwealth and
      defense both presented evidence over the course of two days,
      which the jury dutiful[ly] listened [to]. More specifically, the
      Commonwealth’s evidence showed that [Appellant] pointed a gun
      at the victims in the presence of three (3) minor children.

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      Following closing arguments, the jury was instructed and the jury
      … rendered its verdict.

Trial Court Opinion, 7/10/19, at 7.

      Based upon our complete review of the record, we are compelled to

agree with the trial court’s conclusion that the jury’s verdict was in keeping

with the evidence presented. Here, the jury, sitting as the finders of fact, was

free to believe all, part, or none of the evidence against Appellant. The jury

weighed the evidence and concluded Appellant perpetrated the nine crimes

stated above. We agree that these determinations are not so contrary to the

evidence as to shock one’s sense of justice. We decline Appellant’s invitation

to assume the role of fact-finder and reweigh the evidence. Accordingly, we

conclude that the trial court did not abuse its discretion in refusing to grant

relief on Appellant’s challenge to the weight of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/05/2020




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