J-S19010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRYANT GRAUBER                             :
                                               :
                       Appellant               :   No. 1402 EDA 2018

             Appeal from the Judgment of Sentence March 16, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002687-2017


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 18, 2019

        Bryant Grauber appeals from the judgment of sentence, entered in the

Court of Common Pleas of Montgomery County, after he was convicted

following a nonjury trial of terroristic threats,1 simple assault,2 possession of

instruments of crime (“PIC”),3 and harassment.4          Upon careful review, we

affirm.

        The trial court set forth the facts of this matter as follows:

        On the morning of March 11, 2017, [Grauber] (who is Caucasian)
        visited his mother’s home located at 1402 Astor Street, in
        Norristown, Montgomery County. He went there with a friend to
        move furniture on behalf of another sibling who had moved out
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1   18 Pa.C.S.A. § 2706(a)(1).

2   18 Pa.C.S.A. § 2701(a)(3).

3   18 Pa.C.S.A. § 907(a).

4   18 Pa.C.S.A. § 2709(a)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      from the home. After arriving, [Grauber] soon went on a violent
      and racially-charged tirade after learning that his 13-year[-]old
      sister (also Caucasian), hereinafter referred to as BW, was there
      in the home, in bed with her 13-year[-]old African[-]American
      boyfriend, hereinafter RWC. Despite the fact that RWC and BW
      had permission from both of their respective guardians to spend
      the prior night together, and the families were on good terms and
      [were] neighbors, [Grauber] did not approve of the minors’
      contact and/or relationship. More specifically, [Grauber] charged
      into his sister’s room, and pointed a loaded gun at RWC, saying
      “My [N-word].” He continued, demanding of RWC, “Who are you,
      why the fuck are you in my sister’s bed?” As BW shouted at
      [Grauber] not to shoot RWC, [Grauber] slapped her across the
      face. [Grauber’s] mother then appeared at BW’s doorway, at
      which point [Grauber] reholstered his weapon, and all parties
      descended to the home’s living room.

      Once RWC was downstairs seated on the living room couch,
      [Grauber] stood looming above him, shook his hand, stated his
      name, and told RWC that he would [“]put a hole[”] in RWC’s head
      if he ever caught him in that house again. RWC immediately fled
      the home, and upon arriving safely to his own home, only a few
      doors away, told his mother [] what had happened, and she
      ultimately contacted the police.

Trial Court Opinion, 9/20/18, at 1-2 (citations to record omitted).

      On November 21, 2017, the trial court found Grauber guilty of the

above-stated charges and, on March 16, 2018, sentenced him as follows: for

terroristic threats and simple assault, two concurrent sentences of 6 to 23

months’ imprisonment, followed by 3 years’ probation; for PIC, five years’

probation, to run concurrently to the above sentences; and no further penalty

for harassment. Grauber filed a post-sentence motion seeking modification of

his sentence to accommodate his employment, which the court denied by

order dated April 12, 2018. Grauber filed a timely notice of appeal followed




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by a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Grauber raises the following claims for our review:

       1. Whether the evidence was insufficient as a matter of law to
       support a conviction for [t]erroristic [t]hreats insofar as the
       statement in question was conditional and thus not intended to
       terrorize the complaining witness within the meaning of 18 Pa.C.S.
       § 2706(a)(1)?

       2. Whether the [c]ourt erroneously considered the [d]eadly
       [w]eapon [e]nhancement [u]sed (DWE-Used) [m]atrix when
       sentencing [] Grauber for [s]imple [a]ssault[,] notwithstanding
       the plain language of 204 Pa.Code § 303.10(a)(2)[,] as the result
       reached was absurd, i.e., adherence to the plain meaning of the
       Guidelines resulted in a standard range that was more severe than
       would have been applicable if [] Grauber had actually injured the
       complaining witness with the firearm?[5]

       3. Whether the [c]ourt’s sentence was illegal insomuch as it was
       based on an erroneous application of the [d]eadly [w]eapon
       [u]sed matrix to the charge of [t]erroristic [t]hreats as there was
       no evidence to suggest that a firearm was used during the
       relevant period of time?

Brief of Appellant, at 6-7.

       Grauber first asserts that there was insufficient evidence to support his

conviction for terroristic threats. Specifically, Grauber alleges that “neither

pointing a firearm nor a conditional threat are [sic] sufficient to establish

[t]erroristic [t]hreats as a matter of law.” Brief of Appellant, at 9. Grauber

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5 This claim is waived for failure to preserve it in the trial court. See Pa.R.A.P.
302 (“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). While Grauber filed a post-sentence motion to
reconsider his sentence, the sole relief sought in that motion related to work
release. Specifically, Grauber requested “that the Court [] reconsider its
judgment of sentence in that participation in the work release program will
frustrate Mr. Grauber’s employment [and] will likely lead to his termination.”
Post-Sentence Motion, 3/23/18, at ¶ 6.

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claims that his act of pointing a gun at RWC’s head and referring to him by a

racial slur is “properly characterized as a spur-of-the-moment reaction to an

angering situation” and did not evince criminal intent to terrorize. Id. at 12.

He further asserts that the act of pointing a gun, without more, is insufficient

to establish terroristic threats.     Finally, Grauber posits that a “conditional”

threat such as the one he uttered in the living room, “removes any prospect

of immediacy or even of certainty” and is insufficient to establish the offense.

Brief of Appellant, at 16. For the following reasons, Grauber is entitled to no

relief.

          A claim challenging the sufficiency of the evidence is a question of law;

as such, our standard of review is de novo, and our scope of review is plenary.

Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa. Super. 2018). When

reviewing a sufficiency claim, an appellate court is required to view the

evidence in the light most favorable to the verdict winner, giving the

prosecution the benefit of all reasonable inferences to be drawn from the

evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The

Commonwealth may sustain its burden by wholly circumstantial evidence.

Commonwealth v. Olsen, 82 A.3d 1041, 1046 (Pa. Super. 2013).

          A person commits the crime of terroristic threats if the person

communicates, either directly or indirectly, a threat to commit any crime of

violence with intent to terrorize another.       18 Pa.C.S.A. § 2706(a)(1).    For

purposes of this offense, the term “communicates” means to convey “in

person or by written or electronic means[.]” 18 Pa.C.S.A. § 2706(e). Whether

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the person threatened actually believes the threat will be carried out is

irrelevant, as such a factor is not an element of the offense. Commonwealth

v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003). 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.” In re B.R., 732 A.2d

633, 636 (Pa. Super. 1999).

     Section 2706 “is not meant to penalize mere spur-of-the-moment
     threats which result from anger.” In re J.H., 797 A.2d [260,]
     262–63 [(Pa. Super. 2002)]. See also [Commonwealth v.]
     Tizer, 684 A.2d [597,] 600 [(Pa. Super. 1996)] (indicating statute
     is not meant to penalize spur-of-the-moment threats arising out
     of anger during a dispute); Commonwealth v. Anneski, [] 525
     A.2d 373 ([Pa. Super.] 1987) (concluding where defendant
     threatened to retrieve and use gun against her neighbor during
     argument, in which the neighbor also threatened to run over
     defendant’s children with her car, did not constitute a terroristic
     threat because circumstances of the exchange suggested spur-of-
     the-moment threat made during heated exchange and defendant
     lacked a settled purpose to terrorize her neighbor). However,
     “[b]eing angry does not render a person incapable of forming the
     intent to terrorize.” In re J.H., 797 A.2d at 263. “[T]his Court
     must consider the totality of circumstances to determine whether
     the threat was a result of a heated verbal exchange or
     confrontation.” Id.

Reynolds, 835 A.2d at 730.

     Here, the totality of the circumstances, viewed in the light most

favorable to the Commonwealth as verdict-winner, Widmer, supra, supports

a finding that Grauber committed the offense of terroristic threats. Grauber’s

actions and words, both upstairs in BW’s bedroom and downstairs in the living

room, directly communicated a threat to shoot RWC. First, Grauber, whom

RWC had never met, barged into BW’s bedroom, directed a racial epithet


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toward RWC, and, exhibiting an “angry smirk,” N.T. Trial, 11/21/17, at 20,

pointed a loaded gun at RWC’s head. Then, after the parties descended to the

living room at the request of Grauber and BW’s mother, Grauber verbally

threatened RWC, saying: “If I ever catch you in my house again, I’m going

to put a hole in your head.”6 Id.

       Grauber’s threatening words and actions were not made in the context

of a dispute, argument or verbal exchange between himself and RWC.

Reynolds, supra. Rather, RWC was minding his own business, unaware of

Grauber’s presence in the home, when Grauber set upon him with racial

invective and a gun to his face. A few minutes later, Grauber’s demeanor was

calm when he introduced himself to RWC. Immediately thereafter, he uttered

a verbal threat to RWC. See N.T. Trial, 11/21/17, at 20 (“Q: Okay. What

about when he shook your hand and said my name is Bryant? What was his

tone of voice like then? A: A calm voice.”). Simply put, the evidence of

record does not support a finding that Grauber’s threatening actions and

words were made in the context of a heated verbal exchange or confrontation.

In addition, while Grauber defends his conduct as a “spur-of-the-moment

reaction to an angering situation,” Brief of Appellant, at 12, “[b]eing angry




____________________________________________


6 This Court has held that a conditional threat is sufficient to establish the
crime of terroristic threats.     See In re J.H., 797 A.2d at 261 (terroristic
threats established where juvenile told teacher if she spoke with his probation
officer “it would be that last thing [she] ever did”).


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does not render a person incapable of forming the intent to terrorize.” In re

J.H., 797 A.2d at 263.

        Because Grauber’s words and conduct were sufficient to establish,

beyond a reasonable doubt, a threat to commit a crime of violence with the

intent to terrorize RWC, we reject his challenge to the sufficiency of the

evidence.

        Grauber’s last two claims involve allegations of trial court error in

applying the deadly-weapon-used matrix under the Sentencing Guidelines to

his sentences for simple assault and terroristic threats.7          These claims

implicate     the    discretionary     aspects   of   Grauber’s   sentence.   See

Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010) (en banc)

(“[A] challenge to the application of the deadly weapon enhancement

implicates the discretionary aspects of sentencing.”).        A challenge to the

discretionary aspects of a sentence is not appealable as of right. Rather, an


____________________________________________


7   The Sentencing Guidelines provide, in relevant part, as follows:

        (1) When the court determines that the offender possessed a
        deadly weapon during the commission of the current conviction
        offense, the court shall consider the DWE/Possessed Matrix (§
        303.17(a)). An offender has possessed a deadly weapon if any of
        the following were on the offender’s person or within his
        immediate physical control:

           (i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
           loaded or unloaded[.]

204 Pa.Code § 303.10(a)(1)(i).


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appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781. Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

      Before we reach the merits of this issue, we must engage in a
      four[-]part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons relied
      upon for allowance of appeal with respect to the discretionary
      aspects of sentence; and (4) whether the concise statement raises
      a substantial question that the sentence is appropriate under the
      sentencing code. . . . [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013).

      Here, while Grauber filed a post-sentence motion to reconsider his

sentence, the sole relief sought in that motion related to work release.

Specifically, Grauber requested “that the Court [] reconsider its judgment of

sentence in that participation in the work release program will frustrate Mr.

Grauber’s employment [and] will likely lead to his termination.”             Post-

Sentence Motion, 3/23/18, at ¶ 6. Grauber did not raise in his post-sentence

motion any claims related to the application of the deadly weapons matrix

and, therefore, these claims are waived on appeal.         See Pa.R.A.P. 302

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/19




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