J-S07026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    TYQUAIL DUFFY                              :
                                               :
                       Appellant               :      No. 1230 EDA 2019

         Appeal from the Judgment of Sentence Entered August 7, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008019-2015


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                    Filed: April 16, 2020

        Appellant, Tyquail Duffy, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

his jury trial convictions for intimidation of a witness and terroristic threats.1

We affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows. On

April 23, 2015, Appellant was involved in the robbery and fatal shooting of a

take-out delivery driver (“Victim 1”). After the shooting, Appellant threatened

Edna Myers (“Victim 2”) at gunpoint. At the time, Appellant was 15 years old.

The Commonwealth charged Appellant as an adult at two separate docket


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 4952(a)(1) and 2706(a)(1), respectively.
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numbers. At Docket No. 12068-2015, the Commonwealth charged Appellant

with second-degree murder, robbery, conspiracy to commit robbery, firearms

offenses, and related offenses concerning Victim 1.         The Commonwealth

charged Appellant at Docket No. 8019-2015 with intimidation of a witness,

terroristic threats, simple assault, and firearms offenses relating to Appellant’s

threatening Victim 2.

        On May 9, 2017, Appellant proceeded to a consolidated jury trial. The

Commonwealth presented testimony from, inter alia, Sahmir Walker and

Victim 2. Mr. Walker said he was home on the night of April 23, 2015, and

was fourteen years old at the time. Victim 2, Mr. Walker’s aunt, was staying

at Mr. Walker’s home supervising him overnight while his mother was out of

town. Mr. Walker explained Victim 2 had ordered Chinese food to be delivered

that evening. Appellant, a friend of Mr. Walker’s, subsequently arrived at Mr.

Walker’s home. When Mr. Walker told Appellant that Chinese food was being

delivered to the house, Appellant showed Mr. Walker the handle of a gun from

inside his pocket and said, “We’re going to rob the delivery guy.” Mr. Walker

testified he and Appellant followed Victim 1 to his car after Victim 1 had

delivered the food. Mr. Walker then heard gunshots and something falling to

the ground, prompting him to run back into his house. Mr. Walker explained

Appellant followed him inside his home. Once inside, Appellant put the gun

to Victim 2’s head and said, “Be quiet or else.” (N.T. Trial, 5/9/17, at 85-

189).


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       Victim 2 testified she is Mr. Walker’s aunt. She explained she was at

Mr. Walker’s home on the evening of April 23, 2015, to take care of him while

his mother was away. That night, Victim 2 ordered Chinese food for herself

and Mr. Walker. When the food was delivered, Appellant was inside the house

with Mr. Walker. After Victim 2 met Victim 1 at the door and paid him for the

food, she saw Appellant and Mr. Walker walk out the door. Subsequently,

Appellant and Mr. Walker returned to the house. Appellant then pointed a gun

to Victim 2’s head, and said, “If you say anything, you’re going to be next.”

(N.T. Trial, 5/10/17, at 42-90).

       On May 12, 2017, the jury convicted Appellant of one count each of

intimidation of a witness and terroristic threats at Docket No. 8019-2015.2

With the benefit of a pre-sentence investigation (“PSI”) report, the court

sentenced Appellant on August 7, 2017, at Docket No. 8019-2015, to five (5)

to ten (10) years’ incarceration for intimidation of a witness and a concurrent

term of two and one-half (2½) to five (5) years’ incarceration for terroristic

threats. In the aggregate, the court sentenced Appellant to five (5) to ten

(10) years’ incarceration at Docket No. 8019-2015.3 Appellant filed no post-

sentence motions. Appellant timely appealed from the judgment of sentence;


____________________________________________


2 At Docket No. 12068-2015, the jury convicted Appellant of robbery,
conspiracy to commit robbery, and carrying a firearm in public in Philadelphia.

3 The court sentenced Appellant at Docket No. 12068-2015 to an aggregate
term of twelve and one-half (12½) to twenty-five (25) years’ incarceration, to
run consecutive to Appellant’s sentence at Docket No. 8019-2015.

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this Court initially dismissed the appeal, for failure to file a docketing

statement.

        On February 1, 2019, Appellant timely filed at both docket numbers a

counseled first petition under the Post-Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546, seeking reinstatement of his direct appeal rights

nunc pro tunc.      Appellant did not request the court also restore his post-

sentence motions rights nunc pro tunc.           The PCRA court reinstated only

Appellant’s direct appeal rights nunc pro tunc on March 25, 2019. On April

16, 2019, Appellant filed separate timely notices of appeal nunc pro tunc at

both dockets; this appeal involves only Docket No. 8019-2015.         The court

ordered Appellant on April 23, 2019, to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). On May 9, 2019, counsel filed

a statement of intent to file a petition to withdraw and Anders4 brief, per

Pa.R.A.P. 1925(c)(4).

        As a preliminary matter, counsel seeks to withdraw representation

under Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: (1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; (2) file a

brief referring to anything in the record that might arguably support the



____________________________________________


4   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.      Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor [Commonwealth v. McClendon, 495
          Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
          provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To repeat,
          what the brief must provide under Anders are references
          to anything in the record that might arguably support the
          appeal.

                                  *    *    *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that arguably
          supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed

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          counsel’s petition to withdraw, counsel must: (1) provide a
          summary of the procedural history and facts, with citations
          to the record; (2) refer to anything in the record that
          counsel believes arguably supports the appeal; (3) set forth
          counsel’s conclusion that the appeal is frivolous; and (4)
          state counsel’s reasons for concluding that the appeal is
          frivolous. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
          have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel has filed a petition to withdraw. The petition

states counsel conducted a conscientious review of the record and determined

the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of

the brief and a letter explaining Appellant’s right to retain new counsel or to

proceed on appeal pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.    In the Anders brief, counsel provides a

summary of the history of this case. Counsel’s argument refers to relevant

law that might possibly support Appellant’s issues. Counsel further states the

reasons for counsel’s conclusion that the appeal is wholly frivolous. Therefore,

counsel has substantially complied with the technical requirements of Anders

and Santiago.

      Appellant has not responded to the Anders brief pro se or with newly-

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

          WHETHER [APPELLANT] COULD RAISE ANY ISSUES OF
          ARGUABLE MERIT[?]

(Anders Brief at 6).

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      In the Anders brief, Appellant raises challenges to the: (i) discretionary

aspects of sentencing; (ii) legality of the sentence; (iii) weight of the evidence;

and (iv) sufficiency of the evidence. Appellant’s claims merit no relief.

      Preliminarily, challenges to the discretionary aspects of sentencing do

not entitle an appellant to an appeal as of right. Commonwealth v. Sierra,

752 A.2d 910, 912 (Pa.Super. 2000).          Prior to reaching the merits of a

discretionary aspect of sentencing issue:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly preserved
         at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
         brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
         there is a substantial question that the sentence appealed
         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans,

901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727, 909 A.2d

303 (2006)). Generally, objections to the discretionary aspects of a sentence

are waived if they are not raised at the sentencing hearing or raised in a

motion to modify the sentence imposed at that hearing. Commonwealth v.

Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831

A.2d 599 (2003).

      Additionally, where the PCRA court reinstates direct appeal rights nunc

pro tunc, the defendant is not automatically entitled to reinstatement of his


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post-sentence rights nunc pro tunc as well. Commonwealth v. Liston, 602

Pa. 10, 977 A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a

defendant’s post-sentence rights nunc pro tunc if the defendant pleads and

proves he was deprived of the right to file and litigate post-sentence motions

as a result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at

1094 n.9 (noting counsel may be deemed ineffective for failing to file post-

sentence motions when claim requires preservation in trial court for purposes

of appellate review). See also Commonwealth v. Rivera, 154 A.3d 370

(Pa.Super. 2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072

(2017) (stating PCRA court properly restored appellant’s post-sentencing

rights nunc pro tunc because one issue appellant wanted to raise required

preservation in trial court).

      Instantly, Appellant did not raise a discretionary aspects challenge at

the time of sentencing and filed no post-sentence motions.       See Mann,

supra. Further, in his PCRA petition, Appellant did not assert he wished to

raise on appeal an issue requiring preservation in the trial court or request

reinstatement of his post-sentencing rights. See Liston, supra. Therefore,

any discretionary aspects claim is waived. See Commonwealth v. Tukhi,

149 A.3d 881, 888 (Pa.Super. 2016) (determining defendant waived

discretionary aspects of sentencing claim by not preserving issue at

sentencing or in post-sentence motion; waived issue is frivolous in context of

Anders brief).


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      Moreover, even if Appellant had preserved a discretionary aspects

challenge, it would not merit relief. Our standard of review of a challenge to

the discretionary aspects of sentencing is as follows:

         Sentencing is a matter vested in the sound discretion of the
         sentencing judge, and a sentence will not be disturbed on
         appeal absent a manifest abuse of discretion. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish, by
         reference to the record, that the sentencing court ignored
         or misapplied the law, exercised its judgment for reasons of
         partiality, prejudice, bias or ill will, or arrived at a manifestly
         unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).                 “Where [PSI]

reports exist, we shall continue to presume that the sentencing judge was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988).

         A [PSI] report constitutes the record and speaks for itself.
         In order to dispel any lingering doubt as to our intention of
         engaging in an effort of legal purification, we state clearly
         that [sentencing courts] are under no compulsion to employ
         checklists or any extended or systematic definitions of their
         punishment procedure. Having been fully informed by the
         pre-sentence report, the sentencing court’s discretion
         should not be disturbed. This is particularly true, we repeat,
         in those circumstances where it can be demonstrated that
         the judge had any degree of awareness of the sentencing
         considerations, and there we will presume also that the
         weighing process took place in a meaningful fashion.

Id. at 102, 546 A.2d at 18. See also Commonwealth v. Tirado, 870 A.2d

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362 (Pa.Super. 2005) (explaining if sentencing court has benefit of PSI, then

law presumes court was aware of relevant information regarding appellant’s

character and mitigating factors).

      Here, the sentencing court had the benefit of a PSI report.         (N.T.

Sentencing, 8/7/17, at 5, 49). Thus, we can presume the court considered

the relevant information and mitigating factors. See Devers, supra; Tirado,

supra. Further, the court explained its sentencing decision as follows:

         [Appellant], this is a particularly difficult case for me. On
         the one hand we have a robbery victim, a married man who
         was killed in the course of his employment leaving behind a
         grieving family, including a wife. On the other hand, we
         have you, now 18 years old, who was at the time of this
         incident a juvenile.

         Further, although you were convicted of robbery and the
         related offenses, you were acquitted of the homicide charge.

         I must make it clear on the record that I am not sentencing
         you for the homicide. However, the law is equally clear;
         that is, this [c]ourt must consider the circumstances of the
         evidence.

         We have individualized sentencing in this Commonwealth,
         so this [c]ourt must take into consideration before a
         sentence is imposed all the factors relevant to the case,
         including your history, your character, your need for
         rehabilitation before a sentence is imposed.

         I have considered the guideline computations, which are a
         matter of record, the mental health evaluation performed,
         as well as the presentence investigation.

         I sat as the presiding judge in this case, so I am very well
         aware of the circumstances. As a result of the reports
         generated pursuant to my order, I know enough about you
         to impose an appropriate sentence.


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         I would be remiss if I did not say that I take into
         consideration all that which has been presented here today,
         including the statements from your family, the people from
         the nonprofit organization that mentored you, your
         grandfather and your mother, and I also considered the
         victim impact statement aforementioned presented by the
         Commonwealth’s attorney.

         I have also considered the factors articulated by our
         legislature and the appellate courts.

         On the one hand, the Commonwealth is requesting a
         sentence of 35 to 70 years in prison. Your attorney believes
         half of that is more than sufficient to address this crime
         given the circumstances surrounding it.

         I want the two sides to appreciate that I know the guidelines
         are simply advisory, but if you just took the guidelines, the
         minimum, not the spread, not the middle range, not the
         aggravated range, if you just took the minimum, you’d have
         a sentence of 16 to 32 years of incarceration.

(N.T. Sentencing, 8/7/17, at 48-50). The record confirms the court properly

weighed Appellant’s circumstances and the severity of the offenses. Based

upon the foregoing, Appellant is not entitled to relief on a challenge to the

discretionary aspects of sentencing. See Hyland, supra.

      Issues related to the legality of a sentence are questions of law.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super 2008), appeal

denied, 598 Pa. 755, 955 A.2d 356 (2008). Our “standard of review is de

novo and our scope of review is plenary.” Id. “If no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction.”   Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super.

2013).


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      Section 1103 of the Pennsylvania Crimes Code provides, in relevant

part, as follows:

         Except as provided in 42 Pa.C.S.[A.] § 9714 (relating to
         sentences for second and subsequent offenses), a person
         who has been convicted of a felony may be sentenced to
         imprisonment as follows:

            (1) In the case of a felony of the first degree, for a
            term which shall be fixed by the court at not more than
            20 years.

18 Pa.C.S.A. § 1103(1). Section 1104 provides, in pertinent part:

         A person who has been convicted of a misdemeanor may be
         sentenced to imprisonment for a definite term which shall
         be fixed by the court and shall be not more than:

            (1) Five years in the case of a misdemeanor of the first
            degree.

18 Pa.C.S.A. 1104(1).

      Instantly, the trial court sentenced Appellant to 5 to 10 years’

incarceration for the intimidation of a witness conviction, a first-degree felony,

along with a concurrent term of 2½ to 5 years’ incarceration on the terroristic

threats conviction, a first-degree misdemeanor.        These sentences do not

exceed the respective statutory maximums for a first-degree felony and a

first-degree misdemeanor. See 18 Pa.C.S.A. § 1103(1), 1104(1). Thus, the

sentencing court had statutory authority to impose Appellant’s sentence, and

Appellant’s illegal sentencing claim merits no relief. See Infante, supra.

      Generally, a challenge to the weight of the evidence must be preserved

by a motion for a new trial. Pa.R.Crim.P. 607. The Rule provides:


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      Rule 607. Challenges to the Weight of the Evidence

         (A) A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial:

              (1) orally, on the record, at any time before sentencing;

              (2) by written motion at any time before sentencing; or

              (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).     “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004) (internal quotation marks

omitted).

      Our standard of review for a challenge to the weight of the evidence is

as follows:

         The weight of the evidence is exclusively for the finder of
         fact who is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses. An
         appellate court cannot substitute its judgment for that of the
         finder of fact. Thus, we may only reverse the lower court’s
         verdict if it is so contrary to the evidence as to shock one’s
         sense of justice. Moreover, where the trial court has ruled
         on the weight claim below, an appellate court’s role is not
         to consider the underlying question of whether the verdict
         is against the weight of the evidence. Rather, appellate
         review is limited to whether the trial court palpably abused
         its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

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(internal citations omitted).

      Instantly, Appellant failed to raise an objection to the weight of the

evidence in the trial court. See Gillard, supra; Pa.R.Crim.P. 607. Appellant

also did not state in his PCRA petition he sought to raise on appeal a claim

requiring preservation in the trial court or request reinstatement of his post-

sentencing rights. See Liston, supra. Therefore, Appellant’s weight claim is

waived. See Commonwealth v. Sherwood, 603 Pa. 92, 110, 982 A.2d 483,

494 (2009) (holding where appellant fails to preserve weight of evidence

challenge in trial court, weight claim is waived because appellate court has

nothing to review); Champney, supra.

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         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 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

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         to believe all, part or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

      Section 4952 of the Crimes Code defines intimidation of a witness, in

relevant part, as follows:

         § 4952. Intimidation of witnesses or victims

         (a) Offense defined.─A person commits an offense if,
         with the intent to or with the knowledge that his conduct will
         obstruct, impede, impair, prevent or interfere with the
         administration of criminal justice, he intimidates or attempts
         to intimidate any witness or victim to:

             (1) Refrain from informing or reporting to any law
             enforcement officer, prosecuting official or judge
             concerning any information, document or thing relating
             to the commission of a crime.

18 Pa.C.S.A. § 4952(a)(1).        The Commonwealth may rely wholly on

circumstantial evidence to prove the elements of intimidation of a witness.

Commonwealth v. Collington, 615 A.2d 769, 770 (Pa.Super. 1992), appeal

denied, 533 Pa. 656, 625 A.2d 1191 (1993). The fact finder, when looking at

the content, timing and circumstances surrounding a communication, may

infer that an actor intended to intimidate a witness through her conduct. Id.

“[T]he facts of each case and the history between the actor and the witness

will determine whether such communications, without more, qualify as

‘intimidation.’”   Commonwealth v. Lynch, 72 A.3d 706, 710 (Pa.Super.

2013) (en banc), appeal denied, 624 Pa. 681, 86 A.3d 232 (2014).

      The crime of terroristic threats is defined as:

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         § 2706. Terroristic threats

         (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.A. § 2706(a)(1). “Neither the 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.” Commonwealth v. Reynolds, 835 A.2d 720, 730

(Pa.Super. 2003) (quoting In re J.H., 797 A.2d 260, 262 (Pa.Super. 2002)).

The statute seeks to prevent harm from the psychological distress that follows

from an invasion of another’s sense of personal security under the totality of

the circumstances. Reynolds, supra at 730.

      When specific intent is an element of a crime, it must be the actor’s

conscious object to engage in conduct of that nature or to cause such result.

18 Pa.C.S.A. § 302(b)(1)(i). “Intent can be proven by circumstantial evidence

and may be inferred from the defendant’s conduct under the attendant

circumstances.” Reynolds, supra at 726.

      Instantly, Appellant showed Mr. Walker a gun and said, “We’re going to

rob the delivery guy.” Appellant and Mr. Walker followed Victim 1 to his car

after Victim 1 had delivered food to Mr. Walker’s home and Victim 2 had paid

for the food. When Mr. Walker heard gunshots and something falling to the

ground, he ran back inside his home. Appellant followed. There, Appellant

held a gun to Victim 2’s head and warned her not to discuss what had occurred

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that evening.

      The content, timing, and circumstances surrounding Appellant’s

encounter with Victim 2 show Appellant intended to intimidate Victim 2

through his conduct so Victim 2 would not report Appellant to the police

regarding the events of that evening. See 18 Pa.C.S.A. § 4952(a)(1); Lynch,

supra; Collington, supra. Further, by holding a gun to Victim 2’s head and

warning her not to talk about what had occurred that night, Appellant

communicated a threat of committing a violent crime against Victim 2 with

the intent to terrorize Victim 2.   See 18 Pa.C.S.A. 2706(a)(1); Reynolds,

supra. Viewed in the light most favorable to the Commonwealth, there was

sufficient evidence to convict Appellant of intimidation of a witness and

terroristic threats. See Jones, supra. Following our independent review of

the record, we conclude the appeal is wholly frivolous. See Palm, supra.

Accordingly, we affirm and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/20


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