J-S50025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                          Appellee        :
                                          :
             v.                           :
                                          :
ANDRE D. DENNIS,                          :
                                          :
                          Appellant       :     No. 204 WDA 2014


     Appeal from the Judgment of Sentence Entered January 23, 2014,
             In the Court of Common Pleas of Fayette County,
            Criminal Division, at No. CP-26-CR-0000474-2013.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED OCTOBER 6, 2014

      Appellant, Andre D. Dennis, appeals from the judgment of sentence

entered on January 23, 2014, in the Fayette County Court of Common Pleas.

We affirm.

      The trial court set forth the relevant facts and procedural history of

this matter as follows:

      [T]he trial evidence established Defendant had a relationship
      with [Fayette County Children an
      July 2011 until the date of the crimes. In November 2012, a
      termination hearing was conducted, and an Order of termination
      was filed in mid-
      parental rights to his child. Defendant then had until January 14,
      2013, to file his appeal. [N.T., Trial, 1/8/14, at 20]. Although the
      parental rights have been terminated, CYS continues to schedule
      visitations between the child and the birth parents during the
      appeal period, so that Defendant was scheduled for a visitation
      with the child on January 17, 2013, the day of the incident.
      However, when Defendant did not file an appeal by the close of
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      business on January 14, CYS caseworker supervisor Christy
      Shaw tried unsuccessfully to reach him by telephone on January
      15 and January 16 to tell him that there would be no visit or
      further contact between him and the child because the
      termination was final. Id. pp. 14-15. When Defendant, following
      procedure, called to confirm his visitation with the child on
      January 17, 2013, at approximately 8:45 A.M., Ms. Shaw then
      informed him that there would be no further contact between
      him and the child. Id. pp. 15-16, 28.

             Defendant became agitated and began yelling, saying he
      was going to kill Ms. Shaw and caseworker Colbi Bucelic, and
      their families, and perhaps other people, too. Id. pp. 16, 30. On
      or about the same day as the final day for the appeal, CYS was

      to whom the rights were terminated, gave birth to a second child
      on January 12, 2013. CYS then filed a dependency petition
      relative to that newborn and requested custody and placement
      of that infant in a foster home. Id. pp. 11, 22. During
                                                                     so
      informed Defendant about the CYS filing of the dependency
      petition, at which time Defendant grew more irate and began to
      use much profanity. Id. pp. at 7, 30. He then suggested that the
      CYS workers call the police because, he said, he was coming to
      the CYS offices to kill them. Id. His threats caused Ms. Shaw and
      Ms. Zielinsky to be afraid, and the agency went on lockdown. Id.
      pp. 17-18, 31. All appointments, visitations, and meetings with
      parents, foster parents, and professionals from other related
      agencies, were cancelled for that entire day, and no caseworkers
      were allowed to go out, even to the parking lot. Id. p. 18. The
      police were notified and appeared at the agency. Id. All told,

      threats, and Ms. Shaw had to leave work early so that her own
      child did not arrive at an empty house when that child came
      home from school. Id. p. 19.

Trial Court Opinion, 2/21/14, at 1-3.

      Appellant was charged with four counts of making terroristic threats,

one count of harassment, and one count of disorderly conduct. One of the




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counts of making terroristic threats was withdrawn. At the conclusion of a

jury trial on January 8, 2014, Appellant was found guilty of one count of

making terroristic threats to Ms. Shaw,1 one count of making terroristic

threats to Ms. Zielinsky,2 one count of making terroristic threats causing

public inconvenience,3 and one count of harassment.4 N.T., Trial, 1/8/14, at

73-74.     Separately, the trial court found Appellant guilty of the summary

offense of disorderly conduct.5 Id. at 74.6 On January 23, 2014, the trial

court sentenced Appellant to an aggregate term of six months to one year of

incarceration, followed by one year of probation.

        Appellant filed a timely notice of appeal on February 3, 2014. On that

same date, the trial court entered an order directing Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).     On February 6, 2014, Appellant filed his Pa.R.A.P. 1925(b)

statement. On February 21, 2014, the trial court filed its opinion pursuant

to Pa.R.A.P. 1925(a).


1
    18 Pa.C.S. § 2706(a)(1).
2
    18 Pa.C.S. § 2706(a)(1).
3
    18 Pa.C.S. § 2706(a)(3).
4
    18 Pa.C.S. § 2709(a)(4).
5
    18 Pa.C.S. § 5503.
6
  Appellant has presented no challenge on appeal regarding the disorderly
conduct summary offense.

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     In this appeal, Appellant raises the following issues:

     [1.] Was the verdict of count 1 and count 2 [convicting Appellant
     of terroristic threats] against the weight of the evidence against
     the weight of the evidence [sic] to show that the telephone
     conversation and language word [sic] used by the Appellant was
     of such a nature to show that the Appellant intended to terrorize
     Christy Shaw or Colleen Zielinsky?

     [2.] Did the testimony show that the action, i.e. telephone
     conversation, rose to the level of terroristic threats which caused
     public inconvience [sic]?

     [3.] Was the verdict of harassment insufficient and against the
     weight of the evidence since it was Children and Youth Services
     that made the telephone call to Appelant [sic] and it was
     Children and Youth Services that kept the Appellant on the
     phone and did not terminate said conversation?



                     first issue, he claims that the convictions for making

terroristic threats against Ms. Shaw and Ms. Zielinsky were against the

weight of the evidence.   Moreover, in his second issue, Appellant asserts

that the testimony did not support the convictions for terroristic threats.

This second issue, as argued, is a challenge to the credibility of the

witnesses and is, therefore, a challenge to the weight of the evidence. See

Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) (stating that

challenges to t

weight and not the sufficiency of the evidence).      Thus, we shall address

these issues together.




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      An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court. Commonwealth v. Manley,

985 A.2d 256, 262 (Pa. Super. 2009) (citation omitted). Appellate review of



discretion, not of the underlying question of whether the verdict is against

the weight of the evidence. Id. (citation omitted). To grant a new trial on

the basis that the verdict is against the weight of the evidence, the evidence

must be so tenuous, vague, and uncertain that the verdict shocks the

conscience of the court. Id. (citations and quotation marks omitted).

      Upon review of the record, however, we conclude that Appellant has

failed to preserve any challenges to the weight of the evidence as he failed

to present them in either an oral or written motion prior to sentencing or in

a timely-filed post-sentence motion.         Lopez, 57 A.3d at 80 (citing

Pa.R.Crim.P. 607). For these reasons, Appellant is entitled to no relief on his

challenges to the weight of the evidence.7

      Assuming, for the sake of argument, that Appellant had properly

preserved his challenges to the weight of the evidence, such a claim would

fail. The Crimes Code defines terroristic threats as follows:




7
  The trial court also concluded Appellant waived his challenges to the weight
of the evidence by failing to raise them before the trial court prior to
sentencing or in a post-sentence motion. Trial Court Opinion, 2/21/14, at 3.


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      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;

            (2) cause evacuation of a building, place of assembly
            or facility of public transportation; or

            (3) otherwise cause serious public inconvenience, or
            cause terror or serious public inconvenience with
            reckless disregard of the risk of causing such terror
            or inconvenience.

18 Pa.C.S. § 2706(a). As noted above, Appellant terrorized Ms. Shaw and

Ms. Zielinsky when he threatened to come to the CYS office and kill them




threats caused serious inconvenience.        Nothing in the verdicts shocks this



that Appellant was entitled to no relief on his weight of the evidence claim.



            challenges to the weight of the evidence were waived due to his

failure to properly preserve them for appeal pursuant to Pa.R.Crim.P. 607.8



8
  Had Appellant preserved a weight of the evidence challenge with respect to
his harassment conviction, his claim would fail. A person commits the crime
of harassment when, with intent to harass, annoy or alarm another, the
person communicates threatening or obscene language.          18 Pa.C.S. §

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the sufficiency of the evidence with respect to the conviction for harassment.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, was sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. James, 46 A.3d 776 (Pa. Super.

2012). It is within the province of the fact-finder to determine the weight to

                                        y and to believe all, part, or none of

the evidence.   Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007);

Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011).                    The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.   Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011).

Moreover, as an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder.     Commonwealth v.

Ratsamy

guilt may be resolved by the fact-finder unless the evidence is so




obscenities, and threatened her life satisfies the elements of harassment, is
not against the weight of the evidence, and it does not shock our
conscience.

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inconclusive that as a matter of law no probability of fact may be drawn

from the circumstances. Moreno, 14 A.3d at 133.

      The relevant portion of the crime of harassment is defined in the

Crimes Code as follows:

      Harassment

      (a) Offense defined.--A person commits the crime of
      harassment when, with intent to harass, annoy or alarm
      another, the person:

                                    * * *

            (4) communicates to or about such other person any
            lewd, lascivious, threatening or obscene words,
            language, drawings or caricatures[.]

18 Pa.C.S. § 2709(a)(4).

      As noted above, the record reflects that Appellant contacted CYS and

threatened employees at the office with physical violence and death. These

threats alarmed CYS employees and caused a lockdown at the CYS offices.

Pursuant to our standard of review, we conclude that the evidence adduced

at trial was sufficient to prove Appellant guilty of harassment.

      For the reasons set forth above, Appellant is entitled to no relief on

any of his claims of error. Accordingly, we affirm the judgment of sentence

entered on January 23, 2014.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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