J-A04033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ELENA MARCIA JAMES,

                        Appellant                   No. 1777 WDA 2014


       Appeal from the Judgment of Sentence September 29, 2014
            In the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0003909-2013, CP-02-CR-0003921-
                                   2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 2, 2016

     Elena Marcia James (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Allegheny County on

September 29, 2014. We affirm.

     The trial court summarized the factual history of this case as follows:

           On March [14], [2012], at approximately 10:57 a.m.,
     Captain Ronald Denbow of the Coraopolis Police Department
     received a call to respond to the nine hundred block of Fifth
     Avenue in Coraopolis by the Dollar General Store because there
     was an individual who was attempting to try car doors and get
     into those particular cars. When he arrived at the scene, he
     found that [Appellant] was in the custody of a constable and
     after identifying [Appellant], they took her into custody and
     transported her back to the police station. When they took her
     for processing, she was walking in front of Captain Denbow and
     Sergeant McGrady when she turned to them and said “which
     ones of yuns wants to die today?”. Officer Robert Litterini was
     escorting [Appellant] to be processed along with Captain
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      Denbow when he also heard her ask “which one of yuns wants to
      die today?” Both of these police officers took that as a threat.

             On March 30, [2012], Officer Sean Quinn received a radio
      call from his partner, Officer Massey, that a female was standing
      in the middle of the roadway. When Officer Quinn went to aid
      his partner he discovered that the individual standing in the
      roadway was [Appellant]. She told the Officers that she was
      looking for her daughter who was either in Pittsburgh or New
      York. The Officers advised her to go home and make phone calls
      to try to locate her daughter. Based upon the fact that they
      were aware of [Appellant’s] recent involvement with the police,
      the Officers decided to observe her and watched her walking
      back and forth to a bar. They then observed her going into a
      private driveway where she circled a white BMW three times,
      looking into the windows. She walked away from that car and
      went into another private driveway and attempted to open the
      door of a Blue Chevy pickup truck, however she was
      unsuccessful in doing that. She then went back to the BMW and
      attempted to open the door on that car, again being
      unsuccessful in her attempt to do so.           The Officers then
      approached her and placed her under arrest. When conducting a
      pat down on her, they found a large kitchen knife that was in her
      waistband, that knife being anywhere [from] six to eight inches
      long and then found three steak knives in a backpack. When
      asked why she had these knives, she stated that she was going
      to stab somebody. The area in which they found [Appellant] was
      a residential area and they observed her go into several private
      driveways.

Trial Court Opinion, 6/16/15, at 3-4.

      Appellant was charged at CC No. 201303909 with two counts of

terroristic threats and one count of theft from a motor vehicle. At CC No.

201303921, Appellant was charged with two counts of possession of

instruments of crime (“PIC”), two counts of criminal attempt – theft from a

motor vehicle, and one count of prowling/loitering.




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      On June 26, 2014, Appellant proceeded to a jury trial on both criminal

complaints.    Following trial, Appellant was convicted of both counts of

terroristic threats, but acquitted of theft from a motor vehicle at CC No.

201303909.     At CC No. 201303921, Appellant was convicted of all five

counts.    A presentence report was ordered, and on September 29, 2014,

Appellant was sentenced to two periods of probation of two years each, to

be served concurrently. The trial court also ordered Appellant to undergo a

Drug, Alcohol, and Mental Health Evaluation and to submit to random drug

testing.

      Appellant timely appealed. The trial court and Appellant complied with

the requirements of Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I.    Was the evidence insufficient to sustain the two
      convictions for terroristic threats as [Appellant] did not intend to
      terrorize either officer?

      II.   Was the evidence insufficient to sustain the two
      convictions for attempted theft from a motor vehicle as failing to
      open a car-door handle is not a substantial step towards taking
      items from inside that vehicle?

      III. Was the evidence insufficient to sustain the two counts of
      possessing instruments of crime as [Appellant] merely possessed
      kitchen knives and did not intend to employ them criminally?

Appellant’s Brief at 6.

      In all three of her issues, Appellant challenges the sufficiency of the

evidence sustaining her convictions.         Our standard of review when

considering a challenge to the sufficiency of the evidence is well settled:

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      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 proof or 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 trier 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. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003).

      In her first issue, Appellant argues that there was insufficient evidence

to sustain the two convictions for terroristic threats at CC No. 201303909.

Appellant’s Brief at 16. Appellant asserts that she did not intend to terrorize

Officers Denbow and Litterini. Id. Instead, Appellant maintains, “[t]he two

questions that [Appellant] asked while handcuffed and following her arrest

were nothing more than small expressions of frustration.”       Id.   Appellant

further contends that because the comments did not “seriously impair”

security, the trial court erred in convicting her of the terroristic threats

counts. Id.

      Under 18 Pa.C.S. § 2706(a)(1), a person commits the crime of

terroristic threats if the person communicates, either directly or indirectly, a

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threat to “commit any crime of violence with intent to terrorize another.” 18

Pa.C.S. § 2706(a)(1).    “[I]t is unnecessary for an individual to specifically

articulate the crime of violence which he or she intends to commit where the

type of crime may be inferred from the nature of the statement and the

context and circumstances surrounding the utterance of the statement.”

Commonwealth v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super. 1990).

      We have provided the following explanation in consideration of the

sufficiency of evidence to establish the crime of terroristic threat:

      “[T]he 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, 454 Pa.Super. 1, 684 A.2d 597, 600
      (1996). “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.”      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.

            Section 2706 “is not meant to penalize mere spur-of-the-
      moment threats which result from anger.” In re J.H., 797 A.2d
      at 262–63. See also Tizer, 684 A.2d at 600 (indicating statute
      is not meant to penalize spur-of-the-moment threats arising out
      of anger during a dispute); Commonwealth v. Anneski, 362
      Pa.Super. 580, 525 A.2d 373 (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

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         totality of circumstances to determine whether the threat was a
         result of a heated verbal exchange or confrontation.” Id.

Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003).

         Here, Captain Ronald Denbow provided the following testimony at

trial:

         [Captain Denbow]:       I met [an officer] at the police station
         parking lot. As we got [Appellant] out of the police vehicle, we
         were taking her up to the police station for processing.

         [Commonwealth]:         And what happened while you were
         taking her up for processing?

         [Captain Denbow]:       When taking her up for processing, she
         was walking in front of us and she turned around and said which
         one of younz wants to die today?

         [Commonwealth]:        Who did she state that to?

         [Captain Denbow]:      To both of us standing right there.

         [Commonwealth]:        What was your reaction to that?

         [Captain Denbow]:       I said excuse me and she said which one
         of younz want to die today.

         [Commonwealth]:        Did you have a personal feeling or
         reaction?

         [Captain Denbow]:      I took it serious in light of today’s
         society.

N.T., 6/26/14, at 9-10.

         Sergeant Robert Litterini also testified at trial.   Sergeant Litterini

testified that on March 14, 2012, he escorted Appellant while she was at the

police station.     N.T., 6/26/14, at 11.      Sergeant Litterini provided the

following testimony:

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      [Commonwealth]:          Did [Appellant] make any statements to
      you?

      [Sergeant Litterini]:  When escorting her into the station, she
      [asked] which one of us wanted to die today.

      [Commonwealth]:          What was your reaction to that?

      [Sergeant Litterini]: Hesitant for a minute. The Officer asked
      her again and what she said and she repeated which one of you
      wants to die today.

      [Commonwealth]:          How did you take that?

      [Sergeant Litterini]:    I took that as a threat.

N.T., 6/26/14, at 11-12.

      We conclude that the totality of the circumstances presents sufficient

evidence to sustain Appellant’s conviction on the two counts of terroristic

threats as to Sergeant Litterini and Captain Denbow.              As noted above,

Appellant   threatened   the   officers’   lives   while   at   the   police   station.

Appellant’s question of “which one of [you] wants to die today” can be fairly

inferred as a threat. Appellant’s comments were made while she was being

taken to processing and were not made during a heated exchange or

confrontation.   Thus, the circumstances were not similar to those in

Anneski, 525 A.2d at 373, where two neighbors were threatening each

other with equally violent acts during a heated argument. Additionally, it is

of no relevance that Appellant was unable to immediately carry out the

threat due to her being handcuffed, or whether the officers believed that the

threat would be carried out, as these factors are not elements of the offense.


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Reynolds, 835 A.2d at 730.       Accordingly, we agree with the trial court’s

conclusion that the evidence viewed in the light most favorable to the

Commonwealth was sufficient to sustain Appellant’s convictions on the two

counts of terroristic threats.

      In her next issue, Appellant contends that the evidence was

insufficient to convict her of criminal attempt-theft from a motor vehicle.

Appellant’s Brief at 25. Appellant asserts that she “unsuccessfully tried to

open the doors of two vehicles, which did not constitute a substantial step

towards taking items from either car.”         Id.   Furthermore, Appellant

maintains that “[t]here was no testimony that [her] actions were anything

more than neurotic tics.” Id.

      Criminal attempt is defined as follows: “A person commits an attempt

when, with intent to commit a specific crime, he does any act which

constitutes a substantial step toward the commission of that crime.”        18

Pa.C.S. § 901(a). Additionally, theft from a motor vehicle occurs when one

“unlawfully takes or attempts to take possession of, carries away or

exercises unlawful control over any movable property of another from a

motor vehicle with the intent to deprive him thereof.” 18 Pa.C.S. § 3934.

      The evidence of record reflects that on March 30, 2012, Officer Shawn

Quinn responded to a call regarding a woman, identified as Appellant, who

was standing in the middle of the roadway in a residential area.        N.T.,

6/26/14, at 13.      Officer Quinn was familiar with Appellant due to his


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previous contact with her. Id. When Officer Quinn addressed Appellant, she

told him that she was looking for her daughter.    Id.   The officers advised

Appellant to go home and attempt to reach her daughter, and if she was

unable to do so, to contact the police for a “welfare check.” Id. Based on

Officer Quinn’s prior experience with Appellant, he positioned himself and

other officers throughout the block so as to maintain view of Appellant. Id.

at 13-14.

      After the officers removed themselves from view, they observed

Appellant walking “back and forth to the bar.” N.T., 6/26/14, at 14. Officer

Quinn subsequently saw Appellant return to his location and circle a white

BMW automobile three times while peering into the windows of that vehicle.

Id.   Appellant proceeded to walk away from the BMW onto a private

driveway where she attempted to open the door of a blue Chevy pick-up

truck. Id. After being unsuccessful in opening the door to the Chevy truck,

Appellant walked back to the BMW where she attempted to open the door of

that vehicle. Id. at 14-15. At that point, the officers approached Appellant

and placed her under arrest. Id. at 15.

      In addressing Appellant’s claim, the trial court provided the following

analysis:

      The Commonwealth was required to establish that [Appellant]
      attempted to commit the crime of theft and did in fact, which
      constituted a substantial step toward the commission of that
      crime. Officer Quinn testified that he observed [Appellant] go to
      a BMW automobile, walk around that automobile three times
      looking into the automobile and then left that automobile and

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      went to a Chevrolet pickup truck and attempted to open the
      door, however, was foiled in her attempt since it was locked.
      Frustrated that she was unable to get into that car, she went
      back to the BMW and tried to open the door of that car, again to
      be frustrated since that door was locked. [Appellant] was in a
      residential neighborhood and went to private driveways to get
      into vehicles for which she had no authority to be in. The logical
      and reasonable inference drawn from her conduct was that she
      was attempting to take items of personal property from those
      vehicles, thereby constituting the crime of theft.           Again,
      [Appellant’s] testimony that she was looking for her daughter
      was found to be incredible in light of the actions that she was
      taking in a private residential area where she did not reside.

Trial Court Opinion, 6/16/15, at 9.

      We agree with the trial court’s conclusion that there was sufficient

evidence to convict Appellant of attempted theft from a motor vehicle.

Appellant continued her presence in the residential area after being advised

by officers to leave the area. Appellant lapped the BMW automobile three

times while looking in the windows of the vehicle. She attempted to open

the doors to the Chevy pick-up truck and the BMW automobile.                 These

actions support the conclusion that Appellant took substantial steps toward

theft of items within the motor vehicles.        Accordingly, Appellant’s second

claim lacks merit.

      In her third issue, Appellant argues that the evidence was insufficient

to sustain her two convictions for PIC.        Appellant’s Brief at 30.   Appellant

contends that the Commonwealth failed to present evidence sufficient to

establish that she intended to employ the knives in her possession

criminally. Id. Instead, Appellant maintains, she was merely in possession


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of the knives. Id. She argues that because “she never used or attempted

to use them in any way,” her mere possession of the knives did not establish

the requisite intent. Id.

      The relevant provision of section 907 of the Crimes Code provides: “A

person commits a misdemeanor of the first degree if he possesses a firearm

or other weapon concealed upon his person with intent to employ it

criminally.” 18 Pa.C.S. § 907(b). A “weapon” is defined, in relevant part, as

“[a]nything readily capable of lethal use and possessed under circumstances

not manifestly appropriate for lawful uses which it may have.” 18 Pa.C.S. §

907(d).

      Here, the evidence reveals that when officers stopped Appellant on

March 30, 2012, they placed her under arrest.        N.T., 6/26/14, at 15.

Officers conducted a search of Appellant’s person pursuant to that arrest.

Id.   The search revealed a large, six-to-eight-inch kitchen knife that

Appellant had concealed in her waistband in a “make-shift,” “utility-type”

belt. Id. at 15, 18. Upon discovery of the knife in Appellant’s waistband,

Appellant was searched for additional weapons, and officers discovered an

additional three knives in the backpack Appellant had with her. Id. at 15-

16. Officer Quinn testified that when he arrested Appellant and discovered

the first knife, he asked Appellant why she had the knife concealed in her

waistband. Id. at 16. In response, Appellant “stated that she was going to

stab somebody.” Id.


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      As outlined above, the evidence reflects that Appellant possessed a

large six-to-eight-inch kitchen knife which she had concealed in her

waistband. Appellant had also concealed an additional three knives in her

backpack. Although the knives have lawful uses, they are readily capable of

lethal use and here, the evidence suggests that they were “possessed under

circumstances not manifestly appropriate for lawful uses,” thereby satisfying

the definition of “weapon.” 18 Pa.C.S. § 907(d). Indeed, when asked why

she had the knife, Appellant responded that “she was going to stab

somebody.”    N.T., 6/26/14, at 16.     Thus, the evidence of record supports

the conclusion that Appellant intended to use the knives for criminal

purposes.     Viewing the evidence in the light most favorable to the

Commonwealth, we conclude that the evidence was sufficient to establish

that Appellant possessed weapons concealed upon her person with intent to

employ them criminally. Accordingly, Appellant’s final claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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