J-S30008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JAMES RAYMONT CRUMP,

                             Appellant                  No. 801 WDA 2017


         Appeal from the Judgment of Sentence Entered April 25, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000429-2017


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED AUGUST 07, 2018

        Appellant, James Raymont Crump, appeals from the judgment of

sentence of one year of probation, imposed after he was convicted of simple

assault, 18 Pa.C.S. § 2701(a)(3), and harassment, 18 Pa.C.S. § 2709 (a)(4).

We affirm.

        The trial court summarized the facts adduced at trial as follows:
        [O]n November 5, 2016, Dale Overly and his brother went to
        [Appellant’s] house to look at a car [Appellant] had listed for sale
        on the Offer Up website. After looking at the car, Overly and
        [Appellant] agreed on a sale price. [Appellant] then took Overly
        to see his girlfriend’s van, which was also for sale. Overly also
        agreed to buy the van and Overly transferred some items from his
        own vehicle into the van to clear space in the back seat. The four
        then got into Overly’s SUV to go to a notary to transfer the titles.
        Once the group arrived at the notary, Overly left briefly to go to
        an ATM to get money for the purchases. When he returned,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      [Appellant] stated that the price had gone up. Overly refused to
      pay the higher price and left the notary. [Appellant] approached
      the driver[’s] side of Overly’s vehicle as Overly was beginning to
      leave, and asked for the keys to the van back. Overly replied that
      he would return the keys when he retrieved his belongings from
      the van. [Appellant] lifted his shirt to show a gun in a holster,
      pulled it out and said[,] “Either give me the key or I’m going to
      shoot you.”

Trial Court Opinion (TCO), 12/4/2017, at 2 (internal citation omitted).

      Following a non-jury trial on April 25, 2017, the trial court found

Appellant guilty of the above-stated offenses, and sentenced him to one year

of probation.   He subsequently filed a timely notice of appeal, and timely

complied with the trial court’s instruction to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant now raises the following issues for our review:
       I.   Did the evidence sufficiently prove that [Appellant]
            intentionally placed Dale Overly in fear of serious bodily
            injury, constituting a physical menace, in order to support
            his simple assault by physical menace conviction?

      II.   Did the evidence sufficiently prove that [Appellant’s] actions
            demonstrated the intent to harass, annoy, or alarm Dale
            Overly, in order to support his harassment conviction?

Appellant’s Brief at 4 (unnecessary emphasis and capitalization omitted).

      We apply the following standard of review to sufficiency claims:
      [O]ur applicable standard of review is whether the evidence
      admitted at trial, and all reasonable inferences drawn from that
      evidence, when viewed in the light most favorable to the
      Commonwealth as verdict winner, was sufficient to enable the
      factfinder to conclude that the Commonwealth established all of
      the elements of the offense beyond a reasonable doubt.
      Additionally, when examining sufficiency issues, we bear in mind
      that: the Commonwealth’s burden may be sustained by means of
      wholly circumstantial evidence; the entire trial record is evaluated
      and all evidence received against the defendant considered; and

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       the trier of fact is free to believe all, part, or none of the evidence
       when evaluating witness credibility.

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007)

(internal citations and quotation marks omitted).

       In his first issue, Appellant claims that the evidence was insufficient to

sustain his conviction for simple assault by physical menace. See Appellant’s

Brief at 12. Specifically, he argues that he “never pointed his firearm at any

individual. Although he made a conditional threat to [Overly] to return his

property, [Appellant] immediately returned to the notary’s office when

[Overly’s brother] threatened him.” Id.1 Further, Appellant asserts that “no

witness testified that they were in fear from [Appellant’s] actions, and he

apologized after the incident. [Appellant’s] actions did not indicate any intent

to place [Overly] in fear of seriously bodily injury, or that his actions

constituted a physical menace.”                Id.   According to Appellant, the

Commonwealth also “failed to establish that [he] even took a substantial step

to place [Overly] in fear of imminent serious bodily injury[.]”           Id.    We

disagree.


____________________________________________


1 By way of background, Appellant avers that, after he threatened Overly,
Overly’s brother “jumped out of the vehicle from the front passenger door and
ran around the vehicle. [Overly’s brother] ordered [Appellant] not to shoot,
stating ‘[d]ude, you don’t want to do this shit.’” Appellant’s Brief at 8
(citations to record omitted; some brackets added). Appellant says he then
apologized and went back into the notary. Id. (citation to record omitted);
but see Commonwealth’s Brief at 17 (“[T]he alleged fact that [A]ppellant
immediately left the scene when the ‘victim threatened him’ was not found as
a fact by the court, and so is irrelevant.”) (emphasis in original; citation
omitted).

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      The relevant statute sets forth, in pertinent part, the following:
      (a) Offense defined.-- Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if he:
                                       …
         (3) attempts by physical menace to put another in fear of
         imminent serious bodily injury[.]

18 Pa.C.S. § 2701(a)(3). Serious bodily injury is defined as “[b]odily injury

which creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S. § 2301.

      Here, the trial court found the evidence was sufficient to support

Appellant’s conviction of simple assault by physical menace. In support, it

relied on Commonwealth v. Little, 614 A.2d 1146 (Pa. Super. 1992), in

which this Court determined that the evidence was sufficient to establish the

elements of simple assault by physical menace where Little had “erratically

emerged from her home carrying a shotgun, shouting and advancing from her

porch.” Id. at 1148 (footnote omitted); see also TCO at 3. Although Little

never pointed the shotgun at the victims nor verbalized a specific threat to

shoot the victims, she “was holding the gun ‘in the cradle,’ or in one arm,

visible to onlookers.”   Id. at 1148 n.2, 1154-55.      We concluded that “her

overall demeanor and actions were designed to, and did in fact, put the

[victims] in fear of imminent serious bodily injury.” Id. at 1148 n.2.

      Viewing the evidence, and all reasonable inferences drawn from that

evidence, in the light most favorable to the Commonwealth as the verdict

winner, see Crabill, supra, we agree with the trial court that the facts in the

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case sub judice established simple assault by physical menace. As the trial

court observed, Appellant “admittedly removed his gun from its holster and

held it by his side while demanding the keys to the van back.” TCO at 3. We

concur that, “[a]lthough the gun was not pointed at Overly, the removal of

the gun from its holster while [Appellant] was very close to Overly, coupled

with the demand for the car keys and the statement that he would shoot if

the[] keys were not returned, was sufficient to establish the attempt to put

Overly in fear of imminent serious bodily injury by physical menace.” See id.

That Appellant purports that he did not point the gun at Overly, made a

conditional threat, eventually retreated, and later apologized is irrelevant, as

is his claim that no witness testified that they were actually put in fear from

his actions. Accordingly, we reject Appellant’s challenge to the sufficiency of

the evidence underlying his conviction of simple assault by physical menace.

      In his second issue, Appellant contends that the evidence was

insufficient to sustain his harassment conviction.          He claims that “the

Commonwealth failed to prove that [his] actions demonstrated any intent to

harass, annoy, or alarm [Overly]. Rather, [Appellant’s] actions demonstrated

a clear intent to retrieve his property, namely the keys to his van, and move

along.” Appellant’s Brief at 18. Again, we disagree.

      The applicable statute provides, in pertinent part:
      (a) Offense defined.--A person commits the crime of
      harassment when, with intent to harass, annoy or alarm another,
      the person:




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        (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). Further, “[a]n intent to harass may be inferred from

the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719,

721 (Pa. Super. 2013) (citation omitted).

     Here, the trial court deemed the evidence sufficient to sustain

Appellant’s conviction for harassment, reasoning that “the evidence is clear

that [Appellant] held his gun and threatened Overly that he would shoot if the

van keys were not returned.”      TCO at 4.    Viewing the evidence and all

reasonable inferences drawn therefrom in the light most favorable to the

Commonwealth as the verdict winner, see Crabill, supra, Appellant’s actions

of holding his gun and conveying a threat demonstrate an intent to harass,

annoy, and/or alarm Overly. Thus, this sufficiency argument also fails.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/07/2018




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