J-S62003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    JUSTIN WALTER ANTHONY HALE                    :
                                                  :
                       Appellant                  :   No. 371 WDA 2018

          Appeal from the Judgment of Sentence November 16, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012870-2015


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                            FILED FEBRUARY 11, 2020

       Appellant, Justin Hale, appeals nunc pro tunc from the judgment of

sentence entered on November 16, 2016, in the Court of Common Pleas of

Allegheny County, following his conviction of one count each of aggravated

assault, unlawful restraint, terroristic threats, and recklessly endangering

another person (“REAP”).1 On appeal, Appellant claims the trial court erred

in admitting testimony regarding his prior bad acts and the evidence was

insufficient to sustain his conviction for terroristic threats. After review, we

affirm.




____________________________________________


1  18 Pa.C.S.A.       §§    2702(a)(1),        2902(a)(1),   2706(a)(1),   and   2705,
respectively.
J-S62003-19


     We take the underlying facts and procedural history in this matter from

the trial court’s May 22, 2019 opinion and our independent review of the

record.

     On September 12, 2015, at approximately 11:00 p.m., the victim,
     [E.T.], was in her apartment when she received a phone call from
     Appellant, her then boyfriend. (T.T. 44-46, 228). Appellant was
     intoxicated and asked the victim to pick him up in the New
     Brighton area. (T.T. 46, 169). The victim refused and remained in
     her apartment. (T.T. 46, 169). She received another phone call
     from Appellant around midnight, and again, she refused to pick
     him up. (T.T. 46-47, 169). Appellant called the victim a third time
     around 3:00 a.m., and she refused to pick him up a third time.
     (T.T. 48, 169). At approximately 4:00 a.m. the victim heard her
     doorbell ring and recognized Appellant’s voice calling from
     outside. (T.T. 49-50, 169, 229). Appellant threatened to “cause a
     scene” if she did not let him in, so she decided to let Appellant
     into her apartment over fear if he did cause a scene she would be
     evicted. (T.T. 50, 169). Shortly after entering the apartment,
     Appellant took her cell phone from her bedroom and saw she had
     been on Facebook. (T.T. 56-57). Thereafter, the victim and
     Appellant began arguing over alleged infidelities and alleged
     Facebook messages/searches found on her cell phone. (T.T. 57-
     58, 334). At that time, Appellant began to physically assault the
     victim, grabbing her neck and scratching her, as well as breaking
     her cell phone. (T.T. 58-59, 170, 229). Appellant escalated the
     assault upon the victim: punching her, choking her, holding her
     down, hitting her head off of the wall, and threatening to kill her.
     Thereafter, he forcibly pulled her into the bedroom, threw her
     down on the bed, bound her ankles, tied her hands behind her
     back, and tied a cloth tight around her neck. (T.T. 64-67, 170,
     186, 378-380, 219, 230). Appellant removed her clothes, covered
     her eyes, placed toilet paper in her mouth, and bound her mouth.
     (T.T. 67-68). Appellant then engaged in vaginal and anal
     intercourse with her. After the assault, Appellant forced her into
     the shower, still bound, and turned the water on for approximately
     one minute. After the victim was removed from the shower,
     Appellant entered the shower, and the victim was able to free one
     of her feet and ran out of the apartment naked to the neighbors,
     Kiesha and Kadiesha Wiley, who called 9-1-1. (T.T. 71-73, 152,
     171, 187, 230). Kiesha Wiley photographed the victim with her
     cell phone before she removed the restraints from her wrists and

                                    -2-
J-S62003-19


        ankles. (T.T. 78-79, 155, 230). Kiesha Wiley observed welts and
        scratches along the victim’s neck, and that the victim was unable
        to move her right shoulder. (T.T. 152).

        Officer Vincent Tedesco of the Northern Regional Police
        Department arrived at the Wiley apartment at approximately 7:10
        a.m. where he took a report from the victim. He observed her to
        have redness, bruising, and swelling on both sides of her neck and
        under her chin. She had similar marks/injuries on both her wrists.
        (T.T. 164-166). Officer Tedesco called for the paramedics due to
        her physical state. While waiting for the paramedics, the victim
        reported to Officer Tedesco that she had been physically and
        sexually assaulted by her boyfriend, the Appellant. (T.T. 168-
        171). Officer Tedesco also observed a cloth tied around the
        victim’s left ankle. (T.T. 166). A search of the victim’s apartment
        was conducted, and the apartment was found to be in disarray
        with the bedding having been removed, clothes strewn about, the
        bathroom door off its hinges and leaning against the shower stall.
        No one else was in the apartment as Appellant had fled the scene.
        (T.T. 172). The victim was transported to UPMC Passavant
        Hospital where she was examined and her injuries documented.
        (T.T. 190, 217-227).

Trial Court Opinion, 5/22/19, at 4-6.

        On November 9, 2015, the Commonwealth filed a criminal information

charging Appellant with the aforementioned offenses, along with one count

each of rape, involuntary deviate sexual intercourse (“IDSI”), sexual assault,

and indecent assault.2 On August 19, 2016, the Commonwealth filed notice

of its intent to present evidence of prior bad acts in the form of Appellant’s

lengthy history of violence against the victim. After hearing argument, the

trial court allowed the evidence. N.T. Trial, 8/29/16, at 83-85.



____________________________________________


2   18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, and 3126(a)(1).


                                           -3-
J-S62003-19


        A jury trial took place on August 29 through September 1, 2016. The

jury acquitted Appellant of rape, IDSI, sexual assault, and indecent assault,

but convicted him of aggravated assault, unlawful restraint, terroristic threats,

and REAP. On November 16, 2016, the trial court sentenced Appellant to an

aggregate term of 7 to 14 years’ of imprisonment.

        Appellant filed post-sentence motions on November 22, 2016. The trial

court denied them on February 15, 2017. Appellant did not file a direct appeal.

On December 18, 2017, Appellant filed a petition seeking reinstatement of his

direct appeal rights pursuant to the Pennsylvania Post Conviction Relief Act

(PCRA).3 The court granted the PCRA petition on March 1, 2018. The instant,

timely appeal followed.4

        In his first issue, Appellant maintains the trial court erred in allowing the

Commonwealth to present evidence of his history of violence against the

victim. Appellant’s Brief, at 25-36. Specifically, Appellant contends we should

change the law regarding the admissibility of prior bad acts evidence to only

allow its admission if the Commonwealth presents corroborating evidence.

See id. However, Appellant waived this claim.



____________________________________________


3   42 Pa.C.S.A. §§ 9541–9546.

4 On October 23, 2018, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After receiving an extension of time, Appellant filed a timely Rule 1925(b)
statement on February 12, 2019. The trial court issued an opinion on May 22,
2019.

                                           -4-
J-S62003-19


      Our scope and standard of review concerning the admission of evidence

of a prior bad act by the defendant is well settled.

      The admission of evidence is a matter vested within the sound
      discretion of the trial court, and such a decision shall be reversed
      only upon a showing that the trial court abused its discretion. In
      determining whether evidence should be admitted, the trial court
      must weigh the relevant and probative value of the evidence
      against the prejudicial impact of that evidence. Evidence is
      relevant if it logically tends to establish a material fact in the case
      or tends to support a reasonable inference regarding a material
      fact. Although a court may find that evidence is relevant, the court
      may nevertheless conclude that such evidence is inadmissible on
      account of its prejudicial impact.

      Evidence of prior bad acts committed by a defendant is not
      admissible solely to show the defendant’s bad character or his
      propensity for committing bad acts. However, evidence of prior
      bad acts is admissible where there is a legitimate reason for the
      evidence, such as to establish: 1) motive; 2) intent; 3) absence
      of mistake or accident; 4) a common scheme or plan; and 5)
      identity. The evidence may also be admissible to impeach the
      credibility of a testifying defendant; to show that the defendant
      has used the prior bad acts to threaten the victim; and in
      situations where the bad acts were part of a chain or sequence of
      events that formed the history of the case and were part of its
      natural development.

Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009) (citation

and emphasis omitted).

      Here, as discussed above, Appellant claims the trial court improperly

admitted the prior bad acts evidence because the Commonwealth failed to

introduce corroboration. See Appellant’s Brief, at 25-36. At trial, Appellant

objected only on the bases the evidence was irrelevant, cumulative, and

prejudicial. N.T. Trial 8/29/16 – 9/1/16, at 82-83. This Court has stated,

“[w]here a specific objection is interposed, other possible grounds for the

                                       -5-
J-S62003-19


objection are waived.” Commonwealth v. Shank, 883 A.2d 658, 672 (Pa.

Super. 2005) (citation omitted). Because Appellant did not object to the

admission of the evidence on the grounds of lack of corroboration, he waived

the claim.5 See Shank, supra at 672. Appellant’s first contention does not

merit relief.

       In his second and final claim, Appellant challenges the sufficiency of the

evidence underlying his conviction for terroristic threats. See Appellant’s Brief,

at 37-40. Specifically, Appellant contends the Commonwealth “presented

insufficient evidence regarding the mens rea element.”           Id. At 37. We

disagree.


____________________________________________


5 In any event, the claim lacks merit. Initially, Appellant concedes the trial
court properly admitted the evidence in question under the current state of
the law. See Appellant’s Brief, at 25-36. What he seeks is a change in the law
on the admissibility of prior bad acts evidence. See id. This panel lacks the
authority to effect the change in law sought by Appellant. See
Commonwealth v. Brigidi, 6 A.3d 995, 1001 (Pa. 2010) (citation omitted)
(noting three-judge panel of Superior Court is bound by stare decisis until the
prior decision is reversed by either Supreme Court or en banc panel of
Superior Court).

Moreover, we have reviewed the evidence in question and conclude the trial
court did not abuse its discretion in admitting it. The evidence was clearly
probative because it explained why the victim was afraid of Appellant and did
not want him in her apartment, and her conduct of attempting to placate
Appellant during the incident. See Commonwealth v. Ivy, 146 A.3d 241,
252 (Pa. Super. 2016) (reversing trial court decision excluding admission of
protection from abuse order obtained by victim against appellant and noting
evidence of prior abuse between appellant and victim is generally admissible);
Commonwealth v. Jackson, 900 A.2d 936, 940 (Pa. Super. 2006), (holding
history of prior domestic violence between appellant and murder victim was
admissible as part of sequence of events which formed history of case as well
as to show motive, malice, intent and ill-will towards victim).

                                           -6-
J-S62003-19


      Our standard of review of a sufficiency claim is well settled:

      Our standard for evaluating sufficiency of the evidence is whether
      the evidence, viewed in the light most favorable to the
      Commonwealth [as verdict winner], is sufficient to enable a
      reasonable [factfinder] to find every element of the crime beyond
      a reasonable doubt. [T]he entire trial record must be evaluated
      and all evidence actually received must be considered, whether or
      not the trial court's rulings thereon were correct. Moreover, [t]he
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Finally, the trier of fact, while passing
      upon the credibility of witnesses and the weight to be afforded the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

       A person commits the offense of terroristic threats if he “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). An individual acts

intentionally with respect to a material element of an offense when “it is his

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

result[.]” 18 Pa.C.S.A. § 302(b)(1)(i). Therefore, to sustain a conviction for

terroristic threats, the evidence must demonstrate: “(1) the defendant made

a threat to commit a crime of violence; and (2) such threat was communicated

with the intent of terrorizing another or with reckless disregard for the risk of

causing terror. A direct communication between the defendant and the victim

is not required to establish the crime of terroristic threats.” In the Interest

of L.A., 853 A.2d 388, 391-92 (Pa. Super. 2004) (citation omitted). It is not


                                      -7-
J-S62003-19


necessary that the defendant have either the ability or the instrumentality to

carry out the threat. See Commonwealth v. Cancilla, 649 A.2d 991, 993

(Pa. Super. 1994) (evidence sufficient to sustain conviction for terroristic

threats where defendant called in bomb threat even though there was no

bomb and no one was injured).

      Here, the trial court did not find merit in Appellant’s arguments:

      Contrary to Appellant’s assertion that the comments were mere
      spur-of-the-moment threats which resulted from anger, the
      testimony established that Appellant clearly communicated
      threats to the victim with the intent to terrorize, which included
      threats to both rape and kill her. Specifically, Appellant
      communicated threats that he was going to kill her, and that he
      was going to send her to her son and grandmother, both of whom
      were deceased. (T.T. 67). Additionally, Appellant, while holding
      the victim face down on the bed, told her that her biggest fear,
      that of being raped, was going to come true as he removed her
      clothes and began tying her up. (T.T. 77). Clearly such threats,
      under the circumstances in which they were made, were
      communicated with the intent to terrorize the victim. See
      Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super.
      2003) (holding that Appellant’s threats to kill were not mere spur-
      of-the-moment threats resulting from anger as anger does not
      negate a person’s capability to form the intent to terrorize, and
      the Commonwealth presented sufficient evidence to establish the
      required mens rea).

Trial Ct. Op. at 10. Our independent review of the relevant law and the

certified record confirms the trial court’s analysis.

      Moreover, Appellant’s claim is, in essence, a contention the jury should

have credited his testimony rather than the victim’s. See Appellant’s Brief, at

37-40. However, such an argument goes to the weight of the evidence, not

the sufficiency of the evidence. See Commonwealth v. W.H.M., Jr., 932


                                      -8-
J-S62003-19


A.2d 155, 160 (Pa. Super. 2007) (claim jury should have believed appellant’s

version of event rather than victim’s goes to weight, not sufficiency of

evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super.

2003) (review of sufficiency of evidence does not include assessment of

credibility   of   testimony;     such    claim   goes   to   weight   of   evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997)

(credibility determinations are made by finder of fact and challenges to those

determinations go to weight, not sufficiency of evidence). Accordingly,

Appellant’s sufficiency of the evidence claim does not merit relief.6

       Appellant’s issues are either waived or lack merit. Thus, we affirm the

judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


6Further, to the extent Appellant may be claiming the verdict is inconsistent,
we note:

       Inconsistent verdicts, while often perplexing, are not considered
       mistakes and do not constitute a basis for reversal. Rather, the
       rationale for allowing inconsistent verdicts is that it is the jury’s
       sole prerogative to decide on which counts to convict in order to
       provide a defendant with sufficient punishment.

Commonwealth v. Thoeun Tha, 64 A.3d 704, 711 (Pa. Super. 2013).

                                           -9-
J-S62003-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2020




                          - 10 -
