J-A05026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANIEL JASIONOWSKI

                            Appellant                   No. 407 EDA 2015


          Appeal from the Judgment of Sentence September 11, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008134-2014


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                   FILED JULY 06, 2016

        Daniel Jasionowski1 appeals from the judgment of sentence imposed

on September 11, 2014, in the Court of Common Pleas of Philadelphia

County, made final by the denial of post-sentence motions on January 15,

2015. At the conclusion of a bench trial, which took place on the same day

as sentencing, the trial court convicted Jasionowski of terroristic threats and

possession of an instrument of crime (“PIC”).2       The trial court sentenced

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    The trial court (and part of the record) refers to the appellant as
“Jasiunowski,” but the appellant (and the remaining part of the record)
spells his name “Jasionowski.” For consistency, we will refer to the appellant
as “Jasionowski.”
2
    18 Pa.C.S. § 2706(a)(1) and 907(a), respectively.
(Footnote Continued Next Page)
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Jasionowski to an aggregate term of five years’ probation.           On appeal,

Jasionowski raises sufficiency, self-defense, and weight challenges.3 After a

thorough review of the submissions by the parties, the certified record, and

relevant law, we affirm.

      The trial court set forth the factual history as follows:

            On February 12, 2014, at approximately 6:50 p.m., Ms.
      Wanda Pittman entered into the shared alleyway behind her
      home on the 6500 block of Bradford Terrace in the City and
      County of Philadelphia in a rented U-Haul truck. Ms. Pittman
      observed a cable company truck parked in the alley, blocking her
      progress. [Jasionowski] was moving items from the truck into a
      driveway. Ms. Pittman had called her children on her cell phone
      to have them ready to move some furniture as soon as she was
      parked. After a few minutes, Ms. Pittman exited her vehicle,
      approached [Jasionowski] and asked him if he would be long.
      [Jasionowski] related that he would take as long as he wanted,
      and began to use profane terms. An argument ensued. Ms.
      Pittman’s daughter came to her side during the argument and
      [Jasionowski] went into his home through the garage and
      retrieved a handgun. Ms. Pittman’s daughter, Tiffany Pittman[,]
      called the police. Holding the firearm in his hand, [Jasionowski]
      continued to yell at Ms. Pittman and her daughter at a distance
      of approximately four feet. Shortly thereafter, police arrived
      from both ends of the alley.

           Police Officer Elaine Conn arrived in the alleyway and
      recovered [Jasionowski]’s handgun from his jacket pocket.

            [Jasionowski] testified that Ms. Pittman commented that …
      [Jasionowski] had better hope that the police arrived before her
      son arrived, and that he lifted his shirt to reveal his firearm, in a
      holster clipped to his waist, and responded that he would defend
      himself. [Jasionowski] also testified that he never unholstered
                       _______________________
(Footnote Continued)


3
  Based on the nature of the claims, we have reorganized the issues in our
analysis.



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       his firearm. This court did not take [Jasionowski]’s testimony as
       credible over Ms. Pittman’s testimony as to these details.

Trial Court Opinion, 5/11/2015, at 2-3 (record citations omitted).

       Jasionowski was charged with terroristic threats, PIC, simple assault,

and recklessly endangering another person. As noted above, on September

11, 2014, at Jasionowski’s bench trial, the court convicted him of terroristic

threats and PIC. That same day, the court sentenced him to two concurrent

terms of five years’ probation for both counts.     Jasionowski filed a post-

sentence motion, which was denied by operation of law on January 15,

2015. This timely appeal followed.4

       In Jasionowski’s first issue, he claims there was insufficient evidence

to support his conviction for terroristic threats. Jasionowski’s Brief at 13.5

Specifically, he states the Commonwealth did not prove he “had the criminal

intent to terrorize another or had reckless disregard for the risk of causing

such terror.” Id. at 14. Jasionowski argues, “Although the trial court seems

to find … [his] testimony self[-]serving and not credible, there would be no

reason for [him] to walk into his home and retrieve[] a gun except if he was


____________________________________________


4
   On February 17, 2015, the trial court ordered Jasionowski to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Jasionowski filed a concise statement on March 9, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on May 11, 2015.
5
  Jasionowski does not challenge the sufficiency of the evidence with respect
to his PIC conviction.



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being threatened by Ms. Pittman and her daughter.” Id. at 15. Moreover,

he complains,

     Neither the Commonwealth during their presentation of evidence
     nor the trial Judge in his written opinion explained what
     motivation [Jasionowski] would have for going into his home and
     retrieving a gun. Additionally, there was no testimony presented
     by the Commonwealth or explanation in the trial court’s opinion
     why [Jasionowski,] if not believed, would react to an older
     woman calmly walking up to him asking him how long he is
     going to be unless something additional happened. In fact, the
     trial court … stated you can always get some embellishment and
     exaggeration all the time.        (Referring to all testimony).
     Furthermore, the trial court never decided whether the gun was
     pointed or shown by [Jasionowski] as he testified.

Id. at 15.   Jasionowski further states he and Pittman were engaged in “a

heated argument” and therefore, “any action with the gun was not with the

intent to terrorize or a reckless disregard that the action would cause

someone to be terrorized.”        Id. at 16.   Relying on Commonwealth v.

Anneski, 525 A.2d 373 (Pa. Super. 1987), appeal denied, 532 A.2d 19 (Pa.

1987), Jasionowski asserts his “actions were a direct response to those of

[Pittman] and her daughter and not done with [the] intent to terrorize or

reckless disregard.” Id. at 17.

     We begin with our well-settled standard of review:

     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

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     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 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 the evidence actually received must be considered. Finally,
     the trier of fact while passing on the credibility of witnesses and
     the weight of the evidence produced, is free to believe all,
     part[,] or none of the evidence.

Commonwealth v. Yong, 120 A.3d 299, 311 (Pa. Super. 2015) (citation

omitted), appeal granted on other grounds, __ A.3d __ [606 EAL 2015] (Pa.

2016).

     The crime of terroristic threats is defined, in relevant part, as follows:

     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. § 2706(a)(1).

     “[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.




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       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.[6] 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
       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, a review of the record reveals the following.     Pittman testified

the exchange between herself and Jasionowski lasted approximately 15 to

20 minutes.       N.T., 9/11/2014, at 9.         Pittman stated that she asked

Jasionowski how long he was going to be in the alleyway and he replied, “As

long as I f’ing … want to, nigger bitch.” Id. Pittman also testified, “We said

so many things to each other, you know. I said to him, ‘I don’t believe if,

you know, my son or my boyfriend was here, you wouldn’t be talking to me

like that, because I’m a woman.’” Id. Pittman’s daughter came up, asked



____________________________________________


6
  “The purpose of [Section 2706] is to impose criminal liability on persons
who make threats which seriously impair personal security or public
convenience.” 18 Pa.C.S.A. § 2706, Comment.



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Jasionowski why he was arguing with an “old lady,” and laughed at him. Id.

at 10.

         The verbal incident then deteriorated because Jasionowski went into

his home, retrieved the gun, and came back out.             Id.   While standing

roughly four to six feet away, he pointed the gun at her and waved it back

and forth.     Id. at 11-12.    Jasionowski also pointed the gun at Pittman’s

daughter.      Id. at 12.      Pittman stated that she could not recall what

Jasionowski yelled at her while holding the gun because she was “petrified.”

Id. at 13.

         Jasionowski took the stand and testified that he always carries his gun

on his right-hand side in a holster. Id. at 74. He stated:

               When [Pittman] had saw [sic] the gun, it was still on my
         right-hand side. She was on the phone with somebody and her
         daughter was on the phone with -- telling her uncle to hurry up
         and get here before the cops, and I said, it doesn’t matter if they
         come, if they -- they are not going to move the truck; it doesn’t
         matter. And if they are going to come start anything, I’m going
         to defend myself, my property, with my kids in the house.

                                            …

              I lifted up my sweatshirt and I showed them the butt of
         my gun sticking out of my pocket.

Id. at 75-76. Jasionowski further testified that he never took the gun out of

the holster or waved it back and forth. Id. at 76.

         Based on this evidence, the trial court found the following:

               [Jasionowski], involved in a heated argument with Ms.
         Pittman and eventually her daughter, retreated into his home
         and returned to the argument while brandishing a handgun. The

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J-A05026-16


      context and circumstances surrounding [Jasionowski]’s actions
      were sufficient to convince this court of [his] guilt. As concerns
      [Jasionowski]’s assertion that he lacked criminal intent to evoke
      terror, this court need only look to the language of the statute to
      discern that a defendant need not harbor the specific intent to
      terrorize his victim – the elements of the offense are established
      so long [as] the evidence shows even “reckless disregard” for
      the risk of causing terror. Even if [Jasionowski] manifestly did
      not intend to invoke terror in Ms. Pittman, his failure to
      recognize that conduct so extreme would provoke Ms. Pittman’s
      obvious fear of injury can only be characterized as reckless
      disregard. Accordingly, this court finds the evidence more than
      ample to establish the intent element of section 2706. Accord,
      Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (2009) aff’d
      in part, rev’d in part, 612 Pa. 321, 30 A.3d 1105 (2011) (Finding
      sufficient evidence for reckless disregard when defendant
      approached victims with a hammer and electric drill, after a
      heated argument).

Trial Court Opinion, 5/11/2015, at 4-5.

      We agree with the court’s rationale.      Initially, we note to the extent

Jasionowski asks this Court to discount or reweigh the victim’s testimony in

favor of his own testimony, our standard of review prohibits this kind of

approach to appellate review. See Yong, supra. Therefore, Jasionowski is

not entitled to such relief on his sufficiency challenge.

      Moreover, based on the totality of the circumstances surrounding the

incident in question, we conclude Jasionowski possessed the requisite intent

to sustain the terroristic threats conviction because a reasonable person

would conclude that this was not “mere spur-of-the-moment threats which

result from anger.”      In re J.H., 797 A.2d at 262–63.          Jasionowski’s

derogatory remarks and heated conversation with the victim lasted roughly

20 minutes.    Although Jasionowski was angry and acrimonious, that alone

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did not negate his intent. Jasionowski left the conversation, went inside his

home, and then came back out with an actual gun. By waving the gun at

Pittman and her daughter, Jasionowski intended that his statements and

actions would carry sufficient weight to convince them to stop disturbing

him. Furthermore, Jasionowski acted with reckless disregard for the risk of

causing terror when he brought the gun out and pointed it at the women.

Pittman’s testimony, which the trial court found credible, was that she was

so petrified she could not hear him continue to yell at her. We note that an

explicit, spoken threat is not required to sustain a conviction for terroristic

threats.   See Commonwealth v. McCalman, 795 A.2d 412, 418 (Pa.

Super. 2002), appeal denied, 812 A.2d 1228 (Pa. 2002) (determining

terroristic threats was established by the defendant’s actions in holding a

gun to three people’s heads even though his use of offensive language does

not rise to the level of a terroristic threat); In re Larry Maloney, 636 A.2d

671, 676 (Pa. Super. 1994) (finding there was sufficient to establish a prima

facie case of making a terroristic threat where victim alleged that driver-

defendant pointed a gun at him and told him to “get the fuck out of here”);

Commonwealth v. Hudgens, 582 A.2d 1352, 1359 (Pa. Super. 1990)

(holding that where a defendant displays a weapon while threatening a

victim, the victim was “subjected to the precise type of psychological harm

and impairment of personal security which the statute seeks to prevent”).




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Jasionowski’s overall conduct was not the result of a heated exchange

between himself and Pittman, but was intended to cause fear.

      Additionally, Jasionowski’s reliance on Anneski, supra, does not

compel a different result. In Anneski, the victim threatened to run over the

appellant’s children with her car, if the children did not move out of her way.

Anneski, 525 A.2d at 375.      A battle of wills developed between the two

female individuals.   At one point, the victim’s “vehicle struck a schoolbag

being carried by one of the children.” Id. The victim later stated that “she

would run into the children again if they didn't get out of her way.” Id. In

response to the threat, the defendant stated that if the victim attempted to

harm her children again, she would get a gun and use it. Based on these

facts, a panel of this Court held the statement was a spur-of-the-moment

type of threat which was made during a heated argument. Id. at 376.

      Unlike Anneski, in the present case, Jasionowski did not just yell at

the victim and her daughter, he also waved the gun at them from a very

short distance.   Moreover, there was no evidence presented that Pittman

and her daughter threatened Jasionowski in any manner.           As such, we

conclude the Commonwealth presented sufficient evidence to establish

Jasionowski’s acts clearly amounted to a reckless disregard for the risk of

causing terror against Pittman.




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      In Jasionowski’s second argument, he claims the trial court erred by

not accepting his affirmative defense of self-defense. Jasionowski’s Brief at

25. Specifically, he states that

      Ms. Pittman and her daughter’s action justified his use of merely
      showing or pointing a gun in their direction in response to their
      actions. Common sense does not dictate that displaying or
      pointing a gun without uttering any words would be a reaction to
      someone calmly asking him how long he was going to be moving
      items out of his truck.

                                         …

             There would be no other reason to brandish a gun during a
      heated discussion by neighbors when no threats were made to
      the aggressor.     In fact, [Jasionowski’s] fiancé testified the
      situation escalated when Ms. Pittman’s daughter arrived. The
      totality of the surrounding circumstances as found by the trial
      court were erroneous.

Id. at 26.

      With respect to the defense of self-defense, we are guided by the

following:

      Section 505 sets forth the elements of self-defense:

      § 505. Use of force in self-protection

         (a) Use of force justifiable for protection of the person.--
         The use of force upon or toward another person is
         justifiable when the actor believes that such force is
         immediately necessary for the purpose of protecting
         himself against the use of unlawful force by such other
         person on the present occasion.

      18 Pa.C.S.A. § 505(a).

      “When a defendant raises the issue of self-defense, the
      Commonwealth bears the burden to disprove such a defense
      beyond a reasonable doubt.” Commonwealth v. Bullock,

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      2008 PA Super 83, 948 A.2d 818, 824 (Pa. Super. 2008). The
      Commonwealth sustains this burden if it establishes at least one
      of the following: (1) the accused did not reasonably believe that
      he was in danger of death or serious bodily injury; (2) the
      accused provoked or continued the use of force; or (3) the
      accused had a duty to retreat and the retreat was possible with
      complete safety. Commonwealth v. McClendon, 2005 PA
      Super 164, 874 A.2d 1223, 1230 (Pa. Super. 2005).            The
      Commonwealth need only prove one of these elements beyond a
      reasonable doubt to sufficiently disprove a self-defense claim.
      Commonwealth v. Burns, 2000 PA Super 397, 765 A.2d 1144,
      1149 (Pa. Super. 2000).

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009).

      Here, the trial court found the following:

            In finding [Jasionowski] guilty, this court did not find
      credible [Jasionowski]’s self-serving testimony that he merely
      showed his gun on his hip to dissuade perceived aggression from
      Ms. Pittman’s family members. Indeed, the court found that
      [Jasionowski] was the aggressor in pursuing a heated argument
      with Ms. Pittman while holding a handgun. As stated above, the
      court found that [Jasionowski] acted with at least reckless
      disregard for the risk of causing terror by his extreme conduct.

Trial Court Opinion, 5/11/2015, at 6.

      In light of the case law, we disagree with Jasionowski and concur with

the trial court.    The facts are clear that the initial interaction was a

discussion between Pittman and Jasionowski, in which Pittman asked how

long Jasionowski’s vehicle would remain in the alleyway.         Jasionowski

escalated the conflict by using derogatory language towards Pittman and

then he went into his residence and returned, introducing a gun into the

situation.   As such, one can reasonably infer he was the initial aggressor.


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Furthermore, the testimony does not establish that the use of such force was

justified since at the time, he was not in imminent danger of death or

serious bodily harm. Likewise, he could have retreated, as is evidenced by

the fact that he able to go into his home to retrieve the weapon. Ventura,

975 A.2d at 1143. Moreover, we reiterate that the court, sitting as the fact-

finder, was free to believe or reject the testimony. See Yong, 120 A.3d at

311. Here, the court found Pittman and her daughter credible, and rejected

Jasionowski’s testimony. Therefore, we conclude Jasionowski’s self-defense

argument fails.

         In Jasionowski’s final argument, he complains the trial court erred in

finding that the verdict was against the weight of the evidence.                See

Jasionowski’s Brief at 20-24.       Before we may address the merits of this

claim, we must determine whether Jasionowski has properly preserved the

issue.

         “[A] weight of the evidence claim must be preserved either in a
         post-sentence motion, by a written motion before sentencing, or
         orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
         v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
         properly preserve the claim will result in waiver, even if the trial
         court addresses the issue in its opinion.” Commonwealth v.
         Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).

         Here, a review of the record reveals Jasionowski did not raise a weight

of the evidence claim in a pre-sentence motion, nor did he address the issue




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orally prior to sentencing.7         While Jasionowski did file a post-sentence

motion on September 16, 2014, he failed to include a weight of the evidence

allegation in that motion.        See Post-Sentence/Trial Motion, 9/16/2014, at

unnumbered 1-2.         Accordingly, we find this issue waived for purposes of

appeal. See Priest, supra (waiving weight claim for failure to present claim

in the lower court, either orally or in writing before sentencing or in a post-

sentence motion pursuant to Pa.R.Crim.P. 607).8

       Judgment of sentence affirmed.




____________________________________________


7
  We note that, at the conclusion of the sentencing hearing, the trial court
specifically informed Jasionowski of his post-sentence and appellate rights.
See N.T., 9/11/2014, at 126-127.
8
  Even if we overlooked this deficiency, we would still be compelled to affirm
the court’s decision, based on its findings, which are as follows:

              Here, the court heard credible testimony from Ms. Pittman
       and her daughter indicating that [Jasionowski] approached her
       and her daughter enraged and holding a firearm. The court was
       free to believe this portion of the Commonwealth’s evidence, and
       did so.      Therefore, the court’s verdict on the charges of
       terroristic threats and possession of an instrument of crime was
       not so contrary to the evidence as to shock one’s sense of
       justice.

Trial Court Opinion, 5/11/2015, at 5.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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