J-S67038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MARTIN KLEIBER                             :
                                               :
                      Appellant                :      No. 1423 EDA 2017

             Appeal from the Judgment of Sentence March 20, 2017
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001971-2016


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 24, 2017

        Appellant, Martin Kleiber, appeals from the judgment of sentence

entered in the Chester County Court of Common Pleas, following his jury

trial convictions for possessing instruments of crime (“PIC”), terroristic

threats, and simple assault, and his bench trial conviction for harassment.1

We affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On May 6, 2016, Appellant stood behind his mother on the stairs of her

house and racked the slide of a gun, which produced a sound similar to a

firearm readied to fire. The next day, Appellant’s mother felt panicked and

went to her daughter’s house. Her daughter called police, which resulted in
____________________________________________


1   18 Pa.C.S.A. §§ 907(a), 2706(a)(1), 2701(a)(3), 2709(a)(1), respectively.


____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant’s arrest. Appellant and his mother had a history of incidents prior

to this occasion.   Appellant had made statements to his mother that he

occasionally became so angry he wanted to go into a tower and shoot people

at random.     Appellant stated his pain medication did not work so he

considered opening a “meth lab” in his mother’s basement, which could

explode and destroy the house and possibly the whole neighborhood.

Appellant’s mother told Appellant she did not want him living in the house if

he owned guns, and Appellant responded by coming downstairs with three

guns on his person. During an argument with his mother in her bedroom,

Appellant became angry and pointed a gun out the window toward a group

of people on the street. Finally, Appellant told his mother if she called the

police, there would be bullet holes in her walls.

      On January 19, 2017, a jury convicted Appellant of terroristic threats,

simple assault, and PIC. The court convicted Appellant of harassment that

same day. The court sentenced Appellant to an aggregate term of eleven

and one-half to twenty-three months’ imprisonment, plus five years’

probation, on March 20, 2017. On March 29, 2017, Appellant timely filed a

post-sentence motion, which the court denied the following day. Appellant

timely filed a notice of appeal on April 27, 2017. On May 1, 2017, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Counsel filed a notice of intent to file

an Anders statement, pursuant to Pa.R.A.P. 1925(c)(4), on May 22, 2017.


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On July 25, 2017, counsel filed her Anders brief and motion to withdraw.

      As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009).      Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.         Substantial compliance

with these requirements is sufficient.     Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:


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          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel must: (1) provide a
          summary of the procedural history and facts, with citations
          to the record; (2) refer to anything in the record that
          counsel believes arguably supports the appeal; (3) set
          forth counsel’s conclusion that the appeal is frivolous; and
          (4) state counsel’s reasons for concluding that the appeal
          is frivolous. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
          have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

       Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous.              Counsel also supplied Appellant

with a copy of the withdrawal petition, the brief, and a letter explaining

Appellant’s right to proceed pro se or with new privately-retained counsel to

raise any additional points Appellant deems worthy of this Court’s attention.
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2   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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In her Anders brief, counsel provides a summary of the facts and

procedural history of the case.   Counsel refers to facts in the record that

might arguably support the issues raised on appeal and offers citations to

relevant law. The brief also provides counsel’s reasons for concluding that

the appeal is frivolous.   Thus, counsel has substantially complied with the

requirements of Anders and Santiago.

      Appellant has filed neither a pro se brief nor a counseled brief with

new privately-retained counsel; we will review the issues raised in the

Anders brief:

         WAS [THE] PRESENTED EVIDENCE SUFFICIENT TO SHOW
         APPELLANT’S INTENT TO SUPPORT CONVICTIONS FOR:
         SIMPLE   ASSAULT,  18   PA.C.S.A. §   2701(A)(3),
         TERRORISTIC THREATS, 18 PA.C.S.A. § 2706, AND
         POSSESSING INSTRUMENTS OF CRIME, 18 PA.C.S.A. §
         907?

         WAS [THE] PRESENTED EVIDENCE SUFFICIENT TO PROVE
         SIMPLE ASSAULT, 18 PA.C.S.A. § 2701(A)(3), WITH
         REGARD TO CAUSING FEAR OF IMMINENT SERIOUS
         BODILY INJURY?

(Anders Brief at 4).

      Our standard and scope of review in this case are as follows:

         When examining a challenge to the sufficiency of the
         evidence:

            The standard we apply…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

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           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 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.

        This standard is equally applicable in cases where the
        evidence is circumstantial, rather than direct, provided
        that the combination of evidence links the accused to the
        crime beyond a reasonable doubt.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,

quotation marks, and emphasis omitted).

     Appellant argues the Commonwealth offered no evidence at trial to

show the required specific intent to support his convictions for terroristic

threats, simple assault, and PIC.   Appellant contends he had no reason to

threaten his mother, he did not intend to scare her, and he did not argue

with her on May 6, 2016.    Appellant clarifies that many of his statements

were taken out of context. For example, Appellant maintains his statement

about the meth lab was made sarcastically in response to frustration over his

inability to manage his pain with prescribed medicine.     Appellant explains

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that his mother made him feel as if she wanted Appellant to go up in a tower

and shoot people, not that he actually wanted to perform these actions.

Appellant also makes clear that if his mother called police, they would shoot

at the house expecting Appellant to be armed, not that he would put bullet

holes in the house.

      Appellant asserts his mother could not be in fear of serious bodily

injury because she remained in the house after she heard Appellant rack his

gun and left the residence only when her other son told her to leave.

Additionally, Appellant’s sister (with whom Appellant does not get along)

called the police about Appellant, further showing his mother was not in fear

of serious bodily injury. Appellant complains the Commonwealth presented

insufficient evidence to sustain the convictions for simple assault, PIC, and

terroristic threats. For the following reasons, we disagree.

      When specific intent is an element of a crime, it must be the actor’s

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

18 Pa.C.S.A. § 302(b)(1)(i).      “Intent can be proven by circumstantial

evidence and may be inferred from the defendant’s conduct under the

attendant circumstances.”    Commonwealth v. Reynolds, 835 A.2d 720,

726 (Pa.Super. 2003).

      The Pennsylvania Crimes Code defines simple assault, in relevant part,

as:

         § 2701. Simple assault


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          (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.A. § 2701(a)(3). The specific elements that the Commonwealth

must prove under this section are:

          (1) that the defendant attempted to put the [victim] in
          fear of imminent serious bodily injury, and took a
          substantial step toward that end, (2) that the defendant
          used physical menace to do this, and (3) that it was the
          defendant’s conscious object or purpose to cause fear of
          serious bodily injury.

Commonwealth v. Little, 614 A.2d 1146, 1151 (Pa.Super. 1992). Serious

bodily injury is a “[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.A. §

2301.

        Possessing instruments of crime is defined as:

          § 907. Possessing instruments of crime

          (a)      Criminal instruments generally.―A person
          commits a misdemeanor of the first degree if he possesses
          any instrument of crime with intent to employ it criminally.

                                   *    *    *

          (d)      Definitions.―As used in this section, the
          following words and phrases shall have the meanings given
          to them in this subsection:


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                                   *      *    *

         “Instrument of crime.” Any of the following:

            (1) Anything specially made or specially adapted
            for criminal use.

            (2) Anything used for criminal purposes and
            possessed by the actor under circumstances not
            manifestly appropriate for lawful uses it may have.

18 Pa.C.S.A. § 907. For purposes of Section 907, the Commonwealth must

prove: (1) the accused’s possession of an object that is an instrument of

crime, and (2) the accused’s intent to use the object for a criminal purpose.

In re A.C., 763 A.2d 889, 890 (Pa.Super. 2000).

      Lastly, the crime of terroristic threats is defined as:

         § 2706. 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[.]

18 Pa.C.S.A. § 2706(a)(1) (emphasis added). “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.” Reynolds, supra at 730 (quoting

In re J.H., 797 A.2d 260, 262 (Pa.Super. 2002)).            The statute seeks to

prevent harm from the psychological distress that follows from an invasion

of   another’s   sense   of   personal   security   under   the   totality   of   the

circumstances. Reynolds, supra.


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      In the instant case, Appellant stood behind his mother on the stairs of

her house and racked the slide of his gun. This act produced a sound similar

to a firearm readied to fire. Prior to this occasion, Appellant and his mother

had several other incidents, including Appellant’s statements to her about

going up in a tower and shooting people, starting a “meth lab” that might

destroy the neighborhood, and if Appellant’s mother called police, there

would be bullet holes in her walls. Appellant also carried guns on his person,

after his mother told him she did not want firearms in the house; and during

an argument with his mother, Appellant pointed a gun out the window

toward a group of people on the street.

      The   Commonwealth      presented      sufficient   evidence   to   support

Appellant’s convictions.   Appellant’s actions, specifically the gun-racking

incident, show his intent to put his mother in fear of serious bodily injury.

See 18 Pa.C.S.A. § 2701(a)(3); Reynolds, supra (finding sufficient

evidence for simple assault by physical menace when defendant pointed gun

at another person). Appellant possessed a firearm, which is an instrument

of crime, and intended to use it to frighten his mother. See 18 Pa.C.S.A. §

907; In re A.C., supra. Appellant’s threat to start a “meth lab,” and his

statement that calling the police would result in bullet holes in the walls,

caused his mother psychological distress. See 18 Pa.C.S.A. § 2706(a)(1);

Reynolds, supra. Appellant’s mother did not immediately leave the house

after Appellant racked his gun; however, she left the next day because she


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felt panicked.   Under the totality of the circumstances, Appellant’s actions

invaded his mother’s sense of personal security.           See Reynolds, supra.

Viewed in the light most favorable to the Commonwealth, there was

sufficient   evidence   to   find   every   element   of   Appellant’s   challenged

convictions beyond a reasonable doubt.          See Orr, supra.      Following our

independent review of the record, we conclude the appeal is wholly frivolous.

See Palm, supra.        Accordingly, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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