J-S26011-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

SCOTT DAVID GILBERT

                        Appellant                  No. 1748 MDA 2016


        Appeal from the Judgment of Sentence September 26, 2016
             In the Court of Common Pleas of Adams County
           Criminal Division at No(s): CP-01-CR-0001065-2015


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 14, 2017

     Scott Gilbert appeals from the judgment of sentence of four to twenty-

three months incarceration imposed following his bench convictions for

terroristic threats, simple assault by physical menace, and disorderly

conduct. We affirm.

     This case involves a road rage incident, with the victim and Appellant

offering quite different versions of who was the aggressor.   The evidence

produced at trial was as follows.   Brian Hunter was driving on Race Track

Road when he encountered Appellant’s vehicle ahead of him. N.T., 4/18/16,

at 5. Mr. Hunter stated that Appellant was driving slowly, and Mr. Hunter

maintained a distance of one to two car lengths. Id. at 7. Appellant turned

onto Kinneman Road, with Mr. Hunter following.      Appellant then gestured


* Former Justice specially assigned to the Superior Court.
J-S26011-17



with his hands in a flailing fashion about six times while the cars continued

on Kinneman. Id. at 8. Approximately one and a half miles down the road,

the parties reached the intersection of Kinneman and Cherry Tree Lane.

Appellant, who lived at the house closest to the intersection of these roads,

pulled to the side. Mr. Hunter waited “because I thought the vehicle pulled

aside and I was going to go around at that point.” Id. at 9. Appellant then

rapidly accelerated, drove sharply across both Kinneman Road and Mr.

Hunter’s vehicle, and pulled into his driveway.1 Id. at 9.

       Mr. Hunter drove about fifteen feet and then stopped his vehicle. He

explained that he stopped instead of continuing to drive “because I’m

watching the erratic actions and I see somebody jump out of the vehicle. I

mean, like right away.” Id. at 11. Appellant, who had parked his vehicle in

the driveway of his house, then ran towards Mr. Hunter and yelled, “You

want to f*** with the handicap[ped]?”2 Mr. Hunter saw Appellant raise his

hand, which was holding what appeared to be a black firearm, and pointed it

towards Mr. Hunter, from a distance of approximately twenty feet.     Id. at

14. Mr. Hunter said that Appellant, who was standing on a grassy area of

his lawn, said “[s]omething about blowing my fu**ing head off.” Id. at 16-

____________________________________________


1
   Mr. Hunter was unaware that Appellant lived on Cherry Tree Lane, as
neither man knew each other.
2
    Appellant’s license plate had a handicap designation.



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17.   Mr. Hunter feared for his life and drove away.       Upon reaching his

destination, Mr. Hunter called the police.    Id. at 16.      A State Trooper

proceeded to Appellant’s house and spoke to Appellant, who turned over the

weapon, which was a BB gun that looked like a real firearm.

      Appellant’s testimony largely agreed with the sequence of events

concerning Mr. Hunter following Appellant’s vehicle.     However, Appellant

testified that he merely pointed his finger to the rearview mirror to indicate

displeasure with Mr. Hunter following so closely. Id. at 40. He also denied

cutting off Mr. Hunter when turning onto Cherry Tree Lane. He agreed that

he had slowed down, but said he did so because two small children were

riding bicycles and he waited until it was safe to turn. Id. at 42. According

to Appellant, he parked his vehicle and then noticed Mr. Hunter had stopped

his vehicle instead of continuing on Kenneman.

      Appellant claimed that he yelled at Mr. Hunter, “[Y]ou’re the son of a

bitch who likes to harass permanently disabled American citizens?” due to

anger that Mr. Hunter had followed him so closely. At this point, Mr. Hunter

exited his vehicle “and stood there like he was expecting something from

me.” Id. at 43. Appellant told Mr. Hunter he would report the incident to

the police, with Mr. Hunter replying, “[Y]ou ain’t getting my license plate

number.” Id. Appellant agreed that he pulled his BB gun, but stated that

he pointed it directly at the ground and only did so because he was scared of

Mr. Hunter. Id. at 44.

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      The trial judge found Appellant guilty and imposed the aforementioned

sentence.   Following denial of Appellant’s post-sentence motions, a timely

notice of appeal was lodged.     The trial court and Appellant complied with

Pa.R.A.P. 1925, and the matter is now ready for review. Appellant presents

the following issues for our consideration.

      I.    Whether the Commonwealth disproved justification beyond
            a reasonable doubt?

      II.   Whether the Commonwealth proved beyond a reasonable
            doubt that Appellant had the requisite mens rea to commit
            the crimes of terroristic threats and simple assault by
            physical menace?

Appellant’s brief at 7.   Appellant’s substantive arguments largely overlap.

Appellant claims that either (1) he was justified when threatening Mr. Hunter

with the BB gun by virtue of a lawful entitlement to use force and therefore

established a defense to the crimes which the Commonwealth did not

disprove beyond a reasonable doubt, or, in the alternative, (2) he was so

scared of Mr. Hunter that he lacked the requisite mens rea for the respective

crimes, and hence the evidence was insufficient to convict.      Thus, while

phrased differently for legal purposes, both arguments rely on the same

factual predicate, i.e., Mr. Hunter was the aggressor and posed a credible

threat of violence.

      To support his justification theory, Appellant cites 18 Pa.C.S. § 505,

permitting the “use of force upon or toward another person . . . when the

actor believes that such force is immediately necessary for the purpose of

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protecting himself against the use of unlawful force[.]” 18 Pa.C.S. § 505(a).

In Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001), our Supreme

Court explained:

       The use of force against a person is justified when the actor
       believes that such force is immediately necessary for the
       purpose of protecting himself against the use of unlawful force
       by the other person. See 18 Pa.C.S. § 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. While there is no burden on a defendant to
       prove the claim, before the defense is properly at issue at trial,
       there must be some evidence, from whatever source, to justify a
       finding of self-defense. If there is any evidence that will support
       the claim, then the issue is properly before the fact finder.

Id. at 345 (citations omitted).3

       Appellant points to his testimony as the basis for the conclusion that

Mr. Hunter was the aggressor, as indicated by the following passage:

       Appellant testified that when he saw Hunter coming toward him,
       he retrieved the unloaded BB gun from his vehicle in order to
       diffuse [sic] the situation. Upon seeing what looked like a real
       handgun, Hunter got in his car and drove away. Appellant
       stated that he obtained the BB gun because of a concern for his
       own safety. Hunter was a much larger and younger man.
       Appellant’s statements alone were sufficient to raise the issue of
       self-protection or justification.

           ....

       The Commonwealth failed to prove beyond a reasonable
       doubt that Appellant did not have a genuine and
       reasonable belief that he was in danger of bodily injury
____________________________________________


3
 Generally stated, justification is synonymous with self-defense and we shall
use the terms interchangeably.



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      when he saw Hunter, a much larger and younger man,
      rapidly approaching him after a heated road-rage incident
      and retrieved his unloaded BB gun to ward off this individual.
      Accordingly, Appellant’s convictions should be discharged.

Appellant’s brief at 15-16 (emphasis added).

      As stated, Appellant’s second issue is effectively an extension of the

foregoing argument, although in the context of a sufficiency of the evidence

claim.     He claims that, since he acted for the permitted purpose of self-

defense, the Commonwealth failed to offer sufficient evidence supporting the

verdict. “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.”

Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa.Super. 2010).

      “The elements necessary to establish a violation of the terroristic

threats statute are: (1) a threat to commit a crime of violence; and (2) that

the      threat   was   communicated     with   the   intent   to   terrorize[.]”

Commonwealth v. Walls, 144 A.3d 926, 936 (Pa.Super. 2016) (citation

omitted). We have recognized that the statute does not punish “statements

in the context of a heated discussion.”      Commonwealth v. Walker, 836

A.2d 999, 1001 (Pa.Super. 2003). However, the mere fact that statements

were made out of anger does not render the speaker incapable of forming an

intent to terrorize.    Id.   We examine the totality of the circumstances in



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determining if Appellant had the necessary mens rea. Commonwealth v.

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

      With respect to simple assault by physical menace, the actor must

“attempt by physical menace to put another in fear of imminent serious

bodily injury.”   18 Pa.C.S. § 2701(a)(3).     We have previously held that

pointing a gun at a person constitutes simple assault by physical menace.

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

      Preliminarily, we note that Appellant does not cite a case holding that

a justification defense is viable for either crime. Unsurprisingly, self-defense

cases commonly involve an actual use of force, not just an implied threat of

force or a show of force that deters the assailant. Accordingly, self-defense

is arguably not a valid defense to terroristic threats, which necessarily

requires that the pertinent act was committed with an intent to terrorize,

which seems diametrically opposed to an act that is committed for the

“purpose of protecting . . . against the use of unlawful force[.]” 18 Pa.C.S.

§ 505; Torres, supra. If we accept that Appellant’s act of pointing the BB

gun was to deter Mr. Hunter from a pending violent attack, then by

necessity the intent was not to terrorize but to dissuade.     See Reynolds,

supra at 731 (“[A]ppellant did not act in self-defense, but instead

threatened the victims with a gun after one of the victims insulted his wife.

Such circumstances are not indicative of self-defense.”). The foregoing logic




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equally applies to the crime of simple assault by physical menace, which

requires the actor to put another in fear of imminent serious bodily injury.

      We need not firmly resolve whether self-defense is viable for the

respective crimes as both of Appellant’s arguments hinge upon a finding that

Appellant was not the aggressor, a finding that the trial court clearly

resolved against Appellant.

      This [c]ourt's guilty verdict reflected its judgment after
      considering the weight of the evidence. In viewing the evidence
      in the light most favorable to the Commonwealth, the evidence
      includes all of the offense elements and supports a guilty verdict.

      Appellant also alleges that the Commonwealth failed to disprove
      beyond a reasonable doubt that Appellant was justified in his use
      of force and entitled to stand his ground. In order to properly
      raise the defense of self-defense, the defendant must provide
      "some evidence, from whatever source, to justify such a
      finding." If the defendant properly raises the defense of self-
      defense under Section 505 of the Pennsylvania Crimes Code, it is
      the Commonwealth's, and not the defendant's, burden to prove
      beyond a reasonable doubt that the "defendant's act was not
      justifiable self-defense."

      The Commonwealth can sustain this burden by proving at least
      one of the following: 1) the accused did not reasonably believe
      that he was in danger of death or serious bodily injury; or 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.

         ....

      Instantly, Appellant did not provide evidence to justify raising
      self-defense as an issue. According to Appellant, Mr. Hunter
      exited his vehicle and "stood there like he was expecting
      something from Appellant.” When asked if he was afraid for his
      safety when Mr. Hunter allegedly got out of his vehicle, Appellant
      stated, "Large man. I'm only five foot ten. He's over six foot."


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      Appellant also testified that after he pointed the gun at Mr.
      Hunter, Mr. Hunter drove away. At no point did Appellant
      testify that Mr. Hunter threatened him, brandished a
      weapon, made any aggressive movement toward him, or
      did anything to justify raising self-defense as an issue.

Trial Court Opinion, 12/19/16, at 5-6 (emphasis added, footnotes and

citations omitted).    Since the trial court sat as fact-finder, its credibility

findings bind us. See Commonwealth v. Safka, 141 A.3d 1239, 1249 (Pa.

2016) (in bench trial, the trial court acts “as the fact-finder, affording weight

to the admissible evidence”); Gezovich, supra at 301 (“In applying the

[sufficiency] test, we may not weigh the evidence and substitute our

judgment for the fact-finder.”).

      The trial court could have credited Appellant’s testimony that Mr.

Hunter was the aggressor, but the fact remains that the judge did not do so.

We must apply the law to the facts as they are, not the facts as Appellant

wishes them to be.      “Appellant's arguments . . . are not based upon the

evidence, and all reasonable inferences drawn therefrom, viewed in the light

most favorable to the Commonwealth as the verdict winner. Instead, they

focus upon evidence viewed in a light most favorable to himself,

including   evidence    rejected   by    the   trial   court   as   not   credible.”

Commonwealth v. Emler, 903 A.2d 1273, 1277 (Pa.Super. 2006)

(emphasis in original).   The trial court determined that “Appellant was the

individual who approached the victim’s vehicle and escalated the situation by

threatening the victim with a gun. No action that Appellant took during this


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confrontation was justifiable self-defense.” Trial Court Opinion, 12/19/16, at

7-8. Those are the facts that we must examine, not the alternative scenario

proffered by Appellant.

       Thus, even assuming arguendo that Appellant would have been

entitled to justify the commission of these crimes, the trial court rejected the

predicate facts needed to establish that defense.         The same is true with

respect to the challenge to the mens reas.            The trial court found that

Appellant engaged Mr. Hunter, who had remained in his vehicle at all times,

pointed a BB gun at the victim that resembled a real firearm, and threatened

to blow his head off. The totality of these circumstances sufficed to establish

that Appellant intended to terrorize Mr. Hunter, and that the statements

were not made in anger.4           Therefore, these facts suffice to establish the

elements of simple assault by physical menace and terroristic threats, and

we therefore affirm.




____________________________________________


4
   Appellant remarks that his “alleged comments were in the heat of the
moment. They were not intended to terrorize Hunter but only to strongly
encourage him to leave[.]”      Appellant’s brief at 17.       To repeat our
observations supra regarding justification, a claim that Appellant’s comments
were the product of anger seems to be incompatible with a claim that he
genuinely feared Mr. Hunter posed a threat. He acted out of anger or fear,
but not both simultaneously.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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