J-A22031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    QUADRE T. RIVERS                           :
                                               :
                       Appellant               :   No. 1330 EDA 2017

             Appeal from the Judgment of Sentence March 10, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008582-2015


BEFORE:      BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*


MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 16, 2018

        Appellant Quadre T. Rivers appeals from his conviction for terroristic

threats.1 Appellant challenges the sufficiency of the evidence. We affirm.

        The trial court summarized the testimony from the trial as follows:

        [Ms. Holmes testified that] [s]he and [A]ppellant were in a
        relationship and had been for seven years, and that the events
        that had unfolded occurred during an evening and the following
        morning at [Appellant]’s home, specifically in [Appellant]’s
        bedroom, following sex. Ms. Holmes testified that she saw
        something in [Appellant]’s cell phone and [Appellant] then
        demanded the phone back at which time a ‘scuffle’ began. N.T.
        3-10-17, pp. 15-18. Ms. Holmes testified that she was on the bed
        and [Appellant] was standing over her and [Appellant] put his
        hands on her shoulders and that as she tried to use her hands to
        push [Appellant] off, he choked her using one hand around her
        neck, making it difficult for her to breathe. Appellant then left to
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 2706(a)(1).
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       take a walk and returned 15 minutes later. N.T. 3-10-17, pp. 18-
       21.

       Ms. Holmes stated that when [Appellant] returned they “started
       tussling and fighting again.” Appellant then pushed her with his
       hands against her shoulders and chest and she told him to stop.
       Appellant then put his hands on her neck again. N.T. 3-10-17, p.
       22. Ms. Holmes testified that [Appellant] “grabbed my neck quite
       a few times that day.” N.T. 3-10-17, p. 20. Following the second
       fight, Appellant asked Ms. Holmes to leave his house around 12:30
       am[,] but Ms. Holmes testified that she did not leave because she
       had no transportation and the buses were not running. N.T. 3-
       10-17, p. 23. Ms. Holmes then stayed and slept in bed with
       [Appellant]. When she awoke, [Appellant] accused her of putting
       his phone in water[2] and they began to argue and [Appellant] then
       “threatened to smack the S out of me.” Appellant then refused to
       allow Ms. Holmes to leave his house until she promised to return
       with money for weed, cigarettes and tokens. Ms. Holmes agreed
       to do so and [A]ppellant then allowed her to leave his house. N.T.
       3-10-17, pp. 24-26.

       Two days later, on July 29, 2017, Ms. Holmes went to Mercy
       Hospital and presented herself with a complaint of neck pain,
       stating that she had been choked on Sunday and now had
       difficulty swallowing. Her diagnosis was neck strain and sprain.
       She was given Naproxen and Tylenol and was discharged. See
       Stipulation of Counsel, N.T. 3-10-17, pp. 38-39. Ms. Holmes
       testified that her neck pain remained for about a week, with
       medication. N.T. 3-10-17, p. 24. Although the hospital report did
       not indicate any complaint of being bit, Ms. Holmes did go to the
       police later that same day to report the occurrence at which time
       a detective took photographs of a bite on Ms. Holmes’ right upper
       arm, which were admitted into evidence at trial. N.T. 3-10-17,
       pp. 27-28.

Trial Ct. Op., 7/31/17, at 3-4.


____________________________________________


2At trial, Ms. Holmes testified that when she woke up, Appellant’s phone was
near a cup of water. See N.T., 3/10/17, at 25. At the time, Appellant accused
her of putting the phone in the water. Id.



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        Following a bench trial on March 10, 2017, Appellant was convicted of

terroristic threats with intent to terrorize another, simple assault, recklessly

endangering another person, and harassment.3 That same day, Appellant was

sentenced to two years’ probation. Appellant subsequently filed a timely post-

sentence motion, which the trial court denied on March 22, 2017. On April

21, 2017, Appellant filed a timely notice of appeal. Both the trial court and

Appellant subsequently complied with Pa.R.A.P. 1925.4

        Appellant raises one question on appeal:

        Was not the evidence insufficient for conviction of terroristic
        threats, as [Appellant] never communicated any threat to commit
        a crime of violence with the settled intent to terrorize another, and
        any statements that were made were the result of transitory anger
        of the kind that cannot sustain a conviction for this offense?

Appellant’s Brief at 3.

        Appellant does not dispute that he threatened Ms. Holmes. Instead, he

argues that when viewed in context, his statement was “a spur-of-the-

moment threat resulting from anger of the sort explicitly meant to be excluded

from criminal liability.” Id. at 10. Appellant relies on Commonwealth v.

Walls, 144 A.3d 926 (Pa. Super. 2016), and concludes “there is no evidence

____________________________________________


3   18 Pa.C.S. §§ 2706(a)(1), 2701(a), 2705, and 2709(a)(1), respectively.

4 Appellant filed a motion for an extension of time to file his court-ordered
Pa.R.A.P. 1925(b) statement. The docket does not reflect that the court ever
granted or denied Appellant’s request. The trial court, however, considered
Appellant’s Pa.R.A.P. 1925(b) statement as timely filed and addressed the
merits of the appeal.      Accordingly, we decline to find waiver.       See
Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016).

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whatsoever that the threatening statement was made with any kind of intent

to terrorize or was anything other than the momentary product of anger.” Id.

at 9.

        Our standard of review for sufficiency of the evidence claims is well-

settled. “The determination of whether sufficient evidence exists to support

the verdict is a question of law; accordingly, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Edwards, 177 A.3d

963, 969 (Pa. Super. 2018) (citation omitted).          In assessing Appellant’s

sufficiency challenge, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the crime

beyond a reasonable doubt.” Commonwealth v. Sweitzer, 177 A.3d 253,

257 (Pa. Super. 2017) (citation omitted). Additionally, we note that

        [t]he evidence established at trial need not preclude every
        possibility of innocence and the fact-finder is free to believe all,
        part, or none of the evidence presented. It is not within the
        province of this Court to re-weigh the evidence and substitute our
        judgment for that of the fact-finder. The Commonwealth’s burden
        may be met by wholly circumstantial evidence and any doubt
        about the defendant’s guilt is to be resolved by the fact finder
        unless the evidence is so weak and inconclusive that, as a matter
        of law, no probability of fact can be drawn from the combined
        circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

        Section 2706(a)(1) of the Crimes Code provides, in pertinent part:

        A person commits the crime of terroristic threats if the person
        communicates, either directly or indirectly, a threat to:


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      (1)   commit any crime of violence with intent to terrorize
            another[.]

18 Pa.C.S. § 2706(a)(1).

      To sustain a conviction for terroristic threats, the Commonwealth must

prove: (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, 684 A.2d 597, 600 (Pa. Super. 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) (citation omitted). “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.

      We have recognized that terroristic threats is not intended to 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 determining if Appellant had the necessary intent.

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

      In Walls, we vacated a conviction for terroristic threats where the

appellant approached an assistant district attorney at a shopping mall and

accused her of sending him to jail for a crime he did not commit. Walls, 144



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A.3d at 926. As he was escorted out of the store, he yelled at the prosecutor

that she should die.    Id.   In reviewing the sufficiency of the evidence to

support the conviction, we stated:

      When two parties have an unplanned, heated confrontation, a
      threat made during the confrontation is often a spur-of-the-
      moment threat made during a period of transitory anger. For
      example, in Commonwealth v. Sullivan, 269 Pa. Super. 279,
      409 A.2d 888 (1979), the defendant called the state police and
      threatened to kill the local sheriff. Id. at 888–889. The next day,
      the defendant encountered the local sheriff on the street, and
      during a shouting match, [the defendant] threatened to kill the
      sheriff. Id. at 889. The defendant was convicted of two counts
      of terroristic threats—one count for each incident. On appeal, this
      Court reversed and found that the evidence was insufficient to find
      [the defendant] guilty on either count. As to the second count,
      involving the defendant’s encounter with the sheriff, this Court
      held that the threat was made as part of a chance argument on a
      public street and that the defendant did not have the settled
      purpose of terrorizing the local sheriff. See id. at 889–890.

      . . . What we find instructive about Sullivan, however, is that, as
      in the case at bar, the defendant encountered an official in public,
      a heated confrontation followed, and the defendant made a threat
      during that heated confrontation. Thus, it was the chance nature
      of the parties’ meeting and the spontaneous anger that the
      encounter instilled in the defendant that links the facts in the
      present case to those before this Court in Sullivan. Just as
      Sullivan found the evidence insufficient to support a terroristic
      threats conviction, we do so here as well.

Id. at 937. We further noted that the appellant “did not specifically threaten

harm to [the victim] presently or in the future.” Id. at 938

      Here, in concluding there was sufficient evidence presented at trial, the

trial court explained that

      Ms. Holmes testified that [Appellant] threatened “to smack the S”
      out of Ms. Holmes on the morning following his assault on her.


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        Given the events of the previous evening, this [c]ourt found that
        [Appellant’s] statement to Ms. Holmes was not the result of
        transitory anger but were made to convey the threat of continued
        violence with the settled intent to terrorize her.

Trial Ct. Op., 7/31/17, at 5-6.

        We agree. As indicated by the trial court, Appellant physically assaulted

Ms. Holmes during an altercation on the night of July 27, 2017. See N.T.,

3/10/17, at 26. Specifically, Appellant choked Ms. Holmes with enough force

to cause a neck injury. Id. at 39. Appellant also bit Ms. Holmes under her

arm, which broke her skin. Id. at 23. Then, the following morning, Appellant

threatened to “smack the S out of” Ms. Holmes when he mistakenly concluded

that she had placed his cell phone in water. Id. at 25. He then refused to let

her leave his home until she promised to return with money for marijuana,

cigarettes, and tokens. Id. at 26.

        Accordingly,   viewing    the    totality   of   circumstances   surrounding

Appellant’s threat in the light most favorable to the Commonwealth, the

evidence was sufficient to prove that Appellant intended to terrorize Ms.

Holmes when he threatened to physically assault her.                   Unlike Walls,

Appellant’s statement was not the result of a spontaneous encounter. Rather,

Appellant threatened Ms. Holmes shortly after she awoke at Appellant’s home,

which    was   hours   after     he   physically    assaulted   her   during   another

confrontation. Therefore, Appellant’s claim lacks merit.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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