J-S14043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                        v.

    ARTHUR WHITAKER JR.

                             Appellant                 No. 1699 EDA 2017


             Appeal from the Judgment of Sentence April 18, 2017
                In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-00040301-2016


BEFORE: OTT, J., MCLAUGLIN, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                              FILED APRIL 05, 2018

        Appellant, Arthur Whitaker, Jr., appeals from the judgment of sentence

of three to six years of incarceration, imposed April 18, 2017, following a jury

trial resulting in his conviction for terroristic threats, simple assault, and

harassment.1 We affirm.

        We adopt the following statement of facts from the trial court’s opinion,

which in turn is supported by the record.       See Trial Court Opinion (TCO),

7/5/17, at 3-10. In September of 2016, Teesha Benton and Appellant were

involved in a romantic relationship and lived together with their children in

Allentown, Lehigh County, Pennsylvania.        On September 20, 2016, around

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1  18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1), and 2709(a)(1), respectively.
Following the conclusion of the jury trial, the trial court found Appellant guilty
of the single count of harassment, graded as a summary offense.
____________________________________

*    Retired Senior Judge assigned to the Superior Court.
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10:00 p.m., the two went to a club to celebrate a family member’s birthday.

After drinking and dancing, Appellant and Ms. Benton got into a verbal

altercation on the dance floor and parted angrily. Ms. Benton left the club,

found Appellant in her car, and got into the car with him. Appellant slapped

her across the face and, after Ms. Benton got out of the car, drove away. Ms.

Benton received a ride to another location from a friend and found Appellant

there. Appellant began yelling at her, and the two resumed their argument.

Appellant again left in Ms. Benton’s vehicle, and Ms. Benton returned home

with assistance from a family member.

     Once home, Ms. Benton checked on her children and fell asleep on the

living room couch. She was awaked by Appellant, who accused her of lying

to him. Appellant went into the kitchen and grabbed a knife, which he held

against Ms. Benton’s throat. He told her to stop lying to him and accused her

of hiding someone in the house. Appellant pulled Ms. Benton from the couch

and pushed her towards the basement, slashing several holes in her blouse.

Appellant poked her with the knife and told her “it was about to get bloody.”

Appellant was unable to find another person in the house.

     Ms. Benton tried to calm Appellant, pleading with him not to wake the

children. Appellant began breaking apart pencils and asked Ms. Benton how

they would feel in her neck.    Crowding Ms. Benton into the living room,

Appellant pushed her down, pointed the knife at her head, and again accused

her of lying. When Appellant went into the kitchen, Ms. Benton attempted to

flee, but Appellant heard her and stopped her. He placed his hands around

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Ms. Benton’s neck and began to choke her, forcing her to the floor. Despite

her struggles, she could not dislodge him. When Ms. Benton attempted to

stand up, Appellant smacked her across the face, hurting her. After Appellant

again went into the kitchen, Ms. Benton was finally able to flee, although

Appellant had taken her cell phone.

        Ms. Benton fled to a nearby gas station, wearing only one shoe. There,

she was able to call police.       Sergeant Louis Collins of the Allentown Police

Department responded to her call and observed her excited state, tattered

clothing, single shoe, and redness around her neck. Other officers responded

to the residence, where Appellant was asleep on the couch in the living room.

He responded to commands to wake up and stand, and he did not appear

intoxicated or injured. He was arrested and removed from the residence.

        Officers took Ms. Benton’s statement and photographs of her injuries.

The knife used in the attack was taken into evidence, and Ms. Benton was

advised to obtain a protection from abuse order (“PFA”), which she did on the

following morning after taking her children to school. Ms. Benton then went

to the emergency room of Sacred Heart Hospital, where she was examined.

She suffered from bruising to her face and eyelids, abrasions and bruising on

her neck and left breast, a bruised abdomen, and an injured shoulder.

        The matter proceeded to trial before a jury on March 7, 2017, and on

March 8, 2017, the jury found Appellant not guilty of aggravated assault, 2 but

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2   18 Pa.C.S. § 2702.

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guilty of simple assault and terroristic threats. The trial court found Appellant

guilty of summary harassment.       On April 18, 2017, Appellant received an

aggregate sentence of three to six years of incarceration, a standard range

sentence for which the court had the benefit of a pre-sentence investigation

report.     He filed a post sentence motion seeking reconsideration of his

sentence and a motion for a new trial based on the weight of the evidence,

both of which were denied.

      Appellant timely appealed and both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following questions for our review:

      A. Whether the evidence was sufficient to sustain [Appellant’s]
      convictions for simple assault and terroristic threats when the
      defendant was intoxicated or otherwise may not have been able
      to form the criminal intent?

      B. Was the verdict against the weight of all the evidence in regards
      to the proof of whether or not [Appellant] was properly convicted
      of simple assault and terroristic threats?

      C. Whether the lower court abused its discretion by imposing
      sentences which were manifestly unreasonable as the court failed
      to fully state its reasons for the imposition of the sentences or
      otherwise failed to review all appropriate factors as required by
      law?

Appellant’s Brief at 8-9 (unnecessary capitalization and lower court actions

omitted).




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        First, Appellant contends that the evidence was insufficient to support

the jury’s verdicts.3      See Appellant’s Brief at 16.      Essentially, Appellant

contends that because he “acted in a crazy manner,” “made comments that

were clearly nonsensical,” and because testimony established that he had

been drinking prior to the assault, the evidence rebutted any presumption or

finding that he acted intentionally, knowingly, or recklessly in his “physical

interactions” with Ms. Benton, either to commit assault or make threats to

commit a crime. Id. at 17-18.

        We review a challenge to the sufficiency of the evidence as follows.

        In determining whether there was sufficient evidentiary support
        for a jury’s finding [], the reviewing court inquires whether the
        proofs, considered in the light most favorable to the
        Commonwealth as a verdict winner, are sufficient to enable a
        reasonable jury to find every element of the crime beyond a
        reasonable doubt.          The court bears in mind that: the
        Commonwealth may sustain its burden by means of wholly
        circumstantial evidence; the entire trial record should be
        evaluated and all evidence received considered, whether or not
        the trial court’s rulings thereon were correct; and the trier of fact,
        while passing upon the credibility of witnesses and the weight of
        the evidence, is free to believe all, part, or none of the evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations omitted).

        Initially, we note that it is well-settled that voluntary intoxication is not

a defense to a criminal charge. See Commonwealth v. Ellis, 581 A.2d 595,

604-05 (Pa. Super. 1990) (noting an exception for the charge of murder); see

also 18 Pa.C.S. § 308. Evidence of the defendant’s voluntary intoxication

may not be introduced to negate the element of intent. Id. Accordingly, we
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3   It does not appear that Appellant challenges his conviction for harassment.

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may reject Appellant’s arguments that it is reasonable to believe he was

“heavily intoxicated and out of his mind during the entire incident because of

the alcohol.” See Appellant’s Brief at 18. Nevertheless, we will examine the

sufficiency of the evidence to support his convictions.

      The elements of simple assault are defined, in relevant part, as follows:

      (a) Offense defined.-- Except as provided under section 2702
      (related to aggravated assault), a person is guilty of assault if he:

            (1) attempts to cause or intentionally, knowingly or
            recklessly causes bodily injury to another; . . .

See 18 Pa.C.S. § 2701.      “Bodily injury” is defined by the crimes code as

“impairment of physical condition or substantial pain.” See 18 Pa.C.S. § 2301.

“The Commonwealth need not establish that the victim actually suffered bodily

injury; rather, it is sufficient to support a conviction if the Commonwealth

establishes an attempt to inflict bodily injury. This intent may be shown by

circumstances which reasonably suggest that a defendant intended to cause

injury.” Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.

1994).

      We have previously observed that

      in considering the spectrum of assaultive behavior, convictions for
      simple assault have been upheld where the behavior is more
      clearly criminal. See, e.g., Commonwealth v. Jorgenson, 341
      Pa.Super. 550, 492 A.2d 2 (1985) (affirming conviction for simple
      assault where victim was struck twice across the face while
      refusing sexual advances); Commonwealth v. Adams, 333
      Pa.Super. 312, 482 A.2d 583 (1984) (affirming conviction for
      simple assault where victim was struck in the head with an object
      hard enough to almost knock her unconscious); Commonwealth
      v. Richardson, 431 Pa.Super. 496, 636 A.2d 1195 (1994)

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      (affirming conviction for simple assault for punching police officer
      in the face).

In re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000) (finding evidence

sufficient to support simple assault for grabbing the victim’s arm and pushing

her against a wall, resulting in bruises).

      Here, the evidence established that throughout the course of a physical

altercation, Appellant slapped the victim in the face several times, punched,

choked, and stabbed at the victim with a butcher knife. She suffered from

bruises, abrasions, and a sore shoulder as a result of Appellant’s actions.

Accordingly, the circumstances reasonably suggested that Appellant intended

to cause injury, and the evidence was sufficient to support his conviction for

simple assault. See Richardson, 636 A.2d at 1196; Diggs, 949 A.2d at 877.

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

      (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 . . .

See 18 Pa.C.S. § 2706.

      Additionally,

      the 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. 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. 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.

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

citations and quotations omitted).

       Here, as noted before, voluntary intoxication may not be introduced to

negate the intent element of a crime. Ellis, 581 A.2d at 604-05. Further, the

evidence was more than sufficient to show that Appellant made threats to

commit a crime of violence with the intent to terrorize when he 1) poked at

Ms. Benton with a knife while telling her “it was about to get bloody” and 2)

breaking apart pencils and asking Ms. Benton how they would feel in her neck.

Both of these actions, combined with Appellant’s words, communicate a threat

to commit a crime of violence and were made with the intent to terrorize Ms.

Benton. Reynolds, 835 A.2d at 730. Accordingly, the evidence was sufficient

to sustain Appellant’s conviction for terroristic threats.   Diggs, 949 A.2d at

877.

       Next, Appellant contends that the verdict was against the weight of the

evidence.    See Appellant’s Brief at 18.      However, Appellant essentially

recouches his sufficiency claim as a weight claim, arguing that the trial court,

in its review of the jury’s decision, failed to take into consideration the

evidence that Appellant acted without a clear and deliberate mind in his

actions made the night of the assault.       See Appellant’s Brief at 19.    He

contends that the jury was given “clear evidence” based upon his state of

mind and level of intoxication that he was not responsible for his actions. See

Appellant’s Brief at 19-20.

       The law regarding weight of the evidence claims is well-settled.

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     A claim alleging the verdict was against the weight of the evidence
     is addressed to the discretion of the trial court. Accordingly, an
     appellate court reviews the exercise of the trial court’s discretion;
     it does not answer for itself whether the verdict was against the
     weight of the evidence. It is well settled that the jury is free to
     believe all, part, or none of the evidence and to determine the
     credibility of the witnesses, and a new trial based on a weight of
     the evidence claim is only warranted where the jury’s verdict is so
     contrary to the evidence that it shocks one’s sense of justice. In
     determining whether this standard has been met, appellate review
     is limited to whether the trial judge’s discretion was properly
     exercised, and relief will only be granted where the facts and
     inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted); see also Commonwealth v.

Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015) (noting that this Court may

not re-assess the credibility of a witness’ testimony when ruling on a weight

of the evidence claim).

     As noted, supra, voluntary intoxication does not negate the intent

element of a crime. Ellis, 581 A.2d at 604-05. Further, the jury in their role

as factfinder heard, considered, and rejected Appellant’s arguments regarding

his state of mind the night of the assault. Thus, we discern no abuse of the

trial court’s discretion in rejecting Appellant’s weight claim. See Houser, 18

A.3d at 1136.

     Appellant’s sole remaining issue is a challenge to the discretionary

aspects of his sentence, which must be considered a petition for permission

to appeal.   See Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa.

Super. 2011); see also Pa.R.A.P. 2119(f). This Court conducts a four-part



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analysis to determine: (1) whether Appellant has timely filed a notice of

appeal; (2) whether the issue was properly preserved at sentencing or in a

motion to reconsider and modify sentence; (3) whether Appellant’s brief has

a fatal defect; and (4) whether there is a substantial question that the

sentence appealed from is not appropriate under the Sentencing Code, 42

Pa.C.S. § 9781(b). Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

Super. 2015) (citation omitted).

      Appellant timely filed a notice of appeal and filed a motion for

reconsideration of his sentence. In the motion, Appellant admitted he had

been sentenced in the standard range and that his prior record score

warranted a state sentence.        See Mot. for Recons., 4/21/17, ¶¶ 1-11.

However, he contended that his sentence was excessive and requested that

the court run the sentences concurrent instead of consecutive. Id. Nowhere

in his motion did he aver that the court failed to give meaningful consideration

to various factors other than the seriousness of the offense or that it failed to

adequately state its reasons for the sentence, as he now claims before this

Court. See Appellant’s Brief at 13. Accordingly, Appellant has not preserved

his issue for purposes of appeal. See Leatherby, 116 A.3d at 83.

      Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/18




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