J-S34025-19

                                   2019 PA Super 261


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAINE S. MILLER                           :
                                               :
                       Appellant               :   No. 1698 WDA 2018

       Appeal from the Judgment of Sentence Entered November 15, 2018
      In the Court of Common Pleas of McKean County Criminal Division at
                        No(s): CP-42-CR-0000540-2017


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

OPINION BY McLAUGHLIN, J.:                             FILED AUGUST 23, 2019

       Shaine S. Miller appeals from his judgment of sentence imposed after a

jury found him guilty of aggravated assault, terroristic threats, recklessly

endangering another person, simple assault, disorderly conduct, and

harassment.1 Miller challenges the sufficiency of the evidence supporting his

aggravated assault conviction. We affirm.

       The trial court aptly summarized the facts of this case as follows:

       On October 14, 2017, Esther Harlan, her husband Leroy Harlan
       and their two minor children were traveling in the families’ truck
       in Kane[,] Pennsylvania. Esther Harlan was operating the truck
       and they were on their way home from a soccer game. When they
       went to turn into Welsh Street [Miller’s] vehicle, with [Miller]
       sitting in the driver’s seat, was blocking their way. [Miller] then
       pulled his vehicle backward and said to the Harlans “[C]an you
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

118Pa.C.S.A. §§ 2702(a)(1), 2706, 2705, 2701(a)(3), 5503(a)(4) and
2709(a)(1) respectively.
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     fucking get through now?;” “Can you get by me now you fucking
     bitch;” and, “What's your fucking problem.” Mr. Harlan then stated
     to his wife: “[P]ull over. I want to see what's going on.” His wife
     did pull over and Mr. Harlan and [Miller] each exited their vehicles.
     Mr. Harlan walked toward [Miller] and [Miller] was getting out of
     his vehicle. Mr. Harlan stated to [Miller] “[W]hat's going on?
     What’s your problem?” [Miller] responded that he did not have a
     problem and it got “heated back and forth.” Mr. Harlan testified:

            So, it went on there for a little bit. And all of the sudden,
        he was screaming and hollering, and - and he ran back down
        the hill to his vehicle approximately 15, 20 feet to the door
        and reached in - his door and came out with a gun and I
        stayed in the same spot and didn't move. I stayed right
        where we first initially met at the back of the vehicle. He
        reached in the - in his car, came out with a gun, cocked the
        gun, and came running up to me. At this point in time he
        was probably two feet away from me with the gun directed
        towards my head with his finger on the trigger said,
        “[W]hat's your problem now, fucker? I got a gun. I'm going
        to kill you. I'm going to shoot you.” And I kept saying - - my
        hands at that point went up in a defensive way like this, and
        they stayed in that position the whole time that he had the
        gun in his hand, whole time that he was waving it at me.
        His hand was actually shaking on the gun. His finger on the
        trigger. The gun looked like it was loaded because he cocked
        the action and it was like a loaded gun. At that point in time,
        I said, “I don't know what your deal is, but you don't need
        a gun. You don’t need to be getting the gun out. Put the
        fucking gun away.” [Miller responded] “I have a permit. I'm
        allowed to do that.”

     9/26/18 Trial Tr. Page 118-119. [Miller] pointed the handgun
     directly at Mr. Harlan's head. While [Miller] was pointing the gun
     at Mr. Harlan's head one of [Miller’s] friends exited a nearby home
     and questioned [Miller], stating: “Shaine, what the fuck are you
     doing? That's my neighbor. Put your gun down.” [Miller] then put
     the weapon into his vehicle and walked over and sat down on the
     steps to a home. The Harlans then approached him and words
     were exchanged. [Miller] stated to the Harlans: “I had the right to
     have a gun. I have the right to kill you;” and, “I should've fucking
     killed you.” He then went back towards his car to apparently
     retrieve the handgun again. However, Mrs. Harlan ran to the
     vehicle first, grabbed the handgun and threw it. Later that day
     while [Miller] was being detained in a cell at the Kane Borough

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      Police Station he repeatedly yelled: “I shoulda just fucking killed
      them. I shoulda just shot them;” and, “I don't know why I am
      here. I shoulda just fucking killed them. It would have been
      worthwhile. I shoulda just killed them.”

Trial Court’s Pa.R.A.P. 1925(a) Opinion, 3/6/19, at 6-7.

      After a jury convicted him of the above referenced offenses, the trial

court sentenced Miller to an aggregate of 4 to 10 years’ incarceration with

credit for time served. Miller filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court filed a responsive Rule 1925(a)

opinion. On appeal, Miller presents a single issue for our review: “Whether the

evidence presented on the record at the trial of this matter on September 26-

27, 2018 was sufficient to establish each element of the charge of Aggravated

Assault, 18 Pa.C.S. § 2702(a)(1), thereby justifying a verdict of Guilty for that

offense?” Miller’s Br. at 5. Miller argues that the evidence was insufficient to

prove that he “attempted to cause serious bodily injury to Leroy Harlan by

pointing a firearm at him and making a conditional threat” where “no

intervening factors” prevented him from shooting had he had an actual intent

to cause harm. Id. at 18.

      “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. Bradley, 69 A.3d 253, 255 (Pa.Super. 2013). If the Commonwealth has

presented some evidence of each element of the crime, we deem the evidence



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sufficient unless it is “so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.” Id.

      Pursuant to subsection 2702(a)(1) of the Crimes Code, “a person is

guilty of aggravated assault if he…attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life.”

18 Pa.C.S.A. § 2702(a)(1). “For aggravated assault purposes, an ‘attempt’ is

found where ‘an accused who possesses the required, specific intent acts in a

manner which constitutes a substantial step toward perpetrating a serious

bodily injury upon another.’” Commonwealth v. Fortune, 68 A.3d 980, 984

(Pa.Super. 2013 (en banc) (quotation omitted). “[I]ntent ordinarily must be

proven through circumstantial evidence and inferred from acts, conduct or

attendant circumstances.” Id.

      In Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978), the

Pennsylvania Supreme Court fashioned a totality of the circumstances test

that has often been cited when courts must determine whether a defendant

acted with the requisite intent to sustain an aggravated assault conviction.

The test specifically calls upon courts to consider, inter alia, “evidence of a

significant difference in size or strength between the defendant and the victim,

any restraint on the defendant preventing him from escalating the attack, the

defendant’s use of a weapon or other implement to aid his attack, and his

statements before, during, or after the which might indicate his intent to inflict




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injury.” Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006)(citing

Alexander, 383 A.2d at 889).

      In the instant case, the trial court found that the facts at issue are

analogous to those presented in Fortune and we agree. In Fortune, the

defendant approached the victim, pointed a gun a half-inch away from her

head, and threated, “If you don’t let go of the keys, I am going to blow your

head off.” Fortune, 68 A.3d at 982. The defendant there grasped one end of

the victim’s keys, and the victim ran away. Our Court concluded that the

evidence presented in Fortune was sufficient to support the defendant’s

aggravated assault conviction, holding:

      Under the totality of the circumstances, the jury certainly was free
      to find, inter alia, that [defendant] intended to carry out his threat
      but did not do so for a variety of reasons. The fact the victim
      managed to drop her keys and successfully escape does nothing
      to negate a finding that [defendant] possessed the proper mens
      rea at the time he pointed the gun at the victim. In sum, in
      applying the totality of the circumstances as Matthew dictates,
      we find [defendant’s] claim there was insufficient evidence to
      sustain his conviction for Aggravated Assault must fail.

Id. at 985.

      Here, the trial court properly found that the jury was free to believe that

Miller meant what he repeatedly told Harlan: that he intended to shoot and

kill him. Specifically, the court found that threat, in conjunction with Miller’s

action of pointing a gun directly at Harlan’s head for some time, sufficient to

sustain Miller’s conviction for aggravated assault. As in Fortune, the trial




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court found the evidence to be sufficient regardless of the fact that Miller did

not ultimately shoot Harlan. See id.

      Likewise, viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, we hold that the trial court aptly

determined that the evidence was sufficient to support Miller’s aggravated

assault conviction. See Bradley, 69 A.3d at 255. Miller threatened Harlan’s

life multiple times while pointing a gun directly at Harlan’s head. Further, the

encounter was only defused once a neighbor interceded. Thus, under the

totality of the circumstances, the evidence was sufficient to establish that

Miller had the requisite specific intent to support his conviction for aggravated

assault under 18 Pa.C.S.A. § 2702(a)(1). See Fortune, 68 A.3d at 985;

Matthew, 909 A.2d at 1257. Accordingly, we conclude that Miller’s issue on

appeal lacks merit and we affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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