J-S52034-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
               Appellee                  :
                                         :
                   v.                    :
                                         :
DAVID MAURICE DONLEY,                    :
                                         :
               Appellant                 :   No. 388 MDA 2018

       Appeal from the Judgment of Sentence Entered August 2, 2017
             in the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0000422-2017

BEFORE:    BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER,J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED: OCTOBER 17, 2018

      David Maurice Donley (Appellant) appeals from the August 2, 2017

judgment of sentence of six months to four years of incarceration, imposed

after being convicted by a jury of terroristic threats. We affirm.

      We provide the following background. Jaime Smotherman, the mother

of Appellant’s daughter, testified that on an evening in July 2016, Appellant

was ringing her doorbell and “banging” on her door around midnight. N.T.,

7/7/2017, at 12. She further testified that her daughter was crying in her

room, and when Smotherman went into her daughter’s room, she saw

Appellant at the window. Smotherman called the police, and Officers Brandon

Spounagle and Jared Henry responded. They were unable to locate Appellant




* Retired Senior Judge assigned to the Superior Court.
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near the scene.1 Smotherman texted Appellant about the incident and “told

him … he had no right to be at [her] house doing that and he better not be

doing it again.” Id. at 14.         Based upon this incident, on July 27, 2016,

Appellant was charged at docket number 1712 of 2016 with one count each

of attempted criminal trespass and loitering and prowling at nighttime.

       Subsequently, while Appellant was awaiting trial on these charges, on

January 8, 2017, Smotherman and Appellant were texting again.              The

conversation began with Appellant’s request to speak to their daughter.

Smotherman told Appellant that their daughter was asleep. The conversation

then turned to the events of July 2016. Appellant asked Smotherman “what

guy [she knew] that tried to break in.” Id. at 17.          Smotherman texted

Appellant that she believed it was him, and asked Appellant “to stop

bothering” her. Id. Appellant then texted Smotherman that “[h]e’s a 200-

pound Marine. He can break in anytime he wants.”2 Id. Smotherman texted

Appellant again to stop bothering her, but he continued to send text

messages. Appellant texted, “I should break into your house. Maybe I’ll crawl




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1 When Officer Spounagle spoke with Appellant about this incident, Appellant
claimed that he could not get in touch with either Smotherman or his
daughter, so he and some friends went to the residence to ensure they were
safe. Id. at 54-55.

2 According to Smotherman, Appellant was not a Marine because he “was
kicked out after boot camp.” Id. at 17.

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through the window while my dad videotapes it with footage of you telling me

to leave.” Id. at 18-19.

      Smotherman again called the police, and she reported to Officer

Spounagle that “she received a threatening message from [Appellant].” Id. at

56. Officer Henry got in touch with Appellant, who told police that the meaning

of the text messages was being misinterpreted. Id. at 69-70. On January 12,

2017, Officer Henry filed a criminal complaint against Appellant charging him

with one count of terroristic threats pursuant to 18 Pa.C.S. § 2706(a)(1) at

docket number 422 of 2017.

      A jury trial on all three charges was held on June 7, 2017.         At the

consolidated   trial,   the   Commonwealth     presented    the   testimony    of

Smotherman, the daughter of Smotherman and Appellant, and both police

officers. Appellant presented testimony from his father and a friend. He also

testified in his defense. Appellant was found not guilty on both charges at

docket number 1712 of 2016. He was found guilty of terroristic threats at

docket number 422 of 2017.

      On August 2, 2017, Appellant was sentenced as outlined above.

Appellant timely filed a post-sentence motion, which the trial court denied.

Appellant timely filed a notice of appeal, and both Appellant and the trial court

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




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      On appeal, Appellant sets forth three issues for our review. We begin

with Appellant’s challenge to the sufficiency of the evidence to sustain his

conviction. See Appellant’s Brief at 13-19.

            Whether sufficient evidence exists to support the verdict is
      a question of law; our standard of review is de novo and our scope
      of review is plenary. When reviewing the sufficiency of the
      evidence, this Court is tasked with determining whether the
      evidence at trial, and all reasonable inferences derived therefrom,
      [is] sufficient to establish all elements of the offense beyond a
      reasonable doubt when viewed in the light most favorable to the
      Commonwealth[.]        The evidence need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented.

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

      “A person commits the crime of terroristic threats if the person

communicates, either directly or indirectly, a threat to … commit any crime of

violence with intent to terrorize another[.]” 18 Pa.C.S. § 2706(a)(1).

In other words, “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.” Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.

Super. 2003) (internal citations and quotation marks omitted).

      On appeal, Appellant first contends that his threat of breaking into

Smotherman’s house is not a crime of violence within the meaning of the

statute. Appellant’s Brief at 14. Appellant points out that the Crimes Code

defines “crimes of violence” for sentencing purposes in 42 Pa.C.S. § 9714(g).

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Appellant’s Brief at 14-15. Appellant argues that none of the crimes listed in

this subsection is applicable to his communication that he would “break in.”

Id.; N.T., 6/7/2017, at 18-19.

     However, one such qualifying crime under the sentencing code is

attempted burglary pursuant to 18 Pa.C.S. § 3502(a)(1). See 42 Pa.C.S.

§ 9714(g).    That section provides that “[a] person commits the offense of

burglary if, with the intent to commit a crime therein, the person … enters a

building or occupied structure, or separately secured or occupied portion

thereof that is adapted for overnight accommodations in which at the time of

the offense any person is present.” 18 Pa.C.S. § 3502(a)(1)(ii). This conduct

is exactly what Appellant threatened he would do via the text message at

issue. We have held that “it is unnecessary for an individual to specifically

articulate the crime of violence which he or she intends to commit where the

type of crime may be inferred from the nature of the statement and the

context and circumstances surrounding the utterance of the statement.”

Commonwealth v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super. 1990).

Based on the foregoing, we conclude the Commonwealth presented sufficient

evidence to prove beyond a reasonable doubt that Appellant threatened to

commit a crime of violence.

     Appellant next contends that the Commonwealth failed to prove beyond

a reasonable doubt the second element of the offense, that Appellant “acted

with intent to terrorize” Smotherman. Appellant’s Brief at 15. He contends


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that he and Smotherman had a contentious relationship and “his messages

were made in an unplanned heated confrontation.” Id. at 18.

      We recognize that this section “is not intended … to penalize mere spur-

of-the-moment threats which result from anger.” 18 Pa.C.S. § 2706 cmt.

While this is Appellant’s characterization of his text message that he would

break into Smotherman’s house, the jury was free to believe Smotherman’s

testimony that she felt threatened by this text. N.T., 6/7/2017, at 19. As we

have pointed out, “[t]he harm sought to be prevented by the statute is the

psychological distress that follows from an invasion of another’s sense of

personal security.” Reynolds, 835 A.2d at 730. Here, Appellant had been

charged with attempted criminal trespass as part of his effort to obtain entry

into Smotherman’s house. Then, months later, and before his trial on that

charge, he sent a text message to her stating that he could break into her

house if he wanted to. Viewing this testimony in the light most favorable to

the Commonwealth, we conclude the evidence was sufficient to sustain

Appellant’s terroristic threats conviction.

      Appellant next claims that he is entitled to a new trial because the

verdict is contrary to the weight of the evidence. Appellant’s Brief at 19-20.

According to Appellant, the jury “placed too great a weight on [Smotherman’s]

testimony regarding the charges for which Appellant was acquitted.” Id. at

20.

             We have held that [a] motion for new trial on the grounds
      that the verdict is contrary to the weight of the evidence, concedes

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     that there is sufficient evidence to sustain the verdict. Our
     Supreme Court has described the standard applied to a weight-
     of-the-evidence claim as follows:

                  The decision to grant or deny a motion for a new
           trial based upon a claim that the verdict is against the
           weight of the evidence is within the sound discretion
           of the trial court. Thus, the function of an appellate
           court on appeal is to review the trial court’s exercise
           of discretion based upon a review of the record, rather
           than to consider de novo the underlying question of
           the weight of the evidence. An appellate court may
           not overturn the trial court’s decision unless the trial
           court palpably abused its discretion in ruling on the
           weight claim. Further, in reviewing a challenge to the
           weight of the evidence, a verdict will be overturned
           only if it is so contrary to the evidence as to shock
           one’s sense of justice.

     Commonwealth v. Cash, [] 137 A.3d 1262, 1270 ([Pa.] 2016)
     (internal citations omitted). A trial court’s determination that a
     verdict was not against the interest of justice is [o]ne of the least
     assailable reasons for denying a new trial. A verdict is against the
     weight of the evidence where certain facts are so clearly of greater
     weight that to ignore them or to give them equal weight with all
     the facts is to deny justice. [W]e do not reach the underlying
     question of whether the verdict was, in fact, against the weight of
     the evidence…. Instead, this Court determines whether the trial
     court abused its discretion in reaching whatever decision it made
     on the motion.

Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (some

internal citations and quotation marks omitted).

     The trial court concluded that “the verdict of the jury does not shock

[its] conscience.” Trial Court Opinion, 1/23/2018, at 9 (unnumbered).

           The fact that during the trial, the jury heard evidence of the
     separate charges, upon which it later found [Appellant] not guilty,
     does not negate the ability to consider the totality of the
     circumstances involved with the terroristic threats charge and find
     [Appellant] guilty thereof. The jury, as trier of fact, “is free to

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      believe all, none or part of the testimony presented at trial.”
      Com[monwealth] v. Gibbs, 981 A.2d 274, 282 (Pa. Super.
      2009). “The weight of evidence is not a question of mathematics,
      but depends on its effect in inducing belief.” Braunschweiger v.
      Waits, 36 A. 155, 156 (Pa. 1897). Considering that the jury found
      [Appellant] not guilty of the separate charges evinces [its] ability
      to make a decisive determination as to whether the facts in
      support were sufficient to sustain a conviction of those charges,
      but does not indicate that those facts unduly influenced [its]
      determination of the other charge upon which [it] convicted
      [Appellant].

            In deciding whether to give credence to one witness’[s]
      testimony over another’s, the jury may be led by several factors,
      including “[t]he manner and appearance of the witness, the
      character of his story, and its inherent probability.” Id. The jury
      was free to give substantial weight to the Commonwealth’s
      witnesses. The [trial court] cannot disturb such determination of
      the jury and [Appellant] is not entitled to relief on this claim.

Trial Court Opinion, 1/23/2018, at 9-10.

      We discern no error or abuse of discretion in this conclusion. Here, as

the trial court pointed out, the jury’s verdict reveals that it carefully considered

the evidence and credited Smotherman’s testimony regarding the threats

made by Appellant to her.      Accordingly, we conclude that Appellant is not

entitled to relief on his weight-of-the-evidence claim.

      Finally, Appellant challenges the discretionary aspects of his sentence.

Appellant’s Brief at 20-24. We consider this issue mindful of the following.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

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                                    ***

           When imposing [a] sentence, a court is required to consider
     the particular circumstances of the offense and the character of
     the defendant. In considering these factors, the court should refer
     to the defendant’s prior criminal record, age, personal
     characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the following
     four factors:

           (1) whether appellant has filed a timely notice of
           appeal, see Pa.R.A.P. 902 and 903; (2) whether the
           issue was properly preserved at sentencing or in a
           motion to reconsider and modify sentence, see
           Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
           fatal defect, Pa.R.A.P. 2119(f); 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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

     Instantly, Appellant has satisfied the first three requirements: he timely

filed a notice of appeal, sought reconsideration of his sentence in a post-

sentence motion, and his brief contains a Pa.R.A.P. 2119(f) statement. We

now consider whether Appellant has presented a substantial question for our

review.




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        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the sentencing code; or (2)

contrary to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation and

quotation marks omitted).

        Here, Appellant asserts two separate claims in his 2119(f) statement.

First he contends that the trial court “improperly based [his] sentence by

focusing on [his] prior record to the exclusion of mitigating factors[.]”

Appellant’s Brief at 11. Appellant also claims that the trial court’s “referencing

facts    from   a   [b]ail   [r]evocation   [h]earing   concerning”    him   was

“impermissible.” Id.

        We consider these claims separately.     With respect to the former, a

claim that a trial court failed to consider mitigating factors does indeed raise

a substantial question; however, here, Appellant suggests that the trial court

did consider the mitigating factors, but gave his prior record more weight.

See id. We conclude that this claim is akin to an argument that the trial court

failed to consider adequately mitigating factors, which we have held does not

raise a substantial question. See Commonwealth v. Disalvo, 70 A.3d 900,

903 (Pa. Super. 2013) (“[T]his Court has held on numerous occasions that a


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claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review.”) (quoting Commonwealth v. Downing,

990 A.2d 788, 794 (Pa. Super. 2010)); Commonwealth v. Zirkle, 107 A.3d

127, 133 (Pa. Super. 2014) (“[W]e have held that a claim that a court did not

weigh the factors as an appellant wishes does not raise a substantial

question.”).    Accordingly, we conclude that Appellant has not presented a

substantial question on this basis.

       As to Appellant’s claim that the trial court considered an impermissible

factor, i.e. facts from a bail revocation hearing, in fashioning his sentence, we

likewise conclude that Appellant has not raised a substantial question.

Although “a claim that the sentencing court relied on impermissible factors in

sentencing raises a substantial question,” Appellant does not specify what

particular facts the trial court considered. Commonwealth v. Bromley, 862

A.2d 598, 605 (Pa. Super. 2004). We recognize that “[o]ur inquiry must focus

on the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003).

However, Appellant cannot just baldly claim that the trial court relied upon

impermissible factors then not provide this Court with even one example. 3

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3 Appellant’s brief has not cited any facts the trial court considered from the
bail revocation hearing. In addition, Appellant has not included a transcript
from that hearing. Finally, the trial court states that it did not consider such



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Accordingly, because Appellant has not raised a substantial question, this

Court will not review the merits of his sentencing claims.

       Having presented this Court no issue on appeal entitling him to relief,

we affirm Appellant’s judgment of sentence.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018




____________________________________________


matters. See Trial Court Opinion, 1/23/2018, at 11 (“Despite [Appellant’s]
allegations, [the trial court] did not discuss any matters from the bail
revocation hearing.”).

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