J-S62009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

 ANTHONY DARNELL SAMUELS

                             Appellant                  No. 1758 MDA 2016


     Appeal from the Judgment of Sentence entered September 6, 2016
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0001232-2016


BEFORE: STABILE, MOULTON, and STRASSBURGER*, JJ.

MEMORANDUM BY STABILE, J.:                        FILED NOVEMBER 09, 2017

       Appellant, Anthony Darnell Samuels, appeals from the judgment of

sentence entered on September 6, 2016 in the Court of Common Pleas of

Dauphin County, following his conviction of terroristic threats. 18 Pa.C.S.A.

§ 2706(a)(1).     Appellant claims insufficiency of evidence and an excessive

sentence. Following review, we affirm.

       The trial court aptly summarized the evidence presented at Appellant’s

bench trial as follows:

              A non-jury trial was held and [Appellant] was found guilty
       of terroristic threats. Larita Brown testified to the events that took
       place on the night of February 16, 2016. Ms. Brown was with her
       boyfriend waiting for the bus at the train station in Harrisburg,
       Pennsylvania when [Appellant, Ms. Brown’s ex-boyfriend,] went

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* Retired Senior Judge assigned to the Superior Court.
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     over to Ms. Brown and demanded twenty ($20) dollars from her.
     Ms. Brown said “no” and [Appellant] followed her around the train
     station. Ms. Brown testified that this was an ongoing occurrence
     (where [Appellant] would demand money from her) and that Ms.
     Brown finally had enough and told [Appellant] “no more.” Ms.
     Brown [who had a PFA against Appellant] felt threatened and
     sought out an Amtrak officer.

            When the Amtrak Officer approached [Appellant] to ask him
     what was going on, [Appellant] took off and dropped his wallet
     and identification. Shortly thereafter, [Appellant] called Ms.
     Brown and again demanded money from her. At this time, Ms.
     Brown and her boyfriend got on the bus and two stops later,
     [Appellant] got on the bus. [Appellant] “charged to the back of
     the bus” and once again demanded money from Ms. Brown. While
     visibly shaking, Ms. Brown gave [Appellant] twenty ($20) and
     [Appellant] left the bus. Ms. Brown went home and [Appellant]
     continued to call her and demand money. Ms. Brown testified that
     she feels so threatened that if she does not answer the phone,
     something terrible is going to happen to her. Ms. Brown testified
     that during this phone call, [Appellant] once again threatened to
     kill her [as he had done earlier that evening on the bus]. Finally,
     on direct examination, Ms. Brown testified that she lives in fear of
     [Appellant].

            The Commonwealth also introduced the testimony of Ben
     Stewart, a patrolman with the Swatara Township Police
     Department, who identified the phone number that had been
     calling Ms. Brown’s as [Appellant’s].

Trial Court Rule 1925(a) Opinion, 12/27/16, at 2-3 (footnotes and references

to notes of testimony omitted).

     The trial court found Appellant guilty of terroristic threats and sentenced

him to not less than 24 months or more than 60 months in prison, plus a fine

of $1,000 and costs. Appellant filed a motion to modify his sentence and the

trial court denied that motion by order entered on October 10, 2016. This

timely appeal followed. The trial court granted Appellant’s motion to file a


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Rule 1925(b) statement of errors complained of on appeal nunc pro tunc.

Appellant filed his Rule 1925(b) statement in accordance with the court’s

order. The trial court subsequently filed its Rule 1925(a) opinion.

      In this appeal, Appellant asks us to consider two issues:

      1. Was the evidence at trial insufficient to prove beyond a
         reasonable doubt that the Appellant was guilty of terroristic
         threats where the Commonwealth failed to show that the
         Appellant had the intent to terrorize another[?]

      2. Whether the trial court abused its discretion in sentencing
         Appellant to an aggregate sentence of two (2) to five (5) years
         of incarceration where the sentence is excessive and
         unreasonable in light of the Appellant’s age, mental health
         issues, and rehabilitative needs.

Appellant’s Brief at 6.

      Appellant’s first issue challenges the sufficiency of evidence.        Our

Supreme Court has explained:

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted).   We must evaluate the entire record and we must consider all

evidence actually received. Commonwealth v. Beasley, 138 A.3d 39, 45

(Pa. Super. 2016) (quoting Commonwealth v. Hansley, 24 A.2d 410, 416

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(Pa. Super. 2011) (additional citations omitted).         In passing upon the

credibility of witnesses and the weight of the evidence, the trier of fact is free

to believe all, part or none of the evidence. Id.

      Appellant was convicted of terroristic threats. 18 Pa.C.S.A. § 2706(a)

provides, in relevant part, that “[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.” In Beasley,

this Court noted:

      For a defendant to be convicted of terroristic threats,

         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.

Id. at 46 (quoting Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.

Super. 2003) (internal quotations and citations omitted)).

      In its Rule 1925(a) opinion, the trial court observed:

      [T]his was not a spur-of-the-moment type of threat. [Appellant]
      had repeatedly demanded money from Ms. Brown. Even as Ms.
      Brown testified in court, she appeared visibly shaken.
      [Appellant’s] threat was not made solely as a result of transitory
      anger. The relationship between Ms. Brown and [Appellant] has
      been contentious for quite some time as they started dating five
      or six years ago. [M]erely because a defendant is angry does not
      mean that he is not capable of making a terroristic threat.
      [Appellant’s] actions began at the train station, continued onto a

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     public bus, and continued into the night with repeated calls to Ms.
     Brown. All these encounters involved threatening language by
     [Appellant]. This was not some spur-of-the-moment threat but
     an ongoing threat by [Appellant] when he demanded money from
     Ms. Brown. [Appellant] evinced a settled purpose to terrorize Ms.
     Brown throughout the evening (and many times prior) on
     February 16, 2016. [Appellant] directly threatened to kill Ms.
     Brown as evidenced by the record. Here, the Commonwealth
     came forward with evidence of a settled purpose to terrorize Ms.
     Brown,[FN] thus, [Appellant] is entitled to no relief on his
     sufficiency challenge.
     [FN]
         Ms. Brown additionally testified that [Appellant] had choked her previously
     and that a PFA was issued against him. Ms. Brown also testified that she was
     in fear for her life.

Trial Court Rule 1925(a) Opinion, 12/27/16, at 5-6.

     Appellant argues that his “words were said in the heat-of-the-moment

when he saw Ms. Brown at the bus station with her new paramour.”

Appellant’s Brief at 9. The record belies his assertion and the cases upon

which Appellant relies, such as Commonwealth v. Anneski, 525 A.2d 373

(Pa. Super. 1987), are easily distinguished as involving factual scenarios

where “a spur-of-the-moment threat result[ed] from transitory anger.” Id.

at 376.

     As Ms. Brown explained, Appellant was aware of her new boyfriend prior

to February 16, 2016.        Further, Appellant’s actions did not comprise “a”

moment; they involved a series of events spanning a several-hour period.

Appellant harassed and threatened Ms. Brown at the train station and on the

bus. Those threats continued by phone after Ms. Brown returned to her home,




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even though Ms. Brown had acceded to Appellant’s demand for money, which

she surrendered to him on the bus.

      Viewing the evidence in the light most favorable to the verdict winner

and giving the prosecution as verdict winner all reasonable inferences to be

drawn from the evidence, we conclude—as did the trial court—that the

evidence was sufficient to prove that Appellant made a threat to commit a

crime of violence against Ms. Brown and that the threat was communicated

with the intent to terrorize her. Appellant’s sufficiency challenge fails.

      In his second issue, Appellant argues that the trial court abused its

discretion in imposing an excessive sentence of no less than 24 months or

more than 60 months in light of Appellant’s age, mental health issues, and

rehabilitative needs.

      In Commonwealth v. Gould, 912 A.2d 869 (Pa. Super. 2006), this

Court stated:

      It is well-settled that appeals of discretionary aspects of a
      sentence are not reviewable as a matter of right. Our standard of
      review when an appellant challenges the discretionary aspects of
      his or her sentence is very narrow; the Court will reverse only
      where appellant has demonstrated a manifest abuse of discretion
      by the sentencing judge. Before a challenge to the sentence will
      be heard on the merits, an appellant, in order to invoke the Court’s
      jurisdiction, must set forth in his brief a separate and concise
      statement of reasons relied upon in support of his appeal. See
      Pa.R.A.P. 2119(f)[.]

Id. at 872 (internal citations omitted).     Here, Appellant has included the

requisite Rule 2119(f) statement, asserting that “[a] claim that a sentence is

manifestly excessive such that it constitutes too severe a punishment raised

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a substantial question as to whether the trial court abused its discretion in

sentencing.” Appellant’s Brief at 12 (citing Commonwealth v. Kelly, 33 A.3d

638, 640 (Pa. Super. 2011)).           Because Appellant has raised a substantial

question, we shall consider the merits of the issue.

       Again, Appellant argues that his sentence is excessive in light of his age,

mental health issues, and rehabilitative needs.1 However, Appellant does not

explain in what way this sentence is excessive for his age (53 as of the date

of sentencing). Rather, his focus is on mental health and drug addiction, and

his assertion that he could become a productive member of society with

treatment.

       The trial court defended the imposition of Appellant’s sentence,

explaining:

       In the instant matter, this [c]ourt fashioned a sentence[] that
       takes into account the protection of the public, the rehabilitative
       needs of [Appellant], and the gravity of the particular offense as
       it relates to the impact on the life of the victim and the community.
       This [c]ourt looked at the totality of [Appellant’s] conduct. This
       [c]ourt, in preparation of sentencing, reviewed the presentence
       investigation, reviewed the sentencing memorandum prepared by
       trial counsel, and reviewed the sentencing guidelines for terroristic
       threats with intent to terrorize. [Appellant] had a prior record
       score of five (5). [Appellant] has an extensive criminal history
       dating back to 1982 including several charges for simple assault.
       [Appellant’s] history also includes multiple charges for violating a
       PFA.     Additionally, [Appellant] showed no remorse at the
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1 In its opinion, the trial court explained its reasons for imposing a sentence
in the aggravated range. Rule 1925(a) Opinion, 12/27/16, at 6-8. Appellant
is not claiming the sentence was excessive because it was in the aggravated
range; he contends the sentence was excessive generally. Appellant’s Brief
at 17-19.

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       sentencing hearing and continues to put blame on the victim by
       calling her “a good actress.”

       As indicated at the sentencing hearing, this [c]ourt “deviated
       above the guideline range because [this court] believes, . . . the
       level of violence is very aggravated in this particular instance.
       There’s been a history of abuse, intimidation, and threats and
       violence against the victim in this case. And so [this court]
       believe[s] for the protection of the victim, [and] to ensure public
       safety, [this court] believe[s] that the aggravated sentence is
       appropriate in this instance.” N.T.[, Sentencing, 8/30/16, at]
       15.[2] As such, this court fashioned a sentence that takes into
       consideration the protection of the public, the gravity of the
       offenses, and [Appellant’s] rehabilitative needs.

Trial Court Rule 1925(a) Opinion, 12/27/16, at 7-8 (some brackets in original).

       We conclude that Appellant has failed to demonstrate a manifest abuse

of discretion on the part of the sentencing judge.       Therefore, Appellant’s

challenge to the discretionary aspects of sentence fails.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017

____________________________________________


2 At the conclusion of the sentencing hearing, the trial court announced that
Appellant would undergo a mental health evaluation once incarcerated at a
state correctional institution and ordered that Appellant follow through on any
treatment recommend by that evaluation. N.T., Sentencing, 8/30/16, at 17.
The September 6, 2016 sentencing order also includes that directive. Order,
9/6/16, at 1.


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