J-A13008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREGORY EDWARDS

                            Appellant                  No. 158 EDA 2016


           Appeal from the Judgment of Sentence November 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002593-2015


BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 23, 2017

        Gregory Edwards appeals from the judgment of sentence, entered in

the Court of Common Pleas of Philadelphia County, after he was convicted in

a nonjury trial of retail theft,1 simple assault,2 reckless endangerment

(“REAP”),3 terroristic threats4 and possession of an instrument of crime

(“PIC”).5 Upon careful review, we affirm.

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3929(a)(1).

2   18 Pa.C.S.A. § 2701(a).

3   18 Pa.C.S.A. § 2705.

4   18 Pa.C.S.A. § 2706(a)(1).

5   18 Pa.C.S.A. § 907(a).
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      The trial court set forth the facts of this case as follows:

      On January 25, 2014, at about 2:45 p.m., James Tchokogoue
      was working at a CVS store located at 2400 Aramingo Avenue in
      Philadelphia as a loss prevention agent when he saw [Edwards]
      pick up two [Nicorettes], a smoking cessation product, and
      conceal them inside his coat. [Edwards] then walked past the
      checkout aisles and was about to leave the store when Mr.
      Tchokogoue approached [him] and told him that he had to come
      with him. [Edwards] refused to return the items he took and to
      come back into the store.

      The manager of the store approached soon thereafter and said
      that he was calling 911 at which time [Edwards] said, “Don’t
      touch me,” and that he had HIV and a needle. [Edwards] then
      crouched down in an aggressive stance and put his arms up.
      The manager grabbed [Edwards’] arm and both men began
      pushing and shoving one another. Fearing for the manager’s
      life, Mr. Tchokogoue grabbed [Edwards] and took him to the
      ground where[,] with the help of the store’s assistant manager,
      Mr. Tchokogoue managed to keep [Edwards] under control.

      While on the ground, [Edwards] said in a threatening manner
      that he had a knife up his sleeve as he attempted to get back on
      his feet. Mr. Tchokogoue observed that [Edwards’] left arm was
      hidden under his body so he grabbed [Edwards’] arm and
      removed a knife from his left jacket sleeve and tossed it to the
      side. The police arrived shortly thereafter and took [Edwards]
      into custody.

Trial Court Opinion, 6/2/16, at 2 (citations to record omitted).

      On September 8, 2015, the Honorable Daniel D. McCaffery found

Edwards guilty of the above offenses and, on November 30, 2015, sentenced

him to an aggregate term of 11½ to 23 months’ incarceration followed by

five months of probation.     Edwards filed a motion for reconsideration of

sentence, which was denied. This timely appeal follows, in which Edwards




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challenges the sufficiency of the evidence as to all of his convictions except

for retail theft.

        We are guided by the following standard of review when presented

with a challenge to the sufficiency of the evidence:

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. 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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. 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.

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, the fact that the evidence
      establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013),

quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013)

(citations and quotation marks omitted).

      Edwards challenges his convictions for simple assault, REAP, terroristic

threats, and PIC. Simple assault is defined, in relevant part, as follows:




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      (a) Offense defined.-- Except as provided under section 2702
      (relating 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; [or]

                                     ...

      (3) attempts by physical menace to put another in fear of
      imminent serious bodily injury[.]

18 Pa.C.S.A. § 2701(a)(1).     In the context of an assault, an attempt is

established when “the accused intentionally acts in a manner which

constitutes a substantial or significant step toward perpetrating serious

bodily injury upon another.”    Commonwealth v. Lopez, 654 A.2d 1150,

1154 (Pa. Super. 1995) (citations omitted).

      Edwards argues that the Commonwealth presented no evidence of

either actual bodily injury or an attempt to cause bodily injury. Rather, he

asserts that he “simply resisted being dragged away or being brought to the

ground,” which is insufficient to prove an attempt to cause bodily injury.

Edwards cites to this Court’s decision in Commonwealth v. Wertelet, 696

A.2d 206 (Pa. Super. 1997), in which we held that the physical acts of

resistance by the defendant while being placed under arrest did not rise to

the level of an aggravated assault of a police officer under section

2702(a)(3). Edwards’ reliance on Wertelet is inapt. There, the defendant

kicked an officer in the shin while resisting arrest. The Court concluded the

resulting impact on the officer did not rise to the level of “bodily injury” as

contemplated by section 2703 because it did not amount to a “physical



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event unlike those commonly occurring in normal life which, although

unpleasant and somewhat painful, do not seriously interrupt one’s daily life.”

Id. at 210.     Conversely, here, Edwards was – by his own admission – in

possession of a knife, which the evidence shows he was attempting to

retrieve from his sleeve.6 In addition, while he was engaged in a physical

struggle with the store manager, Edwards stated that he was HIV positive

and was in possession of a needle, and told store employees “don’t touch

me.”      N.T. Trial, 9/18/15, at 22.            This evidence was sufficient to
____________________________________________


6   The store’s loss prevention officer, James Tchokogoue, testified as follows:

        Q: Okay. When the defendant – after the defendant . . . began
        struggling with the manager, what, if anything, were you doing
        at that particular time?

        A: Well, at that time, I saw them fighting, so I decided I was in
        fear for the store manager’s life, so I took control of him and I
        put him down to the ground.

        Then me – and the assistant manager came over and we
        restrained him to the ground. At that point, the defendant said
        that he had a knife coming out of his sleeve. He said it in a
        threatening manner. He started trying to push up from the
        ground, but we kept him down there.

                                           ...

        Q: Okay. And what is the defendant doing as you have him
        held down with your knee?

        A: He’s – his left arm is going underneath his – on his chest so
        he’s leaning on his left arm. I assumed that was the arm that
        had the knife in, so I was in fear of my life even more.

N.T. Trial, 9/18/15, at 23-24.




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demonstrate that Edwards either attempted to cause bodily injury or

attempted by physical menace to put another in fear of imminent serious

bodily injury. See Commonwealth v. Hudgens, 582 A.2d 1352, 1357 (Pa.

Super. 1990) (sustaining conviction for simple assault where defendant

verbally threatened to get victim, wielded sword in close proximity to

victim’s body, and victim was visibly frightened). Accordingly, the trial court

did not err in finding Edwards guilty of simple assault.

      Edwards also challenges his conviction for REAP.     A person commits

the offense of REAP if he “recklessly engages in conduct which places or may

place another person in danger of death or serious bodily injury.”          18

Pa.C.S.A. § 2705. A person acts recklessly when he:

      consciously disregards a substantial and unjustifiable risk that
      the material element exists or will result from his conduct. The
      risk must be of such a nature and degree that, considering the
      nature and intent of the actor’s conduct and the circumstances
      known to him, its disregard involves a gross deviation from the
      standard of conduct that a reasonable person would observe in
      the actor’s situation.

18 Pa.C.S.A. § 302(b)(3).         To sustain a conviction for REAP, “the

Commonwealth must prove that the defendant had an actual present ability

to inflict harm and not merely the apparent ability to do so.     Danger, not

merely the apprehension of danger, must be created.” Commonwealth v.

Cianci, 130 A.3d 780, 782 (Pa. Super. 2015), quoting Commonwealth v.

Hopkins, 747 A.2d 910, 915 (Pa. Super. 2000) (internal citation omitted).

However, the defendant’s conduct need not result in actual injury.        See,

e.g., Commonwealth v. Rahman, 75 A.3d 497, 502-03 (Pa. Super. 2013)

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(REAP conviction sustained where defendant threw punches at officer on

crowded balcony stairwell next to glass divide, which actions “easily could

have caused [the officer] to lose his footing and fall down the stairs near the

edge of the fourth floor balcony.”).

        Edwards argues that “none of the evidence at trial shows any conduct

that put any person in danger of serious bodily injury or death,” and that he

merely “resisted and passively struggled while being detained.”              Brief of

Appellant, at 10. He further asserts that merely carrying a concealed knife,

while    never   brandishing   or   using   it,   does   not   amount   to   reckless

endangerment. We disagree.

        Viewed in the light most favorable to the Commonwealth as verdict

winner, Franklin, supra, we find the evidence sufficient to support a verdict

of guilty as to the charge of REAP.         After taking an “aggressive stance”

toward store employees, an “agitated” Edwards engaged in a pushing and

shoving match with the store’s manager, all while concealing a knife in his

left shirt sleeve.    N.T. Trial, 9/18/15, at 21-22.           When the employees

managed to restrain him on the ground, Edwards announced that he

possessed a knife and began trying to push himself up with his left arm,

where he was concealing the knife.          Id. at 22-23.       By the time James

Tchokogoue saw and was able to grab the knife, it was sticking out of

Edwards’ left shirt sleeve. Id. at 24. Had Tchokogoue not seen and been

able to dispose of the knife, Edwards’ conduct could have resulted in serious

injury to either of the employees who were in close proximity to him,

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attempting to subdue him.          See Rahman, supra; Commonwealth v.

Mitchell, 554 A.2d 542 (Pa. Super. 1989) (REAP proven where, during

struggle, defendant unsnapped officer’s holster so that gun could easily be

removed; Court found “[t]here was the very strong possibility that the

revolver could discharge, injuring [the officer]”).

      Next, Edwards challenges his conviction for terroristic threats.            A

person commits the crime of terroristic threats he “communicates, either

directly or indirectly, a threat to . . . commit any crime of violence with

intent to terrorize another[.]”     18 Pa.C.S.A. § 2706(a)(1).         In order to

sustain a conviction under this section, 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.

Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009); Commonwealth v.

Tizer, 684 A.2d 597, 600 (Pa. Super. 1996). An express or specific threat is

not   necessary     to   sustain    a     conviction   for    terroristic   threats.

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

Consequently, “[i]t 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. Martinez, 153 A.3d 1025, 1028 (Pa. Super. 2016),

quoting Commonwealth v. Sinnott, 976 A.2d 1184, 1187–88 (Pa. Super.

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2009), aff'd in part and rev'd in part, 30 A.3d 1105 (Pa. 2011). Moreover,

“[n]either 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.”

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

quoting In re J.H., 797 A.2d 260, 262 (Pa. Super. 2002).         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[.]”

Commonwealth v. Martinez, 153 A.3d 1025, 1029 (Pa. Super. 2016),

quoting In re B.R., 732 A.2d 633, 636 (Pa. Super. 1999).

      Here, Edwards claims that “the only thing that could possibly be

construed as a threat . . . was his statement about being HIV positive and

possessing needles.”    Brief of Appellant, at 13.     He asserts that this

statement arose in the heat of the moment and did not contain any explicit

threats. In support of his argument, Edwards cites to a line of cases holding

that spur-of-the-moment threats resulting from transitory anger, made

without settled purpose to terrorize, do not constitute terroristic threats as

contemplated by the statute.       See Brief of Appellant, at 13, citing

Commonwealth v. Anneski, 525 A.2d 373 (Pa. Super. 1987) (terroristic

threats conviction reversed on weight of evidence claim where defendant

spoke in anger, in heated argument, believing her child had been struck by

complainant’s automobile, because she feared for future safety of her

children; exchange of threats made during heated, perhaps hysterical,

argument between neighbors not type of conduct criminalized by section

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2706); Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. 1982)

(terroristic threats conviction reversed where agitated, angry and inebriated

defendant repeatedly shouted obscenities and generally screamed and

shouted at officers, threatening he was going to kill them, machine gun

them, if given chance; Court concluded conduct expressed transitory anger

rather than settled purpose to carry out threat or terrorize officers);

Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super. 1979) (conviction

for terroristic threats reversed where defendant uttered one threat over

telephone in agitated and angry state, with no evidence demonstrating

intention of carrying threat out threat, and second threat was emotional

product of chance meeting with sheriff that became “mouth battle,” with

similarly no evidence of intent to carry out threat); 18 Pa.C.S.A. § 2706,

comment (“purpose [of statute] is to impose criminal liability on persons

who make threats which seriously impair personal security or public

convenience. It is not intended . . . to penalize mere spur-of-the-moment

threats which result from anger.”).   Under the facts of this case, we find

Edwards’ argument unavailing.

     Here, when Edwards was first approached by the store employees, he

told them that he had HIV and was in possession of a needle. Based upon

the totality of the circumstances present at the time, Martinez, supra, the

finder of fact could reasonably have inferred that Edwards was threatening

the employees with HIV infection in an attempt to terrorize them, thus

enabling him to escape. When the employees did not let him go, Edwards

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told them that he was armed with a knife. Again, the finder of fact could

reasonably have found this statement to be a threat intended to terrorize

the employees into letting him go.      Accordingly, Edwards is entitled to no

relief.

          Finally, Edwards challenges his conviction for PIC. A person commits

the offense of PIC if he “possesses any instrument of crime with intent to

employ it criminally.” 18 Pa.C.S.A. § 907(a). An “instrument of crime” is

defined as “[a]nything specially made or specially adapted for criminal use”

or “[a]nything used for criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it may have.” 18

Pa.C.S.A. § 907(d). An “actor’s criminal purpose provides the touchstone of

his liability for possessing an instrument of crime.    Such purpose may be

inferred from the circumstances surrounding the possession.”      In re A.V.,

48 A.3d 1251, 1253 (Pa. Super. 2012), quoting Commonwealth v.

Andrews, 768 A.2d 309, 317–18 (Pa. 2001).

          Edwards claims that, while he did possess a knife, the evidence does

not show that he intended to use it criminally. As this Court has repeatedly

held that mere possession of a weapon is insufficient to support a conviction

for PIC, he asserts that his conviction should be reversed. We disagree.

          Here, Edwards was in possession of a knife, concealed in his sleeve

where it would be readily accessible, while he committed retail theft. Based

on these facts alone, the finder of fact could reasonably infer that Edwards

brought the weapon to assist him either in committing the theft or in fleeing

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in the event he was detected.       Indeed, when Edwards was ultimately

confronted by store employees, he did just that by stating that he had a

knife in an effort to free himself from being further detained by them.

      Edwards relies on Commonwealth v. Moore, 393 A.2d 967 (Pa.

Super. 1978), and Commonwealth v. Hall, 450 A.2d 1018 (Pa. Super.

1982), which he claims are “directly on point.”    They are not.   In both of

those cases, juveniles were adjudicated delinquent for PIC for simply

possessing knives, with no evidence supporting even an inference of intent

to employ the weapons criminally.       In both of those cases, this Court

properly held that mere possession of a weapon, even under circumstances

in which the possession of the weapon is not manifestly appropriate for

lawful use, does not relieve the Commonwealth of its burden of proving

intent to employ it in a criminal manner.             Conversely, here, the

Commonwealth presented evidence from which the finder of fact could have

inferred Edwards intended to use the knife for criminal purposes, i.e., to

assist him in committing retail theft. In re A.V., supra. Accordingly, he is

entitled to no relief.

      Judgment of sentence affirmed.

      Judge Ott joins this Memorandum.

      Justice Fitzgerald files a Concurring and Dissenting Statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




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