J-S35018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

TAI DINH

                         Appellant                     No. 2486 EDA 2014


             Appeal from the Judgment of Sentence May 2, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012264-2013


BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JUNE 05, 2015

      Appellant, Tai Dinh, appeals from the judgment of sentence entered on

May 2, 2014, as made final by the denial of his post-sentence motion on

August 22, 2014, following his bench trial conviction for terroristic threats,

18 Pa.C.S.A. § 2706. Upon review, we affirm.

      The trial court set forth the facts of this case as follows:

        On June 30, 2013, [D.M.L.] and her [minor] daughter, A.L.,
        sold barbeque on the street near their home on the 1600
        block of South Mole Street in Philadelphia.                At
        approximately 4:00 p.m., [D.M.L.] sold the remainder of
        her barbeque stock to [Appellant], her neighbor, and let him
        borrow a container in order to hold the food. [D.M.L.] and
        A.L. then returned home where [D.M.L.] went upstairs and
        went to sleep. At approximately 7:00 p.m., [Appellant]
        knocked on [D.M.L.’s] door in order to return the container,
        where he was met by A.L., who informed [Appellant] that
        [D.M.L.] was sleeping upstairs. [Appellant’s] speech was
        slurred and he appeared to be under the influence of
        alcohol. A.L. accepted the container from [Appellant] and
        turned to reenter the house. While A.L.’s back was turned,

*Retired Senior Judge assigned to the Superior Court.
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         [Appellant] reached around her body from behind and
         grabbed her. A.L. pushed [Appellant] off of her, making
         him stumble on the outside steps. [Appellant’s] knocking at
         the door had caused [D.M.L.’s] dog to start barking, which
         woke [D.M.L.] up from sleep. From upstairs, [D.M.L.] asked
         if anyone was there, whereupon [Appellant] told A.L. that if
         she said anything, he would “run her family over with his
         car.” A.L. did not inform Le of [Appellant’s] actions or his
         threats that evening, as she felt threatened and was
         worried about her family.

         On the evening of July 8, 2013, [D.M.L.] was awakened by
         bricks being thrown through her window. A.L., believing
         that [Appellant] had thrown the bricks, informed [D.M.L.]
         that [Appellant] had grabbed her and that [Appellant] had
         said that if A.L. told anyone what happened, he would kill
         everyone in the house. A.L. reported [Appellant] to the
         police on July 22, 2013.

Trial Court Opinion, 11/21/2014, at 1-3 (original brackets omitted).

       The Commonwealth charged Appellant with the aforementioned crime

and one count each of unlawful contact with a minor, corruption of minors,

and indecent assault.1 Following a bench trial on April 30, 2014 and May 2,

2014, the trial court found Appellant guilty of terroristic threats, but

acquitted him of the remaining charges. The trial court sentenced Appellant

to two years of probation. This timely appeal resulted.2
____________________________________________


1
    18 Pa.C.S.A. §§ 6318, 6301, and 3126, respectively.
2
   Appellant filed a post-sentence motion on May 12, 2014. The trial court
entered an order denying relief on August 22, 2014. Appellant filed a notice
of appeal on August 28, 2014. On September 8, 2014, the trial court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).       Appellant complied timely on
September 29, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on November 21, 2014.



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       On appeal, Appellant raises the following issue for our review:

          Was the evidence insufficient to sustain a conviction of
          terroristic threats?

Appellant’s Brief at 3.

       Appellant contends that the Commonwealth failed to adduce sufficient

evidence to support his conviction for terroristic threats.   Appellant claims

the evidence showed he lacked the requisite intent to terrorize, and did not

recklessly disregard the risk of causing terror, in making statements to the

victim.     Id. at 7, 12.    Instead, he suggests that he was intoxicated and

“blurted out a statement that was made in the heat of the moment” as the

result of the victim pushing him and causing him to “stumble[e] down some

steps[.]”     Id. at 12. In further support of this claim, Appellant maintains

that the trial testimony from the victim and her mother was conflicting,

confusing, contradictory, and not credible.3 Id. at 11-12.

____________________________________________


3
  This aspect of Appellant’s claim challenges the weight of the evidence and
Appellant did not properly raise this issue in his appellate brief. This Court
has stated:

          [S]ufficiency of the evidence claims are distinct from weight
          of the evidence claims, as there are different standards of
          review as well as separate remedies involved. Indeed, in
          making a claim that the verdict was against the weight of
          the evidence, it is conceded that there was sufficient
          evidence to sustain the verdict.       [Appellant] failed to
          provide any separate argument in support of the weight of
          the evidence issue. Because [Appellant] failed to distinguish
          between [the] sufficiency and weight of the evidence claims
          and presented no argument regarding the weight of the
(Footnote Continued Next Page)


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      Our standard of review for a challenge to the sufficiency of the

evidence is well-settled:

         Whether, viewing all the evidence admitted at trial in the
         light most favorable to the Commonwealth as the verdict
         winner, there is sufficient evidence to enable the fact-finder
         to find every element of the crime beyond a reasonable
         doubt. In applying the above test, we may not weigh the
         evidence and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant's guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter of
         law no probability of fact may be drawn from the combined
         circumstances. The Commonwealth may sustain its burden
         of proving every element of the crime beyond a reasonable
         doubt by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(original brackets omitted).

      Under 18 Pa.C.S.A. § 2706(a)(1), “[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.A. § 2706(a)(1).             Regarding this crime, we have previously

determined:


                       _______________________
(Footnote Continued)

         evidence, we deem [the] weight of the evidence issue
         waived.

Commonealth v. Birdseye, 637 A.2d 1036, 1039-1040 (Pa. Super. 1994)
(citations omitted). This portion of Appellant’s challenge is, therefore,
waived.



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        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.

        Section 2706 is not meant to penalize mere spur-of-the-
        moment threats which result from anger. However, being
        angry does not render a person incapable of forming the
        intent to terrorize. This Court must consider the totality of
        circumstances to determine whether the threat was a result
        of a heated verbal exchange or confrontation.

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

(citations, quotations and brackets omitted).

      Here, the trial court concluded “the conviction was based upon

[Appellant’s] oral threat to run over the members of A.L.’s family if she told

anyone about [Appellant’s] offensive touching.”          Trial Court Opinion,

11/21/2014, at 5. More specifically, the trial court found:

        A.L. testified that [Appellant] reached around her body from
        behind and grabbed her.           A.L. further testified that
        [Appellant] told A.L. he would run over her family with his
        car if she said anything about what [Appellant] had done.
        This evidence, without more, was clearly sufficient to
        establish that [Appellant] directly threatened A.L. and her
        family with a crime of violence, and that he did so with the
        intent to terrorize her.

Id. at 4 (record citations omitted).

      In examining the totality of the circumstances, in the light most

favorable to the Commonwealth as our standard requires, we find there was

sufficient evidence to support Appellant’s conviction for terroristic threats.

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The victim, 17 years old at the time of the incident, testified that Appellant

“grabbed [her] from behind and grabbed [her] chest area and private area.”

N.T., 4/30/2014, at 46-47, 51.      The victim “fought [Appellant] off” and

Appellant “stumbled down the front stairs.” Id. at 54. The victim further

testified that “[a]fter [Appellant] stumbled down, [the victim’s] mom was

asking, because she heard the dog barking, she asked if there is anybody

down there, and before [Appellant] left he said if [the victim said] anything,

he would run [the victim’s] family over with his car.” Id. at 56. The victim

stated that she felt “really threatened and shocked.” Id. She claimed that

she did not immediately tell anyone about the incident “[b]ecause

[Appellant] threatened [her], so [she] was worried about her family.” Id. at

56-57. She felt that if she told anyone that Appellant would carry through

with his warning. Id. at 70.

      Here, there is no question that Appellant’s statement that he would

run over the victim’s family with his car constitutes a threat to commit a

crime of violence. The facts reveal that this was more than a spontaneous

threat solely resulting from anger in a heated verbal exchange.      Instead,

Appellant made the threat to conceal his prior, inappropriate conduct toward

A.L. He grabbed the victim, a minor female, and, fearing that she might tell

someone, he then threatened to harm her family.        While it appears that

Appellant was angry, anger does not render a person incapable of forming

the intent to terrorize. In this case, it is clear that the threat was made to

cause the victim psychological distress, and discourage disclosure about

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Appellant’s conduct, by invading A.L.’s sense of personal security. Thus, we

conclude that the Commonwealth presented sufficient evidence to support

Appellant’s conviction for terroristic threats.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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