J-S05015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    CLAYBORN CORNELL MORTON, JR. :
                                 :
                 Appellant       :             No. 648 MDA 2019

       Appeal from the Judgment of Sentence Entered March 19, 2019
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0000013-2019


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                      FILED AUGUST 26, 2020

       Appellant, Clayborn Cornell Morton, Jr., appeals from the judgment of

sentence imposed after a jury convicted him of terroristic threats, simple

assault, recklessly endangering another person, and possessing instruments

of crime (“PIC”).1 We affirm.

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

             On December 13, 2018, Zabrina Marquez placed a call to 9-
       1-1 emergency services to report that she heard a male voice
       screaming for extended periods of time in the apartment below
       hers, where her daughter, Jazzalee Segura lived with her
       boyfriend, Appellant, Clayborn Morton. (Notes of Testimony of
       March 18, 2019 Jury Trial “N.T.” at 95). She also reported hearing
       a female voice screaming . . . when she tried contacting her
       daughter via phone[.]

            Officer David Osario (“Officer Osario”) responded to 246
       South Tenth Street in Reading, Pennsylvania upon the 9-1-1 call.
____________________________________________


1   18 Pa.C.S. §§ 2706(a)(1), 2701(a)(3), 2705, and 907(a), respectively.
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     (N.T. 89-90). When Officer Osario arrived, he knocked on the
     door of the first-floor apartment and Appellant answered the door
     shaking and sweating profusely. (N.T. 90).         Appellant was
     speaking erratically and when asked whether anyone else was in
     the apartment, Appellant stated that his child and girlfriend were
     also there. Id.

           As Officer Osario entered the apartment, he found
     Appellant’s girlfriend, Jazzalee Segura (“the Victim”), in the
     bedroom, which is near the rear of the apartment. Id. Ms. Segura
     began to cry and told Officer Osario that Appellant had thrown a
     knife at her and had held the knife to her face. (N.T. 91).
     Officer Osario recovered a knife from an area between the radiator
     and tub in the bathroom of the apartment. (N.T. 91-92). The
     knife was described as light and pointed with a sharp-edge
     serrated at the bottom and a black handle. (N.T. 96). The Victim
     also informed Officer Osario that Appellant had used a second
     knife that was located in a knife block in the kitchen (N.T. 93-
     94).

           Once Appellant was removed from the apartment and taken
     outside to be transported to central processing, Appellant began
     to scream and yell, drawing attention from bystanders along the
     street. (N.T. 94). Officer Osario advised Appellant to calm down
     and that there was no need for the outburst. Id.

           In the days following Appellant’s arrest, Appellant called the
     Victim three times while he was in prison. Portions of a recording
     of one of those phone calls [were] played at trial. (N.T. 88).
     During the portions of that phone call, the Victim tells Appellant
     that [he hurt her] and that she still had pain and bruising. (Ex.
     5). The Victim also identifies that she told police that Appellant
     put a knife to her face and that police “took both knives.” Id.
     Moreover, the Victim reminds Appellant that he told her that he
     would “put [her] in the hospital.” Id. Finally, the Victim admits
     to Appellant that reassures Appellant that she would be
     uncooperative with the prosecution of the case. Id.

           At the trial of this matter, the Victim testified that, on the
     day of the incident, she and Appellant were engaged in an intense
     argument regarding Appellant’s lost payroll card. (N.T. 48-49).
     At some point during the argument, the Victim, in an attempt to
     separate and possibly diffuse the situation, moved in to the
     bathroom and began to take a shower. (NT. 49). As the Victim

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       was taking a shower, Appellant entered the bathroom through the
       open door and began to re-engage with the Victim. (N.T. 49-50).
       The Victim pulled the shower curtain back and yelled in response
       to Appellant, Appellant grabbed a knife that was kept in the
       bathroom. (N.T. 50-52). The Victim testified that she and
       Appellant kept the knife in the bathroom and used it to cut soap.
       (N.T. 50). The Victim further stated that Appellant continued to
       hold the knife up during the argument, though she denied telling
       law enforcement that Appellant held the knife to her face. (N.T.
       53). The Victim also testified that during the argument and while
       she and Appellant were still in the bathroom, Appellant threw the
       knife in her direction. (N.T. 56-58). The Victim told police at the
       scene that she thought Appellant had another knife that he pulled
       from the kitchen, though she later stated that she was mistaken.
       (N.T. 59-60).

Trial Court Opinion, 10/21/19, at 1–2.2

       On March 19, 2019, the trial court sentenced Appellant to an aggregate

term of incarceration of thirty months to ten years in a state correctional

institution. After denial of his post-sentence motion, Appellant filed a pro se

notice of appeal. In light of Appellant’s pro se filing, and the trial court docket

indicating that trial counsel was permitted to withdraw, this Court, on July 24,

2019, ordered the trial court to determine whether Appellant was entitled to

court-appointed counsel or if Appellant’s waiver of counsel was knowing,

intelligent, and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d
____________________________________________


2  Ms. Segura was a reluctant trial witness and initially invoked her Fifth
Amendment privilege against self–incrimination. When the Commonwealth
offered Ms. Segura immunity, the trial court ordered her to testify. N.T.,
3/18/19, at 27. Ms. Segura’s trial testimony changed substantially from the
version of events she described to the officer responding to the 911 call, as
she generally downplayed the level of intensity of the altercation with
Appellant. Appellant does not dispute the trial court’s finding that Ms. Segura
later assured Appellant that she would not cooperate in the prosecution of the
case against Appellant. See Trial Court Opinion, 10/21/19, at 2; see also
n.3, infra.

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81 (Pa. 1988). Order, 7/24/19, at unnumbered 1. On August 14, 2019, the

trial court held the Grazier hearing, and present counsel was appointed to

represent Appellant. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. Whether there was sufficient evidence to support the jury’s
      verdict as to terroristic threats as the Commonwealth failed to
      prove that the Appellant’s actions and/or words established that
      the Appellant communicated to the victim either directly or
      indirectly a threat to commit any crime of violence?

      2. Whether there was sufficient evidence to support the jury’s
      verdict as to simple assault as the Commonwealth failed to prove
      that Appellant's actions and/or words established that Appellant
      attempted by physical menace to put the victim in fear of
      imminent serious bodily injury?

      3. Whether there was sufficient evidence to support the jury’s
      verdict as to possessing an instrument of crime as the
      Commonwealth failed to prove that the Appellant possessed a
      knife with intent to employ it criminally?

      4. Whether there was sufficient evidence to support the jury’s
      verdict as to recklessly endangering another person as the
      Commonwealth failed to prove that Appellant’s actions with a knife
      placed or may have placed the victim in danger of death or serious
      bodily injury as the knife was never close enough to cause injury?

Appellant’s Brief at 5.

      Appellant challenges the sufficiency of the evidence underlying each of

his convictions.   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

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     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. Moreover, in applying the above test, the entire record
     must be evaluated and all evidence actually received must be
     considered. Finally, the trier of fact while passing upon the
     credibility of witnesses and the weight of the evidence produced,
     is free to believe all, part or none of the evidence.

Commonwealth v. Adams, 39 A.3d 310, 323 (Pa. Super. 2012) (quoting

Commonwealth v. Brown, 23 A.3d 544, 559–560 (Pa. Super. 2011) (en

banc)).

     Appellant was convicted of terroristic threats under 18 Pa.C.S. § 2706

(a)(1), which provides 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.”   To

sustain a conviction for this offense “‘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. Beasley, 138

A.3d 39, 46 (Pa. Super. 2016) (quoting Commonwealth v. Reynolds, 835

A.2d 720, 730 (Pa. Super. 2003) (internal quotations omitted)). Additionally,

“[n]either the ability to carry out the threat, nor a belief by the person


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threatened that the threat will be carried out, is an element of the offense.”

Beasley, 138 A.3d at 46 (quotation omitted). “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. (internal citation and

quotation omitted).

      The trial court determined that the following evidence was sufficient to

support Appellant’s conviction of terroristic threats:

      During the phone call between Appellant and the Victim that
      was played at trial, the Victim reiterates to Appellant that he
      told her that he would “put [her] in the hospital.” Appellant
      does not refute the charge and admits that he was upset at
      the time.      Clearly, the statement, conveyed in the
      circumstances of the incident, would communicate a threat
      to commit an act of violence.

Trial Court Opinion, 10/21/19, at 6.

      Appellant maintains that the evidence does not support the terroristic

threats conviction because “his ‘arguing’ with Ms. Segura without any specific

words that he uttered is woefully insufficient in establishing a crime inside a

residence.” Appellant’s Brief at 11. Appellant also claims the Commonwealth

did not show he demonstrated the necessary mens rea required for this

offense. Id. at 15.

      We first observe that Appellant’s assessment of the evidence is

incomplete. While it appears that the threat to put Ms. Segura in the hospital

occurred at some point during their argument on December 13, 2018, there

is no direct trial evidence pinpointing when and where Appellant uttered the


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threat.3 Additionally, Appellant’s position that there was no proof of “specific

words” is belied by the record.          Although Ms. Segura initially denied that

Appellant made the statement either during their argument or sometime

thereafter, see N.T., 3/18/19, at 60, 65, she conceded that if the taped

telephone call revealed that she reminded Appellant about the threat to put

her in the hospital, she would agree that she made the comment to Appellant.

Id. at 66.

       Appellant further contends that there was “no evidence that can be

inferred from the testimony that demonstrates an intent to terrorize another.”

Appellant’s Brief at 15. Regarding this second element of a terroristic threat

offense, the intent to terrorize, the comment to the pertinent statute instructs

that “[t]he purpose of [section 2706] is to impose criminal liability on persons



____________________________________________


3 The recorded telephone calls were contained on a disc, played for the jury,
and introduced into evidence as Commonwealth’s Exhibit 5. N.T., 3/18/19, at
82, 88–89. The exhibit, however, was not included in the record certified to
us on appeal. “[I]t is an appellant’s duty to ensure that the certified record is
complete for purposes of review. In addition, our Court has stated a ‘[f]ailure
to ensure that the record provides sufficient information to conduct a
meaningful review constitutes waiver of the issue sought to be reviewed.’”
Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (internal
citation omitted). If the appellant has failed in that duty, and we are unable
as a result to decide a particular issue on appeal, the appellant has waived the
issue. Commonwealth v. O'Black, 897 A.2d 1234, 1238 (Pa. Super. 2006).

       We will not find waiver herein because Appellant does not contradict the
trial court’s representation of the content of the conversation. Although our
analysis is somewhat hampered by the absence of the disc, we can resolve
Appellant’s issue without review of the missing exhibit.


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who make threats which seriously impair personal security or public

convenience. It is not intended by this section to penalize mere spur-of-the-

moment threats which result from anger.” 18 Pa.C.S. § 2706 cmt. However,

although spur-of-the-moment threats produced in anger do not satisfy the

intent element, “[b]eing angry does not render a person incapable of forming

the intent to terrorize.” Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa.

Super. 2000).    This Court has stated, “the real issue [i]s whether the

Commonwealth presented sufficient evidence to establish the required mens

rea, not whether [an appellant] made the statements in the context of a

heated discussion.”   Commonwealth v. Walls, 144 A.3d 926, 936 (Pa.

Super. 2016). We must consider the totality of circumstances to determine if

a defendant had the necessary mens rea. Id. at 936.

     In Walls, an assistant district attorney (the “ADA”) was shopping in a

mall when she heard the appellant yell “Hey, ADA” from the store's entrance.

The appellant then identified himself by name, and shouted that the ADA

prosecuted him for a crime he did not commit. The appellant entered the

store and continued to yell that his incarceration caused his grandmother’s

death. As the appellant got closer to the ADA his voice took on a more serious

tone and store employees and customers then intervened.            When the

appellant was escorted from the store, he shouted at the ADA that she caused

his grandmother’s death and that she should be next. During the encounter,

the appellant never made physical contact with the ADA and she sustained no


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injuries resulting from her interaction with the appellant. Walls, 144 A.3d at

930.

       In reversing the appellant’s terroristic threats conviction, we determined

that there was insufficient evidence that he intended to terrorize the ADA as

the evidence only supported a conclusion that the appellant “made a spur-of-

the-moment threat as the result of anger during a random confrontation at a

local shopping mall.” Walls, 144 A.3d at 938. We additionally noted that the

appellant “did not specifically threaten harm to [the ADA] presently or in the

future.”   Instead, the appellant “made the threat at the conclusion of the

confrontation while being led away from the [ADA].”           Id.   We thereby

concluded that these circumstances, indicating that the appellant made a

spontaneous threat that did not evince a settled intent to terrorize, could not

sustain a finding of guilt for terroristic threats. Id.

       Walls is distinguishable from the present matter.       First, Appellant’s

threat did not occur during a random confrontation.          Second, Appellant

specifically threatened Ms. Segura when he told her that he would put her in

the hospital. Finally, Appellant possessed a knife and threw it at Ms. Segura

during the couple’s argument. Thus, the victim in this case was subjected to

the type of impairment of personal security that the statute seeks to prevent.

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

(evidence sufficient to support terroristic threats conviction where the

defendant held a sword inches from victim and said that he was going to get


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him; “victim in this case was subjected to the precise type of psychological

harm and impairment of personal security which the statute seeks to

prevent.”). Id. at 1359. In view of the totality of these circumstances, the

Commonwealth presented sufficient evidence that Appellant was guilty of

terroristic threats.

      Appellant also levels an insufficient evidence challenge to his conviction

for simple assault.    A person is guilty of simple assault if he “attempts by

physical menace to put another in fear of imminent serious bodily injury.” 18

Pa.C.S. § 2701(a)(3). To sustain a conviction of simple assault by physical

menace, “[t]he elements which must be proven are intentionally placing

another in fear of imminent serious bodily injury through the use of menacing

or frightening activity.”   Reynolds, 835 A.2d at 726 (citations omitted).

Appellant urges this Court to find that the Commonwealth failed to prove that

he intended to “place another in fear of imminent serious bodily injury.”

Appellant’s Brief at 15.

      “Intent can be proven by circumstantial evidence and may be inferred

from the defendant’s conduct under the attendant circumstances.” Reynolds,

835 A.2d at 726 (quoting Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.

Super. 2003) (internal citation omitted)). For example, “[t]he act of pointing

a gun at another person [can] constitute simple assault as an attempt by

physical menace to put another in fear of imminent serious bodily injury.”




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Reynolds, 835 A.2d. at 726 (quoting Commonwealth v. Maloney, 636 A.2d

671, 674 (Pa. Super. 1994)).

      We conclude that the evidence presented in the current action was

sufficient to allow the jury to find that Appellant intended to place Ms. Segura

in fear of serious bodily injury.    Grabbing a knife and throwing it towards

Ms. Segura is analogous to pointing a firearm at another person.          Such

behavior, occurring in the throes of a heated argument, constitutes simple

assault as it represents an attempt by physical menace to put another in fear

of imminent serious bodily injury. Consequently, the evidence admitted at

trial and all reasonable inferences drawn therefrom supported Appellant’s

conviction for simple assault by physical menace beyond a reasonable doubt.

      Appellant presents the same lack-of-intent claim concerning his PIC

conviction. Pursuant to Section 907 of the Crimes Code, an individual is guilty

of PIC if “he possesses any instrument of crime with intent to employ it

criminally.” 18 Pa.C.S. § 907(a). Section 907(d) defines an instrument of

crime as “(1) [a]nything specially made or specially adapted for criminal use[,

or] (2) [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. § 907(d). The defendant’s criminal purpose provides the basis for

his liability; we can infer purpose from the circumstances surrounding the

possession of the instrument of crime. Commonwealth v. Andrews, 768

A.2d 309, 318 (Pa. 2001).


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      As previously explained, “[i]ntent can be proven by direct or

circumstantial evidence; it may be inferred from acts or conduct or from the

attendant circumstances.”    Commonwealth v. Miller, 172 A.3d 632, 641

(Pa. Super. 2017) (citation omitted). Although a factfinder may infer criminal

intent beyond a reasonable doubt based on circumstantial evidence, intent

may not be inferred based on mere possession. See In re A.V., 48 A.3d

1251, 1254 (Pa. Super. 2012) (citation omitted).

      Here, the evidence demonstrated Appellant picked up a knife kept in the

bathroom for cutting soap and threw it at Ms. Segura while she was in a

confined space. Clearly, this employment of the knife was not in a manner

consistent with a lawful use. Consequently, the evidence, which also supports

Appellant’s conviction for simple assault, is sufficient to demonstrate that he

intended to use the knife for a criminal purpose.

      Appellant’s final argument concerns his conviction of recklessly

endangering another person.      “A person commits a misdemeanor of the

second degree 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.

§ 2705.   Appellant contends that his conviction of this offense must be

reversed because the Commonwealth’s evidence of risk of death or serious

bodily injury was “certainly remote at best.”       Appellant’s Brief at 16.   He

described that evidence as demonstrating only that he “was in possession of




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a knife inside a bathroom while Ms. Segura was in the shower, and then [he]

‘tossed’ the knife in the bathroom before leaving.” Id.

       Even Appellant’s overly sanitized characterization of the events

transpiring in the bathroom is adequate to show risk of serious bodily harm.

Propelling a knife with a serrated blade towards or near another person, who

is likely unclothed, in a small space certainly poses a risk of serious bodily

harm to the confined person. Any argument that the risk of injury was remote

is illogical.

       Based upon our review of the record and the briefs of the parties,

viewing the evidence in a light favorable to the Commonwealth, we conclude

that   the      evidence   was   sufficient    to   support   Appellant’s   convictions.

Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

       Judge Musmanno joins the Memorandum.

       Judge Kunselman files a Concurring & Dissenting Memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/26/2020



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