J-S81027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL LEE ODOM                           :
                                               :
                       Appellant               :   No. 1269 MDA 2018

         Appeal from the Judgment of Sentence Entered June 29, 2018
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0000338-2017

BEFORE:      STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 12, 2019

        Appellant, Michael Lee Odom, appeals from the Judgment of Sentence

entered in the Adams County Court of Common Pleas on June 29, 2018,

following his jury conviction of one count each of Fleeing or Attempting to

Elude Police Officers, Terroristic Threats, Harassment, and Driving Under the

Influence of Alcohol,1, 2 After careful review, we affirm.

        On March 7, 2017, Gettysburg police officers arrested Appellant and

charged him with the above crimes arising from an incident that took place on

around 2:00 AM that morning. The trial court, citing to the Notes of Testimony

from Appellant’s April 12, 2018 trial, summarized the facts as follows:


____________________________________________


175 Pa.C.S. § 3733(a); 18 Pa.C.S § 2706(a)(1); 18 Pa.C.S. § 2709(a)(4);
and 75 Pa.C.S. § 3802(a)(1), respectively.

2   The court also convicted Appellant of related summary offenses.


____________________________________
* Former Justice specially assigned to the Superior Court.
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     On March 27, 2017, at approximately 2:00 [AM], Officer Shannon
     Hilliard and Officer Kevin McDonald of the Gettysburg Borough
     Police Department were travelling westbound on York Street about
     a block from Lincoln Square in Gettysburg Borough when they
     observed a white sedan travelling through Lincoln Square at a high
     rate of speed. Both officers made a determination that the vehicle
     was speeding. Officer McDonald activated emergency lights and
     increased his speed in an attempt to catch up to the white sedan,
     which appeared to increase its speed when the Officers pulled up
     behind it. The Officers followed the white sedan north on Carlisle
     Street to the intersection with Railroad Street, which has railroad
     tracks intersecting Carlisle St[reet].

     The Officers observed the white sedan, due to its speed, go
     airborne as it drove over the railroad tracks. Officer McDonald
     initiated emergency sirens.

     The white sedan continued north on Carlisle Street to the
     intersection with Water Street where Officers observed the vehicle
     travel through the steady red traffic signal without applying
     brakes. Officer Hilliard testified the white sedan’s speed was
     around 40-45 mph at this point.

     After crossing Water Street, the white sedan swerved over the
     double yellow line into the oncoming traffic lane, returned to its
     lane of travel, overcorrected and crossed into the parking lane.
     The white sedan stopped several car lengths before the
     intersection of Carlisle Street and Lincoln Avenue.

     Officer Hilliard approached the passenger’s side of the white
     sedan, where he observed Appellant in the driver’s seat.
     Appellant’s vehicle accelerated to the intersection of Carlisle
     Street and Lincoln Avenue and made a right turn onto Lincoln
     Avenue. Officer Hilliard returned to the patrol vehicle and the
     Officers resumed pursuit onto Lincoln Avenue, where they lost
     sight of Appellant’s vehicle. Officers located Appellant’s vehicle in
     the parking lot of Smyser Hall shortly after turning east onto
     Lincoln Avenue and took Appellant into custody.

     Both Officers observed Appellant’s clothes were soiled, he had
     bloodshot and glassy eyes, agape mouth, and a strong odor of an
     alcoholic beverage about his person. Appellant was taken to
     Gettysburg Hospital for a blood draw. Appellant loudly and
     repeatedly refused a blood draw, both during the drive to the
     hospital and at the hospital. The Officers transported Appellant
     back to the Gettysburg Police Department.

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       While at the Police Department, Appellant made numerous threats
       to Officer Hilliard and Officer McDonald. Appellant also admitted
       to drinking and driving. Officer Hilliard and Officer McDonald both
       testified that Appellant was under the influence of alcohol to a
       degree which rendered him incapable of safe driving.

Trial Ct. Op., 9/7/18, at 1-3 (citations omitted; paragraph breaks inserted).

       On April 12, 2017, the jury convicted Appellant of the above charges.

Following its consideration of a Pre-Sentence Investigation Report and the

parties’ arguments, on June 29, 2018, the trial court sentenced Appellant to

two consecutive terms of 15 to 30 months’ incarceration for his Fleeing or

Attempting to Elude Police Officers and Terroristic Threats convictions.3

Appellant did not file a timely Post-Sentence Motion.

       On July 26, 2018, Appellant file a pro se Notice of Appeal. On August

8, 2018,the court appointed Thomas R. Nell to represent Appellant.

       Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following five issues on appeal, which we have

reordered for ease of disposition:

       1. Did the trial [c]ourt err in denying [Appellant’s] request for jury
          instructions regarding transitory anger being a defense in the
          count of terroristic threats?

       2. Whether the evidence was sufficient as a matter of law to
          establish guilt[] beyond a reasonable doubt to the charge of
          fleeing and eluding?

       3. Whether the evidence was sufficient as a matter of law to
          establish guilt[] beyond a reasonable doubt to the charge of
          terroristic threats?

____________________________________________


3 Appellant’s Driving Under the Influence and Harassment convictions merged
for sentencing purposes.

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      4. Did the trial court err when it found [Appellant] guilty, when
         the verdict was against the weight of the evidence in regard to
         the count of fleeing and eluding?

      5. Did the trial court err when it found [Appellant] guilty, when
         the verdict was against the weight of the evidence in regard to
         the count of terroristic threats?

Appellant’s Brief at 7.

      In his first issue, Appellant asserts that the trial court erred in denying

his request for a jury instruction “regarding transitory anger being a defense

in the count of terroristic threats.”    Appellant’s Brief at 12-13.   However,

Appellant does not identify the place in the record where he made this request.

Further, he fails to specify the language of the instruction he requested and

what instruction, if any, the court gave in response to his request. Appellant

utterly fails to support his contention with reference to the relevant places in

the record where he preserved this issue, as required by Pa.R.A.P. 2119(c)

(stating if reference is made to any matter appearing in the record, argument

must set forth place in the record where the matter appears). Accordingly,

Appellant has waived this issue.     Commonwealth v. Williams, 980 A.2d

667, 671 (Pa. Super. 2009) (stating defendant waived argument on appeal

where he failed to indicate in his brief where the issue was preserved in trial

court).

      In his second issue, Appellant challenges the sufficiency of the

Commonwealth’s evidence in support of his Fleeing or Attempting to Elude

Police Officers conviction.   Appellant’s Brief at 14-15.   Appellant does not,

however, explain in his Brief to this Court how the Commonwealth’s evidence


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was deficient, or cite the statutory language of the offense or any case law in

support of his claim.

      Rule of Appellate Procedure 2119(a) requires a properly developed

argument for each question presented. This requires, among other things, a

discussion of and citation to authorities in the appellate brief and the principles

for which Appellant has cited them. See Pa.R.A.P. 2119(a), (b). Failure to

conform to the Rules of Appellate Procedure results in waiver of the underlying

issue. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super.

2014) (en banc); see also Commonwealth v. Clayton, 816 A.2d 217, 221

(Pa. 2002) (“[I]t is a well settled principle of appellate jurisprudence that

undeveloped claims are waived and unreviewable on appeal.”). In light of

Appellant’s failure to develop this claim in conformance with our Rules of

Appellate Procedure, we conclude it is waived.

      In his third issue, Appellant claims that the Commonwealth’s evidence

was insufficient to sustain his conviction of Terroristic Threats, 18 Pa.C.S. §

2706(a)(1). In particular, he argues that he lacked the requisite “intent to

terrorize” the police officers because his statements were “merely the product

of an agitated and angry state of mind.” Appellant’s Brief at 21. In support

of this claim, Appellant avers that the record evidence demonstrated that “his

conduct expressed transitory anger rather than a settled purpose to carry out”

the threatened actions. Id. at 18-19.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

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claims regarding the sufficiency of the evidence by considering 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 a reasonable doubt.” Commonwealth v.

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citations omitted).   “Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence.” Id. “In conducting this review, the appellate court

may not weigh the evidence and substitute its judgment for the fact-finder.”

Id.

      The crime of making a terroristic threat is defined by statute as follows:

“[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).

      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.” Commonwealth v.
      Tizer, 454 Pa. Super. 1, 684 A.2d 597, 600 (1996). “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.” In re J.H., [2002 PA Super 108], 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.” Tizer, 684 A.2d
      at 600.


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Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016) (citing

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

      The Official Comment to Section 2706 explains: “The purpose of th[is]

section is to impose criminal liability on persons 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, Comment. Thus, the real issue is whether, based

on the totality of the circumstances, the “Commonwealth presented sufficient

evidence to establish the required mens rea, not whether [Appellant] made

the statements in the context of a heated discussion. Being angry does not

render   a   person    incapable   of    forming   the   intent   to   terrorize.”

Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super. 2003). See

Reynolds, supra at 730 (examining the totality of the circumstances).

      Here, Appellant maintains his statement was the result of “transitory

anger” and therefore is not subject to criminal liability. In addition, Appellant

favorably compares his case to Commonwealth v. Kidd, 442 A.2d 826 (Pa.

Super. 1982), and Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super.

1979).

      Kidd involved a defendant arrested for public drunkenness. As he was

being treated in the emergency room, and with his hands handcuffed behind

his back, the defendant shouted obscenities and yelled that he was going to

kill the police, specifically saying he would machine gun them if given a

chance. 442 A.2d at 827. On appeal, this Court held there was “insufficient

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evidence that appellant, by his acts, intended to place the officers in a state

of fear that agitates body and mind.”       Id.   See also Commonwealth v.

Walker, supra at 1002 (“The defendant’s statements in Kidd exemplify the

sort of hyperbole from which the jury cannot properly infer, beyond a

reasonable doubt, either an intent to terrorize or reckless disregard of the risk

of causing terror.”).

      In Sullivan, the defendant telephoned the State Police Barracks, asking

a trooper be sent to investigate his claim that the Sheriff of the County had

assaulted the defendant’s father. Frustrated by the delay in the response, the

defendant telephoned the barracks again and said, “If you don’t want to send

anybody down here, I have a .30-30 rifle and I’ll come up there and blow that

son of a bitch’s head off.”    409 A.2d at 888-89.      The next morning the

defendant encountered the Sheriff on the street by chance and during a loud

verbal confrontation the defendant again threatened to kill the Sheriff. Id. at

889. The defendant was convicted of two counts of Terroristic Threats. On

appeal, this Court reversed, finding that the defendant’s threats were the

product of his angry and agitated emotional state of mind, and that the record

contained “no evidence that appellant, by his acts, intended to put the Sheriff

into a state of ‘extreme fear or fear that agitates body and mind[,]’ …, and

thus did not possess the ‘intent to terrorize’ required for conviction under

section 2706.” Id. at 889-90 (citation omitted).

      Here, the trial court concluded that the testimony of the officers

regarding the threats made by Appellant, and the surrounding circumstances,

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were sufficient to support the jury’s guilty verdict. The court explained as

follows:

      Officer McDonald and Officer Hilliard both testified that while
      Appellant was in custody at the Gettysburg Borough Police
      Department, Appellant made numerous threats on their lives.
      Officer McDonald testified, “He (referring to Appellant) said he will
      fucking kill us. I can’t remember verbatim what he said, but he
      said he knows where—he’ll bail out of jail, no problem, he has
      money to do that, he’ll find us and where we live.” Officer
      McDonald further testified that these threats were repeated
      numerous times over the course of an hour. Officer Hilliard
      testified that Appellant told him “I’m going to fucking kill you”
      numerous times. Officer Hilliard also testified that Appellant said
      that when he (Appellant) bailed out of jail, he was going to find us
      where we live and he wasn’t going to fight the charges, but he
      was coming to fight us. These threats were repeated at least a
      dozen times over an hour.

Trial Ct. Op. at 7-8 (citation to the Notes of Testimony omitted).

      In sum, the court found that, given the numerosity and length of time

over which Appellant made his threats, they did not constitute a mere “random

spur of the moment emotional outburst resulting from anger,” but rather were

the kind of threats the Legislature intended to criminalize. See In re B.R.,

732 A.2d 633, 638 (Pa. Super. 1999) (citing 18 Pa.C.S. § 2706 Comment and

explaining that Section 2706 is not intended to criminalize statements which

are “spur of the moment threats which result from anger”).

      Following our review, we agree with the trial court that the

Commonwealth presented sufficient evidence from which the jury could

reasonably find that the Commonwealth had proven the requisite elements of

the Terroristic Threats charge. The evidence elicited at trial, when viewed in



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the light most favorable to the Commonwealth as verdict-winner, indicates

that Appellant’s repeated threats, unlike the isolated statements made by the

defendants in Kidd and Sullivan, were not spur of the moment.               Rather,

Appellant’s threats were part of a series of at least a dozen threatening

statements directed towards the police officers over a period of an hour. In

light of the testimony that Appellant made multiple threats over a period of

an hour, it was reasonable for the jury to conclude that Appellant evinced an

intent to terrorize the officers. Appellant is, therefore, not entitled to relief on

this issue.

      In Appellant’s fourth and fifth issues, he challenges the weight of the

evidence. Before we address the merits of Appellant’s claims, we consider

whether Appellant has preserved them.

      Pursuant to the Pennsylvania Rules of Criminal Procedure, a weight of

the evidence claim must be “raised with the trial judge in a motion for a new

trial: (1) orally, on the record, at any time before sentencing; (2) by written

motion at any time before sentencing; or (3) in a post-sentence motion.”

Pa.R.Crim.P. 607.

      Our review of the record indicates that Appellant failed to raise his

challenges to the weight of the evidence either orally or in writing at or before

sentencing, or in a Post-Sentence Motion. Thus, we find these issues waived.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/12/2019




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