J-S23008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
       Appellee

                     v.

JAMES REAVIS,

       Appellant                                      No. 328 EDA 2014


            Appeal from the Judgment of Sentence January 9, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CP-0010703-2012


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 26, 2016

       Appellant, James Reavis, appeals from the judgment of sentence

entered on January 9, 2014, in the Philadelphia County Court of Common

Pleas. We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

              The complainant, Mr. Babatunde Olabode (Olabode)
       testified that he is the owner of the premises 603 South 60 th
       Street in the City of Philadelphia, which he described as a duplex
       containing two apartments. Olabode testified that, [Appellant]
       occupied the upstairs apartment with his wife and eight children
       and that, although he did not live in the unit, he maintained the
       ground floor unit for himself. (N.T., 8/6/13 pgs. 30, 32, 52, 67)
       Olabode further testified that on July 6, 2012, at approximately
       11:30 a.m., he observed [Appellant] kick open the door to his
       ground floor unit, enter with two other men, remove tools he
       kept in the unit and load them into a car. (N.T., 8/6/13 pgs. 33,

*
    Retired Senior Judge assigned to the Superior Court.
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     35, 39, 42, 74) Olabode then called the police two to three times
     for assistance without a response. (N.T., 8/6/13 pgs. 43, 94)

            Olabode confronted [Appellant] accusing him of stealing
     his tools. [Appellant] turned, lifted up his shirt, displaying a
     semiautomatic pistol, and said; “Nigger, if you come here I’ll
     blow your head off.” (N.T., 8 /6/13 pgs. 44, 53, 54) Olabode also
     testified that several months prior to this incident Olabode had
     initiated proceedings to evict [Appellant] for the nonpayment of
     rent and that this was not the first time that he had been
     threatened by him. (N.T., 8/6/13 pgs. 33, 45, 46, 54, 67, 77,
     78)

Trial Court Opinion, 9/11/14, at 3.

             On August 10, 2012, [Appellant] was arrested and charged
     with, inter alia; 1) Burglary pursuant to 18 Pa. C.S.A. §3502(a);
     2) Criminal Conspiracy pursuant 18 Pa.C.S.A. 903(a) to commit
     Burglary; 3) Theft by Unlawfully Taking Moveable Property
     pursuant to 18 Pa.C.S.A. §3921(a); 4) Firearms Not to be
     Carried Without a License pursuant to 18 Pa.C.S.A. §6106(a)(1);
     5) Carrying Firearms on Public Streets or Public Property in
     Philadelphia pursuant to 18 Pa.C.S.A. §6108; 6) Possession of an
     Instrument of a Crime with Intent pursuant to 18 Pa.C.S.A.
     907(a); and 7) Terroristic Threats with Intent to Terrorize
     Another pursuant to 18 Pa C.S.A. §2706(a)(1). On August 8,
     2013, at the conclusion of his jury trial, [Appellant] was found
     guilty only on the charge of Terroristic Threats and not guilty on
     all other charges. On October 16, 2013, [Appellant] was
     sentenced to a period of confinement in a state correctional
     facility of 2½ to 5 years.

           On October 22, 2013, [Appellant] timely filed a Post-
     Sentence Motion for Reconsideration of his Sentence pursuant to
     the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 720.
     On January 9, 2014, after a hearing, the Court granted
     [Appellant’s] motion vacating his sentence of October 16, 2013
     and imposing a new sentence of 5 years [of] probation.

           On January 23, 2014, [Appellant] timely filed the instant
     appeal, pro se, to the Superior Court of Pennsylvania. On
     February 4, 2014, this Court filed and served on [Appellant] an
     Order pursuant to Rule 1925(b) of the Pennsylvania Rules of
     Appellate Procedure, directing [Appellant] to file and serve a


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      Statement of Errors Complained of on Appeal, within 21 days of
      the Court’s Order. On February 25, 2014, the Court denied
      [Appellant’s] Petition to dismiss trial counsel and to appoint new
      appellate counsel. The Court granted [Appellant] additional time
      within which to file his Statement of Errors.

             On April 30, 2014 [Appellant] filed a “Motion for Extension
      to File Statement of Matters Complained of on Appeal” which the
      Court granted on May, 20, 2014. … On June 16, 2014,
      [Appellant] timely filed his statement of errors[.]

Trial Court Opinion, 9/11/14, at 1-2.

      When this appeal first reached our Court, Appellant’s counsel filed a

motion to withdraw and a brief pursuant to Anders v. California, 386 U.S.

738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

On review, we concluded that counsel’s brief failed to comply with the

requirements set forth in Anders and Santiago, and we remanded for

counsel to either comply with those requirements or file an advocate’s brief.

Commonwealth v. Reavis, 328 EDA 2014, 122 A.3d 448 (Pa. Super. filed

May 13, 2015) (unpublished memorandum).

      When Appellant’s counsel failed to comply with this Court’s directive,

we entered an order directing the trial court to appoint new counsel. Order,

8/17/15.   The trial court appointed current counsel, David W. Barrish,

Esquire, and on September 30, 2015, Attorney Barrish entered his

appearance in this matter.   After two extensions of time, Attorney Barrish

filed an advocate’s brief on March 4, 2016. Inexplicably, and despite also

receiving two extensions of time, the Commonwealth failed to file a brief.

Despite this dereliction, we address Appellant’s appeal.


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      In   this   appeal,   Appellant    raises   one   issue   for   this   Court’s

consideration:

      Did the trial court err when it found that there was sufficient
      evidence to prove the crime of terroristic threats beyond a
      reasonable doubt?

Appellant’s Brief at 2 (full capitalization omitted).

      Our standard of review when considering a challenge to the sufficiency

of the evidence is well settled:

      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 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 proof or 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. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003).

      Appellant argues that there was insufficient evidence to sustain the

conviction for terroristic threats.     Pursuant to 18 Pa.C.S. § 2706(a)(1), a

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

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


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terrorize another.”   18 Pa.C.S. § 2706(a)(1).      “[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. Hudgens, 582 A.2d 1352,

1358 (Pa. Super. 1990). Moreover:

      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)

(internal citations and quotation marks omitted).

      After review, we conclude that under the totality of the circumstances

there was sufficient evidence to sustain Appellant’s conviction for terroristic

threats. The jury chose to believe Mr. Olabode’s trial testimony wherein he

said that on July 6, 2012, Appellant threatened him with violence.          N.T.,

8/6/13, at 44-45. As noted above, Mr. Olabode stated that Appellant lifted

his shirt and displayed his pistol. Id. at 44. After “flashing” or displaying


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his pistol, Appellant then communicated to Mr. Olabode that he would “blow

[Mr. Olabode’s] head off.” Id. at 53-54. This testimony amply supports a

conviction for terroristic threats.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

      Judge Donohue did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2016




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