J-S62020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 TURHAN FRAZIER                        :
                                       :
                   Appellant           :   No. 3174 EDA 2017

       Appeal from the Judgment of Sentence Entered July 25, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007212-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 TURHAN FRAZIER                        :
                                       :
                   Appellant           :   No. 3175 EDA 2017

       Appeal from the Judgment of Sentence Entered July 25, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007214-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 TURHAN FRAZIER                        :
                                       :
                   Appellant           :   No. 3176 EDA 2017

       Appeal from the Judgment of Sentence Entered July 25, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007215-2015

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
J-S62020-18


                                            :
              v.                            :
                                            :
                                            :
 TURHAN FRAZIER                             :
                                            :
                    Appellant               :   No. 3318 EDA 2017

        Appeal from the Judgment of Sentence Entered July 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007209-2015

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 TURHAN FRAZIER                             :
                                            :
                    Appellant               :   No. 3319 EDA 2017

        Appeal from the Judgment of Sentence Entered July 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007211-2015


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED NOVEMBER 19, 2018

      Turhan Frazier appeals from the judgment of sentence of 19 ½ to 39

years of incarceration followed by five years of probation, imposed on July 25,

2017, following a bench trial resulting in his conviction for four counts of

aggravated assault, and one count each of conspiracy, person not to possess

a firearm, firearm not to be carried without a license, carrying firearm on

public streets in Philadelphia, discharge of firearm into occupied structure, and




                                      -2-
J-S62020-18



terroristic threats.1     Frazier challenges the sufficiency and weight of the

evidence supporting several of the charges against him. We affirm.

       The following facts were established at trial:

       On the afternoon of June 2, 2015, Ronette Coleman went to a
       home in southwest Philadelphia to pick up her husband, Darryl
       Johnson. Although they were driving separate vehicles that day,
       the two were planning to go shopping together. When Ms.
       Coleman arrived, she had an argument with the co-defendant
       Andrea Brown, who was in the home. The argument began in the
       house but soon went out into the street. [Appellant], Turhan
       Frazier, and [c]omplainant Darryl Johnson came outside and
       became involved in the disagreement between the two women.
       [Appellant] Frazier began arguing with Mr. Johnson and proceeded
       to pull out a firearm. [Appellant] Frazier then shot at the vehicle
       that Ronette Coleman drove to the area approximately six times.
       [Frazier] then pointed the firearm at Darryl Johnson’s head and
       pulled the trigger, but the gun did not fire. Darryl Johnson then
       left the scene in his separate vehicle. Ronette Coleman entered
       the vehicle that had been shot at by [Frazier] and drove to her
       house. [Frazier], along with the co-defendant Brown, left the area
       in their own vehicle, a green minivan.

       After arriving home, Ronette Coleman, Shakeera Coleman and
       [c]omplainant A.J. (Shakeera Coleman’s 6 year old child) were
       standing outside of their address located on the 3800 block of
       Mount Vernon Street. [Frazier and his co-defendant] arrived at
       their location in their green minivan. [Frazier] got out of the green
       minivan, and [he] walked to the back of it. At this time, he pulled
       out a firearm and began to fire in the direction of the complainants
       and in the direction of the home, causing [a] bullet hole[] in the
       glass of [a window above the front door]. The complainants ran
       inside the house, and [they] contacted the police.

       Responding police officers were able to stop [Frazier’s] minivan
       with [Frazier] and his co-defendant inside of the vehicle within
       twenty minutes of the shooting incident at the Coleman home.
       The [c]omplainants were transported by police to the location of
____________________________________________


1 See 18 Pa.C.S.A. §§ 2702(a)(1), 903, 6105(a)(1), 6106(a)(1), 6108,
2707.1(a), 2706(a)(1), respectively.

                                           -3-
J-S62020-18


      the minivan, and once there[, they] were able to identify [Frazier
      and his co-defendant]. Video was recovered from a store on the
      corner of the block of the Coleman’s block showing [Frazier and
      his co-defendant] dropping off their children just prior to the
      shooting and retrieving them moments after the shooting.

      At the time of the incident, [Frazier] was ineligible to carry a
      firearm due to a previous conviction for robbery.

      On June 2, 2015, following the incident, [Frazier] was in the
      custody at the holding facility for prisoners in West and Southwest
      Philadelphia. Police Officer Banach was on duty at the time,
      making rounds of the cell rooms at the facility. [Frazier] was
      complaining audibly from his cell. A fellow officer, Officer Nock,
      asked Officer Banach about the charges against [Frazier]. In
      response, Officer Banach said[,] “He allegedly shot up a house on
      Mount Vernon Street.” At that time, [Frazier] yelled[,] “Don’t walk
      away from me, pussy. I didn’t shoot up a house[;] I shot up a
      car[.]” [Frazier] reached through the bars of his cell and tried to
      grab Officer Banach. As Officer Banach continued to walk away,
      [Frazier] then said, “I’ll fucking shoot you, you pussy, I’ll kill you.”

Trial Court Opinion, filed April 3, 2018, at 1-3 (unpaginated; citations to record

omitted).

      Following trial in May 2017, the court found Frazier guilty of the charges

set forth above. The court imposed sentence in July 2017. Frazier timely filed

a post-sentence motion, which was denied.             Thereafter, Frazier timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement; the court

issued a responsive opinion.

      Frazier raises the following issues on appeal:

      1. Whether the evidence was insufficient to support a conviction
      for [a]ggravated [a]ssault as to Dar[r]yl Johnson because the
      evidence construed in the light most favorable to the
      Commonwealth failed to prove that Mr. Frazier (a) attempted to
      cause serious bodily injury or (b) attempted to cause bodily injury
      with a deadly weapon[;]


                                       -4-
J-S62020-18


      2. Whether the evidence was insufficient to support a conviction
      for [a]ggravated [a]ssault as to A.J., Shakira Johnson (Shake[e]ra
      Coleman)[,] and Ronette Coleman because the evidence
      construed in the light most favorable to the Commonwealth failed
      to prove that Mr. Frazier (a) attempted to cause serious bodily
      injury or (b) attempted to cause bodily injury with a deadly
      weapon[;]

      3. Whether the convictions for [d]ischarging a firearm into an
      occupied structure and [a]ggravated [a]ssault as to A.J., Shakira
      Johnson (Shake[e]ra Coleman)[,] and Ronette Coleman were
      against the weight of the evidence as the testimony of [Ronette]
      Coleman regarding the discharge of a firearm into the structure
      was belied by all other evidence presented at trial[; and]

      4. Whether the conviction for [t]erroristic [t]hreats was against
      the weight of the evidence because the surrounding
      circumstances, although not absolutely precluding a finding that
      [Frazier] intended to terrorize, suggest by their overwhelming
      weight that [Frazier] lacked a settled purpose to terrorize the
      police officer and instead made a spur-of-the-moment threat
      resulting from transitory anger prompted by a false allegation he
      overheard.

Frazier’s Br. at 8-9.

      In his first two issues, Frazier challenges the sufficiency of the evidence

against him. Our standard of review is as follows:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a light
      most favorable to the Commonwealth as verdict winner, support
      the conviction beyond a reasonable doubt. Where there is
      sufficient evidence to enable the trier of fact to find every element
      of the crime has been established beyond a reasonable doubt, the
      sufficiency of the evidence claim must fail.

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth's burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant's guilt is to be resolved by the fact[-]finder

                                      -5-
J-S62020-18


       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.

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa.Super. 2017) (quoting

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)).

       First, Frazier challenges his conviction for aggravated assault, asserting

that the Commonwealth failed to establish that he attempted to cause Darryl

Johnson serious bodily injury.2 Frazier’s Br. at 15. According to Frazier, the

paucity of evidence forced the factfinder to rely on “impermissible

speculation.”     Id.    In particular, Frazier challenges the Commonwealth’s

theory at trial, namely that he attempted to shoot Johnson, but the gun

misfired. Id. According to Frazier, based on the evidence presented, it was

equally plausible that he merely “dry fired” the gun.      Id.   If the gun was

unloaded when he pulled the trigger, Frazier concludes, his conviction cannot

stand. Id. at 17-18.

       [A] person may be convicted of aggravated assault, graded as a
       felony of the first degree, if he/she “attempts to cause serious
       bodily injury to another, or causes such injury intentionally,
____________________________________________


2 In the alternative, Frazier suggests that the evidence was insufficient to
establish that he attempted to cause Darryl Johnson bodily injury with a
deadly weapon. Frazier’s Br. at 8, 17. In its opinion, the trial court analyzed
Frazier’s sufficiency claim under 18 Pa.C.S.A. § 2702(a)(4) (aggravated
assault with a deadly weapon). See Trial Ct. Op. at 5 (unpaginated). This
portion of the court’s analysis is in error. Frazier was charged and convicted
of “attempt[ing] to cause serious bodily injury to another.” Information filed
at Dkt. No. CP-51-CR-0007214-2015, 07/29/2015. Thus, we shall analyze
Frazier’s claim under 18 Pa.C.S.A. § 2702(a)(1). We may affirm the trial court
notwithstanding its error. See, e.g., Commonwealth v. Green, 149 A.3d
43, 54 (Pa.Super. 2016) (observing that we may affirm the trial court on any
valid basis).

                                           -6-
J-S62020-18


      knowingly or recklessly under circumstances manifesting extreme
      indifference to the value of human life.” 18 Pa.C.S.A. §
      2702(a)(1). Further, the Code defines “serious bodily injury” as
      “bodily injury which creates a substantial risk of death or which
      causes serious, permanent disfigurement, or protracted loss or
      impairment of the function of any bodily member or organ.” 18
      Pa.C.S.A. § 2301. “For aggravated assault purposes, an ‘attempt’
      is found where the accused, with the required specific intent, acts
      in a manner which constitutes a substantial step toward
      perpetrating    a   serious     bodily    injury    upon    another.”
      Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa.Super. 2003),
      appeal denied, 863 A.2d 1143 (2004). “A person acts intentionally
      with respect to a material element of an offense when ... it is his
      conscious object to engage in conduct of that nature or to cause
      such a result.” Commonwealth v. Sanders, 627 A.2d 183, 186
      (Pa.Super. 1993), appeal denied, 634 A.2d 220 (1993), quoting
      18 Pa.C.S.A. § 302(b)(1)(i). “As intent is a subjective frame of
      mind, it is of necessity difficult of direct proof.” Gruff, 822 A.2d
      at 776. Accordingly, we recognize that “[i]ntent can be proven by
      direct or circumstantial evidence; it may be inferred from acts or
      conduct or from the attendant circumstances.” Id.

Commonwealth v. Matthews, 870 A.2d 924, 928-29 (Pa.Super. 2005)

(some internal citations modified or omitted).       Though a factfinder must

examine the attendant circumstances of any particular incident, we have

consistently held that an aggravated assault occurred “where the defendant

has both drawn and fired (or drawn and misfired) a gun.” Id. at 929 (citing,

e.g., Commonwealth v. Chance, 458 A.2d 1371, 1374 (Pa.Super. 1983)).

      Here, Frazier’s claim is devoid of merit. Ronette Coleman testified that

she observed Frazier shoot at her car repeatedly. Notes of Testimony (N.T.

Vol.1), 05/15/2017, at 23-24. Clearly, at this point, Frazier’s gun was loaded.

See, e.g., N.T. Vol.1 at 74 (testimony from Ofc. Michael Chartreau, observing

that Ms. Coleman’s car had sustained “multiple bullet strikes”). According to



                                      -7-
J-S62020-18



Ms. Coleman, Frazier then pointed his firearm at Mr. Johnson’s head, and she

observed him “pulling the trigger.” Id. at 24. In addition to this testimony,

the Commonwealth presented stipulated evidence that police recovered a

bullet from a pocket in the hoodie worn by Frazier “with an apparent strike or

hammer mark on the primer.”       N.T. Vol.1 at 115-16.   This evidence, too,

supports an inference that Frazier attempted to shoot a loaded gun at Mr.

Johnson.

      The factfinder was free to infer from these facts that Frazier’s gun

misfired when he attempted to shoot Mr. Johnson in the head.        Thus, the

evidence was sufficient to establish Frazier attempted to cause serious bodily

injury to Mr. Johnson.   See, e.g., Chance, 458 A.2d at 1374-75 (finding

evidence sufficient where victim heard defendant’s gun “click” during

struggle); Commonwealth v. Bond, 396 A.2d 414, 416 n.2 (Pa.Super. 1978)

(same).

      Second, Frazier challenges the remaining convictions for aggravated

assault, asserting that the Commonwealth failed to establish his intent to

cause serious bodily injury to Ms. Coleman, A.J., and Shakeera Johnson.

Frazier’s Br. at 19.   According to Frazier, the shot he fired entered Ms.

Coleman’s home via a “window above the front door.”            Id. (emphasis

removed). As the shot was directed above the heads of the victims, Frazier

concludes, the evidence of his intent was insufficient. Id.

      We disagree. This Court has held previously that the evidence of intent

was sufficient “when the accused has fired a gun into a building he knew was

                                     -8-
J-S62020-18



occupied.” Commonwealth v. Rosado, 684 A.2d 605, 610 (Pa.Super. 1996)

(finding evidence sufficient where defendant fired into lighted second story

windows of victim’s home); Commonwealth v. Hunter, 644 A.2d 763, 764

(Pa.Super. 1994) (“The intent to do serious bodily harm can be inferred in the

act of discharging a firearm into an occupied home.”), appeal denied, 668 A.2d

1125 (1995). Here, Ms. Coleman’s testimony established that Frazier arrived

at her home, fired several more shots at her car, then, as she, A.J., and Ms.

Johnson fled into the home, Frazier fired at least one shot after them, striking

the window above the front door. N.T. Vol.1 at 32-33. “Because there exists

the probability that a person in the home could be harmed if someone were

to shoot into the home, an attempt to cause serious bodily harm to such a

person can be inferred.” Hunter, 644 A.2d at 764. Thus, Frazier’s claim is

without merit. Id.

      In Frazier’s third and fourth claims, he challenges the weight of the

evidence supporting several of his convictions.

      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in favor
      of acquittal that a guilty verdict shocks one's sense of justice.

      ...

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

                                      -9-
J-S62020-18


       It has often been stated that a new trial should be awarded when
       the jury's verdict is so contrary to the evidence as to shock one's
       sense of justice and the award of a new trial is imperative so that
       right may be given another opportunity to prevail.

       An appellate court's standard of review when presented with a
       weight of the evidence claim is distinct from the standard of review
       applied by the trial court: [a]ppellate review of a weight claim is
       a review of the exercise of discretion, not of the underlying
       question of whether the verdict is against the weight of the
       evidence. Because the trial judge has had the opportunity to hear
       and see the evidence presented, an appellate court will give the
       gravest consideration to the findings and reasons advanced by the
       trial judge when reviewing a trial court's determination that the
       verdict is against the weight of the evidence. One of the least
       assailable reasons for granting or denying a new trial is the lower
       court's conviction that the verdict was or was not against the
       weight of the evidence and that a new trial should be granted in
       the interest of justice.

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa.Super. 2014) (some

formatting applied; internal quotation marks and citations omitted; some

emphasis removed).

       In his third issue, Frazier asserts that his convictions for aggravated

assault as to Ms. Coleman, A.J., and Ms. Thompson, as well as his conviction

for discharging a firearm into an occupied structure, were against the weight

of the evidence.       Frazier’s Br. at 20.        According to Frazier, “there was

absolutely no physical evidence” to corroborate Ms. Coleman’s testimony. Id.

at 21 (emphasis removed).             Thus, according to Frazier, a new trial is

necessary. Id. at 22.3
____________________________________________


3We admonish Frazier that his failure to cite legal authority in support of this
argument risks waiver. See Commonwealth v. Johnson, 985 A.2d 915,



                                          - 10 -
J-S62020-18



       We reject the implication of Frazier’s assertion—that a verdict based on

credible, eyewitness testimony unsupported by corroborating physical

evidence must shock one’s sense of justice.           See Commonwealth v.

Rodriguez, 174 A.3d 1130, 1140 (Pa.Super. 2017) (rejecting “broad

assertion” that verdict is “inherently suspicious or unreliable” where based on

single eyewitness). “[T]he 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. Lambert, 795 A.2d 1010, 1014

(Pa.Super. 2002) (en banc).

       Moreover, here, Ms. Coleman’s credible testimony was corroborated by

additional testimony and pictorial evidence that a bullet pierced the window

above her front door. See N.T. Vol.1 at 38-39 (testimony from Ms. Coleman

confirming pictorial evidence of physical damage to window); 74 (testimony

from Ofc. Michael Chartreau, “I observed a bullet hole in the window above

the door.”). In light of this evidence, we discern no abuse of the trial court’s

discretion in denying Frazier’s weight claim. Orie, 88 A.3d at 1015.

       Finally, in his fourth claim, Frazier challenges the weight of the evidence

supporting his conviction for terroristic threats.

       [A] weight of the evidence claim must be preserved either in a
       post-sentence motion, by a written motion before sentencing, or
       orally prior to sentencing. Failure to properly preserve the claim
____________________________________________


924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of
a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”); see also
Pa.R.A.P. 2119(a).

                                          - 11 -
J-S62020-18


      will result in waiver, even if the trial court addresses the issue in
      its opinion.

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.Super. 2014) (internal

quotation marks and citations omitted).

      In his post-sentence motion, Frazier asserted that “[t]he verdict was so

contrary to the evidence as to shock one’s sense of justice.”           Motion for

Extraordinary Relief, 08/04/2017, at ¶5.        The preliminary assertions in his

motion brought this bald claim into focus, however, clarifying that Frazier

sought to challenge the weight of evidence supporting his aggravated assault

convictions as to Ms. Coleman, A.J., and Ms. Thompson.           See Motion for

Extraordinary   Relief   at   ¶2   (asserting   Commonwealth     only   presented

eyewitness testimony from Ms. Coleman), ¶3 (asserting physical evidence

contradicted Ms. Coleman’s testimony), ¶4 (asserting Ms. Coleman’s

testimony unreliable).    To be clear, Ms. Coleman did not testify regarding

allegations that Frazier threatened Officer Banach.        Any challenge to her

credibility would be irrelevant to the charge of terroristic threats.

      In his Pa.R.A.P. 1925(b) statement, Frazier specifically challenged the

weight of the evidence supporting the conviction for terroristic threats.

Frazier’s Pa.R.A.P. 1925(b) Statement, 02/12/2018, at 2 ¶4. However, this

was insufficient to preserve the challenge for appellate purposes.

      In Thompson, for example, the appellant was convicted of one count

of possession with intent to deliver a controlled substance. Thompson, 93

A.3d at 482.    The appellant failed to preserve a weight claim in a post-



                                       - 12 -
J-S62020-18



sentence motion.    Id. at 490.    Pursuant to Pa.R.A.P. 1925, the appellant

raised, and the trial court addressed the weight of the evidence supporting

the conviction. Id. Nevertheless, we declined to address the merits. Id.

      “[A]ppellate review [of a weight claim] is limited to whether the
      trial court palpably abused its discretion....” Commonwealth v.
      Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003). Here, the
      trial court never ‘ruled’ on the issue and, therefore, it could not
      grant nor deny the claim at the time it was first raised by Appellant
      in his concise statement. Although the court addressed the issue's
      merits in its Rule 1925(a) opinion, the trial court was, by that
      time, divested of jurisdiction to take further action in the case.
      See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these
      rules, after an appeal is taken or review of a quasijudicial order is
      sought, the trial court or other government unit may no longer
      proceed further in the matter.”). Thus, the trial court was never
      given the opportunity to provide Appellant with relief and,
      consequently, there is no discretionary act that this Court could
      review. Appellant's weight of the evidence claim is waived.

Id. at 490-91.

      Here, Frazier did not preserve properly a challenge to the weight of the

evidence supporting his conviction for terroristic threats.        Although he

specified the claim in his court-ordered Pa.R.A.P. 1925(b) statement, the trial

court was without jurisdiction to exercise its discretion and evaluate the

merits.   Thus, there is no discretionary act subject to our review. For these

reasons, we conclude that Frazier has waived this claim. Id.

      Absent waiver, we note that Frazier’s argument is not persuasive.

According to Frazier, the circumstances surrounding the charge of terroristic

threats suggest that he lacked a “settled purpose” to terrorize Officer Banach.

Frazier’s Br. at 22 (citing in support Commonwealth v. Kidd, 442 A.2d 826


                                     - 13 -
J-S62020-18



(Pa.Super. 1982)).     Frazier acknowledges that he verbally threatened the

officer. See id. at 22 (quoting testimony indicating that Frazier threatened to

“shoot” and to “kill” Ofc. Banach). However, Frazier points out that he was

confined to a holding cell at the time, implying that it was impossible to carry

out his threats, and suggests that “the statements were made out of anger

rather than a desire to terrorize.” Id. at 23.

      In our view, Frazier’s reliance on Kidd is misplaced. In that case, the

defendant was arrested for public drunkeness. Kidd, 442 A.2d at 827. While

exiting the police car, he fell in the street, receiving a cut above his eye. Id.

Police took him to a local hospital for treatment. Id. While there, he shouted

obscenities at police and threatened to shoot them with a machine gun, this

despite the facts that such an assault was impossible, as his hands were cuffed

behind his back, and he had no access to a firearm. Id. The defendant was

convicted of terroristic threats, but on appeal, this Court deemed the evidence

of his intent to terrorize insufficient. Id.

      In so doing, we acknowledged that “the present ability to inflict harm is

not required”, but we also noted that the purpose of 18 Pa.C.S.A. § 2706 was

to impose criminal liability on persons who seriously threaten personal security

or public convenience, “not to penalize mere spur-of-the-moment threats

[that] result from anger.”     Id. (citations omitted).   Citing evidence of his

obvious inebriation and agitated state of mind, we concluded “[t]he record

evince[d] that his conduct expressed transitory anger rather than a settled

purpose to carry out the threat or to terrorize the other person.” Id.

                                      - 14 -
J-S62020-18



      Preliminarily, we observe that the issue before the Kidd court was one

of sufficiency not weight. Id. at 826. As Frazier challenges the weight of the

evidence, he has conceded that the Commonwealth established each element

of the crime of terroristic threats, including the requisite intent to commit that

offense. See Orie, 88 A.3d at 1015.

      Substantively, there are obvious similarities to the facts present in

Kidd: Frazier was angry; he shouted obscenities and verbally threatened a

police officer; but he had no “present ability” to shoot Officer Banach.

However, these facts do not fully describe the criminal conduct established at

Frazier’s trial. First, the evidence established that, over the course of one

afternoon, Frazier engaged in repeated, violent acts involving a firearm. This

conduct alone suggests that Frazier’s anger was not merely transitory.

Second, and more importantly, Frazier’s verbal threats directed at Officer

Banach were accompanied by physical conduct. Though confined to a holding

cell and without access to a firearm, testimony established that Frazier lunged

at Officer Banach and tried to grab him through the cell’s bars. See N.T. Vol.1

at 126-27. In our view, the evidence established not only a settled purpose

to carry out his threat, but an actual attempt to cause Officer Banach harm.

Thus, even were we to review Frazier’s claim on the merits, we would deny

him relief.

      Judgment of sentence affirmed.




                                     - 15 -
J-S62020-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/18




                          - 16 -
