J-S29004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA


                       v.

TAIVON JANAYE LUSTER

                            Appellant                     No. 195 WDA 2015


           Appeal from the Judgment of Sentence December 4, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0012910-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.:                    FILED JULY 19, 2016

        I agree with the majority that Appellant’s claims of trial court error

regarding its evidentiary rulings do not merit relief. However, I respectfully

disagree with the majority’s conclusion that there was sufficient evidence to

prove that Appellant attempted “by physical menace to put another in fear of

imminent serious bodily injury[.]”             18 Pa.C.S. § 2701(a)(3) (emphasis

added); see Majority Mem. at 18.

        Reed testified on direct-examination, in relevant part, as follows:

           Q. When [Appellant] threatened you, what did she say?

           A. ‘I got something for you. I’m going to fix you.’

           Q. Did she have anything in her hand?

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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        A. A 2-by-4.

        Q. Where were you when that threat was made?

        A. On the porch, kind of going back into my house into the
        entryway.

        Q. Did you say anything to her in response?

        A. No. I was terrified. I was shocked. No, I was scared.
        My dog was down. I didn’t say anything.

        Q. Where was she when she initially threatened you?

        A. She threatened me from the time she was coming from
        the walkway to standing in front of my truck, kind of in
        front of the hedges where she would be able to reach [the
        dog] in between the hedges and that is where she was at.
        She couldn’t get to me, so she hit him instead.

N.T., 7/15/14, at 114-15.

     She testified Appellant was “in the street toward the sidewalk” while

she was “up there on the porch.” Id. at 116. Reed’s dog was in her front

yard behind hedges that lined her yard. Id. Reed elaborated:

        Q. When [Appellant] hit [the dog] with the 2-by-4, where
        was she?

        A. She stood right in front of those hedges and he was
        right there. And she had to reach to hit him. She had to
        aim. She had to go toward my yard to get him.

        Q. Did she hit him through that gap in the hedges?

        A. Yes.

                               *    *    *

        Q. When she struck [the dog], what did you see?




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         A. I saw [the dog] fall and her run into the house with the
         2-by-4. And I called the police.

Id. at 117-18.

      Viewing    all   the   evidence   in   the   light   most   favorable   to   the

Commonwealth, I conclude the evidence did not establish Appellant’s intent

to place Reed in fear of imminent physical bodily harm.             See 18 Pa.C.S.

§ 2701(a)(3); Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

I am unpersuaded by the majority’s reasoning that “If Appellant was close

enough to hit Reed’s car with eggs and to bludgeon Reed’s dog, she was

close enough to put Reed in reasonable fear of imminent serious bodily

injury, absent irrefutable evidence of impossibility.”       Majority Mem. at 18.

Reed’s testimony about Appellant’s conduct undoubtedly reveals intent by

Appellant to upset Reed.       I recognize Appellant was “wielding a two-by-

four,” and contemporaneously threatened Reed and struck her dog.                   See

N.T. at 118; Majority Mem. at 14.            However, Appellant and Reed were

separated by Reed’s yard, Reed was on her porch, and Appellant was near or

on the street.    See N.T. at 117-18.        Additionally, after striking the dog,

Appellant immediately retreated into her home. Id. at 118. Accordingly, I

find the circumstances, although disturbing and evidence of other crimes,

did not reveal an intent to put Reed in fear of imminent serious bodily injury.

      Thus, I respectfully dissent.




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