Com. v. Reavis, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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