Com. v. Frazier, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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
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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.
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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[;]
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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
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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,
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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).
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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
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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
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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.
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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
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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,
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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
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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).
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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-
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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
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(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.
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/18
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