Com. v. Dinh, T. ( 2015 )

J-S35018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAI DINH
Appellant No. 2486 EDA 2014
Appeal from the Judgment of Sentence May 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012264-2013
BEFORE: MUNDY, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 05, 2015
Appellant, Tai Dinh, appeals from the judgment of sentence entered on
May 2, 2014, as made final by the denial of his post-sentence motion on
August 22, 2014, following his bench trial conviction for terroristic threats,
18 Pa.C.S.A. § 2706. Upon review, we affirm.
The trial court set forth the facts of this case as follows:
On June 30, 2013, [D.M.L.] and her [minor] daughter, A.L.,
sold barbeque on the street near their home on the 1600
block of South Mole Street in Philadelphia. At
approximately 4:00 p.m., [D.M.L.] sold the remainder of
her barbeque stock to [Appellant], her neighbor, and let him
borrow a container in order to hold the food. [D.M.L.] and
A.L. then returned home where [D.M.L.] went upstairs and
went to sleep. At approximately 7:00 p.m., [Appellant]
knocked on [D.M.L.’s] door in order to return the container,
where he was met by A.L., who informed [Appellant] that
[D.M.L.] was sleeping upstairs. [Appellant’s] speech was
slurred and he appeared to be under the influence of
alcohol. A.L. accepted the container from [Appellant] and
turned to reenter the house. While A.L.’s back was turned,
*Retired Senior Judge assigned to the Superior Court.
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[Appellant] reached around her body from behind and
grabbed her. A.L. pushed [Appellant] off of her, making
him stumble on the outside steps. [Appellant’s] knocking at
the door had caused [D.M.L.’s] dog to start barking, which
woke [D.M.L.] up from sleep. From upstairs, [D.M.L.] asked
if anyone was there, whereupon [Appellant] told A.L. that if
she said anything, he would “run her family over with his
car.” A.L. did not inform Le of [Appellant’s] actions or his
threats that evening, as she felt threatened and was
worried about her family.
On the evening of July 8, 2013, [D.M.L.] was awakened by
bricks being thrown through her window. A.L., believing
that [Appellant] had thrown the bricks, informed [D.M.L.]
that [Appellant] had grabbed her and that [Appellant] had
said that if A.L. told anyone what happened, he would kill
everyone in the house. A.L. reported [Appellant] to the
police on July 22, 2013.
Trial Court Opinion, 11/21/2014, at 1-3 (original brackets omitted).
The Commonwealth charged Appellant with the aforementioned crime
and one count each of unlawful contact with a minor, corruption of minors,
and indecent assault.1 Following a bench trial on April 30, 2014 and May 2,
2014, the trial court found Appellant guilty of terroristic threats, but
acquitted him of the remaining charges. The trial court sentenced Appellant
to two years of probation. This timely appeal resulted.2
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1
18 Pa.C.S.A. §§ 6318, 6301, and 3126, respectively.
2
Appellant filed a post-sentence motion on May 12, 2014. The trial court
entered an order denying relief on August 22, 2014. Appellant filed a notice
of appeal on August 28, 2014. On September 8, 2014, the trial court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
September 29, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on November 21, 2014.
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On appeal, Appellant raises the following issue for our review:
Was the evidence insufficient to sustain a conviction of
terroristic threats?
Appellant’s Brief at 3.
Appellant contends that the Commonwealth failed to adduce sufficient
evidence to support his conviction for terroristic threats. Appellant claims
the evidence showed he lacked the requisite intent to terrorize, and did not
recklessly disregard the risk of causing terror, in making statements to the
victim. Id. at 7, 12. Instead, he suggests that he was intoxicated and
“blurted out a statement that was made in the heat of the moment” as the
result of the victim pushing him and causing him to “stumble[e] down some
steps[.]” Id. at 12. In further support of this claim, Appellant maintains
that the trial testimony from the victim and her mother was conflicting,
confusing, contradictory, and not credible.3 Id. at 11-12.
____________________________________________
3
This aspect of Appellant’s claim challenges the weight of the evidence and
Appellant did not properly raise this issue in his appellate brief. This Court
has stated:
[S]ufficiency of the evidence claims are distinct from weight
of the evidence claims, as there are different standards of
review as well as separate remedies involved. Indeed, in
making a claim that the verdict was against the weight of
the evidence, it is conceded that there was sufficient
evidence to sustain the verdict. [Appellant] failed to
provide any separate argument in support of the weight of
the evidence issue. Because [Appellant] failed to distinguish
between [the] sufficiency and weight of the evidence claims
and presented no argument regarding the weight of the
(Footnote Continued Next Page)
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Our standard of review for a challenge to the sufficiency of the
evidence is well-settled:
Whether, viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth as 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 proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(original brackets omitted).
Under 18 Pa.C.S.A. § 2706(a)(1), “[a] person commits the crime of
terroristic threats if the person communicates, either directly or indirectly, a
threat to ... commit any crime of violence with intent to terrorize another.”
18 Pa.C.S.A. § 2706(a)(1). Regarding this crime, we have previously
determined:
_______________________
(Footnote Continued)
evidence, we deem [the] weight of the evidence issue
waived.
Commonealth v. Birdseye, 637 A.2d 1036, 1039-1040 (Pa. Super. 1994)
(citations omitted). This portion of Appellant’s challenge is, therefore,
waived.
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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)
(citations, quotations and brackets omitted).
Here, the trial court concluded “the conviction was based upon
[Appellant’s] oral threat to run over the members of A.L.’s family if she told
anyone about [Appellant’s] offensive touching.” Trial Court Opinion,
11/21/2014, at 5. More specifically, the trial court found:
A.L. testified that [Appellant] reached around her body from
behind and grabbed her. A.L. further testified that
[Appellant] told A.L. he would run over her family with his
car if she said anything about what [Appellant] had done.
This evidence, without more, was clearly sufficient to
establish that [Appellant] directly threatened A.L. and her
family with a crime of violence, and that he did so with the
intent to terrorize her.
Id. at 4 (record citations omitted).
In examining the totality of the circumstances, in the light most
favorable to the Commonwealth as our standard requires, we find there was
sufficient evidence to support Appellant’s conviction for terroristic threats.
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The victim, 17 years old at the time of the incident, testified that Appellant
“grabbed [her] from behind and grabbed [her] chest area and private area.”
N.T., 4/30/2014, at 46-47, 51. The victim “fought [Appellant] off” and
Appellant “stumbled down the front stairs.” Id. at 54. The victim further
testified that “[a]fter [Appellant] stumbled down, [the victim’s] mom was
asking, because she heard the dog barking, she asked if there is anybody
down there, and before [Appellant] left he said if [the victim said] anything,
he would run [the victim’s] family over with his car.” Id. at 56. The victim
stated that she felt “really threatened and shocked.” Id. She claimed that
she did not immediately tell anyone about the incident “[b]ecause
[Appellant] threatened [her], so [she] was worried about her family.” Id. at
56-57. She felt that if she told anyone that Appellant would carry through
with his warning. Id. at 70.
Here, there is no question that Appellant’s statement that he would
run over the victim’s family with his car constitutes a threat to commit a
crime of violence. The facts reveal that this was more than a spontaneous
threat solely resulting from anger in a heated verbal exchange. Instead,
Appellant made the threat to conceal his prior, inappropriate conduct toward
A.L. He grabbed the victim, a minor female, and, fearing that she might tell
someone, he then threatened to harm her family. While it appears that
Appellant was angry, anger does not render a person incapable of forming
the intent to terrorize. In this case, it is clear that the threat was made to
cause the victim psychological distress, and discourage disclosure about
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Appellant’s conduct, by invading A.L.’s sense of personal security. Thus, we
conclude that the Commonwealth presented sufficient evidence to support
Appellant’s conviction for terroristic threats.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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