Com. v. McDowell, B. ( 2023 )

J-A10012-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRETT MCDOWELL :
:
Appellant : No. 884 EDA 2022
Appeal from the Judgment of Sentence Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005758-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRETT MCDOWELL :
:
Appellant : No. 922 EDA 2022
Appeal from the Judgment of Sentence Entered March 28, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005759-2021
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JULY 06, 2023
Brett McDowell appeals from the judgment of sentence imposed
following his convictions of two counts each of ethnic intimidation, aggravated
assault, possessing instruments of crime, simple assault, and recklessly
endangering another person, and one count each of theft of services and
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A10012-23
disorderly conduct. McDowell argues that the evidence was insufficient to
support his ethnic intimidation convictions; he should not have been convicted
of two counts of possessing instruments of crimes because he possessed one
knife during a single brief incident; and his ethnic intimidation sentences were
illegal. We affirm the convictions, vacate the sentence, and remand for
resentencing.
On June 2, 2021, McDowell jumped a SEPTA turnstile at 15th and Market
Street in Philadelphia without paying the $2.50 fare. Three SEPTA security
guards, Tairi Profit, Jerry Corley, and Lakisha Jessie were standing nearby.
The guards ordered McDowell to pay before proceeding. McDowell declined,
saying he had no money and was not going to pay. McDowell then repeated a
series of obscene language and racial slurs at the guards, including “[n-word],
fuck you, [n-word].” Notably, McDowell is Caucasian, and the guards are
African-American.
Profit and Corley followed McDowell down the steps to the subway
platform, and McDowell continued to unleash insults towards the guards. After
reaching the subway platform, McDowell retrieved a seven-inch kitchen knife
from his backpack and stated: “Yawl [n-words] ain’t fuckin’ me up today.”
McDowell walked towards Profit and Corley, who then retreated.
Subsequently, police officers arrested McDowell, and the Commonwealth
charged him with various crimes.
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After waiving his right to a jury trial, the case proceeded to a bench trial
before the Honorable Charles Ehrlich. Profit, McDowell, and the arresting
officer testified at the bench trial. Following trial, Judge Ehrlich found McDowell
guilty of the aforementioned crimes. Thereafter, Judge Ehrlich sentenced
McDowell to 2 to 4 years in prison, followed by 5 years of probation on each
of two counts of aggravated assault and two counts of ethnic intimidation,
with the sentences to be served concurrently. The trial court imposed no
further penalty on the remaining convictions. McDowell timely appealed.
On appeal, McDowell raises the following questions for our review:
1. Was it an error of law for the trial court to convict and sentence
[] McDowell of two counts of possession of an instrument of
crime (PIC) where the evidence showed he possessed the knife
once during a single brief incident when the two complainants
stood side by side?
2. Was the evidence insufficient to prove ethnic intimidation
where the motivation for the underlying act was not ethnic or
racial hatred but simply the desire to escape security guards
chasing him?
3. Was it an error of law for the trial court to sentence [] McDowell
to two concurrent terms of two to four years incarceration plus
five years probation for two counts of ethnic intimidation, a
felony of the third degree?
Appellant’s Brief at 5.
In his first claim, McDowell contends that he should not have been
convicted of or sentenced on two counts of possessing instruments of crime
“where he possessed one knife one time in a single brief incident where he
held it while approaching two security guards who were standing next to each
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other.” Id. at 11. McDowell insists that “[w]here a weapon is held in a single
criminal event, the crime of possession of an instrument of crime occurs only
once, regardless of the number of persons present.” Id.; see also id. at 13
(rejecting the trial court’s focus on the fact that there were two dockets with
two complaining witnesses, arguing that the number of dockets is not relevant
and that “only where there are two distinct acts involving possession of the
weapon each time, in separate places at different times, can there be two
convictions.”). McDowell highlights that the statutory language of 18 Pa.C.S.A.
§ 907(a) states that to obtain a conviction, the Commonwealth must prove
that a person possessed a weapon with the intent to criminally employ it, and
argues the evidence established that he brandished the knife one time. See
id. at 12-14. McDowell concludes that he should only have been convicted and
sentenced on one count of possessing instruments of crime. See id. at 14.
For the purpose of determining whether the Commonwealth can charge
a single offense in separate counts, we must determine what the General
Assembly has defined as the allowable unit of prosecution for a violation of
Section 907. See Commonwealth v. Satterfield, 255 A.3d 438, 445 (Pa.
2021). “The unit of prosecution is the actus reus that the General Assembly
intended to punish. Put otherwise, the unit of prosecution is the minimum
conduct that must be proven to obtain a conviction for the statute in question.”
Id. at 445-46. “To determine the correct unit of prosecution, the inquiry
should focus on whether separate and distinct prohibited acts … have been
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committed.” Id. at 446 (citation and brackets omitted). The resolution of this
issue is “intertwined with the sufficiency of the evidence.” Commonwealth
v. Andrews, 768 A.2d 309, 313 (Pa. 2001).
Our standard of review for sufficiency claims is as follows:
The standard we apply 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
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. Edwards, 229 A.3d 298, 305-06 (Pa. Super. 2020)
(citation, brackets, and ellipses omitted).
To sustain a conviction for possession of an instrument of crime, the
Commonwealth must prove that the defendant (1) possessed an instrument
of crime, (2) with the intent to employ it criminally. See 18 Pa.C.S.A.
§ 907(a). Based upon the plain language of the statute, “it is the actor’s
criminal purpose that provides the touchstone of his liability for possessing an
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instrument of crime.” Andrews, 768 A.2d at 317 (citation and quotation
marks omitted).
The statutory language in section 907 does not include any indication
that the General Assembly intended a violation to be based upon the number
of victims. See 18 Pa.C.S.A. § 907(a); Satterfield, 255 A.3d at 448. Rather,
the relevant inquiry is primarily upon McDowell’s intent and whether his use
of the knife “was the product of a singular criminal intent or reflective of
multiple manifestations of intent associated with each act.” Andrews, 768
A.2d at 313. Here, Profit testified that McDowell stopped at the subway
platform, took off his backpack, pulled out a large knife, and waved it at Profit
and Corley. See N.T., 10/21/21, at 10-13, 22-24. Similarly, McDowell testified
that after he felt threatened by the guards, he pulled out the knife and stepped
towards them. See id. at 38, 41-42. Viewed in light most favorable to the
Commonwealth, this evidence was sufficient to establish that McDowell used
the knife with the intent to threaten to injure both Profit and Corley.1
____________________________________________
1 We note that McDowell does not challenge on appeal that the evidence at
trial was sufficient to convict him of the aggravated assault of both Profit and
Corley. While this is not dispositive of McDowell’s challenge to his convictions
for possessing instruments of crime, it certainly does not undercut our
conclusion that the evidence was sufficient to establish he acted with the
intent to threaten both guards.
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Accordingly, we affirm both of McDowell’s possessing instruments of crime
convictions.2
In his second claim, McDowell contends that the evidence was
insufficient to support his ethnic intimidation convictions because the ethnicity
of the guards was irrelevant to his actions. See Appellant’s Brief at 14, 17.
While conceding the racial epithets were ugly, McDowell argues that he “would
have jumped the turnstile, run away from any guards chasing him and pulled
a knife to get them to back off, no matter what color or ethnicity they may
have been.” Id. at 14. McDowell claims that he was not motivated by hatred
for the guards’ race, ethnicity, or national origin. See id. at 17. McDowell
notes that he only used the racial epithet two times and that his use of the
term does not establish ethnic intimidation without some further proof of his
intent. See id. at 18. McDowell claims that the use of this epithet does not
provide sufficient proof of a crime, noting that the offensive word is used
commonly in society. See id. McDowell concludes he was telling the guards
to “back off” and the epithet was not used with “malicious intention toward”
the guards. See id.
“A person commits the offense of ethnic intimidation if, with malicious
intention toward the race ... of another individual or group of individuals, he
commits an offense [of aggravated assault] with respect to such individual ...
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2 As the Commonwealth highlights, McDowell received no penalty on either of
the counts. See Brief for the Commonwealth at 7.
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or with respect to one or more members of such group[.]” 18 Pa.C.S.A.
§ 2710(a). Malicious intention is defined as “the intention to commit any act,
the commission of which is a necessary element of any offense referred to in
subsection (a) motivated by hatred toward the race ... of another individual
or group of individuals.” 18 Pa.C.S.A. § 2710(c). The malicious intention
element required for conviction “is satisfied if there is evidence that ethnic
malice was a motivator for the defendant’s criminal act; it need not be the
sole motivator.” Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011)
(emphasis in original).
Here, Profit testified that he was patrolling a SEPTA station in
Philadelphia on June 2, 2021, when he observed McDowell evade paying the
required fare. See N.T., 10/21/21, at 10-11, 21-22. After reporting the fare
evasion on his radio, Profit indicated that McDowell repeatedly stated, “fuck
you, [n-word].” Id. at 12. After following McDowell to the platform, Profit
stated that McDowell pulled out a knife and was swinging it at him and Corley.
Id. at 13, 22, 24, 28, 30. Profit testified that he and Corley backed away after
seeing the knife. See id. at 18, 29-30.
McDowell admitted that he jumped the SEPTA turnstile. See id. at 36-
37, 41. After the guards approached him, McDowell told them he did not have
any money to pay the fare and went down the steps to the platform. See id.
at 37-38. McDowell indicated that the guards began following him down the
steps and he saw one of the guards reach for something in a backpack. See
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id. at 38. Feeling threatened, McDowell pulled a knife out of his backpack and
told the guards, “Yawl [n-words] ain’t fuckin’ me up today.” Id. at 39.
McDowell explained that he was raised in Camden, New Jersey, and was
merely “speaking Ebonics,” which was his usual manner of speaking. See id.
at 38, 39-40. McDowell indicated he walked toward the guards but did not
swing the knife at them. See id. at 38, 41. McDowell testified that the guards
retreated from him and he then boarded the train. See id. at 39.
As a preliminary matter, McDowell does not dispute that he was properly
convicted of two counts of aggravated assault, predicate offenses for ethnic
intimidation pursuant to Section 2710(a). Moreover, when viewing the
evidence in a light most favorable to the Commonwealth, we conclude that a
fact-finder could find that McDowell’s actions were motivated by malicious
intent towards the guards’ race under these circumstances. Here, McDowell
repeated “[n-word], fuck you, [n-word]” at the African-American security
guards. Further, McDowell yelled “Yawl [n-words] ain’t fuckin’ me up today,”
while holding a knife and advancing on the guards. While a fact-finder is not
required to find racial animus under these circumstances, this evidence was
nonetheless sufficient to allow for an inference that McDowell’s behavior was
motivated by malicious intent towards the guards’ race. See Sinnott, 30 A.3d
at 1110-11 (concluding that “[e]vidence existed that appellee was motivated
by racial animus; he made repeated references to the victim’s national origin
(albeit mistaken) while behaving in a physically menacing manner, committing
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an assault on her, which he did not contest.”). Accordingly, when this specific
intent to intimidate the two guards on the basis of their race is combined with
the use of the knife, the fact-finder was entitled to reasonably infer that
McDowell committed two acts of ethnic intimidation. See id.3
In his final claim, McDowell contends that the trial court imposed illegal
sentences on his ethnic intimidation convictions. See Appellant’s Brief at 19.
McDowell notes that these convictions are felonies of the third degree and the
maximum sentence for such felonies is seven years. See id. McDowell argues
that the trial court’s imposition of a sentence of 2 to 4 years in prison, followed
by 5 years of probation surpasses the maximum allowed under the law. See
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3 We note that in Commonwealth v. Ferino, 640 A.2d 934 (Pa. Super.
1994), this Court determined that shouting, “I’m going to kill you, you f—king
[n-word]” immediately prior to firing a gun at the victims (one black and one
white) did not constitute sufficient evidence that malicious intention was the
[“]underlying cause for the prohibited behavior.” Id. at 938. This Court
explained that “the [defendant’s] conduct was isolated in nature, brief in its
execution and unattended by any trappings consistent with a finding that the
terroristic threat [the predicate crime] had an origin of malicious intent
‘motivated by a hatred toward race, color … or national origin’ of the victim.”
Id. However, the Supreme Court in Sinnott found Ferino to be factually
distinguishable because the Ferino defendant’s comment was singular and
isolated, and his words were directed at both victims, only one of whom was
black, while in Sinnott, the appellee’s ethnic epithets were repeated
numerous times, and were directed at the victim during the commission of the
underlying crimes. See Sinnott, 30 A.3d at 1109. Likewise, McDowell
repeatedly directed racial epithets at the African-American security guards and
repeated the epithet during the commission of the aggravated assault
offenses. Therefore, Ferino is factually distinguishable from this case.
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id. McDowell highlights that the trial court acknowledged this error in its
opinion. See id.4
A challenge to the legality of a sentence is a question of law. Thus,
our standard of review is de novo and our scope of review is
plenary. … A claim that implicates the fundamental legal authority
of the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be
vacated. Likewise, a sentence that exceeds the statutory
maximum is illegal. If a court imposes a sentence outside of the
legal parameters prescribed by the applicable statute, the
sentence is illegal and should be remanded for correction.
Commonwealth v. Bickerstaff, 204 A.3d 988, 995 (Pa. Super. 2019)
(citations omitted).
McDowell’s ethnic intimidation convictions were graded as third-degree
felonies. The maximum sentence allowed for a third-degree felony is seven
years. See 18 Pa.C.S.A. § 1103(3). Notably, a sentencing court is free to
impose a split sentence including both imprisonment and probation, but the
total amount of time imposed in a split sentence cannot exceed the statutory
maximum. See Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super.
2010). Here, the trial court sentenced McDowell to 2 to 4 years in prison,
followed by 5 years of probation for each of his ethnic intimidation convictions.
Therefore, the trial court imposed a maximum sentence of 9 years, which is
well above the statutory maximum of 7 years. See Trial Court Opinion,
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4The Commonwealth concedes the ethnic intimidation sentences are illegal.
See Brief for the Commonwealth at 9.
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8/25/22, at 17 (wherein the trial court concedes that it imposed illegal
sentences on the ethnic intimidation convictions). Based on the foregoing, we
vacate McDowell’s unlawful sentences, and remand for resentencing. See id.(acknowledging that the total sentence would not change due to the legal
aggravated assault sentences, the trial court nevertheless requests that the
matter be remanded for resentencing on the ethnic intimidation convictions).
In sum, we affirm McDowell’s convictions, vacate the ethnic intimidation
sentences, and remand for resentencing.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2023
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