Com. v. Jones, S. ( 2023 )

J-S35037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAVON L. JONES :
:
Appellant : No. 638 MDA 2023
Appeal from the Judgment of Sentence Entered March 23, 2023
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003476-2022
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 20, 2023
Appellant, Savon L. Jones, appeals from the aggregate judgment of
sentence of 154 days to 23 months’ incarceration followed by 2 years of
probation imposed on him after he was convicted of simple assault, terroristic
threats, possession of an instrument of crime, and harassment.1 Appellant’s
appellate counsel has filed a petition to withdraw and an Anders2 brief, stating
that the appeal is wholly frivolous. After careful review, we grant counsel’s
petition to withdraw and affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2701(a)(3), 2706(a)(1), 907(a), and 2709(a)(1), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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This case arises out of events that occurred on October 19, 2022, when
Appellant threatened the mother of his children (Victim 1) and her aunt (Victim
2) with a box cutter. Appellant was charged with possession of an instrument
of crime, two counts of aggravated assault on Victim 1, one count of
aggravated assault on Victim 2, one count of simple assault on Victim 1, one
count of simple assault on Victim 2, terroristic threats for his actions toward
Victim 2, and harassment, charged as a summary offense, for his attack on
Victim 1. Criminal Information. A jury trial was held on March 21, 2023, at
which Victim 1, Victim 2, and the police officer who responded to the scene
testified.
Victim 1 testified that on October 19, 2022, Appellant came to the
apartment where she lived with their four-year old son, that she and Appellant
got into an argument about their relationship, and that when she ran into the
bathroom, Appellant came into the bathroom with a boxcutter in his hand.
N.T. Trial at 57-61, 73-74. Victim 1 testified that Appellant grabbed her, held
the boxcutter blade to her throat for 10 minutes, and threatened to kill her,
but that he did not stab her or try to cut her. Id. at 59, 61-63, 70, 74-76,
87. Victim 1 testified that while Appellant was holding the box cutter to her
throat, she was afraid and thought that Appellant was going to kill her. Id.
at 62-63. She testified that she was eventually able to push Appellant away
and ran to Victim 2’s house across the street to get help. Id. at 60, 63-66.
Victim 1 testified that she was six or seven months pregnant at the time, that
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Appellant knew that she was pregnant, and that, as she was escaping from
him, Appellant gestured with a hammer like he was going to hit her in the
stomach with it. Id. at 58, 60-61, 63-65, 79, 81, 88. Victim 1 testified that
after she told Victim 2 what happened, she returned to her apartment because
her son was still there, that Appellant ran into her outside the apartment and
knocked her down, and that she went inside the apartment and locked all the
doors. Id. at 67-68, 83.
Victim 2 testified that Victim 1 came to her home at 11:00 p.m. on
October 19, 2022 crying and scared and that Victim 1 told her that Appellant
had put a box cutter to Victim 1’s throat. N.T. Trial at 96-98. Victim 2 testified
that she told Victim 1 to run back and get her son out of her apartment and
that she saw Appellant knock Victim 1 down when Victim 1 was running toward
the apartment. Id. at 98-100. Victim 2 testified that she told Appellant to
please not hit Victim 1 and that Appellant then turned and charged at her,
Victim 2, with a box cutter. Id. at 99, 101, 106. Victim 2 testified that
Appellant swung the box cutter back and forth at her saying “do you want
some, you want some.” Id. at 99, 106-07. She testified that her husband
then pulled her inside their home and that they called the police. Id. at 99-
101. The police officer testified that when he came to the scene, Victim 1 was
stressed and a bit tense, but that she did not have any visible injuries on her
neck. Id. at 111-12, 116-17.
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After the Commonwealth rested, the trial court granted Appellant’s
motion for judgment of acquittal on the three aggravated assault charges.
N.T. Trial at 120-123. Appellant did not testify and called no witnesses. Id.
at 92-93, 124. The jury found Appellant guilty of simple assault on Victim 1,
terroristic threats, and possession of an instrument of crime and acquitted
Appellant of simple assault on Victim 2, and the trial court found Appellant
guilty of harassment. Id. at 149-51; Jury Verdict Slip; Verdict of the Court.
On March 23, 2023, the trial court sentenced Appellant to 154 days to
23 months’ incarceration for the simple assault conviction, a concurrent term
of 2 years of probation for the possession of an instrument of crime conviction,
and a consecutive term of 2 years of probation for the terroristic threats
conviction, with the harassment conviction merging with the simple assault
conviction. Sentencing Orders. Appellant filed a post-sentence motion on
March 30, 2023, in which he challenged the sufficiency and weight of the
evidence. The trial court denied Appellant’s post-sentence motion on April 4,
2023, and this timely appeal followed.
On July 31, 2023, appellate counsel filed an Anders brief and petition
to withdraw as counsel. In his Anders brief, appellate counsel raises the
issues of whether the evidence was sufficient to prove the offenses of simple
assault, terroristic threats, and possession of an instrument of crime and
whether the jury’s verdict that Appellant was guilty of those offenses was
against the weight of the evidence and concludes that those issues are all
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frivolous. Anders Brief at 10, 13-19. Appellant has not filed any response to
counsel’s petition to withdraw or Anders brief. The Commonwealth filed a
brief in support of affirmance.
Before this Court can consider the merits of this appeal, we must first
determine whether appellate counsel has satisfied all of the requirements that
court-appointed counsel must meet before leave to withdraw may be granted.
Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en
banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(en banc). To withdraw from representing a defendant on direct appeal on
the basis that the appeal is frivolous, counsel must (1) petition the court for
leave to withdraw stating that he has made a conscientious examination of
the record and has determined that the appeal would be frivolous; (2) file a
sufficient Anders brief; and (3) provide a copy of the Anders brief to the
defendant and advise the defendant of his right to retain new counsel or
proceed pro se and to raise any additional points that he deems worthy of the
court’s attention. Commonwealth v. Tukhi, 149 A.3d 881, 885-86 (Pa.
Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply with
all the following requirements:
[T]he Anders brief … must (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also
Dempster, 187 A.3d at 270. If counsel has satisfied the above requirements,
it is then this Court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether the appeal is
wholly frivolous. Dempster, 187 A.3d at 271; Commonwealth v. Zeigler,
112 A.3d 656, 659-60 (Pa. Super. 2015).
Appellate counsel states in his petition to withdraw that he has reviewed
the entire record and determined that there are no non-frivolous grounds for
the appeal. Appellate counsel’s July 31, 2023 letter to Appellant provided a
copy of the Anders brief to Appellant and advised him of his right either to
retain new counsel or to proceed pro se on appeal and to raise any points he
deems worthy of this Court’s attention. Appellate counsel’s Anders brief
provides a procedural and factual summary of the case and cites and discusses
the applicable law on which counsel bases his conclusion that there are no
non-frivolous issues that he can raise on Appellant’s behalf. Appellate counsel
has thus complied with the procedural requirements for withdrawal as counsel
in this appeal.
We therefore proceed to conduct an independent review to ascertain
whether the appeal is indeed wholly frivolous. This Court first considers the
issues raised by counsel in the Anders brief and determines whether they are
in fact frivolous. Dempster, 187 A.3d at 272. In addition, if the Court finds
all of those issues frivolous, this Court conducts a review of the record to
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ascertain if, on its face, there are other issues of arguable merit overlooked
by counsel. Commonwealth v. Yorgey, 188 A.3d 1190, 1196-97 (Pa.
Super. 2018) (en banc); Dempster, 187 A.3d at 271-72.
The standard of review that this Court applies in considering Appellant’s
sufficiency of the evidence issues is well-settled:
When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” It is within the
province of the fact-finder to determine the weight to accord to
each witness’s testimony and to believe all, part or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. As an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Steele, 234 A.3d 840, 845 (Pa. Super. 2020) (quoting
Commonwealth v. Colon-Plaza, 136 A.3d 521 (Pa. Super. 2016)) (citations
omitted, brackets in original). We conclude that all of Appellant’s sufficiency
of the evidence claims are frivolous.
The offense of simple assault of which Appellant was convicted is defined
by the Crimes Code as follows:
Except as provided under section 2702 (relating to aggravated
assault), a person is guilty of assault if he:
* * *
(3) attempts by physical menace to put another in fear of
imminent serious bodily injury ….
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18 Pa.C.S. § 2701(a)(3). To prove this offense, the Commonwealth must
prove that the defendant engaged in menacing or frightening activity with the
intent to place another in fear of imminent serious bodily injury. Id.;
Commonwealth v. Reynolds, 835 A.2d 720, 726-27 (Pa. Super. 2003);
Commonwealth v. Little, 614 A.2d 1146, 1148, 1151 (Pa. Super. 1992);
see also Commonwealth v. Repko, 817 A.2d 549, 554-55 (Pa. Super.
2003), overruled in part on other issue, Commonwealth v. Matthews,
870 A.2d 924 (Pa. Super. 2005) (en banc). Serious bodily injury is any
“[b]odily 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. § 2301.
At trial, Victim 1 testified that Appellant held a box cutter blade to her
throat and threatened to kill her while he held the blade to her throat. N.T.
Trial at 59, 61-63, 70, 74-75. That evidence is amply sufficient to prove that
Appellant engaged in menacing or frightening activity with the intent to place
Victim 1 in fear of imminent serious bodily injury. Commonwealth v.
Wright, 421 A.2d 365, 366-67 (Pa. Super. 1980) (evidence that defendant
held a sharp object to victim’s throat is sufficient to prove simple assault by
physical menace); Commonwealth v. Moss, No. 1533 MDA 2018, slip op. at
11 (Pa. Super. February 10, 2020) (unpublished memorandum) (“The act of
brandishing a knife at a person is sufficient to sustain a conviction for simple
assault by physical menace”); Commonwealth v. Molina-Torres, No. 455
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WDA 2019, slip op. at 7 (Pa. Super. October 29, 2019) (unpublished
memorandum) (evidence that defendant pointed a knife at victim is sufficient
to prove the elements of simple assault by physical menace).
To convict a defendant of terroristic threats under the section of the
Crimes Code at issue here, the Commonwealth must prove two elements: (1)
that the defendant made a threat to commit a crime of violence and (2) that
the defendant communicated the threat with the intent to terrorize another
person. 18 Pa.C.S. § 2706(a)(1); Commonwealth v. Martinez, 153 A.3d
1025, 1028 (Pa. Super. 2016). Proof of an express verbal threat to commit a
specific crime is not necessary to sustain a terroristic threats conviction.
Commonwealth v. Kline, 201 A.3d 1288, 1290-92 (Pa. Super. 2019)
(threatening hand gesture without any verbal threat held sufficient to support
terroristic threats conviction); Martinez, 153 A.3d at 1028. The threat to
commit a crime of violence with intent to terrorize may be proven from a
combination of the defendant’s words and threatening actions toward the
victim, even though his words by themselves would not constitute a threat.
Martinez, 153 A.3d at 1028-29; Commonwealth v. McCalman, 795 A.2d
412, 418 (Pa. Super. 2002); In re Maloney, 636 A.2d 671, 676 (Pa. Super.
1994).
The charge of terroristic threats related to Appellant’s actions toward
Victim 2. Criminal Information at 1; Jury Verdict Slip. Victim 2 testified that
Appellant swung a box cutter back and forth at her while saying “do you want
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some, you want some.” N.T. Trial at 99, 106-07.3 That evidence that
Appellant brandished a weapon at Victim 2 while using language indicating
that he was willing to use it is sufficient to prove that Appellant made a threat
to commit a crime of violence against Victim 2 and communicated it to her
with the intent to terrorize. Martinez, 153 A.3d at 1028-29 (evidence that
defendant said “what do you got?” to victim and then pointed a gun at him
was sufficient to prove terroristic threats); Commonwealth v. Williams, No.
637 WDA 2022, slip op. at 18 (Pa. Super. May 12, 2023) (unpublished
memorandum) (evidence that defendant held a knife and cut himself with it
while saying to his children that it was their mother’s fault and preventing
them from calling for help or hiding was sufficient to support terroristic threats
conviction because the children could reasonably interpret those actions and
statements to imply that defendant would also hurt them with the knife);
Molina-Torres, No. 455 WDA 2019, slip op. at 4-5 (testimony that defendant
waved a knife around and pointed it at victim’s stomach was sufficient to prove
communication of threat that defendant would harm victim with the knife and
was sufficient to prove terroristic threats).
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3 We note that appellate counsel in his Anders brief incorrectly based his
sufficiency of the evidence analysis of the terroristic threats conviction on what
was in fact Victim 1’s testimony concerning Appellant’s attack on her and did
not evaluate the evidence concerning Appellant’s conduct toward Victim 2 on
which the terroristic threats conviction rests. Anders Brief at 17. While
appellate counsel’s error is troubling, it has not impeded our review and does
not alter the fact that a challenge to the sufficiency of the evidence with
respect to the terroristic threats conviction is frivolous.
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The evidence is likewise sufficient to support Appellant’s possession of
an instrument of crime conviction. The offense of possession of an instrument
of crime requires proof of two elements: (1) that the defendant possessed an
object that is an instrument of crime and (2) that the defendant had the intent
to use the object for a criminal purpose. 18 Pa.C.S. § 907(a);
Commonwealth v. Brockington, 230 A.3d 1209, 1213 (Pa. Super. 2020);
Commonwealth v. Robertson, 874 A.2d 1200, 1208 (Pa. Super. 2005). The
Crimes Code defines an “instrument of crime” as “[a]nything specially made
or specially adapted for criminal use” or “[a]nything used for criminal purposes
and possessed by the actor under circumstances not manifestly appropriate
for lawful uses it may have.” 18 Pa.C.S. § 907(d). Proof that the defendant
used an otherwise lawful object as a weapon to commit a crime is sufficient
to prove both possession of an instrument of crime and intent to use that
instrument of crime for a criminal purpose. Tukhi, 149 A.3d at 888 (evidence
that defendant assaulted victim with an iron pipe was sufficient to support
possession of an instrument of crime conviction); Robertson, 874 A.2d at
1209 (evidence that defendant used knife to commit robbery and assault was
sufficient to support possession of an instrument of crime conviction).
Here, as discussed above, Victim 1’s testimony that Appellant held a box
cutter to her throat, N.T. Trial at 59, 61-63, 70, 74-75, and Victim 2’s
testimony that he threatened her with the box cutter, id. at 99, 106-07, were
sufficient to prove the Appellant used a box cutter to commit the crimes of
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simple assault by physical menace and terroristic threats. The evidence was
therefore sufficient to sustain Appellant’s conviction for possession of an
instrument of crime. Tukhi, 149 A.3d at 888; Robertson, 874 A.2d at 1209;
Molina-Torres, No. 455 WDA 2019, slip op. at 6 (evidence that defendant
used knife to commit crime of terroristic threats was sufficient to prove
possession of an instrument of crime).
The remaining issue raised by counsel in his Anders brief, that the trial
court erred in rejecting Appellant’s claim that the jury’s verdict was against
the weight of the evidence, is also frivolous. A new trial may be granted on
the ground that the verdict is against the weight of the evidence only where
the verdict was so contrary to the evidence that it shocks the trial court’s
sense of justice. Commonwealth v. James, 268 A.3d 461, 468 (Pa. Super.
2021); Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).
Our review of the denial of a motion for a new trial based on weight of the
evidence is limited. We review whether the trial court abused its discretion in
concluding that the verdict was not against the weight of the evidence, not
whether the verdict, in this Court’s opinion, was against the weight of the
evidence. Commonwealth v. Clemons, 200 A.3d 441, 463-64 (Pa. 2019);
Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021).
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 …. 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.
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Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049(Pa. 2013)) (brackets omitted).
As demonstrated above, the testimony of Victim 1 and Victim 2 was
sufficient to prove all of the elements of the offenses of which the jury
convicted Appellant. The trial court, which heard the testimony and observed
the witnesses’ demeanor, concluded that the jury found Victim 1 and Victim 2
credible and that “the verdict was consistent with the evidence presented” and
did not shock its sense of justice. Trial Court Opinion at 7-8. There is nothing
in the trial record that indicates that either victim’s testimony was implausible
or that the jury could not reasonably find them credible. Although there was
evidence that Victim 1 had no visible marks on her neck, N.T. Trial at 116-17,
that is not incompatible with her testimony that Appellant held a box cutter at
her throat, as she testified that Appellant did not cut her with the box cutter.
Id. at 62-63, 87. The trial court therefore did not abuse its discretion in
concluding that the verdict was not against the weight of the evidence.
Based on the foregoing, we agree with appellate counsel that the issues
raised by Appellant lack any arguable merit. In addition, we have reviewed
the certified record and have discovered no additional issues of arguable merit
on the face of the record. Therefore, we grant appellate counsel’s petition to
withdraw and affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/20/2023
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