Com. v. Fuller, A.

J-S34002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE DASAWN FULLER :
:
Appellant : No. 169 MDA 2021
Appeal from the Judgment of Sentence Entered March 26, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003250-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 18, 2022
Appellant, Andre Dasawn Fuller, appeals from the March 26, 2020
Judgment of Sentence entered in the Luzerne County Court of Common Pleas
following his conviction by a jury of two counts of Terroristic Threats and one
count of Harassment.1 Appellant challenges the trial court’s jury instructions
and the discretionary aspects of his sentence. After careful review, we affirm.
The relevant facts and procedural history are as follows. Appellant and
Teal Rishel are the parents of one son, who was born in 2013. Appellant and
Ms. Rishel have not been romantically involved for many years; however, Ms.
Rishel made an effort to keep in contact with Appellant so they could co-parent
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1 18 Pa.C.S. §§ 2706(a)(1) and 2709(a)(1).
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their son. This included Ms. Rishel occasionally meeting Appellant in-person
and, more often, by communicating by phone and text message.2
In 2019, Appellant began to threaten Ms. Rishel over the phone and
through text messages by accusing her of having relationships with other men
and angrily insisting that no one would ever love her the way he did.
In September 2019, Ms. Rishel began a relationship with William Santos.
Appellant complained to Ms. Rishel that he did not want anyone “playing
daddy” to his son.”3 Appellant made efforts to rekindle his relationship with
Ms. Rishel; Ms. Rishel rebuffed his efforts, causing Appellant to become
“angry, manipulative, and threatening.”4 For instance, Appellant referred to
Mr. Santos as “playing daddy,” and warned Ms. Rishel that “Real get put down
for that[].”5 Appellant also informed Ms. Rishel that he had acquired a
photograph of Mr. Santos’s car and informed her that he would be “looking for
the blue car.”6
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2 Ms. Rishel testified that, during some of their in-person meetings, Appellant
made her uncomfortable by touching her in ways she thought were
inappropriate.
3 N.T., 1/14/20, at 26.
4 Id. at 28.
5 Id. at 31-32.
6 Id. at 28-29, 52.
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Appellant also contacted Mr. Santos directly, warning him that “Nigga []
get put down over this type of shit, and I’m all the way like that[.]” 7 Mr.
Santos inferred from this that Appellant was threatening to kill him. Although
Mr. Santos initially tried to reason with Appellant, eventually he blocked
Appellant on Facebook and avoided further contact with him.
In approximately September 2019, Appellant sent a photograph of a
gun to Ms. Rishel and stated, “I got one too[,] but I use mine.” 8 Appellant
also admitted to sending her a longer message stating, “If that’s who you want
to die with[,] then so be it. But I promise you like I promised Chili I’m gonna
get him Teal. I’m coming.”9 Also around this time, Appellant warned Ms.
Rishel that he would be “sitting outside at night waiting and watching.” 10
These messages threatening to kill Ms. Rishel and people she loved “terrified”
her.11
Soon after receiving this message, Ms. Rishel reported Appellant’s
threats to the police. Following her report and a subsequent investigation
conducted by Kingston Police Officer Michael Haley, on October 23, 2019, the
Commonwealth charged Appellant with the above crimes.
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7 Id. at 51.
8 Id. at 33.
9Id. at 36-37, 82. The “Chili” to whom Appellant referred was a person who
had been shot.
10 Id. at 28.
11 Id. at 37.
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Appellant’s jury trial commenced on January 14, 2020. The
Commonwealth offered the testimony of Ms. Rishel, Mr. Santos, and Officer
Haley, which established the foregoing facts.
Appellant also testified, denying that any of his statements to Ms. Rishel
or Mr. Santos had been threats. He claimed, instead, that he had contacted
Ms. Rishel and Mr. Santos to get to know Mr. Santos and to “defuse” an
“explosive situation” and be a good father to his son.12 Appellant asserted
that he made his statement to Ms. Rishel about being able to “use” his gun in
response to Ms. Rishel threatening him. According to Appellant, Ms. Rishel
had told him that she had a gun and warned Appellant that she would use it
if Appellant tried to “do anything to us.”13
Appellant conceded that he had been angry at Mr. Santos and Ms. Rishel
about the possibility of Mr. Santos replacing Appellant as his son’s father. He
explained the process of typing and sending text messages to the victims.
With respect to the Facebook messages he sent to Ms. Rishel, he described
the deliberative process of logging into Facebook, finding her Facebook page,
typing his message, and hitting “send,” knowing that she would receive the
message.
At the conclusion of testimony, Appellant requested a jury instruction
that spur-of-the-moment statements do not constitute terroristic threats. The
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12 Id. at 75-76.
13 Id. at 74.
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trial court denied Appellant’s request, concluding that the evidence, including
Appellant’s own testimony, did not support such an instruction because
Appellant’s messages to the victims were not made in the spur-of-the-
moment.
The jury convicted Appellant of two counts of Terroristic Threats and
one count of Harassment. The court deferred sentencing pending completion
of a pre-sentence investigation (“PSI”) report.
On March 26, 2020, the trial court held a sentencing hearing at which
Ms. Rishel and Appellant testified. After considering their testimony, counsels’
arguments, and the PSI report, the court sentenced Appellant to consecutive
terms of 18 to 36 months’ incarceration for his Terroristic Threats
convictions.14 Appellant did not challenge the discretionary aspects of his
sentence on the record at sentencing.
Appellant filed a post-trial motion and an amended post-trial motion
challenging the court’s denial of his proposed jury instruction and the
discretionary aspects of his sentence.
The trial court denied Appellant motion. After reinstatement of
Appellant’s direct appeal rights nunc pro tunc, this appeal followed.
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
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14These sentences fall in the high-end of the standard range. The court also
imposed a fine of $100 for Appellant’s summary harassment conviction and
ordered that Appellant have no further contact with Ms. Rishel and Mr. Santos.
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1.Whether the trial court abused its discretion in denying
Appellant’s points for charge[?]
2. Whether the trial court abused its discretion in failing to
sentence [] Appellant to concurrent sentences[?]
Appellant’s Brief at 1.
In his first issue, Appellant asserts that the trial court erred in not
instructing the jury that the offense of Terroristic Threats “was not designed
to penalize spur of the moment threats which arise out of anger in the course
of a dispute.” Id. at 7. Appellant argues that, because he testified that his
statements were merely in response to perceived threats to him and he made
them without any pre-meditation and the intent to terrorize the victims, the
court should have included the above language in the points for charge. Id.
at 7-8.
Our Rules of Appellate Procedure unequivocally require that an appellant
support each question he or she raises with discussion and analysis of
pertinent authority. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009). See also Pa.R.A.P. 2111 and Pa.R.A.P. 2119 (listing argument
requirements for appellate briefs). “[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.” Johnson, supra at 924. See Pa.R.A.P. 2101 (explaining that
substantial briefing defects may result in dismissal of appeal). “We shall not
develop an argument for an appellant, nor shall we scour the record to find
evidence to support an argument; instead, we will deem [the] issue to be
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waived.” Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super.
2018) (citations omitted).
Here, although Appellant has referred to Section 2706 of the Crimes
Code, he has not included the language of the statute in his brief and,
importantly, has not cited to any case law to provide a developed argument
concerning the purpose of the offense of Terroristic Threats. Appellant’s
failure to develop his argument has precluded our meaningful appellate
review. Accordingly, this issue is waived.
In his second issue, Appellant claims that the trial court abused its
discretion in imposing consecutive, rather than concurrent, sentences.
Appellant’s Brief at 8-10. This claim implicates the discretionary aspects of
Appellant’s sentence. Commonwealth v. Mann, 820 A.2d 788, 793 (Pa.
Super. 2003).
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015); 42 Pa.C.S. § 9781(b). To invoke this Court’s jurisdiction to review an
appellant’s challenge to the sentencing court’s discretion, the appellant must,
inter alia, properly preserve the issue at sentencing or in a motion to
reconsider and modify the sentence. Leatherby, 116 A.3d at 83.
The Pennsylvania Rules of Criminal Procedure require any post-sentence
motion to state grounds for relief “with specificity and particularity.”
Pa.R.Crim.P. 720(B)(1)(a). Raising only a broad challenge to a sentence as
excessive, without articulating the specific reasons for the challenge, results
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in waiver. See Pa.R.A.P. 302 (“issues not raised in the lower court are
waived”); Mann, 820 A.2d at 794 (finding that appellant waived discretionary
aspects of sentencing claim where his boilerplate post-sentence motion failed
to state basis of challenge with specificity and particularity).
Appellant’s post-sentence motion challenging the discretionary aspects
of his sentence states, in its entirety: “[Appellant] requests the court to
exercise its discretion and reduce the sentence imposed.” Motion for
Reconsideration of Sentence, 3/31/20, at ¶ 3.
As noted above, Appellant did not raise this challenge at sentencing.
Moreover, the boilerplate assertion presented in his post-sentence motion
makes no reference to the specific argument that Appellant raises in his brief.
Consequently, Appellant failed to preserve this issue. It is, therefore, waived.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2022
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