Com. v. Shields, T.

J-A12020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREE TYROE SHIELDS :
:
Appellant : No. 1335 WDA 2020
Appeal from the Judgment of Sentence Entered November 4, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0000222-2020
BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: May 13, 2022
Tyree Tyroe Shields (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of two counts of harassment.1 We
affirm.
On December 9, 2019, Appellant and his girlfriend, Tyran Smith (Ms.
Smith), argued over the telephone with Shaylia Thornton (Ms. Thornton), the
mother of Appellant’s child. N.T., 11/4/20, at 11-12. During the argument,
Appellant announced he was bringing Ms. Smith to Ms. Thornton’s residence.
Id. at 12. Fearing for her safety, Ms. Thornton fled to her mother’s home
down the street. Id. at 12-13.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2709(a)(1).
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When Appellant and Ms. Smith arrived at Ms. Thornton’s residence, they
saw Ms. Thornton standing outside her mother’s home, and the argument
continued. Id. at 13-14. Ultimately, Ms. Smith hit Ms. Thornton, and the two
began to brawl. Id. at 14. Appellant joined the fight, hitting and kicking Ms.
Thornton, and pulling her hair. Id. at 14-15.
Ms. Thornton’s grandfather, Joseph Thornton (Mr. Thornton), attempted
to stop the fight. Id. at 15, 28. Appellant threatened Mr. Thornton: “Get out
old man before I hit you.” Id. at 28. Appellant “reach[ed] over” Mr. Thornton
and “hit [him].” Id.; see also id. at 15. Mr. Thornton stated that Appellant,
“caught me right on the side of my mouth. It wasn’t hard, but he hit my
mouth.” Id. at 30. Mr. Thornton backed away. Id. at 31.
On February 20, 2020, the Commonwealth charged Appellant with one
count each of harassment and simple assault.2 The court held a bench trial
on November 4, 2020. Ms. Thornton, Mr. Thornton, Ms. Smith, and Appellant
testified. Thereafter, the trial court found Appellant guilty of one count of
harassment as to Ms. Thornton, and one count of harassment (as a lesser
included offense of simple assault) as to Mr. Thornton. Id. at 60. Appellant
requested immediate sentencing, and the trial court sentenced him to
concurrent 90-day terms of probation. Id. at 65.
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2 18 Pa.C.S.A. § 2701(a)(1).
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On November 24, 2020, Appellant filed a petition to file a post-sentence
motion nunc pro tunc, seeking to challenge the weight of the evidence, which
the trial court denied. Order, 12/4/20. This timely appeal followed.3
Appellant presents a single question for our review:
Whether there was sufficient evidence to convict [Appellant] of
harassment as to Mr. Thornton where the Commonwealth failed
to prove beyond a reasonable doubt that despite making physical
contact with Mr. Thornton, [Appellant] did not do so with the
intent to harass, annoy, or alarm him?
Appellant’s Brief at 5.
Appellant maintains that while he “certainly made physical contact with
Mr. Thornton, the Commonwealth failed to prove, beyond a reasonable doubt,
that he did so with the intent to harass, annoy, or alarm him.” Id. at 23.
Appellant argues he did not intend to hit Mr. Thornton, but did so “by sheer
accident.” Id. This claim is waived.
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant’s Rule 1925(b) statement must state with specificity
the element or elements upon which the appellant alleges that the evidence
was insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013) (emphasis added). “The Pa.R.A.P. 1925(b) statement must be
sufficiently ‘concise’ and ‘coherent’ such that the trial court judge may be
able to identify the issues to be raised on appeal[.]” Commonwealth
____________________________________________
3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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v. Vurimindi, 200 A.3d 1031, 1038 (Pa. Super. 2018) (emphasis added).
“[A] Rule 1925(b) statement is a crucial component of the appellate process
because it allows the trial court to identify and focus on those issues the party
plans to raise on appeal.” Id.Appellant’s Rule 1925(b) statement simply states:
As to Count 2, Harassment—Subject Other to Physical Contact,
the Commonwealth failed to present sufficient evidence to
prove beyond a reasonable doubt that [Appellant]: (1) acted
with the intent to harass, annoy, or alarm Mr. Thornton; and/or
(2) struck, shoved, kicked, or otherwise subjected Mr.
Thornton to physical contact, or attempted or threatened
to do the same.
Rule 1925(b) Statement, 1/4/21, at 3 (emphasis added).
While Appellant mentioned the element of intent, he did not claim — as
he does in his brief — that he punched Mr. Thornton accidentally. See
Appellant’s Brief at 20. Accordingly, the trial court did not address the claim
in its Rule 1925(a) opinion, and the claim is waived. See Trial Court Opinion,
8/26/21, at 3-4; Vurimindi, 200 A.3d at 1038.
Also, Appellant’s claim would lack merit even if he had raised it in his
Rule 1925(b) statement. At trial, Appellant did not claim or testify that he
accidentally hit Mr. Thornton. Rather, Appellant testified Mr. Thornton was
not present during the fight.
In response to his lawyer’s questions, Appellant stated:
[Defense Counsel]: Do you know who [Mr. Thornton] is?
[Appellant]: No, I never seen that man in my life until I went to
court.
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***
[Defense Counsel]: Did you ever hit [Mr. Thornton]?
[Appellant]: No, I don’t know the man. I’ve never seen this man
before.
N.T., 11/4/20, at 47.
This Court has long held an appellant cannot advance a legal theory on
appeal that is different from that raised at trial. Commonwealth v. Truong,
36 A.3d 592, 598-99 (Pa. Super. 2012) (en banc) (challenge to sufficiency of
the evidence waived where appellant argued at trial he killed in self-defense
and/or heat of passion, but claimed imperfect self-defense on appeal); see
also Andrews v. Cross Atlantic Cap. Part., Inc., 158 A.3d 123, 130 (Pa.
Super. 2017) (en banc) (holding that claim was waived where appellant
advanced a different legal theory on appeal from that advanced at trial).
Finally,
[t]he determination of whether sufficient evidence exists to
support the verdict is a question of law; accordingly, our standard
of review is de novo and our scope of review is plenary. In
assessing [a] sufficiency challenge, we must determine whether
viewing all the evidence admitted at trial in the light most
favorable to the [Commonwealth], there is sufficient evidence to
enable the factfinder to find every element of the crime beyond a
reasonable doubt. [T]he facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. ... [T]he finder 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, 177 A.3d 963, 969-70 (Pa. Super. 2018)
(citations omitted).
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A person “commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person: [ ] strikes, shoves, kicks or otherwise
subjects the other person to physical contact, or attempts or
threatens to do the same[.]” 18 Pa.C.S.A. § 2709(a)(1) (emphasis added).
“An intent to harass may be inferred from the totality of the circumstances.”
Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013).
Appellant disregards our standard of review, which requires that this
Court examine the evidence in the light most favorable to the Commonwealth.
Appellant further ignores that we may not re-weigh evidence or make
credibility determinations. Appellant could be convicted of harassment if, with
the intent to harass, annoy, or alarm, he threatened Mr. Thornton. 18
Pa.C.S.A. § 2709(a)(1). Mr. Thornton testified Appellant threatened to hit him
if he did not back away, and made multiple attempts to hit him, one of which
was successful. N.T., 11/4/20, at 28-32. The trial court, sitting as the fact
finder, credited Mr. Thornton’s testimony. See Trial Court Opinion, 8/26/21,
at 4. Thus, in the absence of waiver, there is ample evidence to support
Appellant’s conviction of harassment. See Cox, supra at 721; see also 18
Pa.C.S.A. § 2709(a)(1).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2022
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