Com. v. Miller, S.

J-S34025-19
2019 PA Super 261COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAINE S. MILLER :
:
Appellant : No. 1698 WDA 2018
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000540-2017
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
OPINION BY McLAUGHLIN, J.: FILED AUGUST 23, 2019
Shaine S. Miller appeals from his judgment of sentence imposed after a
jury found him guilty of aggravated assault, terroristic threats, recklessly
endangering another person, simple assault, disorderly conduct, and
harassment.1 Miller challenges the sufficiency of the evidence supporting his
aggravated assault conviction. We affirm.
The trial court aptly summarized the facts of this case as follows:
On October 14, 2017, Esther Harlan, her husband Leroy Harlan
and their two minor children were traveling in the families’ truck
in Kane[,] Pennsylvania. Esther Harlan was operating the truck
and they were on their way home from a soccer game. When they
went to turn into Welsh Street [Miller’s] vehicle, with [Miller]
sitting in the driver’s seat, was blocking their way. [Miller] then
pulled his vehicle backward and said to the Harlans “[C]an you
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118Pa.C.S.A. §§ 2702(a)(1), 2706, 2705, 2701(a)(3), 5503(a)(4) and
2709(a)(1) respectively.
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fucking get through now?;” “Can you get by me now you fucking
bitch;” and, “What's your fucking problem.” Mr. Harlan then stated
to his wife: “[P]ull over. I want to see what's going on.” His wife
did pull over and Mr. Harlan and [Miller] each exited their vehicles.
Mr. Harlan walked toward [Miller] and [Miller] was getting out of
his vehicle. Mr. Harlan stated to [Miller] “[W]hat's going on?
What’s your problem?” [Miller] responded that he did not have a
problem and it got “heated back and forth.” Mr. Harlan testified:
So, it went on there for a little bit. And all of the sudden,
he was screaming and hollering, and - and he ran back down
the hill to his vehicle approximately 15, 20 feet to the door
and reached in - his door and came out with a gun and I
stayed in the same spot and didn't move. I stayed right
where we first initially met at the back of the vehicle. He
reached in the - in his car, came out with a gun, cocked the
gun, and came running up to me. At this point in time he
was probably two feet away from me with the gun directed
towards my head with his finger on the trigger said,
“[W]hat's your problem now, fucker? I got a gun. I'm going
to kill you. I'm going to shoot you.” And I kept saying - - my
hands at that point went up in a defensive way like this, and
they stayed in that position the whole time that he had the
gun in his hand, whole time that he was waving it at me.
His hand was actually shaking on the gun. His finger on the
trigger. The gun looked like it was loaded because he cocked
the action and it was like a loaded gun. At that point in time,
I said, “I don't know what your deal is, but you don't need
a gun. You don’t need to be getting the gun out. Put the
fucking gun away.” [Miller responded] “I have a permit. I'm
allowed to do that.”
9/26/18 Trial Tr. Page 118-119. [Miller] pointed the handgun
directly at Mr. Harlan's head. While [Miller] was pointing the gun
at Mr. Harlan's head one of [Miller’s] friends exited a nearby home
and questioned [Miller], stating: “Shaine, what the fuck are you
doing? That's my neighbor. Put your gun down.” [Miller] then put
the weapon into his vehicle and walked over and sat down on the
steps to a home. The Harlans then approached him and words
were exchanged. [Miller] stated to the Harlans: “I had the right to
have a gun. I have the right to kill you;” and, “I should've fucking
killed you.” He then went back towards his car to apparently
retrieve the handgun again. However, Mrs. Harlan ran to the
vehicle first, grabbed the handgun and threw it. Later that day
while [Miller] was being detained in a cell at the Kane Borough
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Police Station he repeatedly yelled: “I shoulda just fucking killed
them. I shoulda just shot them;” and, “I don't know why I am
here. I shoulda just fucking killed them. It would have been
worthwhile. I shoulda just killed them.”
Trial Court’s Pa.R.A.P. 1925(a) Opinion, 3/6/19, at 6-7.
After a jury convicted him of the above referenced offenses, the trial
court sentenced Miller to an aggregate of 4 to 10 years’ incarceration with
credit for time served. Miller filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court filed a responsive Rule 1925(a)
opinion. On appeal, Miller presents a single issue for our review: “Whether the
evidence presented on the record at the trial of this matter on September 26-
27, 2018 was sufficient to establish each element of the charge of Aggravated
Assault, 18 Pa.C.S. § 2702(a)(1), thereby justifying a verdict of Guilty for that
offense?” Miller’s Br. at 5. Miller argues that the evidence was insufficient to
prove that he “attempted to cause serious bodily injury to Leroy Harlan by
pointing a firearm at him and making a conditional threat” where “no
intervening factors” prevented him from shooting had he had an actual intent
to cause harm. Id. at 18.
“The standard we apply in reviewing the sufficiency of the evidence 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.” Commonwealth
v. Bradley, 69 A.3d 253, 255 (Pa.Super. 2013). If the Commonwealth has
presented some evidence of each element of the crime, we deem the evidence
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sufficient unless it is “so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined circumstances.” Id.Pursuant to subsection 2702(a)(1) of the Crimes Code, “a person is
guilty of aggravated assault if he…attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life.”
18 Pa.C.S.A. § 2702(a)(1). “For aggravated assault purposes, an ‘attempt’ is
found where ‘an accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating a serious
bodily injury upon another.’” Commonwealth v. Fortune, 68 A.3d 980, 984
(Pa.Super. 2013 (en banc) (quotation omitted). “[I]ntent ordinarily must be
proven through circumstantial evidence and inferred from acts, conduct or
attendant circumstances.” Id.In Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978), the
Pennsylvania Supreme Court fashioned a totality of the circumstances test
that has often been cited when courts must determine whether a defendant
acted with the requisite intent to sustain an aggravated assault conviction.
The test specifically calls upon courts to consider, inter alia, “evidence of a
significant difference in size or strength between the defendant and the victim,
any restraint on the defendant preventing him from escalating the attack, the
defendant’s use of a weapon or other implement to aid his attack, and his
statements before, during, or after the which might indicate his intent to inflict
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injury.” Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006)(citing
Alexander, 383 A.2d at 889).
In the instant case, the trial court found that the facts at issue are
analogous to those presented in Fortune and we agree. In Fortune, the
defendant approached the victim, pointed a gun a half-inch away from her
head, and threated, “If you don’t let go of the keys, I am going to blow your
head off.” Fortune, 68 A.3d at 982. The defendant there grasped one end of
the victim’s keys, and the victim ran away. Our Court concluded that the
evidence presented in Fortune was sufficient to support the defendant’s
aggravated assault conviction, holding:
Under the totality of the circumstances, the jury certainly was free
to find, inter alia, that [defendant] intended to carry out his threat
but did not do so for a variety of reasons. The fact the victim
managed to drop her keys and successfully escape does nothing
to negate a finding that [defendant] possessed the proper mens
rea at the time he pointed the gun at the victim. In sum, in
applying the totality of the circumstances as Matthew dictates,
we find [defendant’s] claim there was insufficient evidence to
sustain his conviction for Aggravated Assault must fail.
Id. at 985.
Here, the trial court properly found that the jury was free to believe that
Miller meant what he repeatedly told Harlan: that he intended to shoot and
kill him. Specifically, the court found that threat, in conjunction with Miller’s
action of pointing a gun directly at Harlan’s head for some time, sufficient to
sustain Miller’s conviction for aggravated assault. As in Fortune, the trial
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court found the evidence to be sufficient regardless of the fact that Miller did
not ultimately shoot Harlan. See id.Likewise, viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we hold that the trial court aptly
determined that the evidence was sufficient to support Miller’s aggravated
assault conviction. See Bradley, 69 A.3d at 255. Miller threatened Harlan’s
life multiple times while pointing a gun directly at Harlan’s head. Further, the
encounter was only defused once a neighbor interceded. Thus, under the
totality of the circumstances, the evidence was sufficient to establish that
Miller had the requisite specific intent to support his conviction for aggravated
assault under 18 Pa.C.S.A. § 2702(a)(1). See Fortune, 68 A.3d at 985;
Matthew, 909 A.2d at 1257. Accordingly, we conclude that Miller’s issue on
appeal lacks merit and we affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2019
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