June 27, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
SHAIN KOORN Appellant
Appeal from the Judgment of Sentence May 2, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005388-2011
BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J. [*]
Appellant, Shain Koorn, appeals from the May 2, 2012 judgment of sentence of five years' probation, imposed after he was found guilty of false imprisonment and terroristic threats. After careful review, we affirm the judgment of sentence.
The relevant factual and procedural history of this case may be summarized as follows. In October 2010, Appellant entered into an agreement with Lawrence Gillen to repair Gillen's 1959 Corvette. Subsequently, on March 1, 2011, Gillen approached Appellant in the garage of the auto-body shop where the repairs were being performed and expressed his displeasure with the pace and cost of the repairs. Gillen's friend, William Hall, had accompanied Gillen to the shop. As Gillen and Hall were leaving, Appellant pulled a handgun from his waistband and struck Hall in the back of the head with it. He also struck Gillen in the face with the gun when Gillen attempted to dial 911 from his cell phone. Appellant then placed the gun against Gillen's forehead and threatened to shoot him if he did not terminate the call.
After knocking the cell phone from Gillen's hand, Appellant exited the garage and locked the door behind him trapping Gillen and Hall inside. Gillen and Hall remained trapped in the garage for approximately 15 to 20 minutes before police arrived. Once police arrived, Appellant cooperated and consented to a search of his vehicle. The gun was recovered from the trunk of Appellant's vehicle, and it was discovered that the gun was not loaded.
On May 25, 2011, Appellant was charged with false imprisonment, terroristic threats, and other related offenses in connection with the events of March 1, 2011. Subsequently, Appellant waived his right to a jury trial and proceeded to a bench trial on May 2, 2012. He was convicted of the aforementioned offenses and sentenced that same day. Appellant did not file post-sentence motions. This timely appeal followed on June 1, 2012.On appeal, Appellant raises the following issues for our review.
1. Is [Appellant] entitled to an arrest of judgment where the verdict is not sustained by sufficient evidence and where the Commonwealth did not prove its case beyond a reasonable doubt and further where the Commonwealth did not make out the elements of [t]erroristic [t]hreats and [f]alse [i]mprisonment as they did not prove that [Appellant] threatened to commit any crime of violence with the intent to terrorize another?
2. Is [Appellant] entitled to a new trial on the charge of [t]erroristic [t]hreats and [f]alse [i]mprisonment where the verdict is not supported by the greater weight of the evidence?
3. Is [Appellant] entitled to an arrest of judgment on the charge of [f]alse [i]mprisonment?
Appellant's Brief at 3.
In his first issue, Appellant asserts there was insufficient evidence to support his conviction for terroristic threats. Id. Specifically, Appellant avers that the Commonwealth failed to prove that he threatened Gillen with the intent to terrorize him. Id. at 7. Our standard of review in deciding a sufficiency of the evidence claim is well settled.
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. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] 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. Donohue, 62 A.3d 1033, 1035 (Pa. Super. 2013) (citation omitted).
"A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize another." 18 Pa.C.S.A. § 2706(a)(1) (emphasis added). This Court has previously explained that
[t]he purpose of [section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger. The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another's sense of personal security. Therefore, [i]t is the making of the threat with intent to terrorize that constitutes the crime.
To obtain a conviction for making a terroristic threat, the Commonwealth must prove that: (1) the defendant made a threat to commit a crime of violence; and (2) such threat was communicated with the intent of terrorizing or with reckless disregard for the risk of causing terror. It has been observed that even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce. Moreover, it is unnecessary for [the defendant] to specifically articulate the crime of violence which he or she intends to commit where the type of crime may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement.
In re Maloney, 636 A.2d 671, 675 (Pa. Super. 1994) (internal quotation marks and citations omitted), quoting Commonwealth v. Campbell, 625 A.2d 1215, 1218-1219 (Pa. Super. 1993). Additionally, this Court has previously held that, in circumstances where a defendant displays a weapon while threatening a victim, the victim is subjected to the exact harm and impairment of security that section 2706 aims to prevent. Commonwealth v. Hudgens, 582 A.2d 1352, 1359 (Pa. Super. 1990). This is true even if the weapon is inoperable or not loaded. Commonwealth v. Chance, 458 A.2d 1371, 1375 (Pa. Super. 1983).
In the instant matter, Appellant opines that he did not intend to terrorize Gillen when he brandished a gun and threatened him. Appellant's Brief at 11. Appellant further avers that the gun was not loaded and he merely brandished it in an attempt to escape the garage "where no one could hear a potential cry for help." Id. at 11, 13.
Contrary to Appellant's version of events, Gillen testified that Appellant brandished a firearm and blocked the exit when he and Hall tried to leave. N.T., 5/2/12, at 35. Gillen dialed 911 for help, at which point Appellant struck Gillen in the face with the weapon. Id. Appellant then pressed the barrel of the gun against Gillen's forehead and threatened that Gillen would "get a bullet" if he did not hang up the phone. Id.
The trial court was not required to credit Appellant's version of events, and this Court may not substitute its judgment for that of the fact-finder. Donohue, supra. Further, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we agree with the trial court's conclusion that "[t]estimony detailing  Appellant's menacing words and attendant use of a firearm supported the finding that he intended to terrorize  Hall and  Gillen." Trial Court Opinion, 2/28/13, at 3; see also Hudgens, supra (concluding that, where a defendant displays a weapon while threatening a victim, the victim is subjected to the exact harm that section 2706 aims to prevent). Moreover, the fact that the gun was not loaded is of no moment. Chance, supra. Accordingly, we conclude this claim is without merit.
In his second issue, Appellant challenges the weight of the evidence supporting his conviction for terroristic threats. Specifically, Appellant asserts that "the weight of the evidence only supports the proposition that this was an unfortunate, heated argument[.]" Appellant's Brief at 14.
Prior to addressing the merits of this claim, we must first ascertain whether Appellant has properly preserved the issue for appellate review. Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part, that a claim that the verdict was against the weight of the evidence "shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion." Pa.R.Crim.P. 607(A). "The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006).
Following our careful review, we conclude that Appellant has failed to comply with Rule 607. Specifically, Appellant has failed to point to the portion of the record which indicates he moved for a new trial on weight of the evidence grounds or filed a post-sentence motion raising a weight of the evidence claim. As our examination reveals that no such motion was filed, we conclude Appellant's challenge to the weight of the evidence is waived.
Appellant's third issue restates his sufficiency claim with regard to his conviction for false imprisonment. As previously noted, this issue was not presented in Appellant's Rule 1925(b) statement and is therefore waived. Hill, supra.
Based on the foregoing, we affirm Appellant's May 2, 2012 judgment of sentence.
Judgment of sentence affirmed.