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[U] Commonwealth v. Walker

Superior Court of Pennsylvania

February 6, 2014



Appeal from the Judgment of Sentence entered September 7, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0002191-2010




Aaron Walker ("Appellant") appeals from the judgment of sentence imposed after the trial court convicted him of one count of terroristic threats and three counts of simple assault.[1] We affirm.

The trial court summarized the pertinent facts and procedural history as follows:

[On January 15, 2010, Tia Kelly, age 23, was at her home with her cousin, Amber Kelly, when] they became involved in a threatening argument over Facebook with a Tabitha (Tabby) who was [co-defendant John Masterson's] sister. [Tia Kelly] could not recall the exact contents of the threats, since it was Amber Kelly who was actually reading them, but heard enough to become fearful because Tabitha put her address on the Facebook page, which caused her to fear for the safety of her, her family and her home. She called her friend, Amber Christiansen, and her sister-in-law, Jiona Ferguson, who came to the house and observed some of the continuing Facebook argument; after discussing the situation, the four of them decided to go to Masterson's residence to try to resolve the matter. They drove there and Ferguson went up alone and knocked on the door while the others stayed in the car. When [Appellant] answered, he began arguing with Ferguson and the other three decided to go get her away from him because she was pregnant, and from the tenor of the argument, they feared for her safety. As they approached, Masterson appeared wielding a hammer, a general argument ensued between all six of them, and Tia Kelly was struck by something which caused her to black out for a moment, having received a concussion, and came to bleeding from the nose. She denied having any weapon, hammer, knife or hairspray. She did not know what she was hit with; a neighbor took her into her house, gave her water to wash off the blood, and when she went back outside she found the other three women talking to the police. She went to Nazareth Hospital, was given a CAT scan and pain medication, was diagnosed with a slight concussion and a contusion to the upper lip, and lost a week from work. On cross-examination, she stated that she did not know who or what hit her, had decided to go to the residence instead of calling because she didn't know [the] phone number, though she was scared, she was not angry, and she knew Tabby and her older brother from having grown up with them ... .
Jiona Ferguson, age 20, [testified that] she received the call from Tia Kelly, was told of the threats and went to her house. She was also a little uncertain of the exact nature of the threats but could tell that Kelly was very upset about them and her address being posted; she suggested that she might be able to resolve the situation with Tabitha, being that they were both pregnant. When they got to the residence, she knocked on the front door and when [Appellant] answered, she asked to see Tabitha, to which he said to "wait right there, Bitch." After a minute or two, [Appellant] came back out, pushed her, and started arguing with her at which time Amber Christiansen came to get her and Masterson appeared with a hammer. As they were trying to return to the car to leave, [Appellant] kicked the right side window and Masterson kicked in the windshield. She denied being injured. On cross, she confirmed, as indicated on the police report, that about four men appeared, whom she did not know[.] [S]he denied counsel's suggestion that "Isn't it a fact that you brought these guys with you and that you went to the door to bait these people (referring to Masterson and [Appellant]) out of the house so that these guys could get them?", saying "I didn't bring anyone at the door with me." She did not specifically say so, but from the tenor it appears that these four strangers rendered some kind of assistance as she and one or two of the other women were able to drive around the corner, call the police, and wait for them to arrive; she confirmed seeing Masterson strike Kelly in the face with the hammer.
[Jiona Ferguson testified] that the police told her that Masterson had sustained injuries, but she didn't see him being struck, know the extent or who had inflicted them, and denied counsel's suggestion that it might have been the neighbor who had assisted Kelly. On redirect, she confirmed that she did not know the men who had intervened and did not bait Masterson and [Appellant] away from the property so they could beat them up.

Amber Christiansen [corroborated the testimony that Appellant] display[ed] his gun in his waistband by lifting his shirt and telling them not to make him use it, [that] Masterson [struck] Tia Kelly with the hammer, and both [Appellant and Masterson] kick[ed] the car. ... She denied that she or the other women had any weapons; she called the police as soon as they were able to drive away and park around the corner. In response to defense counsel's insinuations that the fact that four women, one of whom was pregnant, went to the home of an unknown number of people whom they did not know and had threatened them and with whom they were arguing and only the pregnant one went up to the door seemed rather incredulous, she responded:

Tabitha at the time was also pregnant. With Jiona pregnant we assumed that two pregnant women would be able to talk it out and nothing would happen due to the fact they were pregnant. That would make it calm, everything would be settled. There would be nothing to worry about, no problems further, and hopefully end the situation that night. Which didn't happen that way.

Trial Court Opinion, 5/30/13, at 2-5 (citations to notes of testimony omitted).

Appellant was arrested and charged with various crimes. Following a non-jury trial on February 23, 2012, Appellant was convicted of terroristic threats and three counts of simple assault. On September 7, 2012, the trial court sentenced Appellant to 3 to 23 months of imprisonment for terroristic threats, a concurrent 2 years of probation for one count of simple assault, and a consecutive 1 year of probation on each of the remaining counts of simple assault.

Appellant filed a notice of appeal. The trial court directed Appellant to comply with Pa.R.A.P. 1925(b). On November 14, 2012, Appellant filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, requesting permission to supplement the Pa.R.A.P. 1925(b) statement once the notes of testimony were transcribed. On January 3, 2013, the trial court granted Appellant's request to file a supplemental concise statement of errors complained of on appeal, and Appellant did so. On May 30, 2013, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises a single issue for our review:


Appellant's Brief at 3.

Appellant argues that the evidence was insufficient to support his convictions. Appellant's Brief at 7-13. When reviewing a challenge to the sufficiency of the evidence, we are bound by the following:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012).

Appellant was found guilty of terroristic threats and simple assault. Pursuant to 18 Pa.C.S.A. § 2706(a)(1), "[a] person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another." Simple assault is defined as follows:

(a) Offense defined.--A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon;
(3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.

18 Pa.C.S.A. § 2701.

Here, the trial court found the evidence sufficient to support Appellant's convictions. With regard to Appellant's conviction for terroristic threats, the trial court explained that "[Appellant's] pushing, verbal haranguing, and use of the gun and his foot ... directly communicated to his victims an intent to cause them to flee out of fear for their safety." Trial Court Opinion, 5/30/13, at 12. With regard to Appellant's simple assault convictions, the trial court reasoned that Appellant displaying his gun and saying "don't make me use it" were sufficient to sustain Appellant's simple assault convictions as to the victims Tia, Jiona, and Amber, explaining that by "simply communicating the threats to use the gun in such a manner with the obvious intention to cause fear is all that is required." Id. at 14.

Viewing the record in the light most favorable to the Commonwealth as the verdict winner, we conclude that the evidence admitted at trial supports Appellant's convictions beyond a reasonable doubt. Jiona Ferguson testified that when she knocked on the door of Masterson's house, Appellant answered, and thereafter pushed her, and began to argue with her. N.T., 2/23/12, at 45. She then saw Masterson hit Tia Kelly with a hammer. Id. at 47. When Ms. Ferguson attempted to retreat to her car, Appellant lifted up his shirt and showed her a gun in his waistband and said "I got that heat, don't make me use it." Id. at 49-50. When she entered the car, Appellant kicked at one of the windows. Id. This testimony was corroborated by Amber Christiansen, who also testified that she saw Appellant display a gun in his waistband and say "don't make [me] use it, " and that she saw Appellant kick one of the car windows. Id. at 68. We agree with the trial court that this evidence was sufficient to demonstrate that Appellant attempted by physical menace to put others in fear of imminent serious bodily injury to support his simple assault conviction under 18 Pa.C.S.A. § 2701(a)(3). In addition, the foregoing evidence was sufficient to demonstrate that Appellant "communicated, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize others" to support his conviction for terroristic threats at 18 Pa.C.S.A. § 2706(a)(1).

Although Appellant at trial provided a different account of events, testifying that he was not the aggressor, and denying that he had a gun, the trial court, in an exercise of its discretion, credited the testimony of the victims. See Commonwealth v. Knox, 50 A.3d 749, 754 (Pa.Super. 2012) ("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."). We will not disturb the trial court's credibility determinations on appeal.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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