from the Judgment of Sentence June 29, 2015 In the Court of
Common Pleas of Philadelphia County Criminal Division at
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. [*]
Martinez ("Appellant") appeals from the judgment of
sentence entered in the Court of Common Pleas of Philadelphia
County, which sitting as finder of fact in his waiver trial
found him guilty of robbery, persons not to possess a
firearm, carrying a firearm without a license, theft by
unlawful taking, theft by receiving stolen property,
possession of an instrument of crime, carrying a firearm on
public streets of Philadelphia, simple assault, recklessly
endangering another person, and terroristic threats.
Appellant contends that the Commonwealth introduced
insufficient evidence to support his terroristic threats
conviction and that the court imposed an illegal sentence by
imposing separate sentences for the crimes of robbery,
terroristic threats, simple assault, and recklessly
endangering another person. We affirm in part and reverse in
trial court aptly provides a pertinent factual history of the
case as follows:
On August 8, 2014, at approximately 8:55 p.m., complainant
and his friend[, who were on their way home to Bucks County
from a contracting job, decided to stop at a] pizza
restaurant located at the corner of Orthodox and Torresdale
Streets in Philadelphia, PA. N.T., 2/24/15 at 19. Because the
restaurant did not have a public restroom, complainant left
the pizza restaurant and walked across the street to find a
private location to relieve himself. Id. at 20.
Complainant stopped in an alley next to a corner store
located at 2033 Orthodox Street…. Id. at 19,
Appellant approached complainant and asked [him] if he needed
anything. Id. at 21. Complainant told appellant that
he did not need anything from appellant and that he was in
the alley "just looking for a place to go to the
bathroom." Id. Appellant then asked
complainant, "what do you got?" Id. at 22.
Complainant told appellant that he "did not have
anything." Id. At that moment, appellant pulled
out a silver revolver and pressed it against
complainant's cheek. Id. at 21-22. Appellant
them slammed complainant against the hood of a nearby motor
vehicle and rummaged through complainant's pockets.
Id. at 22. Appellant took fifty dollars ($50) and a
cellular phone from complainant and ran away. Id. at
Trial Court Opinion, filed 2/10/16, at 3-4.
that evening, police arrested Appellant and found him in
possession of complainant's cell phone during a search
incident to arrest, but they found neither complainant's
money nor a handgun on either his person or at his residence.
Id. at 33, 35, 37, 86. A February 4, 2015, bench
trial resulted in convictions on all counts relating to
Appellant's attack of complainant, and the court
subsequently sentenced Appellant to a six to twelve year
period of incarceration for robbery to which the following
concurrent sentences were also imposed: four to eight years
for possession of a firearm prohibited; two to four years for
firearms not to be carried without license; nine to eighteen
months for carrying firearms in public in Philadelphia; one
to two years for possession of an instrument of crime; one to
two years for terroristic threats; one to two years for
simple assault; and one to two years for the reckless
endangerment of another person. This timely appeal followed.
Appellant presents the following two questions for our
1. Was not the evidence insufficient to support
appellant's conviction for terroristic threats where no
verbal threats were uttered by appellant?
2. Did not the trial court err by imposing separate sentences
for the crimes of robbery, terroristic threats, simple
assault and recklessly endangering another person, where the
latter three offenses each merged with robbery for purposes
of sentencing, thereby resulting in an illegal sentence that
must be vacated?
Appellant's brief at 3.
first issue, Appellant argues a conviction for terroristic
threats may not be sustained solely on evidence that he
uttered the question "what do you got?" moments
before pointing a gun at complainant and robbing him. The
statute requires the communication of a threat to commit a
crime of violence with intent to terrorize, Appellant
maintains, and the evidence at bar was devoid of any such
communication. We disagree.
presented with a challenge to the sufficiency of the
evidence, this court's well-settled standard of review is
In reviewing the sufficiency of the evidence, we must
determine whether the evidence, and all reasonable inferences
deducible therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, are sufficient to
establish all of the elements of the offenses beyond a
In re L.A., 853 A.2d 388, 391 (Pa.Super. 2004)
crime of terroristic threats is committed when a 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). An express or
specific threat is not necessary to sustain a conviction for
terroristic threats. Commonwealth v. Reynolds, 835
A.2d 720 (Pa.Super. 2003). Consequently, "[i]t is
unnecessary for an individual 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." Commonwealth v.
Sinnott, 976 A.2d 1184, 1187-188 (Pa.Super. 2009)
(quotations and citations omitted), aff'd in part and
rev'd in part, 30 A.3d 1105 (Pa. 2011).
harm sought to be prevented by the statute is the
psychological distress that follows from an invasion of
another's sense of personal security[, ]" In re
B.R., 732 A.2d 633, 636 (Pa.Super. 1999). Nevertheless,
whether the person threatened actually believes the threat
will be carried out is irrelevant, as such a factor is not an
element of the offense." Commonwealth v.
Reynolds, 835 A.2d 720, 730 (Pa.Super. 2003) (citation
complainant provided the following pertinent testimony about
his encounter with Appellant:
PROSECUTOR: Approximately how far away was
the defendant from you when you were having this
COMPLAINANT: No more than three feet.
Q: And you indicated that he came up and
asked you what you needed?
A: Yes, ma'am.
Q: Did you know what he was talking about?
A: I had an idea of what he was talking
about but it wasn't my purpose so I just said nothing.
I'm just looking for a place ...