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.
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. Miller challenges
the sufficiency of the evidence supporting his aggravated
assault conviction. We affirm.
trial court aptly summarized the facts of this case as
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 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.
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 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.
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.
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
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.
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.
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 injury." Commonwealth v. Matthew, 909
A.2d 1254, 1257 (Pa. 2006)(citing Alexander, 383
A.2d at 889).
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 ...