v.
Veasley, C.
J-S17028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CURTIS VEASLEY, Appellant No. 1162 WDA 2014
Appeal from the Judgment of Sentence Entered June 30, 2014, In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002731-2008
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 24, 2015
Curtis Veasley (“Appellant”) appeals from the judgment of sentence
entered on June 30, 2014, after a jury convicted him of burglary and terroristic threats, and the trial court convicted him of persons not to possess firearms. We affirm.
The trial court summarized the facts and procedural history of this case as follows:
The charges in this matter arose from an incident that occurred in the city of Lower Burrell, Westmoreland County, Pennsylvania, on December 16, 2007. Sixteen year-old Nick Ruffner, a high school student, was sleeping on the couch in the living room of his stepgrandparents[’] home that morning when ____________________________________________
* Former Justice specially assigned to the Superior Court.
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he was awakened by a loud banging on the front door. The front door suddenly “busted open,” and “a guy with a gun came in, started pointing it at me and demanding where my step-dad Sonny was.” (TT 88, 90). This individual told Nick to tell him where his step-father was, or he would “pop” him. (TT 90). Nick testified that he was familiar with firearms, and described the gun as being a shiny chrome or silver pistol. (TT 90-91). Nick further related that the man stated that he was looking for Sonny because he had his vehicle, and that he kept pointing the gun at his head. Nick testified that he felt like he was going to die on the couch that day. (TT 92-93, 103). Nick immediately reported the incident to his g[r]andmother and the police, and he later identified [Appellant] as the individual who came into the house with the gun demanding to know where “Sonny” was. (TT 135-136). He also identified [Appellant] at trial. (TT 95- 96).
Detective Scott Cardenas of the Lower Burrell Police Department testified that he responded to the Smith residence in Lower Burrell on December 16, 2007. (TT 122-123). He testified that he observed that the front door and door jam[b] were broken out as if the door had been forced. (TT 130-131). He interviewed Nick Ruffner and entered a description of the BOLO (be on the lookout) for an individual meeting the description provided to him. The next morning, Det. Cardenas was contacted by neighboring New Kensington Police Department and was advised that a person matching that description was looking for Sonny Smith in New Kensington, that a Kay Veasley had filed a report of a stolen vehicle, and that [Appellant] was Kay Veasley’s husband. Det. Cardenas then prepared a photo lineup that included [Appellant’s] photo, and Nick Ruffner later identified [Appellant] as the gun-wielding man who broke through the front door of his grandparents[’] house on the morning of December 16, 2007. (TT 133-136).
[Appellant’s] attorney suggested that, because [Appellant] believed that Sonny Smith had stolen his wife’s car several hours before he entered the Smith residence his entry into that residence was justified.[2] (TT 147-148). Defense counsel argued that [Appellant] was searching for Sonny Smith in an attempt to recover the vehicle, and that he had no intent to commit a crime in the Smith residence or to terrorize Nick Ruffner.
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Appellant’s first question challenges the trial court’s refusal to instruct the jury on the use of force in defense of property. “In reviewing a challenge to the trial court’s refusal to give a specific jury instruction, it is the function of this Court to determine whether the record supports the trial court’s decision.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257
(Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014) (quoting
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (citation and brackets omitted)). “It has long been the rule in this Commonwealth that a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial.” Id. at 1257 (citing
Commonwealth v. McCloskey, 656 A.2d 1369, 1374 (Pa. Super. 1995)
(citation omitted)).
Appellant requested a jury instruction based on 18 Pa.C.S. § 507, which reads, in relevant part, as follows:
(a) Use of force justifiable for protection of property.--The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:
* * *
(2) to effect an entry or reentry upon land or to retake tangible movable property, if:
(i) the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession; and
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(ii) (A) the force is used immediately or on fresh pursuit after such dispossession; or (B) the actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained.
* * *
(c) Limitations on justifiable use of force.--
(1) The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that:
(i) such request would be useless;
(ii) it would be dangerous to himself or another person to make the request; or (iii) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.
18 Pa.C.S. § 507 (emphasis in text supplied).
Appellant argues that a justification jury instruction was appropriate
because “he only entered the residence at issue to lawfully protect and retrieve his motor vehicle that had been stolen.” Appellant’s Brief at 4.
Contrarily, the Commonwealth argues, “It is clear from the language of § 507 that an immediate return is contemplated” and that “the immediacy and fresh pursuit had staled” in this case. Commonwealth’s Brief at 7 (citing
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Commonwealth v. Emler, 903 A.2d 1273 (Pa. Super. 2006) (instructing that there must be evidence of immediate necessity to recover property for jury instruction)).
Quoting section 507, the trial court disposed of Appellant’s challenge with the following analysis:
Other than the stipulation that a report had been made to the New Kensington Police by Kay Veasley regarding the theft of her motor vehicle, there was no evidence presented by [Appellant] that supported the defense of justification as it related to protection of property. Furthermore, [Appellant’s] actions were not taken immediately after the alleged theft of the motor vehicle by Sonny Smith. That incident was to have occurred at approximately 4:30 a.m. on December 16, 2007 in the City of New Kensington. [Appellant’s] entry into the Smith residence in the City of Lower Burrell occurred after day light on that same day, hours after the alleged theft of the motor vehicle. . . . Because there was no evidence presented at trial to support the defense of justification, it was not error to deny that requested instruction. It is also clear, however, that even had [Appellant] elected to take the stand and testify as to his version of events, the trial court did not err in determining that the proffered defense did not meet the criterial necessary to invoke 18 Pa.C.S. §507.
Trial Court Opinion, 9/23/14, at 10–11.
Our review of the record confirms support for the trial court’s refusal to instruct the jury on the justification defense. Buterbaugh, 91 A.3d at
1257. The fact that Appellant forcibly entered the Smith residence and threatened Nick Ruffner, a juvenile (“the victim”), four hours after the alleged theft of Appellant’s wife’s vehicle indicates he did not “believe[] force
[was] immediately necessary” to retake the stolen vehicle, nor did he use the force “immediately or on fresh pursuit” after the vehicle was stolen. 18
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Pa.C.S. § 507(a)(2)(ii)(A). Thus, we conclude that Appellant’s defense-of- property argument lacks merit.
Appellant’s second, third, and fourth questions challenge the sufficiency of the evidence supporting his convictions for burglary, terroristic threats, and persons not to possess firearms. We reiterate that:
when reviewing a challenge to the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, supports all of the elements of the offense beyond a reasonable doubt. In making this determination, we consider both direct and circumstantial evidence, cognizant that circumstantial evidence alone can be sufficient to prove every element of an offense. We may not substitute our own judgment for the jury’s, as it is the fact-finder’s province to weigh the evidence, determine the credibility of witnesses, and believe all, part, or none of the evidence submitted.
Commonwealth v. Sanchez, 82 A.2d 943, 972 (Pa. 2013) (internal citations omitted).
With regard to his burglary conviction, Appellant contends that the Commonwealth failed to prove the requisite element of intent to commit a crime. Appellant’s Brief at 8. The Commonwealth responds that intent can be inferred from “the totality of circumstances” and that it was not required to “specify which crime [Appellant] intended to commit upon entry.”
Commonwealth’s Brief at 9.
A person is guilty of burglary if he enters a building or occupied structure with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. 18
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Pa.C.S. § 3502(b)). “Thus, to prevail on a burglary charge, the Commonwealth is required to prove beyond a reasonable doubt that the offender entered the premises with the contemporaneous intent of committing a crime therein, at a time when he or she was not licensed or privileged to enter.” Sanchez, 82 A.2d at 972 (citation omitted). The trial court disposed of Appellant’s second claim of error with the following analysis: While [Appellant] did not challenge much of the evidence presented, he did maintain that the Commonwealth had failed to establish an essential element of the charge of Burglary, namely, that he entered the Smith residence with the intent to commit a crime therein. * * * “The specific intent to commit a crime necessary to establish the intent element of burglary may be found in a defendant’s words or conduct, or from the attendant circumstances together with all reasonable inferences therefrom.” Commonwealth v. Eck, 439 Pa.Super. 530, 540–541, 654 A.2d 1104, 1108–1109 (Pa.Super. 1995), citing Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980) and Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). Futher, the Commonwealth is not required to specify what crime a defendant, who is charged with burglary (or attempted burglary), was intending to commit. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981). Further, the Commonwealth need not prove the underlying crime to sustain a burglary conviction. Commonwealth v. Lease, 703 A.2d 506 (Pa.Super. 1997) (burglary conviction affirmed where defendant was acquitted of the underlying crimes of theft and receiving stolen property because the factfinder could have determined that the defendant entered the residence
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with the intent to steal but did not consummate the theft after entry.) See also, Commonwealth v. Alston, 539 Pa. 202, 651 A.2d 1092, 1095 (1994) (Commonwealth is not required to allege or prove what particular crime the defendant intended to commit after entry into a residence.
Commonwealth v. Brown, 886 A.2d 256, 260 (Pa.Super. 2005).
In this case, the Commonwealth did not specify what crime [Appellant] intended to commit in the Smith residence. It was only necessary that the Commonwealth prove beyond a reasonable doubt that he intended to commit some crime. Viewing the evidence in its entirety in a light most favorable to the Commonwealth as verdict winner, it is clear that the Commonwealth sustained its burden. [Appellant] suggested that Sonny Smith had stolen Kay Veasley’s car earlier that morning and that he had no criminal intent in entering the residence, but that he was merely trying to retrieve her property. The evidence presented at trial . . . and the reasonable inferences therefrom was sufficient to allow the jury to conclude beyond a reasonable doubt that [Appellant], who broke through the closed and locked front door of a private residence of a third party, brandishing a firearm, pointing it at the head of a juvenile who had been sleeping on a nearby couch, and demanding to see Sonny Smith, had the intent to commit a crime within that residence. The evidence was therefore sufficient to sustain the jury’s verdict of guilty as to the charge of burglary.
Trial Court Opinion, 9/23/14, at 3–5.
Upon review of the record, we discern no error in the trial court’s conclusion that the Commonwealth sustained its burden of proving beyond a reasonable doubt the intent element of burglary. The record indicates that
Sonny Smith allegedly stole Appellant’s wife’s vehicle at 4:30 in the morning
on December 16, 2007. Armed with a pistol, Appellant went to the home of Sonny Smith four hours later to recover the vehicle. Appellant forcibly broke J-S17028-15 into the home, brandished a pistol in front of the victim, pointed the weapon
[*9]at the victim’s head, threatened to “pop” him, and then left. The totality of these circumstances supports a reasonable inference, if believed by the jury, that Appellant entered Smith’s residence with intent to commit a crime therein. Exercising its prerogative as the fact finder, the jury chose to
accept this inference as true. We may not substitute our judgment for the jury’s. Sanchez, 82 A.2d at 972. Appellant’s first sufficiency challenge lacks merit.
Appellant’s second sufficiency attack is on the intent element of terroristic threats. “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[.]” 18 Pa.C.S.
§ 2706(a). Given this definition:
the Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror. The harm sought to be avoided is the psychological distress that follows an invasion of the victim’s sense of personal security. Consequently, neither the defendant’s ability to carry out the threat nor the victim’s belief that it will be carried out is an essential element of the crime. Moreover, it 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.
- 10 - J-S17028-15 Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009), reversed on other grounds, 30 A.3d 1105 (Pa. 2011) (internal quotation marks and citations omitted). According to Appellant, his remark to the victim, “don’t make me pop you,” was a spur-of-the-moment threat and not the proper basis for conviction. Appellant’s Brief at 8–9 (citing Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. 1982), and Commonwealth v. Anneski, 525 A.2d 373 (Pa. Super. 1987)). Distinguishing Appellant’s case authority, the Commonwealth points to the lack of evidence that Appellant and the victim were arguing before Appellant made the threat. The Commonwealth contends there was no evidence that Appellant’s actions were anything other than a threat of homicide or assault if the victim did not cooperate with locating Sonny Smith. Commonwealth’s Brief at 10. Upon consideration of the victim’s testimony, the trial court found Appellant’s claim unsustainable: The evidence presented at trial established that [Appellant] broke through the closed and locked front door of a private residence of a third party, brandished a firearm, pointed it at a juvenile who had been sleeping on a nearby couch, demanded to see Sonny Smith and, all the while pointing a handgun at the head of the juvenile, told [the victim], “Don’t make me pop you.” [The victim] testified that he thought that he was going to die that day. This evidence is clearly sufficient to support the verdict of guilty as to the charge of terroristic threats. Trial Court Opinion, 9/23/14, at 5–6 (citing Commonwealth v. Kane, 10 A.3d 327 (Pa. Super. 2010)). We agree. - 11 - J-S17028-15 With regard to Appellant’s assertion that he never intended to evoke terror, “we need only look to the language of the statute to discern that a defendant need not harbor the specific intent to terrorize his victim—the elements of the offense are established so long [as] the evidence shows even ‘reckless disregard’ for the risk of causing terror.” Sinnott, 976 A.2d at 1188 (citing 18 Pa.C.S. § 2706(a)(3)). Here, Appellant broke through the closed, locked door of a private residence where the victim was sleeping on a couch, approached the victim wielding a pistol, pointed the weapon at the victim’s head saying, “[T]ell[] me where your step-dad Sonny is or I’m going to pop you one.” N.T., 2/5/14, at 90. The victim recalled, “I felt like I was going to die on the couch that morning.” Id. at 93. Regardless of whether Appellant intended to place his victim in terror, the testimony establishes that the victim feared being shot and killed. Thus, Appellant’s conduct could and did violate the victim’s “sense of personal security.” Sinnott, 976 A.2d at 1188. Even if Appellant did not intend that result, his failure to recognize that conduct so extreme would provoke the victim’s obvious fear of injury or death can only be characterized as reckless disregard. Accordingly, we conclude the evidence was sufficient to establish Appellant’s intent and culpability under the “reckless disregard” standard of section 2706. Appellant’s assertion that his conduct consisted merely of “spur-of-the- moment threats” is also futile. We recognize that “[s]ection 2706 ‘was not designed to penalize spur-of-the-moment threats that arise out of anger in - 12 - J-S17028-15 the course of a dispute.’” Sinnott, 976 A.2d at 1189 (quoting Commonwealth v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super. 1990) (citing 18 Pa.C.S. § 2706, Official Comment)). “Nevertheless, ‘being angry does not render a person incapable of forming the intent to terrorize.’” Id. (quoting Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super. 2003)). Even if it did, we discern no support in the record for a conclusion that Appellant’s actions were, in fact, “spur-of-the-moment.” Indeed, the record establishes that Appellant waited four hours before he began searching for Sonny Smith, broke into the locked residence brandishing a weapon, threatened the victim, and then left. As we observed in Sinnott: Unlike those cases in which passions ignite in a quick and heated exchange of words over deeply emotional matters, see Anneski, 525 A.2d at 376 (finding evidence insufficient where defendant threatened to shoot victim in response to victim’s threat to run over defendant’s children with her car), the record here does not establish circumstances sufficient to negate the intent to terrorize suggested by [Appellant’s] . . . conduct. Sinnott, 976 A.2d at 1189. To the extent that Appellant had no legitimate quarrel with the victim who had been asleep on a couch, Appellant’s action of breaking into a locked private residence early in the morning, pointing a weapon at the victim’s head, and stating, “[T]ell[] me where your step-dad Sonny is or I’ll pop you one,” provides “a strong circumstantial inference that his intent fell squarely within the range prohibited by the statute.” Id. Thus, we conclude that Appellant’s second sufficiency challenge lacks merit. - 13 - J-S17028-15 We note Appellant’s passing argument that the terroristic-threat charge should be dismissed pursuant to 18 Pa.C.S. § 3502(d). Appellant’s Brief at 9. That statute provides that “[a] person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.” 18 Pa.C.S. § 3502(d). In disposing of this claim, we agree with the Commonwealth that “[t]he jury was free to find that any crime could have served as the basis for the burglary.” Commonwealth’s Brief at 11. Appellant arrived at the Smith residence armed with a pistol, searching for Sonny Smith, and determined to recover his wife’s stolen vehicle. Appellant’s conduct supports myriad reasonable inferences regarding what crime he intended to commit when he broke into the Smith residence. As the Commonwealth observed, “Given [Appellant’s] actions on the morning of December 16, 2007, the crimes could have ranged from homicide, assault, theft, terroristic threats, recklessly endangering another person, and so on.” Id. Thus, we reject Appellant’s argument that his burglary conviction should be dismissed. Appellant’s third sufficiency challenge is to the evidence sustaining his conviction by the trial court for persons not to possess firearms, 18 Pa.C.S. § 6105(c)(2). Appellant stipulated at trial—and concedes on appeal—that he qualifies as a person not to possess firearms given his prior drug conviction. - 14 - J-S17028-15 Appellant’s Brief at 10. He contends, however, that “there is no proof in this prosecution that he possessed an actual ‘firearm’ as required by that statute.” Id. In response, the Commonwealth asserts that, although “[n]o firearm was recovered or entered into evidence,” the victim’s testimony was sufficient to establish the only question for the jury: “whether [Appellant] was in possession of a firearm on the date of the incident.” Commonwealth’s Brief at 12 (citing Commonwealth v. Robinson, 817 A.2d 1153 (Pa. Super. 2003)). According to the trial court: [the victim] testified credibly that the weapon he saw in [Appellant’s] hand “was a pistol.” (TT 90). He also testified that he was familiar with guns, and he knew that it was real. (TT 91). He described the gun as being shiny, either silver or chrome. (TT 90). The term “Firearm” has been defined by our legislature as “any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.” 18 Pa.C.S.A. § 6102. As is often the case, the police did not recover a weapon from [Appellant], nor was the weapon left at the scene. However, [the victim] testified that he is familiar with firearms and he was sure that what he saw was a firearm. (TT 106). The special interrogatory posed to the jury,[1] which was phrased as requested by [Appellant], ____________________________________________ Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM Circulated 03/12/2015 09:21 AM
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