J-A13008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GREGORY EDWARDS

Appellant No. 158 EDA 2016

Appeal from the Judgment of Sentence November 30, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002593-2015

BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 23, 2017

Gregory Edwards appeals from the judgment of sentence, entered in 

the Court of Common Pleas of Philadelphia County, after he was convicted in 

a nonjury trial of retail theft,1 simple assault,2reckless endangerment 

(“REAP”),3terroristic threats4 and possession of an instrument of crime 

(“PIC”).5 Upon careful review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3929(a)(1).

2 18 Pa.C.S.A. § 2701(a).

3 18 Pa.C.S.A. § 2705.

4 18 Pa.C.S.A. § 2706(a)(1).

5 18 Pa.C.S.A. § 907(a).
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The trial court set forth the facts of this case as follows:

On January 25, 2014, at about 2:45 p.m., James Tchokogoue 

was working at a CVS store located at 2400 Aramingo Avenue in 

Philadelphia as a loss prevention agent when he saw [Edwards] 

pick up two [Nicorettes], a smoking cessation product, and 

conceal them inside his coat. [Edwards] then walked past the 

checkout aisles and was about to leave the store when Mr. 

Tchokogoue approached [him] and told him that he had to come 

with him. [Edwards] refused to return the items he took and to 

come back into the store. 

The manager of the store approached soon thereafter and said 

that he was calling 911 at which time [Edwards] said, “Don’t 

touch me,” and that he had HIV and a needle. [Edwards] then 

crouched down in an aggressive stance and put his arms up. 

The manager grabbed [Edwards’] arm and both men began 

pushing and shoving one another. Fearing for the manager’s 

life, Mr. Tchokogoue grabbed [Edwards] and took him to the 

ground where[,] with the help of the store’s assistant manager, 

Mr. Tchokogoue managed to keep [Edwards] under control. 

While on the ground, [Edwards] said in a threatening manner 

that he had a knife up his sleeve as he attempted to get back on 

his feet. Mr. Tchokogoue observed that [Edwards’] left arm was 

hidden under his body so he grabbed [Edwards’] arm and 

removed a knife from his left jacket sleeve and tossed it to the 

side. The police arrived shortly thereafter and took [Edwards] 

into custody.

Trial Court Opinion, 6/2/16, at 2 (citations to record omitted).

On September 8, 2015, the Honorable Daniel D. McCaffery found 

Edwards guilty of the above offenses and, on November 30, 2015, sentenced 

him to an aggregate term of 111⁄2 to 23 months’ incarceration followed by 

five months of probation. Edwards filed a motion for reconsideration of 

sentence, which was denied. This timely appeal follows, in which Edwards 
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challenges the sufficiency of the evidence as to all of his convictions except 

for retail theft. 

 We are guided by the following standard of review when presented 

with a challenge to the sufficiency of the evidence:

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable 

to the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it 

establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. 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. 

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. Accordingly, the fact that the evidence 

establishing a defendant’s participation in a crime is 

circumstantial does not preclude a conviction where the evidence 

coupled with the reasonable inferences drawn therefrom 

overcomes the presumption of innocence. Significantly, we may 

not substitute our judgment for that of the fact finder; thus, so 

long as the evidence adduced, accepted in the light most 

favorable to the Commonwealth, demonstrates the respective 

elements of a defendant’s crimes beyond a reasonable doubt, 

the appellant’s convictions will be upheld. 

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013), 

quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013) 

(citations and quotation marks omitted).

Edwards challenges his convictions for simple assault, REAP, terroristic 

threats, and PIC. Simple assault is defined, in relevant part, as follows:
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(a) Offense defined.-- Except as provided under section 2702 

(relating to aggravated assault), a person is guilty of assault if 

he:

(1) attempts to cause or intentionally, knowingly or recklessly 

causes bodily injury to another; [or]

. . .

(3) attempts by physical menace to put another in fear of 

imminent serious bodily injury[.] 

18 Pa.C.S.A. § 2701(a)(1). In the context of an assault, an attempt is 

established when “the accused intentionally acts in a manner which 

constitutes a substantial or significant step toward perpetrating serious 

bodily injury upon another.” Commonwealth v. Lopez, 654 A.2d 1150, 

1154 (Pa. Super. 1995) (citations omitted). 

Edwards argues that the Commonwealth presented no evidence of 

either actual bodily injury or an attempt to cause bodily injury. Rather, he 

asserts that he “simply resisted being dragged away or being brought to the 

ground,” which is insufficient to prove an attempt to cause bodily injury. 

Edwards cites to this Court’s decision in Commonwealth v. Wertelet, 696 

A.2d 206 (Pa. Super. 1997), in which we held that the physical acts of 

resistance by the defendant while being placed under arrest did not rise to 

the level of an aggravated assault of a police officer under section 

2702(a)(3). Edwards’ reliance on Wertelet is inapt. There, the defendant 

kicked an officer in the shin while resisting arrest. The Court concluded the 

resulting impact on the officer did not rise to the level of “bodily injury” as 

contemplated by section 2703 because it did not amount to a “physical 
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event unlike those commonly occurring in normal life which, although 

unpleasant and somewhat painful, do not seriously interrupt one’s daily life.” 

Id. at 210. Conversely, here, Edwards was – by his own admission – in 

possession of a knife, which the evidence shows he was attempting to 

retrieve from his sleeve.6 In addition, while he was engaged in a physical 

struggle with the store manager, Edwards stated that he was HIV positive 

and was in possession of a needle, and told store employees “don’t touch 

me.” N.T. Trial, 9/18/15, at 22. This evidence was sufficient to 

____________________________________________

6 The store’s loss prevention officer, James Tchokogoue, testified as follows:

Q: Okay. When the defendant – after the defendant . . . began 

struggling with the manager, what, if anything, were you doing 

at that particular time?

A: Well, at that time, I saw them fighting, so I decided I was in 

fear for the store manager’s life, so I took control of him and I 

put him down to the ground.

Then me – and the assistant manager came over and we 

restrained him to the ground. At that point, the defendant said 

that he had a knife coming out of his sleeve. He said it in a 

threatening manner. He started trying to push up from the 

ground, but we kept him down there. 

. . .

Q: Okay. And what is the defendant doing as you have him 

held down with your knee?

A: He’s – his left arm is going underneath his – on his chest so 

he’s leaning on his left arm. I assumed that was the arm that 

had the knife in, so I was in fear of my life even more.

N.T. Trial, 9/18/15, at 23-24.
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demonstrate that Edwards either attempted to cause bodily injury or 

attempted by physical menace to put another in fear of imminent serious 

bodily injury. See Commonwealth v. Hudgens, 582 A.2d 1352, 1357 (Pa. 

Super. 1990) (sustaining conviction for simple assault where defendant 

verbally threatened to get victim, wielded sword in close proximity to 

victim’s body, and victim was visibly frightened). Accordingly, the trial court 

did not err in finding Edwards guilty of simple assault. 

Edwards also challenges his conviction for REAP. A person commits 

the offense of REAP if he “recklessly engages in conduct which places or may 

place another person in danger of death or serious bodily injury.” 18 

Pa.C.S.A. § 2705. A person acts recklessly when he: 

consciously disregards a substantial and unjustifiable risk that 

the material element exists or will result from his conduct. The 

risk must be of such a nature and degree that, considering the 

nature and intent of the actor’s conduct and the circumstances 

known to him, its disregard involves a gross deviation from the 

standard of conduct that a reasonable person would observe in 

the actor’s situation.

18 Pa.C.S.A. § 302(b)(3). To sustain a conviction for REAP, “the 

Commonwealth must prove that the defendant had an actual present ability 

to inflict harm and not merely the apparent ability to do so. Danger, not 

merely the apprehension of danger, must be created.” Commonwealth v. 

Cianci, 130 A.3d 780, 782 (Pa. Super. 2015), quoting Commonwealth v. 

Hopkins, 747 A.2d 910, 915 (Pa. Super. 2000) (internal citation omitted). 

However, the defendant’s conduct need not result in actual injury. See, 

e.g., Commonwealth v. Rahman, 75 A.3d 497, 502-03 (Pa. Super. 2013) 
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(REAP conviction sustained where defendant threw punches at officer on 

crowded balcony stairwell next to glass divide, which actions “easily could 

have caused [the officer] to lose his footing and fall down the stairs near the 

edge of the fourth floor balcony.”). 

Edwards argues that “none of the evidence at trial shows any conduct 

that put any person in danger of serious bodily injury or death,” and that he 

merely “resisted and passively struggled while being detained.” Brief of 

Appellant, at 10. He further asserts that merely carrying a concealed knife, 

while never brandishing or using it, does not amount to reckless 

endangerment. We disagree.

Viewed in the light most favorable to the Commonwealth as verdict 

winner, Franklin, supra, we find the evidence sufficient to support a verdict 

of guilty as to the charge of REAP. After taking an “aggressive stance” 

toward store employees, an “agitated” Edwards engaged in a pushing and 

shoving match with the store’s manager, all while concealing a knife in his 

left shirt sleeve. N.T. Trial, 9/18/15, at 21-22. When the employees 

managed to restrain him on the ground, Edwards announced that he 

possessed a knife and began trying to push himself up with his left arm, 

where he was concealing the knife. Id. at 22-23. By the time James 

Tchokogoue saw and was able to grab the knife, it was sticking out of 

Edwards’ left shirt sleeve. Id. at 24. Had Tchokogoue not seen and been 

able to dispose of the knife, Edwards’ conduct could have resulted in serious 

injury to either of the employees who were in close proximity to him, 
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attempting to subdue him. See Rahman, supra; Commonwealth v. 

Mitchell, 554 A.2d 542 (Pa. Super. 1989) (REAP proven where, during 

struggle, defendant unsnapped officer’s holster so that gun could easily be 

removed; Court found “[t]here was the very strong possibility that the 

revolver could discharge, injuring [the officer]”). 

Next, Edwards challenges his conviction for terroristic threats. A 

person commits the crime of terroristic threats he “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). In order to 

sustain a conviction under this section, 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. Commonwealth v. 

Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009); Commonwealth v. 

Tizer, 684 A.2d 597, 600 (Pa. Super. 1996). 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. Martinez, 153 A.3d 1025, 1028 (Pa. Super. 2016), 

quoting Commonwealth v. Sinnott, 976 A.2d 1184, 1187–88 (Pa. Super. 
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2009), aff'd in part and rev'd in part, 30 A.3d 1105 (Pa. 2011). Moreover, 

“[n]either the ability to carry out the threat, nor a belief by the person 

threatened that the threat will be carried out, is an element of the offense.” 

Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003), 

quoting In re J.H., 797 A.2d 260, 262 (Pa. Super. 2002). Rather, “the 

harm sought to be prevented by the statute is the psychological distress that 

follows from an invasion of another’s sense of personal security[.]” 

Commonwealth v. Martinez, 153 A.3d 1025, 1029 (Pa. Super. 2016), 

quoting In re B.R., 732 A.2d 633, 636 (Pa. Super. 1999). 

Here, Edwards claims that “the only thing that could possibly be 

construed as a threat . . . was his statement about being HIV positive and 

possessing needles.” Brief of Appellant, at 13. He asserts that this 

statement arose in the heat of the moment and did not contain any explicit 

threats. In support of his argument, Edwards cites to a line of cases holding 

that spur-of-the-moment threats resulting from transitory anger, made 

without settled purpose to terrorize, do not constitute terroristic threats as 

contemplated by the statute. See Brief of Appellant, at 13, citing 

Commonwealth v. Anneski, 525 A.2d 373 (Pa. Super. 1987) (terroristic 

threats conviction reversed on weight of evidence claim where defendant 

spoke in anger, in heated argument, believing her child had been struck by 

complainant’s automobile, because she feared for future safety of her 

children; exchange of threats made during heated, perhaps hysterical, 

argument between neighbors not type of conduct criminalized by section 
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2706); Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. 1982) 

(terroristic threats conviction reversed where agitated, angry and inebriated 

defendant repeatedly shouted obscenities and generally screamed and 

shouted at officers, threatening he was going to kill them, machine gun 

them, if given chance; Court concluded conduct expressed transitory anger 

rather than settled purpose to carry out threat or terrorize officers); 

Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super. 1979) (conviction 

for terroristic threats reversed where defendant uttered one threat over 

telephone in agitated and angry state, with no evidence demonstrating 

intention of carrying threat out threat, and second threat was emotional 

product of chance meeting with sheriff that became “mouth battle,” with 

similarly no evidence of intent to carry out threat); 18 Pa.C.S.A. § 2706, 

comment (“purpose [of statute] is to impose criminal liability on persons 

who make threats which seriously impair personal security or public 

convenience. It is not intended . . . to penalize mere spur-of-the-moment 

threats which result from anger.”). Under the facts of this case, we find 

Edwards’ argument unavailing.

Here, when Edwards was first approached by the store employees, he 

told them that he had HIV and was in possession of a needle. Based upon 

the totality of the circumstances present at the time, Martinez, supra, the 

finder of fact could reasonably have inferred that Edwards was threatening 

the employees with HIV infection in an attempt to terrorize them, thus 

enabling him to escape. When the employees did not let him go, Edwards 
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told them that he was armed with a knife. Again, the finder of fact could 

reasonably have found this statement to be a threat intended to terrorize 

the employees into letting him go. Accordingly, Edwards is entitled to no 

relief.

Finally, Edwards challenges his conviction for PIC. A person commits 

the offense of PIC if he “possesses any instrument of crime with intent to 

employ it criminally.” 18 Pa.C.S.A. § 907(a). An “instrument of crime” is 

defined as “[a]nything specially made or specially adapted for criminal use” 

or “[a]nything used for criminal purposes and possessed by the actor under 

circumstances not manifestly appropriate for lawful uses it may have.” 18 

Pa.C.S.A. § 907(d). An “actor’s criminal purpose provides the touchstone of 

his liability for possessing an instrument of crime. Such purpose may be 

inferred from the circumstances surrounding the possession.” In re A.V., 

48 A.3d 1251, 1253 (Pa. Super. 2012), quoting Commonwealth v. 

Andrews, 768 A.2d 309, 317–18 (Pa. 2001). 

Edwards claims that, while he did possess a knife, the evidence does 

not show that he intended to use it criminally. As this Court has repeatedly 

held that mere possession of a weapon is insufficient to support a conviction 

for PIC, he asserts that his conviction should be reversed. We disagree.

Here, Edwards was in possession of a knife, concealed in his sleeve 

where it would be readily accessible, while he committed retail theft. Based 

on these facts alone, the finder of fact could reasonably infer that Edwards 

brought the weapon to assist him either in committing the theft or in fleeing 
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in the event he was detected. Indeed, when Edwards was ultimately 

confronted by store employees, he did just that by stating that he had a 

knife in an effort to free himself from being further detained by them. 

Edwards relies on Commonwealth v. Moore, 393 A.2d 967 (Pa. 

Super. 1978), and Commonwealth v. Hall, 450 A.2d 1018 (Pa. Super. 

1982), which he claims are “directly on point.” They are not. In both of 

those cases, juveniles were adjudicated delinquent for PIC for simply 

possessing knives, with no evidence supporting even an inference of intent 

to employ the weapons criminally. In both of those cases, this Court 

properly held that mere possession of a weapon, even under circumstances 

in which the possession of the weapon is not manifestly appropriate for 

lawful use, does not relieve the Commonwealth of its burden of proving 

intent to employ it in a criminal manner. Conversely, here, the 

Commonwealth presented evidence from which the finder of fact could have 

inferred Edwards intended to use the knife for criminal purposes, i.e., to 

assist him in committing retail theft. In re A.V., supra. Accordingly, he is 

entitled to no relief. 

Judgment of sentence affirmed.

Judge Ott joins this Memorandum.

Justice Fitzgerald files a Concurring and Dissenting Statement.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/23/2017