J-S47009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

ERIC THEADY BANKS

Appellant No. 200 MDA 2020

Appeal from the Judgment of Sentence January 30, 2019

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0001361-2018

BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED DECEMBER 29, 2020

Appellant, Eric Theady Banks, appeals from his judgment of sentence of 

121⁄2—25 years’ imprisonment for simple assault, persons not to carry firearms 

and carrying a firearm without a license.1 We affirm.

The trial court accurately summarized the evidence as follows:

The events occurred at a private residence [address omitted] at 

approximately 10:30 p.m. on November 18, 2017. A sizable 

group of family and friends had gathered at the residence due to 

the family receiving news that an aunt had been diagnosed with 

terminal cancer. Between 10:30 p.m. and 11:00 p.m., Appellant 

arrived at the residence and began to argue with his then girlfriend 

[name omitted]. At this point the victim, [L.T.], told Appellant to 

leave because there were several children present. In response, 

Appellant opened his coat and flashed [L.T.] a gun under the coat. 

He did this three or four times. [L.T.] testified that she was not 

initially afraid because Appellant was known to her from a 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2701, 6105 and 6106, respectively.
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previous relationship years earlier. However, when the children 

ran toward the scene, she realized the potential danger of the 

situation and immediately began to fear an imminent threat 

Appellant posed to her and her family. At that point the women 

of the household, including [the then girlfriend and L.T.], managed 

to get him to leave the house. Shortly thereafter, multiple people 

reported hearing gunshots immediately after Appellant left the 

house and before he drove away. Three shell casings were found 

on the ground approximately one block away from the residence.

Trial Court Opinion, 4/21/20, at 1-2 (record citations omitted).

On November 7, 2018, the case proceeded to a jury trial. At the close 

of evidence, the parties stipulated that Appellant did not have a concealed 

carry permit and was not permitted to carry a firearm. On November 8, 2018, 

the jury found Appellant guilty of simple assault, persons not to possess 

firearms and carrying a firearm without a license. The jury acquitted Appellant 

of reckless endangerment. 

On January 30, 2019, the court imposed the following consecutive 

sentences: 8—16 years’ imprisonment for persons not to possess firearms, 

31⁄2—7 years’ imprisonment for carrying firearms without a license, and 1—2 

years’ imprisonment for simple assault. Appellant filed timely post-sentence 

motions, which the court denied, and a timely notice of appeal. Both Appellant 

and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues in this appeal, which we reorder for 

purposes of convenience:

I. Whether the Commonwealth failed to present sufficient 

evidence at trial to sustain the verdict of guilty on the charge [of] 

simple assault as the Commonwealth failed to produce any 
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evidence that [Appellant] attempted or intended to place the 

complainant in fear of imminent serious bodily injury? 

II. Whether the court erred as a matter of law in imposing 

consecutive sentences on the convictions for persons not to 

possess a firearm and carrying a firearm without a license as the 

offenses merge for sentencing purposes as each statute protects 

a substantially similar harm to the Commonwealth?

III. Whether the sentencing court abused its discretion by 

imposing an aggregate sentence of 121⁄2 to 25 years with each 

count running consecutive to one another which was clearly 

unreasonable and committed an error of law by failing to state 

sufficient reasons on the record and double counted factors in 

imposing sentences in the aggravated range and consecutively[?]

Appellant’s Brief at 6.

In his first argument, Appellant challenges the sufficiency of the 

evidence underlying his conviction for simple assault by claiming that the 

Commonwealth failed to adduce evidence that he placed the complainant in 

fear of imminent serious bodily injury. This argument is devoid of merit.

When addressing a challenge to the sufficiency of the evidence, this 

Court must “view the evidence in the light most favorable to the verdict winner

giving the prosecution the benefit of all reasonable inferences to be drawn 

from the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 

2000). The Commonwealth may sustain its burden by circumstantial evidence 

alone. Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa. Super. 2000).

To sustain a conviction for simple assault, the Commonwealth must 

prove that Appellant “attempted by physical menace to put another in fear of 

imminent serious bodily injury.” 18 Pa.C.S.A. § 2701(a)(3). The Crimes Code 
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defines “serious bodily injury” as “bodily injury which creates a substantial risk 

of death or which causes serious, permanent disfigurement, or protracted loss 

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. 

§ 2301. Verbal threats are not necessary to prove the element of physical 

menace. See, e.g., Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. 

Super. 2003) (pointing gun at another person can constitute simple assault 

by physical menace to put another in fear of imminent serious bodily injury).

Here, Appellant entered L.T.’s home and immediately began arguing 

with his girlfriend and others in the residence. N.T., Trial, 11/08/18, at 104, 

173-74. L.T. testified that when the arguing continued and she told Appellant 

he needed to leave, he responded by “flipping his coat open.” Id. at 105. It 

was at that point that she “saw a gun and freaked out.” Id. at 106. She 

immediately jumped to her feet and continued to tell Appellant he had to 

leave; others then began yelling at him to get out. Id. Appellant flipped his 

coat open “three or four times” while telling her and the others present that 

they could call whomever they wanted to call; it was her belief this was in 

reference to people involved in the previous dispute that initiated the 

argument between Appellant and his girlfriend. Id. at 107-08. While L.T. 

stated that she did not feel threatened at first, she felt threatened enough 

when he “kept doing it” that she made all the children retreat upstairs. Id. at 

108-09. Although Appellant did not explicitly threaten to shoot or injure 

anyone, his argumentative and angry demeanor, combined with his repeated 
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displays of his firearm, clearly constituted an attempt by menace to place 

another in fear of imminent serious bodily injury. Accordingly, we conclude 

the evidence was sufficient to support Appellant’s conviction for simple 

assault.

Next, Appellant argues that the trial court erred by imposing consecutive 

sentences for persons not to possess a firearm and carrying a firearm without 

a license because these offenses merged for sentencing purposes. We 

disagree. 

Whether Appellant's convictions merge for sentencing is a question 

implicating the legality of his sentence. Consequently, our standard of review 

is de novo and the scope of our review is plenary. Commonwealth v.

Bernard, 218 A.3d 935, 942 (Pa. Super. 2019). The Judiciary Code provides 

with regard to merger of sentences:

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the other 

offense. Where crimes merge for sentencing purposes, the court 

may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. Merger of offenses is appropriate where “(1) the crimes 

arise from a single criminal act; and (2) all of the statutory elements of one 

of the offenses are included in the statutory elements of the other offense.” 

Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa. Super. 2019). If both 

crimes require proof of at least one element that the other does not, then the 
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sentences do not merge.” Commonwealth v. Johnson, 874 A.2d 66, 70 

(Pa. Super. 2005).

The crime of carrying firearms without a license requires proof that 

Appellant carried a firearm in a vehicle or “concealed on or about his person, 

except in his place of abode or fixed place of business, without a valid lawfully 

issued license.” 18 Pa.C.S.A. § 6106(a)(1). The crime of persons not to carry 

firearms requires proof that Appellant is a person convicted of an enumerated 

offense, or whose conduct meets enumerated criteria, and that he possessed

a firearm. 18 Pa.C.S.A. § 6105(a)(1). Neither offense subsumes all of the 

elements of the other offense. Thus, they do not merge for purposes of 

sentencing. Commonwealth v. Williams, 980 A.2d 667, 673-74 (Pa. Super. 

2009) (sentences for persons not to carry firearms and carrying a firearm 

without a license did not merge under Section 9765, because person could 

violate persons not to carry firearms statute without violating statute 

prohibiting carrying firearm without license). 

Finally, Appellant argues that the trial court abused its discretion by 

imposing an aggregate sentence of 121⁄2—25 years’ imprisonment because it 

double-counted various factors in the course of imposing sentence. 

It is well-settled that “[t]he right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 

(Pa. Super. 2011). Instead, where, as here, an appellant challenges the 

discretionary aspects of sentence, this Court treats his appeal as a petition for 
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allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. 

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see 

Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate under 

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170. We evaluate on a case-by-case basis whether a particular issue 

constitutes a substantial question about the appropriateness of sentence. 

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

Appellant satisfies the first three requirements of this test, because he 

filed a timely appeal to this Court, preserved the issue on appeal through postsentence motions, and included a Pa.R.A.P. 2119(f) statement in his brief. 

Furthermore, his claim that the court double-counted various factors in 

imposing sentence raises a substantial question concerning the propriety of 

his sentence. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 

2000), (“double-counting” sentencing factor to justify the imposition of 

sentence where that factor is already accounted for by sentencing guidelines 

is abuse of discretion). Accordingly, we proceed to the substance of his 

argument.
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The trial court comprehensively explained its reasons for sentencing 

Appellant as follows:

Sentencing above the aggravated range requires the trial court to 

place its reasoning on the record to show that the court did not 

ignore or misapply the law, exercise its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrive at a manifestly 

unreasonable decision. See Commonwealth v. Matthews, 196 

A.3d 242, 251 (Pa. Super. 2018). The Pennsylvania Supreme 

Court made this clear when they stated that an abuse of discretion 

will only take place when the sentence is the “result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such 

lack of support so as to be clearly erroneous.” Commonwealth 

v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (Pa. 2007) (referencing 

Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893, 895 (Pa. 

1996)). The Superior Court stated that when imposing a 

sentence, “the sentencing court must consider the factors set out 

in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public,

gravity of offense in relation to impact on victim and community, 

and rehabilitative needs of the defendant. And, of course, the 

court must consider the sentencing guidelines.” Commonwealth 

v. Fullin, 892 A.2d 843, 847-48 (Pa. Super. 2006) (internal 

citations omitted). The applicable law in sentencing is found in 42 

Pa.C.S.A. § 9721(b), which requires that “[i]n every case where 

the court imposes a sentence or resentence outside the guidelines 

adopted by the Pennsylvania Commission on Sentencing . . . the 

court shall provide a contemporaneous written statement of the 

reason or reasons for the deviation from the guidelines to the 

commission.”

Furthermore, appellate courts accord the lower court’s reasoning 

great deference as the sentencing court is in the best position to 

view the defendant’s character, displays of remorse, defiance, 

indifference, and the overall effect and nature of the crime. 

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). 

A sentencing court’s ruling should be upheld unless the record 

reflects that the judgment exercised was manifestly unreasonable, 

or the result of partiality, prejudice, or ill will. Commonwealth 

v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010). 

The record in this case reflects that the sentencing court 

incorporated the recommendation of the sentencing guidelines, as 

well the protection of the public, the gravity of the offense, and 
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the rehabilitative potential of Appellant. At Appellant’s

sentencing, this Court stated that it had “considered the PSI, 

considered the arguments of counsel, presided over the trial, so I 

considered all the evidence that was presented at the trial, 

considered [Appellant’s] record.” N.T. Sentencing, 01/30/19, at 

6. The sentencing court listed the PSI guidelines for the standard 

and aggravated range sentences on the record. [Id.] at 5-6.

After taking account of the sentencing guidelines applied in 

Appellant’s case, this Court explained why Appellant lacks 

rehabilitative potential. Appellant was convicted of Person Not to 

Possess a Firearm, Carrying a Firearm without a License, and

Simple Assault. [H]is PSI indicated he also had an extensive prior 

record involving a pattern of similar crimes. These crimes were 

factored into Appellant’s prior record score, and were only used 

by this Court in weighing Appellant’s rehabilitative potential. 

Appellant has two prior counts of recklessly endangering another, 

two prior counts of aggravated assault, a prior simple assault, as 

well as a prior firearms not to be carried and person not to possess 

conviction, which places his prior record score at RFEL. 

Additionally, Appellant was sentenced outside the guidelines 

because sentencing guidelines do not capture the fact that 

Appellant continued to commit the same firearm and assaultive 

offenses again, a fact specifically probative of lack of remorse and 

rehabilitative potential in regard to being a man prone to 

committing violence. 

His history reveals Appellant will continue to engage in a pattern 

of violent acts and the use of firearms and is unlikely to reform his 

behavior. After Appellant was arrested on the charges in the 

present matter, he received write-ups for threatening prison staff 

and a separate fighting offense, both in June of 2018, while in 

prison. 

Additionally, Appellant received a write-up in July of 2018 for 

refusing an order of staff. Appellant’s history of violence, coupled 

with Appellant’s willful continuation of violence once incarcerated 

on these charges, demonstrates that Appellant is an ongoing

threat to community safety by committing violent and threatening 

acts, and shunning all rehabilitative efforts to stop such conduct.

Considering all of the above information the court found Appellant 

not to have rehabilitative potential from his violent and criminal

disposition, as well as to be lacking any remorse for his violent 
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history. These reasons were placed on the record. N.T. 

Sentencing, 01/30/2019 at 5-8. 

This Court also found that Appellant demonstrated a lack of 

remorse and rehabilitative potential through his incredible story 

of having himself been the victim of the shooting on the night in 

question. N.T. Sentencing, 01/30/2019 at 8-9; N.T. Trial,

11/08/2018, at 180-86. In his quasi-alibi, Appellant tried to pass 

the blame for his actions on to some other, unknown, bystander 

thereby attempting to mislead the police and the jury. This Court 

is not using these facts as evidence of another crime to increase

Appellant’s punishment, [since] he was never convicted for 

putting forth those falsehoods, but as a further demonstration of 

his lack of rehabilitative potential through his lack of remorse for 

his violent crimes. 

Beyond Appellant’s rehabilitative potential and the sentencing 

guidelines, this Court was required to address public protection 

and the impact of Appellant’s behavior on the victim and the 

community. Appellant’s reckless firing of the weapon while 

illegally possessing it was also considered, and found to be of 

great concern. N.T. Sentencing, 01/30/2019 at 9. By randomly 

firing it in the air as he left, he endangered everyone in the range 

of those randomly fired bullets in a highly populated urban area

where children were present. This type of senseless conduct is 

the very reason the legislature does not want unstable felons with 

poor judgment to possess firearms.

The case law supports sentencing above the aggravated range 

based on Appellant’s history. In Commonwealth v. Darden, the 

Superior Court explained that crimes not incorporated into a prior 

record score could be considered in sentencing, but stated, 

“Nevertheless, `[p]rior connections of whatever nature, with law 

enforcement authorities are unquestionably among the 

circumstances to be scrutinized’ in determining the appropriate 

sentence.” Commonwealth v. Darden, 531 A.2d 1144, 1149 

(Pa. Super. 1987) (quoting Commonwealth v. Lupatsky, 491 

A.2d 845, 847 (Pa. Super. 1985)). 

Our Supreme Court has stated that while incorporation of the 

sentencing guidelines is mandatory, they remain as guidelines and 

nothing more:
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It is well-established that the Sentencing Guidelines 

are purely advisory in nature. As this Court explained 

in Commonwealth v. Sessoms, 516 Pa. 365, 532 

A.2d 775, 780-81 (Pa. 1987), the Guidelines do not 

alter the legal rights or duties of the defendant, the 

prosecutor or the sentencing court. The guidelines 

are merely one factor among many that the court 

must consider in imposing a sentence. 

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007) 

(emphasis added). While there is an inherently fine line between 

the PSI’s incorporation of a defendant’s prior record and a

sentencing court’s consideration of this prior record to judge a 

defendant’s rehabilitative potential, this Court believes the statute 

is clear that both must be considered separately, and that 

collapsing the concepts together ignores its duty to sentence 

based on all of the information and evidence available. Prior 

record scores are an important objective numerical consideration, 

but not a replacement for the subjective nuances of sentencing

inherent in evaluating remorse and rehabilitative potential, which 

look forward, not backward, in assessing the likelihood of 

continued criminality. 

In light of Appellant’s threat to his community, his violent 

character, lack of remorse, and lack of rehabilitative potential, 

Appellant’s sentence was not manifestly unreasonable. Appellant 

refused all efforts at rehabilitation presented to him in his past

convictions. Appellant has a history of violence dating back to the 

late 1990s. Instead of looking to reform his behavior, he 

maintained his well-worn path to keep causing harm to society. 

Appellant has a violent mindset, and wishes to continue his ways

of interacting with others through violence. For these reasons he 

needs to be separated from society for a lengthy period of time, 

in excess of standard ranges where a defendant does have

rehabilitative potential, or even the aggravated range. His 

sentence is appropriate in light of the factors cited by the court.

Trial Court Opinion, 4/21/20, at 6-11 (minor stylistic revisions). We agree 

with the trial court’s thorough and thoughtful consideration of Appellant’s 

sentence and reject Appellant’s claim of double-counting. Appellant’s 

sentence is a proper exercise of the trial court’s discretion.
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For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge Strassburger joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2020