J-A10012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRETT MCDOWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 884 EDA 2022

Appeal from the Judgment of Sentence Entered March 15, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005758-2021

COMMONWEALTH OF PENNSYLVANIA

v.

BRETT MCDOWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 922 EDA 2022

Appeal from the Judgment of Sentence Entered March 28, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005759-2021

BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JULY 06, 2023

Brett McDowell appeals from the judgment of sentence imposed 

following his convictions of two counts each of ethnic intimidation, aggravated 

assault, possessing instruments of crime, simple assault, and recklessly 

endangering another person, and one count each of theft of services and 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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disorderly conduct. McDowell argues that the evidence was insufficient to 

support his ethnic intimidation convictions; he should not have been convicted 

of two counts of possessing instruments of crimes because he possessed one 

knife during a single brief incident; and his ethnic intimidation sentences were 

illegal. We affirm the convictions, vacate the sentence, and remand for 

resentencing. 

On June 2, 2021, McDowell jumped a SEPTA turnstile at 15th and Market 

Street in Philadelphia without paying the $2.50 fare. Three SEPTA security 

guards, Tairi Profit, Jerry Corley, and Lakisha Jessie were standing nearby. 

The guards ordered McDowell to pay before proceeding. McDowell declined, 

saying he had no money and was not going to pay. McDowell then repeated a 

series of obscene language and racial slurs at the guards, including “[n-word], 

fuck you, [n-word].” Notably, McDowell is Caucasian, and the guards are 

African-American. 

Profit and Corley followed McDowell down the steps to the subway 

platform, and McDowell continued to unleash insults towards the guards. After 

reaching the subway platform, McDowell retrieved a seven-inch kitchen knife 

from his backpack and stated: “Yawl [n-words] ain’t fuckin’ me up today.” 

McDowell walked towards Profit and Corley, who then retreated.

Subsequently, police officers arrested McDowell, and the Commonwealth 

charged him with various crimes. 
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After waiving his right to a jury trial, the case proceeded to a bench trial 

before the Honorable Charles Ehrlich. Profit, McDowell, and the arresting 

officer testified at the bench trial. Following trial, Judge Ehrlich found McDowell 

guilty of the aforementioned crimes. Thereafter, Judge Ehrlich sentenced 

McDowell to 2 to 4 years in prison, followed by 5 years of probation on each 

of two counts of aggravated assault and two counts of ethnic intimidation, 

with the sentences to be served concurrently. The trial court imposed no 

further penalty on the remaining convictions. McDowell timely appealed.

On appeal, McDowell raises the following questions for our review:

1. Was it an error of law for the trial court to convict and sentence 

[] McDowell of two counts of possession of an instrument of 

crime (PIC) where the evidence showed he possessed the knife 

once during a single brief incident when the two complainants 

stood side by side?

2. Was the evidence insufficient to prove ethnic intimidation 

where the motivation for the underlying act was not ethnic or 

racial hatred but simply the desire to escape security guards 

chasing him?

3. Was it an error of law for the trial court to sentence [] McDowell 

to two concurrent terms of two to four years incarceration plus 

five years probation for two counts of ethnic intimidation, a 

felony of the third degree?

Appellant’s Brief at 5.

In his first claim, McDowell contends that he should not have been 

convicted of or sentenced on two counts of possessing instruments of crime 

“where he possessed one knife one time in a single brief incident where he 

held it while approaching two security guards who were standing next to each 
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other.” Id. at 11. McDowell insists that “[w]here a weapon is held in a single 

criminal event, the crime of possession of an instrument of crime occurs only 

once, regardless of the number of persons present.” Id.; see also id. at 13 

(rejecting the trial court’s focus on the fact that there were two dockets with 

two complaining witnesses, arguing that the number of dockets is not relevant 

and that “only where there are two distinct acts involving possession of the

weapon each time, in separate places at different times, can there be two 

convictions.”). McDowell highlights that the statutory language of 18 Pa.C.S.A. 

§ 907(a) states that to obtain a conviction, the Commonwealth must prove

that a person possessed a weapon with the intent to criminally employ it, and 

argues the evidence established that he brandished the knife one time. See 

id. at 12-14. McDowell concludes that he should only have been convicted and 

sentenced on one count of possessing instruments of crime. See id. at 14.

For the purpose of determining whether the Commonwealth can charge 

a single offense in separate counts, we must determine what the General 

Assembly has defined as the allowable unit of prosecution for a violation of 

Section 907. See Commonwealth v. Satterfield, 255 A.3d 438, 445 (Pa. 

2021). “The unit of prosecution is the actus reus that the General Assembly 

intended to punish. Put otherwise, the unit of prosecution is the minimum 

conduct that must be proven to obtain a conviction for the statute in question.” 

Id. at 445-46. “To determine the correct unit of prosecution, the inquiry 

should focus on whether separate and distinct prohibited acts ... have been 
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committed.” Id. at 446 (citation and brackets omitted). The resolution of this 

issue is “intertwined with the sufficiency of the evidence.” Commonwealth 

v. Andrews, 768 A.2d 309, 313 (Pa. 2001).

Our standard of review for sufficiency claims is as follows:

The standard we apply 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. In applying the 

above test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. In addition, we note that the facts 

and circumstances established by the Commonwealth need not

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence. Moreover, in applying 

the above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the trier 

of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none 

of the evidence.

Commonwealth v. Edwards, 229 A.3d 298, 305-06 (Pa. Super. 2020) 

(citation, brackets, and ellipses omitted).

To sustain a conviction for possession of an instrument of crime, the

Commonwealth must prove that the defendant (1) possessed an instrument 

of crime, (2) with the intent to employ it criminally. See 18 Pa.C.S.A. 

§ 907(a). Based upon the plain language of the statute, “it is the actor’s 

criminal purpose that provides the touchstone of his liability for possessing an 
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instrument of crime.” Andrews, 768 A.2d at 317 (citation and quotation 

marks omitted).

The statutory language in section 907 does not include any indication 

that the General Assembly intended a violation to be based upon the number 

of victims. See 18 Pa.C.S.A. § 907(a); Satterfield, 255 A.3d at 448. Rather, 

the relevant inquiry is primarily upon McDowell’s intent and whether his use 

of the knife “was the product of a singular criminal intent or reflective of 

multiple manifestations of intent associated with each act.” Andrews, 768 

A.2d at 313. Here, Profit testified that McDowell stopped at the subway 

platform, took off his backpack, pulled out a large knife, and waved it at Profit 

and Corley. See N.T., 10/21/21, at 10-13, 22-24. Similarly, McDowell testified 

that after he felt threatened by the guards, he pulled out the knife and stepped

towards them. See id. at 38, 41-42. Viewed in light most favorable to the 

Commonwealth, this evidence was sufficient to establish that McDowell used 

the knife with the intent to threaten to injure both Profit and Corley.

1

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1 We note that McDowell does not challenge on appeal that the evidence at 

trial was sufficient to convict him of the aggravated assault of both Profit and 

Corley. While this is not dispositive of McDowell’s challenge to his convictions 

for possessing instruments of crime, it certainly does not undercut our 

conclusion that the evidence was sufficient to establish he acted with the 

intent to threaten both guards.
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Accordingly, we affirm both of McDowell’s possessing instruments of crime 

convictions.2

In his second claim, McDowell contends that the evidence was 

insufficient to support his ethnic intimidation convictions because the ethnicity 

of the guards was irrelevant to his actions. See Appellant’s Brief at 14, 17. 

While conceding the racial epithets were ugly, McDowell argues that he “would 

have jumped the turnstile, run away from any guards chasing him and pulled 

a knife to get them to back off, no matter what color or ethnicity they may 

have been.” Id. at 14. McDowell claims that he was not motivated by hatred 

for the guards’ race, ethnicity, or national origin. See id. at 17. McDowell 

notes that he only used the racial epithet two times and that his use of the 

term does not establish ethnic intimidation without some further proof of his 

intent. See id. at 18. McDowell claims that the use of this epithet does not 

provide sufficient proof of a crime, noting that the offensive word is used 

commonly in society. See id. McDowell concludes he was telling the guards 

to “back off” and the epithet was not used with “malicious intention toward” 

the guards. See id.

“A person commits the offense of ethnic intimidation if, with malicious 

intention toward the race ... of another individual or group of individuals, he 

commits an offense [of aggravated assault] with respect to such individual ... 

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2 As the Commonwealth highlights, McDowell received no penalty on either of 

the counts. See Brief for the Commonwealth at 7.
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or with respect to one or more members of such group[.]” 18 Pa.C.S.A.

§ 2710(a). Malicious intention is defined as “the intention to commit any act, 

the commission of which is a necessary element of any offense referred to in 

subsection (a) motivated by hatred toward the race ... of another individual 

or group of individuals.” 18 Pa.C.S.A. § 2710(c). The malicious intention 

element required for conviction “is satisfied if there is evidence that ethnic 

malice was a motivator for the defendant’s criminal act; it need not be the 

sole motivator.” Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011)

(emphasis in original).

Here, Profit testified that he was patrolling a SEPTA station in 

Philadelphia on June 2, 2021, when he observed McDowell evade paying the 

required fare. See N.T., 10/21/21, at 10-11, 21-22. After reporting the fare 

evasion on his radio, Profit indicated that McDowell repeatedly stated, “fuck 

you, [n-word].” Id. at 12. After following McDowell to the platform, Profit 

stated that McDowell pulled out a knife and was swinging it at him and Corley. 

Id. at 13, 22, 24, 28, 30. Profit testified that he and Corley backed away after 

seeing the knife. See id. at 18, 29-30. 

McDowell admitted that he jumped the SEPTA turnstile. See id. at 36-

37, 41. After the guards approached him, McDowell told them he did not have 

any money to pay the fare and went down the steps to the platform. See id. 

at 37-38. McDowell indicated that the guards began following him down the 

steps and he saw one of the guards reach for something in a backpack. See 
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id. at 38. Feeling threatened, McDowell pulled a knife out of his backpack and 

told the guards, “Yawl [n-words] ain’t fuckin’ me up today.” Id. at 39. 

McDowell explained that he was raised in Camden, New Jersey, and was 

merely “speaking Ebonics,” which was his usual manner of speaking. See id. 

at 38, 39-40. McDowell indicated he walked toward the guards but did not 

swing the knife at them. See id. at 38, 41. McDowell testified that the guards 

retreated from him and he then boarded the train. See id. at 39.

As a preliminary matter, McDowell does not dispute that he was properly 

convicted of two counts of aggravated assault, predicate offenses for ethnic 

intimidation pursuant to Section 2710(a). Moreover, when viewing the 

evidence in a light most favorable to the Commonwealth, we conclude that a 

fact-finder could find that McDowell’s actions were motivated by malicious 

intent towards the guards’ race under these circumstances. Here, McDowell 

repeated “[n-word], fuck you, [n-word]” at the African-American security 

guards. Further, McDowell yelled “Yawl [n-words] ain’t fuckin’ me up today,” 

while holding a knife and advancing on the guards. While a fact-finder is not 

required to find racial animus under these circumstances, this evidence was 

nonetheless sufficient to allow for an inference that McDowell’s behavior was 

motivated by malicious intent towards the guards’ race. See Sinnott, 30 A.3d 

at 1110-11 (concluding that “[e]vidence existed that appellee was motivated 

by racial animus; he made repeated references to the victim’s national origin 

(albeit mistaken) while behaving in a physically menacing manner, committing 
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an assault on her, which he did not contest.”). Accordingly, when this specific 

intent to intimidate the two guards on the basis of their race is combined with 

the use of the knife, the fact-finder was entitled to reasonably infer that 

McDowell committed two acts of ethnic intimidation. See id.3

In his final claim, McDowell contends that the trial court imposed illegal 

sentences on his ethnic intimidation convictions. See Appellant’s Brief at 19. 

McDowell notes that these convictions are felonies of the third degree and the 

maximum sentence for such felonies is seven years. See id. McDowell argues 

that the trial court’s imposition of a sentence of 2 to 4 years in prison, followed 

by 5 years of probation surpasses the maximum allowed under the law. See 

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3 We note that in Commonwealth v. Ferino, 640 A.2d 934 (Pa. Super. 

1994), this Court determined that shouting, “I’m going to kill you, you f—king 

[n-word]” immediately prior to firing a gun at the victims (one black and one 

white) did not constitute sufficient evidence that malicious intention was the 

[“]underlying cause for the prohibited behavior.” Id. at 938. This Court 

explained that “the [defendant’s] conduct was isolated in nature, brief in its 

execution and unattended by any trappings consistent with a finding that the 

terroristic threat [the predicate crime] had an origin of malicious intent 

‘motivated by a hatred toward race, color ... or national origin’ of the victim.” 

Id. However, the Supreme Court in Sinnott found Ferino to be factually 

distinguishable because the Ferino defendant’s comment was singular and 

isolated, and his words were directed at both victims, only one of whom was 

black, while in Sinnott, the appellee’s ethnic epithets were repeated 

numerous times, and were directed at the victim during the commission of the 

underlying crimes. See Sinnott, 30 A.3d at 1109. Likewise, McDowell 

repeatedly directed racial epithets at the African-American security guards and 

repeated the epithet during the commission of the aggravated assault 

offenses. Therefore, Ferino is factually distinguishable from this case.
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id. McDowell highlights that the trial court acknowledged this error in its 

opinion. See id.4

A challenge to the legality of a sentence is a question of law. Thus, 

our standard of review is de novo and our scope of review is 

plenary. ... A claim that implicates the fundamental legal authority 

of the court to impose a particular sentence constitutes a 

challenge to the legality of the sentence. If no statutory 

authorization exists for a particular sentence, that sentence is 

illegal and subject to correction. An illegal sentence must be 

vacated. Likewise, a sentence that exceeds the statutory 

maximum is illegal. If a court imposes a sentence outside of the 

legal parameters prescribed by the applicable statute, the 

sentence is illegal and should be remanded for correction.

Commonwealth v. Bickerstaff, 204 A.3d 988, 995 (Pa. Super. 2019)

(citations omitted).

McDowell’s ethnic intimidation convictions were graded as third-degree 

felonies. The maximum sentence allowed for a third-degree felony is seven 

years. See 18 Pa.C.S.A. § 1103(3). Notably, a sentencing court is free to 

impose a split sentence including both imprisonment and probation, but the 

total amount of time imposed in a split sentence cannot exceed the statutory 

maximum. See Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 

2010). Here, the trial court sentenced McDowell to 2 to 4 years in prison, 

followed by 5 years of probation for each of his ethnic intimidation convictions. 

Therefore, the trial court imposed a maximum sentence of 9 years, which is 

well above the statutory maximum of 7 years. See Trial Court Opinion, 

____________________________________________

4 The Commonwealth concedes the ethnic intimidation sentences are illegal. 

See Brief for the Commonwealth at 9.
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8/25/22, at 17 (wherein the trial court concedes that it imposed illegal 

sentences on the ethnic intimidation convictions). Based on the foregoing, we 

vacate McDowell’s unlawful sentences, and remand for resentencing. See id.

(acknowledging that the total sentence would not change due to the legal 

aggravated assault sentences, the trial court nevertheless requests that the 

matter be remanded for resentencing on the ethnic intimidation convictions).

In sum, we affirm McDowell’s convictions, vacate the ethnic intimidation 

sentences, and remand for resentencing.

Judgment of sentence affirmed in part and vacated in part. Case 

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2023