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NON - PRECEDENTIAL DECIS ION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.
CLAYBORN CORNELL MORTON, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 648 MDA 2019 Appeal from the Judgment of Sentence Entered March 19, 2019 In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP

- 06

- CR

- 0000013

- 2019

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.: FILED AUGUST 26, 2020 Appellant, Clayborn Cornell Morton, Jr ., appeals from the judgment of sentence imposed after a jury convicted him of terroristic threats, simple assault, recklessly endangering another person , an d possessing instrumen ts of crime (“PIC”)

. 1 We affirm. The trial court summarized the facts of the case as follows: On December 13, 2018, Zabrina Marquez placed a call to 9

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- 1 emergency services to report that she heard a male voice screaming for extended periods of time in the apartment below hers, where her daughter, Jazzalee Segura lived with her boyfriend, Appellant, Clayborn Morton. (Notes of Testimony of March 18, 2019 Jury Trial “N.T.” at 95). She also reported hearing a female voice screami ng . . . when she trie d contacting her daughter via phone [.] Officer David Osario (“ Offi cer Osario” ) responded to 246 South Tenth Street in Reading, Pennsylvania upon the 9

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_______ 1 18 Pa .C.S. § § 2706(a)(1), 2701(a)(3), 2705 , and 907(a), respectively.J

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(N.T. 89

- 90). When Officer Osario arrived, he knocked on the door of the first

- floor apartmen t and Appellant answered the door shaking and sweating profusely. (N.T. 90). Appellant was speaking erratically and when asked whether anyone else was in the apartment, Appellant stated that his child and girlfriend were also there. Id. As Officer Osario entered the apartment, he found Appellant’ s girlfriend, Jazzalee Segura (“the Victim” ), in the bedroom, which is near the rear of the apartment. Id. Ms. Segura began to cry and told Officer Osario that Appellant had thrown a knife at her and had held th e knife to her face. (N.T. 91). Officer Osario recovered a knife from an area between the radiator and tub in the bathroom of the apartment. (N.T. 91

- 92). The knife was described as light and pointed with a sharp

- edge serrated at the bottom and a black handle. (N.T . 96). The Victim also informed Officer Osario that Appellant had used a second knife that was located in a knife block in the kitchen (N.T. 93

- 94). Once Appellant was removed from the apartment and taken outside to be transported to centr al processing, Appellant began to scream and yell, drawing attention from bystanders along the street. (N.T. 94). Officer Osario advised Appellant to calm down and that there was no need for the outburst. Id. In the days following Appellant’ s arrest, Appellant called the Victim three times while he was in prison. Portions of a recording of one of those phone calls [were] played at trial. (N.T. 88). During the portions of that phone call, the Victim tells Appellant that [he hurt her] and that she sti ll had pain and bruising. (Ex. 5). The Victim also identifies that she told police that Appellant put a knife to her face and that police “ took both knives.” Id. Moreover, the Victim reminds Appellant that he told her that he would “ put [her] in the ho spital.” Id. Finally, the Victim admits to Appellant that reassures Appellant that she would be uncooperative with the prosecution of the case. Id. At the trial of this matter, the Victim testified that, on the day of the incident, she and Appellant wer e engaged in an intense argument regarding Appellant’ s lost payroll card. (N.T. 48

- 49). At some point during the argument, the Victim, in an attempt to separate and possibly diffuse the situation, moved in to the bathroom and began to take a shower. (NT . 49). As the VictimJ

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was taking a shower, Appellant entered the bathroom through the open door and began to re - engage with the Victim. (N.T. 49

- 50). The Victim pulled the shower curtain back and yelled in response to Appellant, Appellant grabbed a knife that was kept in the bathroom. (N.T. 50

- 52). The Victim testified that she and Appellant kept the knife in the bathroom and used it to cut soap. (N.T. 50). The Victim further stated that Appellant continued to hold the knife up during the argument, though she denied telling law enforcement that Appellant held the knife to her face. (N.T. 53). The Victim also testified that during the argument and while she and Appellant were still in the bathroom, Appellant threw the knife in her dire ction. (N.T. 56

- 58). The Victim told police at the scene that she thought Appellant had anothe r knife that he pulled from the kitchen, though she later stated that she was mistaken. (N.T. 59

- 60). Trial Court Opinion, 10/21/19, at 1

– 2. 2 On March 19, 2019 , the trial court sentenced Appellant to an aggregate
term of incarceration of thirty months to ten years in a state correctional institution. After denial of his post
- sentence motion , Appellant filed a pro se notice of appeal. In light of Appellant’ s pr o se filing, and the trial court docket indicating that trial counsel was permitted to withdraw , this Court , on July 24, 2019, ordered the trial court to determine whether A ppellant was entitled to
court
- a ppointed counsel or if Appellant’ s waiver of c ouns el wa s knowing, intelligent, and voluntary, pursuant to Commonwealth v. Grazier , 713 A.2d

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_______ 2 Ms. Segura was a reluc tant trial witness and initially invoked her Fifth Amendment privil ege against self

– incrimination. When the Commonweal th offered Ms. Segura immunity, the trial court ordered her to testify. N .T ., 3/18/19, at 27. Ms. Segura’s trial testimony changed substantially from the version of events she describ ed to the o fficer responding to the 911 call, as she generally downplayed the level of int ensity of the altercation with Appellant. Appellant does not dispute the trial court’s finding that Ms. Segura later assured Appellant that she would not cooperate in t he prosecution of the case against Appellant. See Trial Court Opinion, 10/21/19, at 2; see also n.3, infra.J

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81 (Pa. 1988). Order, 7/24/19, at unnumbered 1. On August 14, 2019, the trial court held the Grazier hearing , and present counsel was appointed to represent Appellant. Both Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:
1. Whether there was sufficient evidence to support the jury’ s verdict as to terroristic threats as the Commonwealth failed to prove that the Appellant’s actions and/or words established that the Appellant communicated to the victim either directly or indirectly a threat to commit any crime of violence?
2. Whether there was sufficient evidence to support t he jury’ s verdict as to simple assault as the Commonwealth failed to prove that Appellant's actions and/or words established that Appellant attempted by physical menace to put the victim in fear of imminent serious bodily injury? 3. Whether there was suf ficient evidence to support the jury’ s verdict as to possessing an instrument of crime as the Commonwealth failed to prove that the Appellant possessed a knife with intent to employ it criminally?
4. Whether there was sufficient evidence to support the j ury’ s verdict as to recklessly endangering another person as the Commonwealth failed to prove that Appellant’s actions with a knife placed or may have placed the victim in danger of death or serious bodily injury as the knife was never close enough to caus e injury? Appellant’s Brief at 5

. Appellant challenges the sufficiency of the evidence underlying each of his convictions. The 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 beyondJ

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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. A ny doubts regarding a defendant’ s guilt may be resolved by the fact

- finder unless the evidence is so wea k 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 evide nce. 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 f ree to believe all, part or none of the evidence. Commonwealth v. Adams , 39 A.3d 310, 323 (Pa. Super. 2012) (quoting Commonwealth v. Brown , 23 A.3d 544, 559

– 5 60 (Pa. Super. 2011) ( en banc )). Appellant was convicted of terroristic threats under 18 Pa.C.S. § 2706 (a)(1), which provides that: “[a] person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat
to

. . . commit any crime of violence with intent to terrorize another.” To
sustain a con viction for this offense “‘ 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 f or the risk of causing terror.’” Commonwealth v. Beasley , 138 A.3d 39, 46 ( Pa. Super. 2016) (quoting Commonwealth v. Reynolds , 8 35 A.2d 720, 730 (Pa. Super. 2003) (internal quotations omitted)). Additionally, “[n] either the ability to carry out the threat, nor a belief by the personJ

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thre atened that the threat will be carried out, is an element of the offense .” Beasley , 138 A.3d at 46 (quotation omitted). “Rather, t he harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another's sense of personal security.” Id . (internal citation and quotation omitted). The trial court determined that the following evidence was sufficient to support Appellant’s conviction of terroristic threats: During the phone call between Appellant and the Victim that was played at trial, the Victim reiterates to Appellant that he told her that he would “ put [her] in the hospital.” Appellant does not refute the charge and admits that he was upset at the time. Clearly, the statement, conveyed in the circumstances of the incident, would communicate a threat to commit an act of violence. Trial Court Opinion, 10/21/19, at 6. Appellant maintains that the evidence does not support the terroristic threats conviction because “his ‘arguing’ with Ms. Segura without any specific words that he uttered is woefully insufficient in establishing a crime inside a residence .” Appellant’s Brief at 11. Appellant also claims the Commonwealth did not show he demonstrated the necessary mens rea required for this offense. Id. at 15. We first observe that Appellant’s assessment of the evidence is incomplete. While it appears that the threat to put Ms. Segura in the hospital occurred at some point during their argument on December 13, 2018, there is no direct trial evidence pinpointing when and where Appellant uttered theJ

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threat. 3 Additionally, Appellant’s position that there was no proof of “specific words” is belied by the record. Although Ms. Segura initially denied that Appellant made the statement either during their argument or sometime thereafter, s ee N.T., 3/18/19, at 60, 65, she conceded that if the taped telephone call revealed that she reminded Appellant about the threat to put her in the hospital, she would agree that she made the comment to Appellant. Id. at 6 6. Appellant further contends that there was “n o evidence that can be inferred from the testimony that demonstrates an intent to terrorize another.” Appellant’s Brief at 15. Regarding this second element of a terroristic threat offense, the intent to terrorize, the comment to the pertinent statute instructs that “[t] he purpose of [ section 2706 ] is to impose criminal liability on persons

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_______ 3 The recorded telephone calls were contained on a disc, played for the jury, and introduced into evidence as Commonwealth’s Exhibit 5. N.T., 3/18/19, at 82, 88

– 89. The exhibit, however, was not included in the record certified to us on appeal. “[I]t is an appellant’ s duty to ensure that the certified record is c omplete for purposes of review. In ad dition, our Court has stated a ‘ [f]ailure to ensure that the record provides sufficient information to conduct a meaningful review constitutes waiver of the i ssue sought to be reviewed. ’” Commonwealth v. Lopez , 57 A.3d 74, 82 ( Pa. Super. 2012) (internal citation omitted). If the appellant has failed in that duty, and we are unable as a result to decide a particular issue on appeal, the appellant has waived th e issue. Commonwealth v. O'Black , 897 A.2d 1234, 1238 (Pa. Super. 2006). We will not find waiver herein because Appellant does not contradict the trial court’s representation of the content of the conversation. Although our analysis is somewhat hamp ered by the absence of the disc, we can resolve Appellant’s issue without review of the missing exhibit.J

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who make threats which seriously impair personal security or public
convenience. It is not intended by this section to penali ze mere spur - of

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moment threats which result from anger.” 18 Pa.C.S. § 2706 cmt. However, although spur

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- moment threats produced in anger do not satisfy the intent element, “[b]eing angry does not render a person incapable of forming the intent to terrorize.” Commonwealth v. Fenton , 750 A.2d 863, 865 (Pa. Super. 2000). This Court has stated, “the real issue [i]s whether the Commonwealth presented sufficient evidence to establish th e required mens
rea, not whether [an appellant] made the statements in the context of a heated discussion. ” Commonwealth v. Walls , 144 A.3d 926, 936 (Pa. Super. 2016). We must consider the totality of circumstances to determine if a defendant had the nec essary mens rea . Id. at 936

. In Walls , an assistant district a ttorney (the “ADA”) was shopping in a mall when she heard the appellant yell “Hey, ADA” from the store's entrance. The appellant then identified himself by name, and shouted that the ADA
pros ecuted him for a crime he did not commit. The appellant entered the store and continued to yell that his incar ceration caused his grandmother’ s death. As the a ppe llant got closer to the ADA his voice took on a more serious tone and s tore employees and customers then intervened

. When the

a ppellant w as escorted from the store, he shouted at the ADA that she caused his grandmother’ s death and that she should be next. During the encounter, the a ppellant never made physical contact with the ADA and she sustained noJ

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injuries resulting from her interacti on with the appellant. Walls , 144 A.3d at 930. In reversing the appellant’s terroristic threats conviction, we determined that there was insufficient evidence that he intended to terrorize the ADA as the evidence only support ed a conclusion that the appellant “ made a spur

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the

- moment threat as the result of anger during a random confrontation at a local shopping mall. ” Walls , 144 A.3d at 938. We additionally noted that the

a ppellant “ did not specific ally threaten harm to [the ADA] presently or in the future. ” Instead, the appellant “made the threat at the conclusion of the confrontation while being led away from the [ ADA ]

. ” Id. We thereby concluded that these circumstances , indicating that the a ppellant made a spontaneous threat that did not evinc e a settled intent to terrorize, could not sustain a finding of guilt for terroristic threats. Id. Walls is distinguishable from the present matter. First, Appellant’s threat did not occur during a random confrontation. Second, Appellant specifically threatened Ms. Segura when he told her that he would put her in the hospital. Finally, Appellant possessed a knife and threw it at Ms. Segura during the couple’s argument. Thus, the victim i n this ca se was subjected to the type of impairment of personal security that the statute seeks to prevent. See Commonwealth v. Hudgens , 582 A.2d 1352 (Pa. Super. 1990) (evidence sufficient to support terroristic threats conviction where the defendant held a sword inches from victim and said that he was going to getJ

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him; “ victim in this case was subjected to the precise type of psychological harm and impairment of personal security which the statute seeks to prevent. ”). Id. at 1359. In view of the totalit y of these circumstances, the Commonwealth presented sufficient evidence that Appellant was guilty of terroristic threats. Appellant also levels an insufficient evidence challenge to his conviction for simple assault. A person is guilty of simple assault if he “ attempts by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3). To sustain a conviction of simp le assault by physical menace, “ [t]he elements which must be proven are intentionally placing another in fear of imminent serious bodily injury through the use of men a cing or frightening activity.” Reynolds , 835 A.2d at 726 (citations omitted). Appellant urges this Court to find that the Commonwealth failed to prove that he intended to “place another in fear of imminent serious bodily injury .” Appellant’ s Brief at 15

. “Intent can be proven by circumstantial evidence and may be inferred from the defendant’ s conduct under the attendant circumstances.” Reynolds , 835 A.2d at 726 (quoting Commonwealth v. Rep ko , 817 A.2d 549, 554 (Pa. Super. 2003) (internal citation omitted)). For example, “[t]he act of pointing a gun at anot her person [can] constitute simple assault as an attempt by physical menace to put another in fear of imminent serious bodily injury.”J

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Reynolds, 835 A.2d

. at 726 (quoting Commonwealth v. Maloney , 636 A.2d 671, 674 (Pa. Super. 1994)). We conclude that the evidence presented in the current action was sufficient to allow the jury to find that Appell ant intended to place Ms. Segura
in fear of serious bodily injury. G ra bbing a kn ife and throwing it towards
Ms. Segura is analogous to pointing a firearm at another person . Such behavior , occurring in the throes of a heated argument, constitute s simple assault as it represents an attempt by phy sical menace to put another in fear of imminent serious bodily injury. Consequently, the evidence admitted at trial and all reasonable inferences drawn therefrom su pported Appellant’ s conviction for simple assault by physical menace beyond a reasonable do ubt. Appellant presents the same lack

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- intent claim concerning his PIC
conviction

. Pursuant to Section 907 of the C rimes Code, an individual i s guilty of PIC if “he possesses any instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 9 07(a). Section 907(d) defines an instrument of
crime as “(1) [a]nything specially made or specially adapted for criminal use[, or] (2) [a]nything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawf ul uses it may have.” 18 Pa.C.S. § 907(d). The defendant’s criminal purpose provides the basis for his liability; we can infer purpose from the circumstances surrounding the possession of the instrument of crime. Commonwealth v. Andrews , 768 A.2d 309, 318 (Pa. 2001).J

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As previously explained , “[i] ntent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.” Commonwealth v. Miller , 172 A.3d 632, 641 (Pa. Super. 2017 ) (citation omitted)

. Although a factfinder may infer criminal intent beyond a reasonable doubt based on circumstantial evidence, intent may not be inferred based on mere possession. See In re A.V. , 48 A. 3d 1251, 1254 (Pa. Super. 2012) (citation omitted)

. Here, the evidence dem onstrated Appel lant picked up a knife kept in the bathroom for cutting soap and threw it at Ms. Segura while she was in a confined space. Clearly, this employment of the knife was not in a manner consistent with a lawful use. Con sequently, the evidence , which also supports Appellant’s conviction for simple assault , is sufficient to demons trate that he intended to use the knife for a criminal purpose. Appellant ’s final argument concerns his conviction of recklessly endangering another person

. “A person commits a misdemeanor of the second degree 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. § 2705. Appellant contends that his conviction of this offense must be reversed because the Commonwealth’s evidence of risk of death or serious bodily injury was “certainly remote at best.” Appellant’s Brief at 16. He described that evidence as demonstrating only that he “was in possession ofJ

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a knife in side a bathroom while Ms. Segura was in the shower, and then [ he ] ‘tossed’ the knife in the bathroom before leaving.” Id

. Even Appellant’ s overly sanitized characterization of the events transpiring in the bathroom is adequate to show risk of serious bodily harm. Propelling a knife with a serrated blade t owards or near another person, who is likely unclothed, in a small space certainly poses a risk of serio us bodily harm to the confined person. Any argument that the r isk o f injury was remote
is illogical. Based upon our review of the record and the briefs of the parties, viewing the evidence in a light favorable to the Commonwealth, we conclude that the evidence was sufficient to support Appellant’s convictions.
Acco rdingly, we affirm the judgment of sentence. Judgment of sentence affirmed. Judge Musmanno joins the Memorandum. Judge Kunselman files a Concurring & Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/26/2020