J-S05015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CLAYBORN CORNELL MORTON, JR.

Appellant

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 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, and possessing instruments

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-

1-1 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 screaming . . . when she tried contacting her 

daughter via phone[.]

Officer David Osario (“Officer Osario”) responded to 246 

South Tenth Street in Reading, Pennsylvania upon the 9-1-1 call. 

____________________________________________

1 18 Pa.C.S. §§ 2706(a)(1), 2701(a)(3), 2705, and 907(a), respectively. 
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(N.T. 89-90). When Officer Osario arrived, he knocked on the 

door of the first-floor apartment 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 the 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 central 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 still 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 hospital.” 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 were 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 Victim 
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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 direction. (N.T. 56-58). The Victim told police at the 

scene that she thought Appellant had another 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 pro 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 Appellant was entitled to 

court-appointed counsel or if Appellant’s waiver of counsel was knowing, 

intelligent, and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 

____________________________________________

2 Ms. Segura was a reluctant trial witness and initially invoked her Fifth 

Amendment privilege against self–incrimination. When the Commonwealth 

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 described to the officer responding to the 911 call, as 

she generally downplayed the level of intensity 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 the prosecution of the 

case against Appellant. See Trial Court Opinion, 10/21/19, at 2; see also

n.3, infra.
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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 the 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 sufficient 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 jury’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 cause 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 beyond 
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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. 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. Adams, 39 A.3d 310, 323 (Pa. Super. 2012) (quoting 

Commonwealth v. Brown, 23 A.3d 544, 559–560 (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 conviction 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 for the risk of causing terror.’” Commonwealth v. Beasley, 138 

A.3d 39, 46 (Pa. Super. 2016) (quoting Commonwealth v. Reynolds, 835 

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

Beasley, 138 A.3d at 46 (quotation omitted). “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.” 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 the 
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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, see 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 66. 

Appellant further contends that there was “no 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 

____________________________________________

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 

complete for purposes of review. In addition, our Court has stated a ‘[f]ailure 

to ensure that the record provides sufficient information to conduct a 

meaningful review constitutes waiver of the issue 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 the 

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 hampered by the absence of the disc, we can resolve 

Appellant’s issue without review of the missing exhibit. 
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who make threats which seriously impair personal security or public 

convenience. It is not intended by this section to penalize mere spur-of-themoment threats which result from anger.” 18 Pa.C.S. § 2706 cmt. However, 

although spur-of-the-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 the 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 necessary mens rea. Id. at 936.

In Walls, an assistant district attorney (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 

prosecuted him for a crime he did not commit. The appellant entered the 

store and continued to yell that his incarceration caused his grandmother’s 

death. As the appellant got closer to the ADA his voice took on a more serious 

tone and store employees and customers then intervened. When the 

appellant was 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 appellant never made physical contact with the ADA and she sustained no 
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injuries resulting from her interaction 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 supported a conclusion that the appellant “made a spur-ofthe-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 

appellant “did not specifically 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 appellant made a 

spontaneous threat that did not evince 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 in this case 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 get 
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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 totality 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 simple 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 menacing 

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. Repko, 817 A.2d 549, 554 (Pa. 

Super. 2003) (internal citation omitted)). For example, “[t]he act of pointing 

a gun at another person [can] constitute simple assault as an attempt by 

physical menace to put another in fear of imminent serious bodily injury.”
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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 Appellant intended to place Ms. Segura

in fear of serious bodily injury. Grabbing a knife 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, constitutes simple 

assault as it represents an attempt by physical menace to put another in fear 

of imminent serious bodily injury. Consequently, the evidence admitted at 

trial and all reasonable inferences drawn therefrom supported Appellant’s 

conviction for simple assault by physical menace beyond a reasonable doubt. 

Appellant presents the same lack-of-intent claim concerning his PIC 

conviction. Pursuant to Section 907 of the Crimes Code, an individual is guilty 

of PIC if “he possesses any instrument of crime with intent to employ it 

criminally.” 18 Pa.C.S. § 907(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 lawful 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).
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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 demonstrated Appellant 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. Consequently, the evidence, which also supports 

Appellant’s conviction for simple assault, is sufficient to demonstrate 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 of 
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a knife inside 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 towards or near another person, who 

is likely unclothed, in a small space certainly poses a risk of serious bodily 

harm to the confined person. Any argument that the risk of 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. 

Accordingly, 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