Opinion
J-S34020-17 No. 2868 EDA 2015
11-09-2017
COMMONWEALTH OF PENNSYLVANIA v. SHANEICE WHITE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Dated August 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001960-2015 BEFORE: BOWES, J., SOLANO, J., and PLATT, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Shaneice White appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following her bench trial convictions for possession of an instrument of crime, terroristic threats with intent to terrorize another, simple assault, recklessly endangering another person, and criminal mischief. We affirm.
18 Pa.C.S. §§ 907(a), 2706(a)(1), 2701(a), 2705, and 3304(a)(4).
The underlying facts were described by the trial court as follows:
The incidents in this case took place on January 29, 2015. On January 29, 2015, Philadelphia Police Department responded to a call regarding domestic violence. Once police were on the scene they filled out a Domestic Violence Report for Kyle Johnson Jr. (hereinafter Complainant) against, Appellant[.]
Every Thursday, Complainant picks up his daughter from school at 3:00 p.m. and she resides with him until Saturday at 7:00
p.m. On January 29, 2015, Complainant's daughter did not attend school and he [drove] over to Appellant's apartment to pick her up. [Sandra Price, Complainant's then-girlfriend, was also in the car. N.T. at 12.] When he arrived Complainant waited outside for ten (10) to fifteen (15) minutes and Appellant pulled up in a car. Appellant got out of the car and Complainant retrieved his daughter and asked Appellant for her clothes. Appellant went into her apartment and Complainant followed and waited in the hallway for the clothes. During this time arguing commenced between Appellant and Complainant. Appellant began threatening Complainant and proceeded to slam [the] apartment door in Complainant's face. Complainant went outside and waited for Appellant. Appellant then came outside [and] proceeded to give Complainant the clothes and Complainant then put his child in the car. Appellant then came outside and proceeded to argue with Complainant again. As Complainant is about to pull off Appellant threw an object at the Complainant's car. Complainant then asked, through an open window, "What did you do that for?" Appellant then while blocking the car began threatening Complainant with various threats including, "I'm going to get you beat up, you're gonna get pistol whipped, and I told you not bring that bitch around here anymore. I'll fuck her up if you bring her here."Trial Ct. Op. 2-4 (citations to the record omitted).
Appellant walked around the corner and her sister made her way in front of Complainant's car. Appellant returned to the scene with her boyfriend and witness, Christopher[,] who seemed to be restraining her on the right hand side of Complainant's car. Appellant began throwing things at and into Complainant car, including a flip phone that hit Complainant's girlfriend. Complainant's girlfriend became upset and Appellant [was] telling Complainant's girlfriend to get out of the car and fight her. In the midst of the chaos Appellant's sister, who was standing in front of the car, came around to the passenger side and punched Complainant's girlfriend in the face. Appellant came back over to the driver side of the car, standing five (5) to ten (10) [feet away], and pulled a knife out. [N.T. at 20-21.] When Complainant saw the knife he got in his car and drove off. Appellant pursued on foot down her driveway after the vehicle and as Complainant was turning onto the street Appellant threw the knife and stabbed Complainant's tire. Complainant noticed the flat at Bridge and Penn Street, pulled over, and called the police to file a report.
A criminal information was filed against Appellant on February 27, 2015. Following the bench trial, Appellant was convicted of five out of the six charged offenses. She was sentenced as follows:
Appellant was found not guilty of aggravated assault, 18 Pa.C.S. § 2702(a).
Appellant was sentenced and placed on reporting probation for a maximum of four (4) years for possession of an instrument of crime. Appellant was also sentenced to concurrent reporting probation for a maximum of four (4) years for terroristic threats with intention to terrorize another. Appellant's charges of simple assault, recklessly endangering another person, and criminal mischief were a determination of guilt without further penalty. Further, Appellant was to pay court costs, restitution of ninety-five (95) dollars, and if Appellant was compliant for the first two (2) years of reporting probation the remaining two (2) years would become non-reporting probation.Trial Ct. Op. at 1-2.
Appellant appealed on September 17, 2015, and presents three issues for our review:
A. Was the evidence presented insufficient as a matter of law to sustain a conviction for terroristic threats, 18 Pa.C.S. § 2706(a)(1), because the statements reflected transitory anger in the heat of an argument, not an intent to terrorize?Appellant's Brief at 3 (suggested answers omitted).
B. Was the evidence insufficient to sustain a conviction for simple assault, 18 Pa.C.S. § 2701, because appellant never caused the complainant bodily injury, nor placed another in fear of such by physical menace where she never raised a knife towards the complainant?
C. Was the evidence insufficient to sustain a conviction for criminal mischief under 18 Pa.C.S. § 3304(a)(4) because no evidence demonstrated that appellant used markers, spray paint, or a similar device to deface or damage public or private property?
Our standard of review for a sufficiency of the evidence challenge is well established:
Commonwealth v. McFadden , 156 A.3d 299, 303 (Pa. Super. 2017) (citations omitted).A claim challenging the sufficiency of the evidence presents a question of law. We must determine whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. We must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.
Terroristic threats with intent to terrorize another is defined in Section 2706(a)(1) of the Crimes Code: "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." 18 Pa.C.S. § 2706(a)(1). Simple assault is defined in Section 2701(a):
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;
(2) negligently causes bodily injury to another with a deadly weapon;
(3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention
Id. § 2701(a).facility or mental hospital during the course of an arrest or any search of the person.
With respect to Appellant's challenges to the sufficiency of the evidence to support her convictions for terroristic threats with intent to terrorize another and for simple assault, we conclude after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Robert P. Coleman, that Appellant's first and second issues merit no relief. The trial court's opinion comprehensively discusses and properly disposes of these questions. See Trial Ct. Op., filed September 6, 2016, at 4-6 (holding that: (a) the evidence was sufficient to prove terroristic threats beyond a reasonable doubt, because (1) Appellant communicated to Mr. Johnson and his girlfriend various threats that Appellant would commit crimes of violence with intent to terrorize Mr. Johnson and his girlfriend, and (2) being angry does not render a person incapable of forming the intent to terrorize (citing Commonwealth v. Walker , 836 A.2d 999, 1001 (Pa. Super. 2003), appeal denied , 853 A.2d 361 (Pa. 2004)); (b) the evidence was sufficient to prove simple assault beyond a reasonable doubt, because (1) Appellant pulled a knife on Mr. Johnson and, while in pursuit, threw the knife at Mr. Johnson, only to miss and to damage his car; and (2) the evidence was sufficient for the trial court reasonably to "infer that Appellant attempted to cause bodily injury to another by producing the knife and throwing it"). Accordingly, with respect to Appellant's first and second issues on appeal, we affirm on the basis of the trial court's opinion.
Appellant also contends that the evidence was insufficient to find her guilty of criminal mischief. The relevant Crimes Code provision states:
A person is guilty of criminal mischief if he:
. . .
18 Pa.C.S. § 3304(a)(4)-(5).
(4) intentionally defaces or otherwise damages tangible public property or tangible property of another with graffiti by use of any aerosol spray-paint can, broad-tipped indelible marker or similar marking device;
(5) intentionally damages real or personal property of another;
. . . .
Appellant notes that, among the six charges included on the criminal information filed against her on February 27, 2015, there was only one count of criminal mischief — specifically, a charge 18 Pa.C.S. § 3304(a)(4); the criminal information stated that Appellant "[i]ntentionally defaced or otherwise damaged tangible public property or tangible property of another with graffiti, by use of an aerosol spray-paint can, broad-tipped indelible marker, or other similar marking device." The criminal complaint also charged criminal mischief under Section 3304(a)(4), though it did not include specific text in connection with the charge. Appellant contends that the evidence was insufficient to prove criminal mischief under Section 3304(a)(4) "because this case did not involve graffiti." Appellant's Brief at 25. She concedes that her conduct would meet the elements of Section 3304(a)(5), but adds: "the Commonwealth never charged that subsection, never amended the information, nor did the court even find [Appellant] guilty of Subsection (a)(5)." Id. at 25, 27.
In rejecting Appellant's argument, the trial court stated that Appellant "ignores the other five (5) subsections within § 3304(a)" and explained why there was sufficient evidence to convict Appellant under Subsection (a)(5). Trial Ct. Op. at 6-7. The court did not address the fact that Appellant was charged only under Subsection (a)(4).
The Commonwealth argues that "[t]he evidence was sufficient to prove criminal mischief" and that this Court should disregard "an apparent typographical error" in the charge. Commonwealth's Brief at 12. The Commonwealth points out that Appellant knew no graffiti was at issue and that her conduct was stabbing Johnson's tire with a knife. Additionally, the Commonwealth asserts that Appellant "may [be] convicted of a crime that was not actually charged when the uncharged offense is a lesser included offense of the charged crime." Id. at 14.
Appellant is correct that, according to the criminal information and the sentencing order, she was convicted of violating Section 3304(a)(4). Contrary to the trial court's suggestion, Trial Ct. Op. at 6-7, Appellant was not charged under Section 3304(a) generally or under any of Section 3304(a)'s other numbered paragraphs. In addition, we agree with Appellant that nothing in the record supports any finding that Appellant damaged or defaced tangible property with an aerosol spray-paint can, a marker, or any similar marking device — requirements for a violation of Section 3304(a)(4). See Appellant's Brief at 25, 27; see also Trial Ct. Op. 2-4.
Since a conviction under Section 3304(a)(4) was not supported by the evidence, we turn to Commonwealth's argument that criminal mischief under Subsection (a)(5) is a lesser included offense of a violation under Subsection (a)(4). Appellant argues that Section 3304(a)(5) "is not a lesser included offense" of Section 3304(a)(4) because "it is possible to commit an offense under Subsection (a)(4) without violating (a)(5)." Appellant's Brief at 25-27. She explains:
Subsection (a)(4) punishes two different acts, causing damage or defacing tangible property. § 3304(a)(4). "[D]amage" and "deface" must have different meanings. Damage refers to "loss or harm resulting from injury to person, property, or reputation". See Merriam-Webster's Collegiate Dictionary, 10th Ed. 2001 (damage). "Deface" is to "mar the external appearance of". Merriam-Webster's Collegiate Dictionary, 10th Ed. 2001 (deface). One can deface tangible property without damaging it. Drawing on a wall might deface it, but the wall itself is not damaged. Thus, it is possible to be convicted of (a)(4) and not violate (a)(5) because no damage actually occurs.Id. Put another way, Appellant contends that a person can sometimes be convicted under Section 3304(a)(4) without being convicted of an offense that violates Section 3304(a)(5) if he or she "defaces" but does not "damage" property, even though a person can always be convicted of both if he or she "damages" property. See id.
The problem with Appellant's argument is that the evidence establishes that she damaged Johnson's property by sticking a knife in his tire. Therefore, even if it were true that her crime did not meet the requirements for violating an alternate form of criminal mischief under Section 3304(a)(4) — defacing property — her conduct did constitute the other type of criminal mischief forbidden by that provision: damaging property. Such damage is all that is required for a conviction under Section 3304(a)(5). Section 3304(a)(4) contains an additional requirement: that the damage to property be from graffiti, but that just makes Section 3304(a)(5) a lesser-included offense of that under Section 3304(a)(4).
In fact, defacing and damaging property are not entirely separate types of conduct. Section 3304(a)(4) uses the term "deface or otherwise damage," indicating that the statute treats "defacing" as a form of damaging property. That use of the word is consistent with normal legal usage. See Black's Law Dictionary (10th ed. 2014) (defining "deface" as "[t]o mar or injure," and stating that "injure" is a synonym for "damage").
Application of the Model Penal Code framework for determining what is a lesser-included offense, which was approved by the Supreme Court in Commonwealth v. Sims , 919 A.2d 931 (Pa. 2007), confirms this result. Under that framework, "[a] defendant may be convicted of an offense included in an offense charged in the indictment [or information] . . . when . . . it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." 919 A.2d at 940 (quoting Model Penal Code § 1.07(4)). As the Supreme Court explained:
In this . . . scenario, the defendant is given notice of all the elements that the Commonwealth must prove to obtain his conviction. The Commonwealth can convict the defendant only of those offenses that contain all of the elements as the offenses with which the defendant was charged. The defendant does not need separate notice to defend against these lesser offenses because the defense that he prepares against the offenses
charged will necessarily attempt to refute the Commonwealth's evidence of the lesser offenses. Therefore, Section 1.07(4)(a) satisfies the due process concerns that the doctrine of lesser-included offenses, properly understood, must take into account.Id. Here, Section 3304(a)(4) requires an additional fact: the damage to property must be from graffiti. If an individual violates Section 3304(a)(4), he or she has also violated Section 3304(a)(5), since a person who had intentionally defaced or otherwise damaged property with graffiti pursuant to Section 3304(a)(4) has also intentionally damaged property pursuant to Section 3304(a)(5). Thus, Section 3304(a)(4) is a lesser-included offense of (a)(5) and Appellant was properly convicted of criminal mischief under that section.
Although Subsection (a)(4) refers to "tangible public property or tangible property of another" and (a)(5) requires "real or personal property of another," this difference in wording is immaterial, as this Court has held that "tangible property" includes both real and personal property. In re Rodriquez , 537 A.2d 854 (Pa. Super. 1988).
Hence, we affirm the trial court, albeit on different grounds, B.L. v. T.B., 152 A.3d 1014, 1016 n.4 (Pa. Super. 2016) ("we may uphold a decision below if there is any proper basis for the result reached; thus, our affirmance may be based on different grounds from the trial court" (citation omitted)), because Section 3304(a)(5) is a lesser included offense of Section 3304(a)(4). See also In re N.W., 6 A.3d 1020, 1026 (Pa. Super. 2010) (holding that defendant's "conduct violated both sub-section (a)(4) related to graffiti and the more general sub-section (a)(5) (which requires only the intentional damage of real or personal property of another)"). Since "a defendant may be convicted of an offense that is a lesser-included offense of the crime actually charged," Sims , 919 A.2d at 938, then, in the current case, Appellant could have properly been convicted under (a)(5) when she was charged only under (a)(4). Appellant's potential sentence for criminal mischief would not change, because this sentence is dependent upon the cost of the damage, not the subsection charged. See 18 Pa.C.S. § 3304(b). Here, Appellant did not receive an additional sentence on the criminal mischief charge in any event.
In N.W., 6 A.3d at 1026, the defendant contended that the Commonwealth was obligated to charge him under the more specific offense of (a)(4), as his conduct involved graffiti, and not the more general offense of (a)(5). This Court rejected the defendant's argument because under Section 9303 of the Judicial Code, "a defendant may be prosecuted under all available statutory criminal provisions without regard to the generality or specificity of the statutes." 42 Pa.C.S. § 9303. --------
Accordingly, for the reasons set forth above, we affirm the judgment of sentence. The parties are instructed to include the attached trial court decision in any filings referencing this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/9/2017
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