Com. v. White, S.
2868 EDA 2015
| Pa. Super. Ct. | Nov 9, 2017Background
- On Jan. 29, 2015, Kyle Johnson Jr. (complainant) went to appellant Shaneice White’s apartment to pick up his daughter; an argument ensued after he asked for the child’s clothes.
- White threatened Johnson and his girlfriend, threw objects at their car (one hit the girlfriend), produced a knife, pursued Johnson’s car on foot, and threw the knife, which punctured a tire.
- Police filled out a domestic violence report; White was charged by information on Feb. 27, 2015, with multiple offenses including terroristic threats (18 Pa.C.S. § 2706), simple assault (§ 2701), possession of an instrument of crime (§ 907), and criminal mischief (§ 3304(a)(4)).
- After a bench (waiver) trial on Aug. 21, 2015, White was convicted of possession of an instrument of crime, terroristic threats, simple assault, recklessly endangering another, and criminal mischief; acquitted of aggravated assault.
- Sentencing: concurrent reporting probation terms (up to 4 years) on the two principal convictions; other convictions were judgments of guilt without further penalty; restitution of $95.
- On appeal White challenged sufficiency of the evidence for terroristic threats, simple assault, and criminal mischief (arguing the mischief charge alleged graffiti under § 3304(a)(4) though the conduct was tire-puncturing).
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (White) | Held |
|---|---|---|---|
| Terroristic threats — § 2706(a)(1) | Threats were communicated ("pistol whipped," "I'll fuck her up") and intended to terrorize; anger does not negate intent | Statements were transitory anger in the heat of argument, not intent to terrorize | Conviction affirmed — evidence sufficient; anger does not preclude intent to terrorize (trial court opinion adopted) |
| Simple assault — § 2701 | Producing a knife and throwing it at complainant supports attempt to cause bodily injury / physical menace | No bodily injury and no raising of knife toward complainant; conduct damaged property only | Conviction affirmed — producing and throwing the knife supported inference of attempt/physical menace |
| Criminal mischief — charged under § 3304(a)(4) (graffiti) | Evidence showed intentional damage to property (knife punctured tire); a conviction under (a)(5) (damage to property) is proper as a lesser-included offense | Case involved no graffiti or marking device required by (a)(4); Commonwealth never charged (a)(5) | Conviction sustained on alternative ground: (a)(5) is a lesser-included offense of (a)(4) under the Model Penal Code test; evidence supported intentional damage (tire) |
Key Cases Cited
- Commonwealth v. McFadden, 156 A.3d 299 (Pa. Super. 2017) (standard for sufficiency review)
- Commonwealth v. Walker, 836 A.2d 999 (Pa. Super. 2003) (being angry does not preclude intent to terrorize)
- Commonwealth v. Sinnott, 976 A.2d 1184 (Pa. Super. 2009) (discussion of spur-of-the-moment threats vs. terroristic threats)
- Commonwealth v. Sims, 919 A.2d 931 (Pa. 2007) (adopts Model Penal Code framework for lesser-included offenses)
- Commonwealth v. Savage, 418 A.2d 629 (Pa. Super. 1980) (pointing a gun can constitute simple assault via physical menace)
- In re N.W., 6 A.3d 1020 (Pa. Super. 2010) (criminal mischief convictions under overlapping subsections)