J-A20027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH L. PLANK, JR.
Appellant No. 3198 EDA 2013
Appeal from the Judgment of Sentence July 30, 2013
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004604-2012
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 25, 2014
Appellant, Kenneth L. Plank, Jr., appeals1 from the July 30, 2013
followed by one year of probation, imposed after a jury found him guilty of
simple assault, possessing an instrument of crime (PIC), and disorderly
conduct.2 After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows.
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1
We note that although Appellant purports to appeal from the May 15, 2013
verdict, a direct appeal in a criminal case is properly taken from a judgment
of sentence. Commonwealth v. Borovichka, 18 A.3d 1242, 1246 n.1 (Pa.
Super. 2011). Additionally, the Superior Court Prothonotary mistakenly
listed the incorrect trial court docket number on the Superior Court Appeal
Docket Sheet. The correct trial court docket number is CP-15-CR-0004604-
2012. Thus, we have amended the caption accordingly.
2
18 Pa.C.S.A. §§ 2701, 907, and 5503, respectively.
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[On August 11, 2012, Appellant] drove his car
cut in front of the victim as the public road on which
both were proceeding changed from two lanes to one
lane of travel, causing the victim to slam on his
brakes to a
The victim became angry and anxious because he
had his eight[-]week[-]old daughter in the car with
him. When [the] victim pulled close to the rear of
complaint of [Appel
words in his interior rear view mirror, which
[Appellant] immediately twice brandished a
handgun, first by holding it in his hand out the
.40 caliber semiautomatic handgun back and forth
and up and down for approximately 5 seconds,
[Appellant] then proceeded to brandish the weapon
by displaying it in front of the passenger
with his other hand to pull back on top of the gun,
simulating a cocking motion, at which point the
fearful victim called 911 on his cell phone. [The
v]ict
sure the weapon had been actually cocked by
[Appellant], as there was testimony by the arresting
officers that no round was found in the chamber
when they recovered it. Two township police officers
car, where they found the holstered weapon on the
floor of the front-seat passenger compartment. One
of these officers, Officer Hollis, removed the
magazine from the weapon, and found no bullet in
the chamber, suggesting the gun may not have been
cocked. However, the victim was not sure
[Appellant] had physically cocked the weapon, rather
than merely simulating that action. [Appellant]
admitted to these officers that he had the weapon on
this lap during the road rage incident, but admitted
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nothing else. A State Trooper, John Marsteller also
responded to the scene of the carstop, and spoke
with [Appellant], who told him that he had had the
weapon in his waistband, and because it was causing
him discomfort, he removed it from his waistband
and threw it on the floor of the passenger seat.
Trooper Marsteller had [Appellant] display to him his
physical actions in so doing, and testified that the
gun could have been seen by the victim, as it was
raised above the front seat-back.
Trial Court Order, 10/25/13, at 3-4, n.1.
Appellant was subsequently arrested in connection with this incident,
and charged with simple assault, PIC, disorderly conduct, and recklessly
endangering another person (REAP)3 on September 28, 2012. On May 14,
2013, Appellant proceeded to a jury trial. Following a two-day trial,
Appellant was found guilty of simple assault, PIC, and disorderly conduct.4
As noted, on July 30, 2013, the trial court sentenced Appellant to an
aggregate term of
probation. On August 9, 2013, Appellant filed a timely post-sentence motion
arguing, inter alia, that the verdict was against the weight of the evidence.
Following a hearing, the trial court entered an order on October 25, 2013,
-sentence motion. This timely appeal followed.5
On appeal, Appellant raises the following issues for our review.
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3
18 Pa.C.S.A. § 2705.
4
The REAP charge was withdrawn by the Commonwealth prior to trial.
5
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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[1.] Was the evidence insufficient to convict
Appellant [] on charges of Simple Assault []
and [PIC], where a conviction of Simple
Assault by Physical Menace requires the
Commonwealth to prove that (1) [] Appellant
intended to put the [victim] in fear of imminent
serious bodily injury, (2) he took a substantial
step toward that end, (3) that [] Appellant
used physical menace to do this, and (4) that
to cause fear of bodily injury [], and where
Appellant [] merely brandished a firearm and
did not point it at anyone or otherwise take
any substantial steps toward a goal of putting
the alleged victim in fear of imminent bodily
harm, and the firearm was not intended to be
or actually employed criminally?
[2.] Were the convictions of Appellant [] on charges
of Simple Assault and [PIC] against the weight
of the evidence, where a conviction of Simple
Assault by Physical Menace requires the
Commonwealth to prove that (1) [] Appellant
intended to put the [victim] in fear of imminent
serious bodily injury, (2) he took a substantial
step toward that end, (3) that [] Appellant
used physical menace to do this, and (4) that
to cause fear of bodily injury [], and where
Appellant [] merely brandished a firearm and
did not point it at anyone or otherwise take
any substantial steps toward a goal of putting
the alleged victim in fear of imminent bodily
harm, and the firearm was not intended to be
or actually employed criminally?
-4 (citations omitted).6
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6
For the ease of our discussion, we have separated our analysis of
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evidence to sustain his conviction for simple assault. Id. at 9. When
reviewing a sufficiency of the evidence claim, our standard of review is well
review the evidence admitted during the trial along with
any reasonable inferences that may be drawn from that evidence in the light
Commonwealth v. Crawford, 24
A.3d 396, 404 (Pa. Super. 2011) (citation omitted).
evidence was so weak and inconclusive that no probability of fact could be
Commonwealth v. West, 937 A.2d 516, 523 (Pa.
Super. 2007), appeal denied,
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.
[T]he trier of fact, in passing upon the credibility
Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citation and
internal quotation marks omitted), cert. denied, Rivera v. Pennsylvania,
560 U.S. 909 (2010).
The crime of simple assault is codified in the Pennsylvania Crimes
Code and provides, in pertinent part, as follows.
by physical menace to put another in fear of
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death or which causes serious, permanent disfigurement, or protracted loss
Id. § 2301.
which must be proven are intentionally placing another in fear of imminent
serious bodi
Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003), citing
Commonwealth v. Little, 614 A.2d 1146, 1151 (Pa. Super. 1992), appeal
denied, 618 A.2d 399 (Pa. 1992).
Id.
Instantly, Appellant contends that the Commonwealth failed to
ictim] in fear of
imminent serious bodily injury, that he took a substantial step to do so, or
support of this contention, Appellant maintains that he cannot be found to
have possessed the requisite intent for simple assault by physical menace
Id. at 11. Relying on Little, Appellant avers that
totality of the circumstances something
more than merely brandishing a gun is required to occur to establish [his]
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Id. at 10. For the following
reasons, we disagree.
Little involved an appellant who was found guilty of simple assault by
physical menace after she
towards police officers
when they were attempting to serve her with foreclosure papers. Id. at
1148, n.2. The Little
regarding sufficiency of the evidence to prove simple assault by physical
menace. Id. at 1151-1154 (Appendix). In reaching this decision, the Little
Court concluded that, lthough appellant never pointed the gun at
the deputies, we find that her overall demeanor and actions were designed
to, and did in fact, put the deputies in fear of imminent serious bodily
Id. at 1148, n.2 (emphasis added). The Little Court further noted
that the intent place to place another in fear of imminent serious bodily
injury by physical menace can be proven by circumstantial evidence, and
circumstances. Id. hether merely brandishing a weapon
constitutes physical menace, we must look to the totality of the
Id. at 1152.
Instantly, our review of the evidence, viewed in the light most
favorable to the Commonwealth as the verdict winner, reveals that there
was sufficient evidence to establish that Appellant intentionally put the
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victim in fear of imminent serious bodily injury on the day in question, and
did so by the use of physical menace. n,
there is no case law in this Commonwealth that mandates that an individual
cannot be found guilty of the crime of simple assault by physical menace,
absent having pointed a firearm directly at the victim. Appellant has
acknowledged as much in his appel
weapon or physical threats are not necessary [to establish simple assault by
Little, we must
brandishing of
Little, supra at 1151.
Upon review, we conclude that the jury could reasonably infer that
taken as a whole,
Id. at 1148,
n.2. Specifically, the record establishes that Appellant twice brandished a
firearm at the victim after he made an obscene gesture at Appellant for
cutting his vehicle off, placing the victim in imminent fear. At trial, the
victim testified that after he gave Appellant the middle finger, Appellant held
se
-29, 32. The victim further
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testified that Appellant brandished the firearm a second time after he
attempted to call 911.
Q. After [Appellant] waved the gun out of the
window for about five seconds, what happened
next?
A. At that point, while [Appellant] was waving it, I
think I reached down into the center console to
pick up my cell to call 911. At that point, I
guess I looked up again and at that point I saw
him hold the gun up in front of the rearview
mirror and reach up with this other hand and
cock back the gun.
Id. at 30. The victim later clarified that although he was not entirely certain
whether Appellant had actually cocked the firearm when he held it up a
second time, or that Appellant had merely simulated this action, the incident
e bit scared that [the firearm] was potentially
Id. at 33, 38.
Based on the foregoing, we conclude the jury could reasonably infer
with the requisite intent so to place the victim in fear of imminent serious
bodily injury by physical menace. See, e.g., Little, supra at 1153
a person may indeed commit simple assault by physical menace without
verbally threatening the victim. Neither must the defendant actually point a
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conviction for simple assault by physical menace must fail.
Appellant next argues there was insufficient evidence to sustain his
Brief at 13 (emphasis omitted). Again, we disagree.
A person will be found guilty of PIC if they possess a firearm or other
weapon concealed upon his person with intent to employ it criminally.
Pa.C.S.A. § 907(b). An instrument of crime is defined
criminal purposes and possessed by the actor under circumstances not
Id. § 907(d).
Our Supreme Court has held
liability for possessing an instrument of crime. Such
purpose may be inferred from the circumstances
surrounding the possession. Our courts have
emphasized that mere possession of an instrument
of crime, standing alone, cannot support an
inference that the defendant intended to use the
instrument of crime for a criminal purpose.
Commonwealth v. Hardick, [380 A.2d 1235, 1237
more than p Commonwealth v.
Foster, [651 A.2d 163, 165 (Pa. Super 1994)]
beyond a reasonable doubt from the surrounding
circumstances, it cannot be inferred from mere
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In re A.V., 48 A.3d 1251, 1253-1254 (Pa. Super. 2012) (some citation and
internal quotation marks omitted; citation formatting corrected).
Instantly, our review of the record reveals that the Commonwealth
presented sufficient evidence to establish that Appellant possessed the
requisite mens rea for PIC. As discussed, the testimony at trial revealed
that Appellant did not merely possess a concealed firearm in his vehicle on
the day in question, but twice brandished said firearm at the victim after he
made an obscene gesture towards Appellant, in an apparent attempt to
place said victim in fear of imminent bodily injury. See N.T., 5/14/13, at
28-
Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super. 2011).
Moreover, this Court has recognized that brandishing a weapon in the
direction of a victim is sufficient to establish that the appellant possessed an
instrument of crime for the purpose of employing it criminally. See e.g.,
Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006), appeal
denied -
Based on the
foregoing, we conclude that
evidence to sustain his conviction for PIC must also fail.
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Lastly, Appellant argues, albeit in the alternative, that the verdict was
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true weight of the evidence challenge concedes
that sufficient evidence exists to sustain the verdict but questions which
Commonwealth v. Lewis, 911 A.2d 558, 566
(Pa. Super. 2006) (citation omitted). Where the trial court has ruled on a
question of whether the verdict is against the weight of the evidence.
bly abused its
Commonwealth v. Tharp, 830
A.2d 519, 528 (Pa. 2003), cert. denied, Tharp v. Pennsylvania, 541 U.S.
1045 (2004).
In the instant matter, the record reveals that the Commonwealth
presented the testimony of four witnesses at trial, including that of the
victim. See N.T., 5/14/13, at 22-80. Appellant, in turn, testified on his own
behalf, and denied threatening the victim with his firearm. Id. at 83, 94.
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7
Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part,
that a claim that the verdict was against the weight of the
raised with the trial judge in a motion for a new trial: (1) orally, on the
record, at any time before sentencing; (2) by written motion at any time
before sentencing; or (3) in a post-
rpose of this rule is to make it clear that a challenge to the weight
In
re J.B., 69 A.3d 268, 276 n.8 (Pa. Super. 2013) (citation omitted). In the
instant matter, Appellant properly preserved his weight of the evidence
claim by raising it in his August 9, 2013 post-sentence motion.
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Appellant presented an alternative factual scenario to the jury as to the
reasons the victim observed the firearm on the day in question, testifying as
follows.
A. When I moved to the lefthand lane, I put my
seat back. As I did that, the seat buckle came
in contact with my hip and I then picked up my
handgun by the clip and put it in the center
console, flipped the console up. It was full all
the way with paperwork.
When I tried to close that, the gun fell to
the passenger floor. That is when I took a
quick glance back and picked it up and put it
back in the holster and put it on the passenger
seat.
Id. at 88.
The jury, as fact-finder, found the testimony of the victim credible, and
It is well
established that this Court is precluded from reweighing the evidence and
substituting our credibility determination for that of the fact-finder. See
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
e finder
of fact who is free to believe all, part, or none of the evidence and to
cert. denied, Champney v.
Pennsylvania, 542 U.S. 939 (2004). Accordingly, we decline to disturb the
inations on appeal, and discern no error on the part
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For all the foregoing reasons, we conclude that Appellant is not
entitled to relief in the instant appeal.
July 30, 2013 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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Com. v. Plank, K.
Combined Opinion