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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARA AMANDA LEAVY :
:
Appellant : No. 731 WDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005169-2018
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 13, 2020
Mara Amanda Leavy (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted her of terroristic threats and resisting
arrest.1 We affirm.
The trial court accurately detailed the evidence presented at trial as
follows:
[O]n April 16, 2018, [Appellant] was being discharged from the
emergency department at UPMC Hospital. She was apparently
displeased with being discharged and the charge nurse, Robyn
Fabian, was asked to assist in getting [Appellant] to leave. [Ms.
Fabian] asked [Appellant] if she understood that she was
discharged, and [Appellant] replied that she did but was “...not
leaving until she was provided with a cab slip.” Ms. Fabian
explained that the hospital could not provide her with one but said
that she would permit [Appellant] to wait in the ER waiting room
until busses began to run in a couple of hours. She offered to
provide her with a blanket, some food and obtain a ticket for the
bus. [Appellant] responded with “profanities and aggressive
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1 18 Pa.C.S.A. §§ 2706(a)(1) and 5104.
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movements.” This resulted in her being told that she could not
wait in the ER because her conduct was affecting other patients
and their families. Instead of leaving, [Appellant] returned to the
waiting area. After Ms. Fabian told her that she had to leave, and
as she was being escorted from the waiting room by UPMC police,
she looked directly at Ms. Fabian and said: “Fuck you. You won’t
be talking shit when I come back and shoot you.” Ms. Fabian
testified that, based on her past experience with [Appellant], she
considered her threat to be a “valid threat” and that it caused her
to fear being physically assaulted as she walked to her car at the
end of her shift.
Sean Kundrat testified that he was employed as a Police
Sergeant for UPMC and was on duty during the early morning
hours of April 16, 2018. He was called to a disturbance in the
waiting room at about 2:10 a.m. and, upon arriving, observed
[Appellant] at the registration desk, refusing Ms. Fabian’s requests
that she leave the waiting room. He intervened, telling
[Appellant] that “hostile, belligerent and abusive language and
behavior” were not permitted in the hospital. He reiterated that
she was being asked to leave. When she ignored him, he asked
her again to leave and told her she would be subject to arrest if
she did not. [Appellant] then stood up, moved to his right and,
looking back at Ms. Fabian, said: “Bitch won't be talking shit when
I come back and shoot you.”
Sgt. Kundrat determined that he would arrest [Appellant]
for terroristic threats. When he advised her of this, she continued
moving away from the officer. As he was attempting to handcuff
her, she crashed through a sliding door, breaking it off its track
and hinges. She continued resisting outside, breaking free before
Sgt. Kundrat was able to grab her again and place both cuffs on
her. Even after she was in custody and being escorted to the
police office, handcuffed, she managed to reach Sgt. Kundrat’s
arms and scratch him.
[Appellant] also testified. Her descriptions of what
happened that morning were markedly different than what the
Commonwealth witnesses described. According to her, Ms. Fabian
was being loud and belligerent, not her. When told that the
hospital could not provide transportation, [Appellant] said that her
and her boyfriend stopped in the ER waiting room where both were
calling around to see if they could get rides. While sitting there,
texting, she claimed that Sgt. Kundrat suddenly grabbed her arm.
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She responded with some vulgarity, but, when he told her she had
to leave, proceeded towards the door. She claims that as she
approached the door, someone slammed into her, pushing her into
the wall. She did not know who hit her. She said that she passed
where Ms. Fabian was standing but said nothing to her. She was
then grabbed again by the officer and slammed into the door.
Once outside, she said she was told she was under arrest.
[Appellant’s] boyfriend, Antone Williams also testified. He
said that when he was sitting in the waiting room with [Appellant],
“[T]he officer had come over and asked us to, you know - well, he
was talking directly to [Appellant], asking her to leave.” As they
were leaving, he said that there was a verbal altercation between
[Appellant] and the officer. He said a garbage can got knocked
down and [Appellant] was pushed into the door by the officer. The
officer then tried to handcuff [Appellant] and, when he did, took
her into a side room. When asked if he heard [Appellant] threaten
anyone, he said: “I could not hear the verbal altercation so, no,
I cannot say for certain.”
Trial Court Opinion, 7/30/19, at 2-5 (citations to notes of testimony and
footnotes omitted).
After hearing this evidence, the trial court found Appellant guilty of
terroristic threats and resisting arrest.2 Appellant waived a pre-sentence
investigation report, and on April 5, 2019, the trial court sentenced her to an
aggregate five years of probation. Appellant filed a timely post-sentence
motion which the trial court denied on April 22, 2019. On May 16, 2019,
Appellant filed this appeal. Both the trial court and Appellant have complied
with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents two sufficiency issues for review:
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2The trial court granted Appellant’s motion for acquittal on a charge of criminal
mischief. See N.T., 4/4/19, at 84.
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I. WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
CONVICTION AT COUNT 1 – TERRORISTIC THREATS
BECAUSE THE COMMONWEALTH DID NOT PROVE, BEYOND
A REASONABLE DOUBT, THAT [APPELLANT]
COMMUNICATED A THREAT TO FABIAN WITH THE INTENT
TO TERRORIZE HER, AS OPPOSED TO MERE TRANSITORY
ANGER?
II. WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
CONVICTION FOR RESISTING ARREST AT COUNT 2
BECAUSE THE COMMONWEALTH DID NOT PROVE, BEYOND
A REASONABLE DOUBT, THAT [APPELLANT] CREATED A
SUBSTANTIAL RISK OF SERIOUS BODILY INJURY TO
SERGEANT KUNDRAT, OR THAT ANY USE OF SUBSTANTIAL
FORCE WAS JUSTIFIED?
Appellant’s Brief at 5.
“We review claims regarding the sufficiency of the evidence by
considering 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 a reasonable doubt.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations
omitted). “Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Id. “In conducting this review, the appellate court may not weigh
the evidence and substitute its judgment for the fact-finder.” Id.
With regard to terroristic threats, we recently reiterated:
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). “[T]he term ‘communicates’ means conveys in
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person or by written ... means.” 18 Pa.C.S. § 2706(e). Moreover,
“[n]either the ability to carry out the threat nor a belief by the
person threatened that it will be carried out is an essential element
of the crime.” Commonwealth v. Fenton, 750 A.2d 863, 865
(Pa. Super. 2000). “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.
Commonwealth v. Kline, 201 A.3d 1288, 1290, appeal denied, 216 A.3d
1038 (Pa. 2019).
Ms. Fabian testified that Appellant, with whom she had had “violent
interactions with in the past, . . . most specifically . . . [said]: Fuck you. You
won’t be talking shit when I come back and shoot you.” N.T., 4/4/19, at 14.
In her brief, Appellant does not deny that she made the comment to Ms.
Fabian. Rather, Appellant argues that the evidence was insufficient for the
trial court to convict her of terroristic threats because her comment evidenced
“mere transitory anger,” and when she “called over her shoulder,” her “spur-
of-the-moment expression of frustration” was not a remark which “seriously
impaired personal security.” Appellant’s Brief at 12, 22. Appellant
emphasizes that she “did not intend to terrorize Fabian; her comments were
mere transitory anger.” Id. at 13. Appellant faults the trial court for “failing
to acknowledge in its opinion that mere expressions of transitory frustration
or anger are insufficient to sustain a conviction for Terroristic Threats.” Id.
at 15. We are not persuaded by Appellant’s argument.
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The trial court sat as the factfinder at Appellant’s bench trial. At the
conclusion of trial, the court expressly addressed the element of intent,
stating:
The interesting thing about the terroristic threat, and that’s why
it’s so rarely used when it comes to police officers, is, frankly,
because it’s the intent of the defendant to terrorize. And often
times things like that are said to police officers, and they slough
them off because it didn’t terrorize them at all because they knew
they had the upper hand.
It doesn’t make it any less the intent of the defendant to
place someone, who may or may not even be capable of being
afraid of her. That’s the law.
N.T., 4/4/19, at 87-88.
The following day, the trial court reconvened to announce its verdict and
stated that it “carefully listened to the evidence . . . and I find the best
testimony is of the victim and the police officer involved here [and] of the
highest credibility.” N.T., 4/5/19, at 2. The court then announced its
determination that Appellant was guilty of terroristic threats. Id. As the
factfinder, the trial court did not abuse its discretion by inferring that Appellant
possessed the intent to terrorize Ms. Fabian. This Court has explained that
intent may be shown by circumstantial evidence. Commonwealth v. Pasley,
743 A.2d 521, 524 (Pa. Super. 1999), citing Commonwealth v. Chance, 458
A.2d 1371 (Pa. Super. 1983) (holding that specific intent may be inferred from
the words or the actions of the defendant in light of all attendant
circumstances). Appellant’s first issue lacks merit.
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In her second issue, Appellant argues that the evidence was insufficient
to support her conviction of resisting arrest because she “did not place
Sergeant Kundrat at risk of serious bodily injury, and if the officer used
substantial force, it was not justified.” Appellant’s Brief at 23. Appellant
claims she only “pulled her hands away and rushed out of a door.” Id. at 24.
Appellant states that she “merely attempted to escape from Sergeant Kundrat
for about 45 seconds, and made no significant assertion of physical force
against him.” Id. at 23.
A person is guilty of resisting arrest if “with the intent of preventing a
public servant from effecting a lawful arrest or discharging any other duty, the
person creates a substantial risk of bodily injury to the public servant or
anyone else, or employs means justifying or requiring substantial force to
overcome the resistance.” 18 Pa.C.S.A. § 5104. This Court has held that
even passive resistance that requires the use of substantial force is sufficient
to sustain a conviction for resisting arrest. See, e.g., Commonwealth v.
McDonald, 17 A.3d 1282, 1286 (Pa. Super. 2011) (sustaining conviction
where defendant refused to comply with police when they attempted to
handcuff him, and police officers tased him after threatening to taser him if
he did not comply); See also Commonwealth v. Thompson, 922 A.2d 926,
928 (Pa. Super. 2007). However, “minor scuffling which occasionally takes
place during an arrest” is not sufficient to establish resisting arrest. 18
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Pa.C.S.A. § 5104 cmt. See Commonwealth v. Rainey, 426 A.2d 1148, 1150
(Pa. Super. 1981).
Appellant emphasizes that she “merely attempted to escape from
Sergeant Kundrat for about 45 seconds” and made no “dangerous or violent
actions towards Sergeant Kundrat.” Appellant’s Brief at 23, 25. She concedes
that she “may have exited the door in an aggressive manner,” but states that
she “was a few steps ahead of Sergeant Kundrat at this time, so it cannot be
said that he was in danger of being hit by the door.” Id. at 24-25. However,
the trial court found otherwise, stating:
Sgt. Kundrat’s testimony was that once he advised
[Appellant] that she was under arrest, she resisted. Her
resistance used enough force to knock a sliding door off of its
hinges as she pushed through it. This resistance certainly
required substantial force to overcome it and created a
substantial risk of bodily injury to Sgt. Kundrat. Her
continued resistance outside as he tried to bring her under control
also established that she was resisting with enough force to
require substantially more force to subdue her. The fact that the
officer apparently suffered no injury is of no moment. Her conduct
placed him at substantial risk for injury and that is sufficient to
support the verdict of guilty at this count.
Trial Court Opinion, 7/30/19, at 7-8 (emphasis added).
Our review supports this conclusion. Sergeant Kundrat testified that
when he advised Appellant that he would be placing her under arrest, she
“proceeded straight through the three-partitioned door. And when I say
straight through, she proceeded through and broke it off its hinges.” N.T.,
4/4/19, at 35. The sergeant described the door as “glass and steel-aluminum
. . . approximately 12 feet long. . . . It’s a solid piece of door.” Id. at 36. He
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added, “[u]pon inspection by our maintenance department, they found the
bolts that held the door up were actually sheared off.” Id. Sergeant Kundrat
testified that he followed Appellant 20 to 25 feet, until he was “able to pin”
her against a wall and apply handcuffs. Id. at 37-38. He stated:
There was a significant amount of force that was again, reasonable
– reasonable force used, obviously. At that point she had broken
free of my control at least two times and gone through a solid
portioned door. . . . After we had actually broken through the
door together, she had ripped her arm away from me. . . . Two
additional officers arrived at the scene to assist me. We began to
escort [Appellant] to our back office for processing. . . . En route
back to our office, another sergeant and I were escorting her,
[Appellant] kept trying – kept attempting to pinch our hands and
our arms. And I actually got - . . . She actually was able to reach
her hand up around and scratch the top of my hand.
N.T., 4/4/19, at 38-39.
Although the encounter only lasted 45 seconds, on this record, and
viewing the evidence in a light most favorable to the Commonwealth, we find
no error in the trial court’s determination that Appellant resisted arrest by
preventing Sergeant Kundrat from effecting the arrest, and creating a
substantial risk of bodily injury to Sergeant Kundrat “or anyone else” by
breaking down the hospital door, and causing the officer to use substantial
force to arrest Appellant. See 18 Pa.C.S.A. § 5104. Thus, Appellant’s second
issue lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2020
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