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HomeMy WebLinkAboutCP-21-CR-0001195-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1195-2009 : : ALAHAD AMIR ARMIYA : IN RE: OPINION PURSUANT TO RULE 1925 On December 29, 2009, the defendant was sentenced on counts of Terroristic Threats, Simple Assault, Recklessly Endangering Another Person and Criminal Mischief to concurrent terms of eight to eighteen months. On a count of Disorderly Conduct he was sentenced to a ten- month concurrent probationary term. Since he was deserving of credit for time served from April 23, 2009, he was paroled to a Dauphin County detainer. The defendant did not file post- sentence motions but instead filed an appeal to the Superior Court. In his Statement of Matters Complained of on Appeal, the defendant contends: 1. The evidence presented at trial was not sufficient to prove Terroristic Threats beyond a reasonable doubt. The evidence presented established that Mr. Armiya made statements in the heat of an oral argument and not with the intent to terrorize another. 2. The evidence presented at trial was not sufficient to prove Criminal Mischief beyond a reasonable doubt. The evidence presented established that Mr. Armiya did damage to property that was owned by him. 3. The evidence presented at trial was not sufficient to prove Simple Assault beyond a reasonable doubt. The actions of Mr. Armiya were not an attempt by physical menace to put anyone in fear of imminent serious bodily injury. The evidence established that his actions were reckless at most. CP-21-CR-1195-2009 The testimony at the jury trial in November of 2009 was very brief. In fact, there does not appear to be much dispute about what happened in the case. On April 22, 2009, the evening in question, the defendant and his wife, Janice, had an argument because the defendant had quit his job. She asked him to leave their home. The defendant began packing his things to leave. Mrs. Armiya’s sister arrived to pick up the defendant. The defendant and his wife then began to struggle with a television which the defendant was attempting to remove from the residence. The quarrel over the television boiled down to a question of who had paid for it. The defendant got the upper hand in the struggle and, according to his wife, threw the television in the direction of Mrs. Armiya’s niece who had arrived with her sister. After the television was thrown, the defendant went into the kitchen and began to open drawers where Mrs. Armiya kept her “biggest knives.” Mrs. Armiya had her cell phone and dialed 911. She then observed her husband standing in the hallway of the home with a hammer in his hand. Mrs. Armiya then ran outside the apartment to call 911. She then testified: A I ran back to the apartment, and I could still hear a lot of crashing inside and windows breaking and mirrors. And I walked in, and there he was again, he had the hammer, and he was just tearing up everything. Q What did you see him do with the hammer? You said he was tearing up everything. What did you see? A I saw him breaking glass. I had a table that was close to the kitchen. He was crashing it with the hammer. And he was just beating up everything, and I ran again. I think I went in the house, the apartment, like about two or three times. And each time I went in, I had to run back out. Q Why did you go back in? 2 CP-21-CR-1195-2009 A I was asking him to please stop tearing up my stuff. N.T. 16. Mrs. Armiya described her husband’s demeanor as “crazy.” N.T. 27. She also testified that, as the defendant was destroying property, she heard him say “I probably can’t beat all of you up, but I am going to kill me somebody up in here tonight.” At hearing those words, Mrs. Armiya felt threatened and “scared” and felt that she “was going to die that night.” N.T. 19. Before the police arrived, Mr. Armiya continued his rampage. At one point he threw a stereo from the patio of the apartment onto Mrs. Armiya’s car. He threw it with such force that “it stuck in the windshield.” N.T. 19. In addition to other items in the home, the defendant destroyed the toilet tank. Water apparently leaked from the toilet and destroyed property in the apartment below. Of the many other items damaged in the home were the microwave, the headboard in the bedroom, a dresser mirror and a medicine cabinet. Chisa Galloway also testified. She verified Mrs. Armiya’s account of the defendant’s rampage. She testified, also, that at the point where the defendant had a hammer in his hand he approached Mrs. Armiya’s grandson, Dwayne, and said that he, the defendant, was going to kill him, Dwayne. The final witness for the Commonwealth was Patrolman Joseph Capers of the West Shore Regional Police Department. He responded to the scene which had initially been described as a “domestic involving a knife.” He, also, observed the defendant with a hammer in his hand. The officer noted: He was approximately ten to twelve feet away from me at the time. I pulled out my firearm, pointed it at him and ordered him to drop the hammer. He hesitated, and then looked at me, and 3 CP-21-CR-1195-2009 he said what are you going to do, shoot me. And that is when he hung up the cell phone and an assisting officer came up next to me and pointed his Tazer at him and then he complied with my request and laid down on the floor. And then he was taken into custody. N.T. 69. The police officer described the defendant as “very agitated” and said that he “seemed to almost have like a thousand yard stare, like he wasn’t in the moment.” N.T. 70. The defendant did not testify in the case. In our charge, we were very careful to explain to the jury that the terroristic threat statute did not contemplate idle threats said in a moment of anger. We described those kinds of threats as being made where there is no particular intent or where the comment resulted from “spur of the moment anger.” We went on to tell the jury: On the other hand, the mere fact that a defendant is angry does not mean that the defendant cannot make a terroristic threat. So it is for you to determine whether it was his intent to terrorize one or more of these people by making the comment that he did, that it was not on the spur of the moment anger, a comment made out of anger. At the defendant’s sentencing, we continued to allow for the possibility that the threats he had made were idle threats. The defendant, however, filed no post-sentence motions and we have not been invited to revisit this issue. Regardless of how we would have ruled, we are satisfied that our charge to the jury was correct to the effect that simply being angry does not render a person incapable of forming the intent to terrorize. See Com. v. Walker, 836 A.2d 999 (Pa.Super. 2003). The defendant’s contention that the only property that was damaged was property that was owned by him is simply untenable. Mrs. Armiya testified as to numerous items of property which belonged to her which were damaged by the defendant. 4 CP-21-CR-1195-2009 Finally, the defendant contends that there was insufficient evidence at the trial to establish his guilt on a count of Simple Assault. Specifically, he claims there was no attempt by physical menace to put another in fear of imminent serious bodily injury. Again, we were not asked in any post-trial motion to review the validity of this conviction. Nor did the defendant seek dismissal of the charge at trial. In other words, prior to the appeal of this case, we have not been asked to pass on the question of whether simply holding a hammer in one’s hand while making threatening comments constitutes a simple assault. Since there was no demurrer in this case and no post-sentence motions were filed, we do not understand how our opinion on the matter would have any relevance at this juncture. In fact, this entire appeal poses the interesting issue of whether any of the questions raised by the defendant have been preserved for appellate 1 review. February 5, 2010 _______________________________ Kevin A. Hess, P.J. Matthew Smith, Esquire Sr. Assistant District Attorney Arla Waller, Esquire Assistant Public Defender :rlm 1 We understand that there is no longer a requirement in criminal cases that post-trial motions be filed. Instead, an appeal may be taken, without filing post-trial motions, at the option of the defendant. See Pa.R.Crim.P. 720. A reading of the comment to Rule 720 suggests, however, that the practice of preserving issues for appeal has not been raised before or altered. The text of the Rule, itself, also states that issues deemed preserved for appeal are those during trial. Pa.R.Crim.P. 720(B)(1)(c). The issues, sub judice, raising the legal sufficiency of the evidence have been asserted for the first time in this appeal. 5