Com. v. Singh, K.

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2024
• Docket: 1498 EDA 2023
• Status: Unpublished

Opinion

J-A05003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KULJINDER SINGH : : Appellant : No. 1498 EDA 2023

Appeal from the Judgment of Sentence Entered February 9, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002661-2022

BEFORE: DUBOW, J., KING, J., and LANE, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 22, 2024

Appellant Kuljinder Singh appeals from the judgment of sentence

entered by the Delaware County Court of Common Pleas on February 9, 2023,

after the trial court convicted him of Terroristic Threats.1 Appellant challenges

the sufficiency and weight of the evidence and asserts that the Commonwealth

violated Brady v. Maryland, 373 U.S. 83 (1963), in failing to disclose

videographic evidence. After careful review, we affirm.

On March 4, 2022, Appellant approached Majit Singh Gill (“Victim”) near

Victim’s service station in Upper Darby Township. The trial court summarized

the encounter as follows, based on the evidence it found credible:

Appellant approached [Victim] around 8:30 P.M. on that night, wearing a bandana type mask. [Victim] asked, “Is that [Appellant]?” To which, Appellant responded, yes and briefly removed his mask. [Appellant] then told [Victim], I am here to ____________________________________________

1 18 Pa.C.S. § 2706(a)(1). J-A05003-24

“take care of you, if you don’t back off, I’m going to shoot you.” He then motioned toward something on his waistband. [Victim] testified that Appellant then walked away and got in his car which was parked on the street. [Victim] then got in his car and followed Appellant’s vehicle to get his license plate number. [Victim] testified that he took the threat to mean that Appellant was going to shoot him if he did not drop his Federal lawsuit against Avtar Kaur, who is Appellant's business partner and friend.

Trial Ct. Op., 8/8/23, at 1 (citations omitted). Subsequently, the

Commonwealth charged Appellant with Terroristic Threats, Harassment, and

Simple Assault.

On February 6, 2023, the trial court presided over a non-jury trial at

which Victim testified as set forth above. Appellant presented the testimony

of Jaspal Singh2 and Janmeet Singh Millu. They asserted that Appellant, Ms.

Kaur, and Jaspal Singh traveled from Georgia to Mr. Millu’s home in New

Jersey to verify witnesses’ addresses relating to Victim’s federal lawsuit

against Ms. Kaur.3 Jaspal Singh and Mr. Millu stated that they accompanied

Appellant that evening to one of the witnesses’ addresses, which was a

property owned by Victim across the street from Victim’s service station.

Jaspal Singh and Mr. Millu testified that Appellant exited the car at the address

but that they did not see the encounter with Victim. Mr. Millu stated that

Victim followed their vehicle and attempted to speak to Appellant.

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2 Jaspal Singh is the husband of Ms. Kaur, against whom Victim had filed the

federal lawsuit.

3 Ms. Kaur’s attorney in the federal case additionally testified that he had discussed the possibility of Appellant verifying the witnesses’ addresses after unsuccessfully attempting to serve them.

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Appellant testified in his own defense, claiming that Victim initiated the

encounter, while Appellant was attempting to verify the address. Appellant

asserted that he told Victim that he did not want to talk to Victim and drove

away from the scene, but Victim followed and threatened to kill him. Appellant

also alleged that Victim recorded the incident on his phone.

On February 9, 2023 , the trial court found Appellant guilty of a single

count of Terroristic Threats and imposed a sentence of 12 months of

probation. The court found him not guilty of Harassment, and the

Commonwealth withdrew the count of Simple Assault.

On February 17, 2023, Appellant filed a post-sentence motion, raising,

inter alia, the issues he presents to this Court. The trial court denied the post-

sentence motion on May 12, 2023.

On June 5, 2023, Appellant filed a notice of appeal. Subsequently, both

the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant raises the following questions for our review:

1. Did the [t]rial [c]ourt err by entering a verdict which was against both the weight and sufficiency of the evidence?

2. Is [Appellant] entitled to a new trial on account of the Commonwealth’s inadvertent withholding of videographic evidence?

Appellant’s Br. at 3.

A.

“A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Accordingly,

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“our standard of review is de novo[,] and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “When

reviewing a challenge to the sufficiency of the evidence, we evaluate the

record in the light most favorable to the Commonwealth as verdict winner,

giving it the benefit of all reasonable inferences to be drawn from the

evidence.” Commonwealth v. Lake, 281 A.3d 341, 345 (Pa. Super. 2022),

appeal denied, 291 A.3d 333 (Pa. 2023). “Evidence will be deemed sufficient

to support the verdict when it establishes each material element of the crime

charged and the commission thereof by the accused, beyond a reasonable

doubt.” Widmer, 744 A.2d at 751.

Appellant challenges the sufficiency of the evidence supporting his

conviction of Terroristic Threats. “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). Terroristic threats does not require proof of the

defendant’s “ability to carry out the threat” or the victim’s belief that the threat

will be carried out. Commonwealth v. Kline, 201 A.3d 1288, 1290 (Pa.

Super. 2019). Indeed, the effect of the threat on the victim, such as fear or

terror, “while representative of the harm that our legislature sought to

address, is not an element of the crime of terroristic threats.” In the Interest

of E.L.W., 273 A.3d 1202, 1208 (Pa. Super. 2022).

Appellant asserts that the Commonwealth’s evidence “was insufficient

to prove that the person who was the target of the threat was ever placed in

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terror.” Appellant’s Br. at 11. We reject Appellant’s argument because the

crime of Terroristic Threats does not require proof that the target of the threat

experienced terror. Rather, we agree with the trial court that the

Commonwealth produced evidence sufficient to demonstrate Terroristic

Threats. As recognized by the trial court, “Appellant communicated a threat

of violence, a threat that he would shoot the victim, and then communicated

by gesturing to his waistband, a gesture which was intended to make the

victim believe he had a firearm on his person.” Trial Ct. Op. at 5. Accordingly,

Appellant’s sufficiency claim fails.

B.

Appellant next challenges the weight of the evidence. In reviewing a

weight of the evidence claim, an appellate court does not directly assess the

“underlying question of whether the verdict is against the weight of the

evidence” but, rather, whether the trial court abused its discretion in

determining that the verdict was not so contrary to the evidence as to shock

the trial court’s conscience. Lake, 281 A.3d at 346-47. We reiterate that

“[t]he weight of the evidence is exclusively for the finder of fact, who is free

to believe all, none or some of the evidence and to determine the credibility

of the witnesses.” Commonwealth v. Miller, 172 A.3d 632, 642 (Pa. Super.

2017) (citation omitted).

Appellant contends that the verdict is against the weight of the evidence.

Appellant’s Br. at 15-17. He argues that the trial court should have credited

his and his supporting witnesses’ testimony over the testimony of Victim,

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especially because Victim had a prior crimen falsi conviction.4 Appellant

argues that “[t]he trial court has arbitrarily picked sides in returning its verdict

and has not convincingly established why the testimony of [V]ictim was

weightier than that of [Appellant].” Id. at 16.

The trial court concluded that the verdict was not against the weight of

the evidence, explaining that it found Victim’s testimony credible and

Appellant’s testimony not credible. Trial Ct. Op. at 5-6 While acknowledging

that the primary purpose of Appellant’s trip from Georgia could have been to

verify the witnesses’ addresses, the court did not find it credible that Appellant

drove over an hour from New Jersey, where he was staying, to Upper Darby

at 8:30 at night “to simply verify addresses.” Id. at 5. The court emphasized

that the other two witnesses could not see Appellant during the encounter

with Victim near the service station.

Appellant fails to show that the trial court abused its discretion in

concluding that its verdict was not against the weight to the evidence. To the

contrary, the court ably explained its reasoning for finding Appellant’s

testimony not credible. As noted, the trial court, as fact finder, has the

authority to determine the credibility of witnesses. Accordingly, we reject

Appellant’s challenge based on the weight of the evidence.

4 Appellant presented evidence that Victim committed a summary offense of

Possession of Unstamped Cigarettes, 72 P.S. § 8273(a). N.T., 2/6/23, at 32- 38.

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C.

In his final issue, Appellant seeks a new trial claiming that the

Commonwealth violated Brady by failing to turn over videographic evidence.

Appellant’s Br. at 18-23.

Under Brady and its progeny, the prosecution violates a defendant’s

due process rights by withholding exculpatory evidence. Commonwealth v.

Bagnall, 235 A.3d 1075, 1077 n.1 (Pa. 2020). A Brady claim “presents a

question of law, for which our standard of review is de novo and our scope of

review is plenary.” Id. at 1084.

In asserting a Brady claim, a defendant must prove that: “(1) the

evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the prosecution has suppressed the

evidence, either willfully or inadvertently; and (3) the evidence was material,

meaning that prejudice must have ensued.” Id. at 1086.

Appellant claimed that the Commonwealth violated Brady by failing to

turn over (1) Victim’s cell phone video of the encounter and (2) security

footage from Victim’s service station. The trial court addressed only the

former, despite Appellant raising his challenge regarding the security cameras

in its post-sentence motion. Specifically, it found that “[t]here is simply no

information to show this video existed, the Commonwealth possessed it, nor

that it was exculpatory.” Trial Ct. Op. at 7.

Appellant argues that this reasoning should not apply to the video from

the service station security cameras given that Victim testified at the

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Preliminary Hearing that he gave detectives the security footage from 10-12

cameras. Appellant’s Br. at 21-22 (citing N.T. Prelim. Hr’g, 6/3/22, at 9-10).

Appellant claims “the video could have been proven exculpatory” as it could

have shown which person approached the other and whether either gestured

to their waistbands. Id. at 22-23. In a single sentence, Appellant also asserts

that the Commonwealth should have provided defense counsel with Victim’s

cell phone video. Id. at 23.

Upon review, we conclude that Appellant’s Brady claim fails. First, as

the trial court found, Appellant does not meet his burden regarding Victim’s

cell phone video because he does not demonstrate that the video existed, let

alone that it was exculpatory or material. Rather, the only evidence

supporting the existence of the video is Appellant’s own testimony, which the

court did not find credible.

Second, assuming the existence of security camera footage, Appellant

claims that the security camera video “could have been proven exculpatory”

because it “could have impeached” Victim’s testimony. Appellant’s Br. at 22-

23. These speculative claims, however, do not satisfy Appellant’s burden to

prove that the evidence was favorable or material.5 Accordingly, we conclude

that Appellant has not established a right to relief under Brady.

After careful review, we affirm the judgment of sentence, concluding

that Appellant failed to establish a right to relief on any of his claims. ____________________________________________

5 Indeed, Victim testified to the contrary, stating that “[i]t was dark” and that

he did not “know how far the cameras reach[ed.]” N.T. Prelim. Hr’g at 9.

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Judgment of sentence affirmed.

Date: 3/22/2024

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