Com. v. Walls, S. , 2016 Pa. Super. 156 ( 2016 )

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2016 PA Super 156COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SALIM WALLS,
Appellant No. 2222 EDA 2014
Appeal from the Judgment of Sentence of July 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CP-0003034-2014
BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED JULY 19, 2016
Appellant, Salim Walls, appeals from the judgment of sentence
entered on July 1, 2014. In this case of first impression, we consider
against whom retaliatory action must be taken in order for a defendant to be
convicted of retaliating against a prosecutor or judicial official. We also
consider for the first time the type of “harm” required to sustain a conviction
of one accused of retaliating against a prosecutor or judicial official. After
careful consideration, we hold that retaliatory action against any individual is
sufficient so long as it is taken in retaliation for a lawful action taken by a
prosecutor or judicial official in his or her official capacity. We further hold
that the type of harm required for retaliating against a prosecutor or judicial
official is the same type of harm required for retaliating against a witness,
victim, or party. In those cases, our Supreme Court requires the infliction of
distinct harm. With these determinations in mind, we conclude that while
* Former Justice specially assigned to the Superior Court
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the evidence was sufficient to prove that Appellant took retaliatory action
against an individual based upon the lawful conduct of a prosecutor
undertaken in his or her official capacity, the evidence was not sufficient to
establish the requisite element of harm. As such, we conclude that the
evidence was insufficient to convict Appellant of retaliating against a
prosecutor or judicial official. We also conclude that there was insufficient
evidence to convict Appellant of making terroristic threats; however, there
was sufficient evidence to convict Appellant of harassment. Accordingly, we
affirm in part, reverse in part, vacate in part, and remand for resentencing.
The factual background of this case is undisputed. At approximately
6:00 p.m. on September 19, 2013, Philadelphia County Assistant District
Attorney Kathryn Brown (“ADA Brown”) was shopping at a store located in
Liberty Place Mall. At that time, she heard Appellant yell “Hey, ADA” from
the store’s entrance. Appellant then called ADA Brown, identified himself by
name, and shouted that ADA Brown prosecuted him, and ultimately sent him
to jail, for a crime he did not commit.1
Appellant then entered the store and threw his hat. He continued to
yell that his incarceration caused his grandmother’s death as he approached
ADA Brown. Ultimately, Appellant got to within one foot of ADA Brown and
his voice took on a more serious tone. ADA Brown stepped back and told
Appellant to get away from her. Store employees and customers intervened
1
Appellant was mistaken as ADA Brown never prosecuted him.
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and escorted Appellant from the store. As Appellant was escorted out of the
store, he shouted at ADA Brown that she caused his grandmother’s death
and that she should be next. During the encounter, Appellant never made
physical contact with ADA Brown and she sustained no injuries resulting
from her interaction with Appellant.
The procedural history of this case is as follows. Appellant was
charged2 with retaliating against a prosecutor or judicial official, 3 making
terroristic threats,4 and harassment.5 On July 1, 2014, Appellant proceeded
to a bench trial. The trial court found Appellant guilty of all three charges
and immediately sentenced him to an aggregate term of 11½ to 23 months’
imprisonment. This timely appeal followed.6
Appellant presents four issues for our review:
1. Was [] the evidence insufficient to support [A]ppellant’s
conviction for retaliation against a prosecutor or judicial official
2
The docket reflects that Appellant was charged via criminal information on
March 25, 2014. The certified record, however, does not include a criminal
information. Instead, it only includes an indictment by the Grand Jury of
Philadelphia filed on March 17, 2014.
3
18 Pa.C.S.A. § 4953.1(a).
4
18 Pa.C.S.A. § 2706(a)(1).
5
18 Pa.C.S.A. § 2709(a)(4).
6
On October 15, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 3, 2014, Appellant filed his concise
statement. On May 20, 2015, the trial court issued its Rule 1925(a) opinion.
All issues raised on appeal were included in Appellant’s concise statement.
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insofar as the Commonwealth failed to prove that [A]ppellant, by
means of an unlawful act, harmed or attempted to harm [ADA
Brown] in retaliation for anything [ADA Brown did] in her official
capacity as a prosecutor?
2. Was [] the evidence insufficient to support grading the offense of
retaliation against a prosecutor or judicial official as a second
degree felony, insofar as the [A]ppellant did not use or threaten
to use force, violence, or deception?
3. Was [] the evidence insufficient to support [A]ppellant’s
conviction for [making] terroristic threats where the
Commonwealth failed to establish that [A]ppellant threatened to
commit a crime of violence or had a settled intent to terrorize
[ADA Brown]?
4. Was [] the evidence insufficient to support [A]ppellant’s
conviction for harassment where the Commonwealth failed to
prove that [Appellant] communicated threatening words with the
intent to harass, annoy[,]or alarm [ADA Brown]?
Appellant’s Brief at 3 (internal citations omitted).
In his first issue, Appellant argues that the evidence was insufficient to
convict him of retaliating against a prosecutor or judicial official. As we
describe in greater detail below, there are three components of Appellant’s
sufficiency challenge. First, Appellant argues that the Commonwealth failed
to prove that he targeted the appropriate individual as required by 18
Pa.C.S.A. § 4953.1. Second, Appellant asserts that the evidence did not
demonstrate the harm contemplated by section 4953.1. Third, Appellant
asserts that he did not commit an unlawful act as his conduct was a
protected remonstrance under the Pennsylvania Constitution.
“Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is
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plenary.” Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super.
2015), appeal denied, 119 A.3d 351 (Pa. 2015) (citation omitted). “When
reviewing the sufficiency of the evidence, this Court is tasked with
determining whether the evidence at trial, and all reasonable inferences
derived therefrom, are sufficient to establish all elements of the offense
beyond a reasonable doubt when viewed in the light most favorable to the
Commonwealth[.]” Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015)
(citation omitted). “The evidence need not preclude every possibility of
innocence and the fact-finder is free to believe all, part, or none of the
evidence presented.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa.
Super. 2015) (internal quotation marks and citation omitted).
No published opinion issued by this Court or our Supreme Court sets
forth the elements necessary to convict a defendant of retaliating against a
prosecutor or judicial official. The Crimes Code, however, defines the
offense as follows: “A person commits an offense if he harms or attempts to
harm another or the tangible property of another by any unlawful act in
retaliation for anything lawfully done in the official capacity of a prosecutor
or judicial official.” 18 Pa.C.S.A. § 4953.1(a). Thus, the crime of retaliating
against a prosecutor or judicial official has three elements. The
Commonwealth must prove, beyond a reasonable doubt, that the defendant:
(1) acted in retaliation for the lawful actions of a prosecutor or judicial
official done in his or her official capacity, (2) harmed, or attempted to
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harm, any individual, or that individual’s property, and (3) committed the
harm, or committed the attempt to harm, via an unlawful action.
The parties agree that one element of the offense is that the defendant
take some retaliatory action. The parties disagree, however, against whom
that retaliatory action must be taken, what harm must be inflicted by a
defendant’s retaliatory action, and whether Appellant’s conduct in the instant
case amounted to an unlawful act. Specifically, Appellant argues that the
retaliatory action must target the specific prosecutor or judicial official whose
official conduct spurred the retaliatory action.7 In other words, Appellant
argues that if a defendant retaliates because of a burglary prosecution, he
must retaliate against the prosecutor or judicial official involved in the
prosecution or adjudication of that offense. Appellant further argues that
the word “harm,” as used in the statue, refers to a distinct harm. Finally,
Appellant argues that his statement to ADA Brown was not a true threat, but
7
This appeal challenges the sufficiency of the evidence needed to secure a
conviction under section 4953.1 where the Commonwealth showed that
Appellant, motivated by the official actions of one prosecutor, confronted a
different prosecutor who had no involvement in the underlying case. In view
of these circumstances, we refer only to the human target of Appellant’s
conduct. We note, however, that section 4953.1 permits prosecution where
the defendant takes retaliatory action against the property of an individual
instead of the individual himself or herself. Additionally, we note that the
defendant need not have been the subject of prosecutorial or judicial action.
For example, section 4953.1 would allow for the prosecution of an individual
who retaliates against a judge for actions the judge took against the brother
of the individual or for actions the individual read about in the newspaper.
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was instead a protected remonstrance under Article I, Section 20 of the
Pennsylvania Constitution.
The Commonwealth, on the other hand, argues that the requisite
retaliatory action can be taken against any individual – not just the
prosecutor or judicial official whose protected actions motivate the
retaliatory action. It further argues that any type of harm is sufficient to
support prosecution under section 4953.1. Specifically, the Commonwealth
argues that emotional or psychological harm is sufficient to find a defendant
guilty of retaliating against a prosecutor or judicial official. The
Commonwealth avers that, at the very minimum, Appellant attempted to
harm ADA Brown. Lastly, the Commonwealth argues that Appellant’s
statement was a true threat and not protected speech.
This appeal requires us to interpret section 4953.1. “When interpreting
a statute, this Court is guided by the Statutory Construction Act [] of 1972,
1 Pa.C.S.A. §§ 1501–1991.” CitiMortgage, Inc. v. Barbezat, 131 A.3d 65,
73 (Pa. Super. 2016). “Our paramount interpretative task is to give effect to
the intent of our General Assembly in enacting the particular legislation
under review.” Egan v. Egan, 125 A.3d 792, 795 (Pa. Super. 2015)
(internal alteration and citation omitted). “[T]he best indication of the
General Assembly’s intent in enacting a statute may be found in its plain
language[.]” Watts v. Manheim Twp. Sch. Dist., 121 A.3d 964, 979 (Pa.
2015).
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Appellant argues that “the plain language of the statute criminalizes an
attempt to harm a prosecutor in retaliation for something that prosecutor
has done, in her official capacity, to the defendant.” Appellant’s Brief at 19.
This, however, is not what the statute says. Instead, the statute
criminalizes the infliction of harm, or the attempt to inflict harm, upon
“another” for actions lawfully taken by “a prosecutor or judicial official.” The
use of the word “another” does not limit the statute to cover only harms, or
attempts to inflict harm, upon prosecutors or judicial officials, let alone those
who prosecuted or presided over a case brought against a defendant. The
plain meaning of “another” is “any other person.” Cf. Ocasio v. United
States, 136 S.Ct. 1423, 1441 (2016) (Sotomayor, J. dissenting) (discussing
the plain meaning of “another”).
Furthermore, the statute’s use of the word “a” instead of “the”
indicates that the harm, or attempted harm, need not be done to the specific
prosecutor or judicial official whose protected actions motivated the
defendant. Instead, all that is required is that a defendant retaliate against
any individual for a lawful action taken by any prosecutor or judicial official
in his or her official capacity. For example, if a defendant harms a
prosecutor’s spouse in retaliation for a lawful action taken by that prosecutor
in his or her official capacity, the statutory element requiring retaliation has
been satisfied. Likewise, if a defendant harms a prosecutor in Pike County in
retaliation for a lawful action taken by a different prosecutor in Greene
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County, the statutory element requiring retaliation has been satisfied. Thus,
we hold that section 4953.1 does not require that retaliatory action be taken
against the specific prosecutor or judicial official whose protected actions
motivated the defendant. Instead, it is sufficient that the retaliatory action
be taken against any individual in retaliation for the actions taken by any
prosecutor or judicial official in his or her official capacity. In this case,
Appellant retaliated against ADA Brown for actions taken by a different ADA,
who prosecuted him for a crime for which he was ultimately imprisoned.
Thus, the Commonwealth satisfied its burden of proof with respect to the
first element of the offense.
Next, we turn to whether Appellant “harmed” ADA Brown. The
Commonwealth argues that “placing [ADA Brown] in fear and causing her to
seriously reassess her career as a prosecutor” was “harm” under the statute.
Commonwealth’s Brief at 11. Appellant, on the other hand, argues that such
emotional and psychological distress is insufficient under section 4953.1.
Section 4953.1 does not define the term harm and neither this Court
nor our Supreme Court has defined the harm required under section 4953.1.
When interpreting another section of Chapter 43 of the Crimes Code,
however, this Court held that the term “harm” is ambiguous. Cf.
Commonwealth v. Ostrosky, 866 A.2d 423, 428 (Pa. Super. 2005), aff'd,
909 A.2d 1224 (Pa. 2006) (“[B]ecause of the context in which the word
‘harm’ is used in the retaliation statute, we question whether the legislature
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intended that it include any conceivable kind of injury, loss, or damage, as
described in the dictionary.”). Thus, we turn to other tools of statutory
construction.
As all sections of Chapter 43 of the Crimes Code bear upon falsification
and intimidation, they must be read in pari materia. See Commonwealth
v. Gallagher, 924 A.2d 636, 638 (Pa. 2007) (citations omitted); 1 Pa.C.S.A.
§ 1932(a). Although no other section of Chapter 43 defines the term harm,
our Supreme Court has defined the term under section 4953, criminalizing
retaliation against a witness, victim, or party. We therefore find our
Supreme Court’s analysis instructive as it relates to the definition of harm
under section 4953.1.
Our Supreme Court has held that the harm required under section
4953 must be distinct from the threat. In Commonwealth v. Ostrosky,
909 A.2d 1224 (Pa. 2006), the defendant was ordered to pay restitution in a
civil case. When the defendant saw the victim in public, the defendant
called him a pejorative term for homosexuals, threatened to assault him,
and threated to rape his wife. Id. at 1226. As a result of these threats, the
defendant was convicted of retaliating against a witness, victim, or party.
That statute provides that, “A person commits an offense if he harms
another by any unlawful act or engages in a course of conduct or repeatedly
commits acts which threaten another in retaliation for anything lawfully done
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in the capacity of witness, victim[,] or a party in a civil matter.” 18
Pa.C.S.A. § 4953.
Our Supreme Court granted allowance of appeal to consider whether
the evidence was sufficient to prove that the defendant harmed the victim.
Commonwealth v. Ostrosky, 878 A.2d 863 (Pa. 2005) (per curiam). The
Commonwealth argued that the harm was two-fold. First, the
Commonwealth argued that being the victim of any crime was sufficient
harm. In the Commonwealth’s view, it was sufficient for purposes of section
4953 that the defendant harassed the victim. Second, the Commonwealth
argued that the psychological harm to the victim was sufficient to satisfy the
harm element of the offense.
Our Supreme Court rejected both arguments. As to the first
argument, it stated:
The Commonwealth’s claim that the element of harm can be
satisfied merely by showing that an unlawful act was committed
does violence to the plain language of the provision which
requires both a showing of harm and the performance of an
unlawful act. Such a construction would negate the need for a
specific showing of harm, which is clearly contrary to language
contemplated by the legislature. . . . [S]uch a construction would
make the legislature’s use of the word harm in the statute mere
surplusage as proof of the unlawful act itself would, per se, be
considered harmful. The legislature, however, is presumed not
to intend any statutory language to exist as mere surplusage
and, accordingly, courts must construe a statute so as to give
effect to every word.
Ostrosky, 909 A.2d at 1232 (citations omitted; emphasis in original).
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The same is true under section 4953.1. Section 4953.1, like section
4953, requires not only that harm be done but also that the harm be the
result of an unlawful act. The harm language in section 4953.1 would be
surplusage if the mere commission of an unlawful act was sufficient to
satisfy the harm requirement. Thus, for the same reasons expressed by our
Supreme Court in Ostrosky, we hold that the harm required under section
4953.1 is not satisfied by the mere showing of an unlawful act by the
defendant.
Our Supreme Court also rejected the Commonwealth’s second
argument which asserted that psychological harm sufficed under section
4953. It explained:
We likewise disagree with the Commonwealth’s alternative claim
that it independently demonstrated harm in relation to [the
defendant]’s threat sufficient to sustain its burden of proof. . . .
[S]uch a claim is, in essence, just another way of asserting that
harm, per se, results from the commission of an unlawful act.
The [victim] testified to feelings of concern and intimidation that
resulted from [the defendant’s] threat [which] are feelings that
one would expect to accompany any threat that was made.
Again, if such a threat and its concomitant resulting feelings
were sufficient to satisfy the retaliation statute, the requirement
of some objective type of harm . . . would be unnecessary.
Ostrosky, 909 A.2d at 1233.
This rationale refutes the Commonwealth’s claim that ADA Brown’s
fear and reassessment of her prosecutorial career qualify as harm under
section 4953.1. The statute specifically requires some objective harm
separate and apart from intimidation and psychological harm that results
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from any unlawful act. Thus, for the same reasons expressed by our
Supreme Court in Ostrosky, we hold that the harm required under section
4953.1 is not satisfied by the mere showing of mental or psychological
harm.
The Commonwealth attempts to distinguish Ostrosky in two respects.
First, the Commonwealth notes that the witness retaliation statute
specifically includes an alternative element of making repeated threats in
lieu of causing harm. It also notes section 4935.1 does not include this
alternative element. This argument, however, confirms our interpretation of
the statute. “[A]n intrinsic aid to statutory construction is found in the
maxim expressio unius est exclusio alterius. The maxim establishes the
inference that, where certain things are designated in a statute, all
omissions should be understood as exclusions.” Commonwealth v.
Richards, 128 A.3d 786, 789 (Pa. Super. 2015).
The General Assembly included a pattern of threats as an alternative
element in section 4953 but not 4953.1. By making this choice, the
legislature clearly intended to outlaw threats (so far as there is a pattern)
under section 4953 but not under section 4953.1. The failure to list a
pattern of threats as an alternative element under section 4953.1 means
that even a pattern of threats in retaliation for actions taken by a prosecutor
or judicial official is not criminalized under section 4953.1 (although it may
be illegal under other sections of the Crimes Code). It is not our duty to
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second guess this policy decision by the legislative branch. Instead, under
the in pari materia and expressio unius est exclusio alterius cannons of
statutory construction, the failure of the legislature to include a pattern of
threats in section 4953.1 means that threats – unaccompanied by retaliatory
action and a distinct harm - are generally not included within the scope of
conduct criminalized by that section.
Second, the Commonwealth notes that section 4953.1 is satisfied
when the Commonwealth proves the defendant “attempted” to harm while
section 4953 requires actual harm. We agree that the plain language of
section 4953.1 provides that if a defendant attempts to harm a prosecutor or
judicial official, but fails, the harm element of the statute is satisfied. In
other words, if the defendant shoots at an individual in retaliation for actions
taken by a prosecutor but misses, he or she has “attempted” to cause the
type of harm required by section 9543.1. We do not read the General
Assembly’s expansion of the scope of criminal liability under section 4953.1
to include “attempts” as an effort to negate the independent requirement of
a distinct harm. Put differently, where criminal liability under section 4953.1
rests upon an “attempt to inflict harm,” the Commonwealth must
demonstrate that the defendant attempted to inflict a distinct harm – one
that differs from the defendant’s unlawful act.
Next, the Commonwealth argues that, if Ostrosky is indistinguishable
from the case at bar, we should find that Appellant’s threat harmed ADA
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Brown as contemplated by footnote 9 of that decision. In that footnote, our
Supreme Court stated, “Contrary to the dissent’s assertion, this is not to say
that one could never show that harm . . . resulted from a single threat.
Rather, as noted, at issue here is whether, in all cases, a distinct showing in
this regard is required.” Ostrosky, 909 A.2d at 1232 n.9.
This argument is without merit. The Commonwealth failed to prove
any harm which was distinct from the threat itself. As noted above, all
threats cause concern and/or intimidation but such consequences are
insufficient to prove distinct harms. There are certainly cases, albeit rare, in
which a distinct harm results from a single threat. For example, if a woman
miscarried as a result of being threatened for actions taken by a prosecutor
or judicial official, she would have suffered harm under section 4953.1. In
the case at bar, however, the threat resulted in no distinct harm.
Finally, the Commonwealth argues that even under our interpretation
of the harm requirement, Appellant attempted to harm ADA Brown, i.e., he
took a substantial step towards killing ADA Brown. Cf. 18 Pa.C.S.A.
§ 901(a) (defining criminal attempt). There is no support in the record for
this assertion. Appellant never took a substantial step towards harming ADA
Brown. He made the relevant threat as he was backing away from ADA
Brown. He did not try to approach or harm her after he made the threat. If
we were to adopt the Commonwealth’s argument, any threat to kill someone
would also be attempted murder. Such an argument is nonsensical. Thus,
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we conclude that Appellant did not take a substantial step towards harming
ADA Brown.
As the Commonwealth failed to prove a distinct harm in this case, and
failed to show that Appellant attempted to harm ADA Brown, we hold that
the evidence was insufficient to convict Appellant of retaliating against a
prosecutor or judicial official. As we conclude the evidence was insufficient
to find Appellant harmed ADA Brown, we need not address Appellant’s
argument that he did not commit an unlawful act or his claims relating to the
grading of his conviction for retaliatory conduct.
In this third issue, Appellant argues that the evidence was insufficient
to sustain a conviction for terroristic threats. “The elements necessary to
establish a violation of the terroristic threats statute are: (1) a threat to
commit a crime of violence; and (2) that the threat was communicated with
the intent to terrorize[.]” Commonwealth v. Vergilio, 103 A.3d 831, 833
(Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015) (internal
alterations and citation omitted). Appellant challenges the sufficiency of the
evidence related to both elements.
We focus our attention on the second element. “The purpose of
[section 2706] is to impose criminal liability on persons who make threats
which seriously impair personal security or public convenience. It is not
intended by this section to penalize mere spur-of-the-moment threats which
result from anger.” 18 Pa.C.S.A. § 2706 cmt. As this Court has stated, “the
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real issue [i]s whether the Commonwealth presented sufficient evidence to
establish the required mens rea, not whether [Appellant] made the
statements in the context of a heated discussion. Being angry does not
render a person incapable of forming the intent to terrorize.”
Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super. 2003), appeal
denied, 853 A.2d 361 (Pa. 2004) (internal quotation marks and citation
omitted). We must consider the totality of circumstances to determine if
Appellant had the necessary mens rea. See Commonwealth v. Reynolds,
835 A.2d 720, 730 (Pa. Super. 2003) (citation omitted).
When two parties have an unplanned, heated confrontation, a threat
made during the confrontation is often a spur-of-the-moment threat made
during a period of transitory anger. For example, in Commonwealth v.
Sullivan, 409 A.2d 888 (Pa. Super. 1979), the defendant called the state
police and threatened to kill the local sheriff. Id. at 888-889. The next day,
the defendant encountered the local sheriff on the street, and during a
shouting match, Appellant threatened to kill the sheriff. Id. at 889. The
defendant was convicted of two counts of terroristic threats – one count for
each incident. On appeal, this Court reversed and found that the evidence
was insufficient to find Appellant guilty on either count. As to the second
count, involving the defendant’s encounter with the sheriff, this Court held
that the threat was made as part of a chance argument on a public street
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and that the defendant did not have the settled purpose of terrorizing the
local sheriff. See id. at 889-890.
The Commonwealth argues Sullivan is distinguishable because the
defendant in Sullivan was provoked. See Commonwealth’s Brief at 20-21.
Although there was a shouting match between the sheriff and the defendant
in Sullivan, there is nothing to indicate that the sheriff provoked the
defendant. What we find instructive about Sullivan, however, is that, as in
the case at bar, the defendant encountered an official in public, a heated
confrontation followed, and the defendant made a threat during that heated
confrontation. Thus, it was the chance nature of the parties’ meeting and
the spontaneous anger that the encounter instilled in the defendant that
links the facts in the present case to those before this Court in Sullivan.
Just as Sullivan found the evidence insufficient to support a terroristic
threats conviction, we do so here as well.
Contrast the present situation with In re B.R., 732 A.2d 633 (Pa.
Super. 1999), which the Commonwealth relies upon in arguing that the
evidence was sufficient to convict Appellant of terroristic threats. In B.R.,
the defendant, while talking with his friends outside the principal’s office,
threatened to spray paint the security cameras in the school and bring a gun
to school. Id. at 635. The defendant was convicted of making terroristic
threats for this statement. This Court affirmed. In holding that the
defendant’s statements were not spur-of-the-moment threats, this Court
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stated that because the defendant’s statements “were not the product of any
heated verbal exchange or confrontation[,]” his statements could “not be
characterized as a random spur[-]of[-]the[-]moment emotional outburst
resulting from anger.” Id. (internal quotation marks omitted).
In B.R., there was no heated confrontation. Instead, the defendant
made his threat while talking with friends in a conversational tone
unmotivated by a hostile encounter or circumstance. In this case,
Appellant’s threat to ADA Brown was the product of a heated confrontation
between Appellant and ADA Brown. Appellant made the threat at the
conclusion of the confrontation as he was being led away from ADA Brown.
The evidence shows that Appellant became enraged upon seeing the
individual he (mistakenly) blamed for sending him to prison. This type of
spur-of-the-moment threat, resulting from transitory anger, is not covered
by the terroristic threats statute.
The Commonwealth also argues that, at the very least, Appellant acted
with reckless disregard of terrorizing ADA Brown. See Commonwealth’s
Brief at 17. The Commonwealth ignores, however, that Appellant was not
charged with violating section 2706(a)(3), which covers instances where a
defendant acts with reckless disregard. Nor was Appellant convicted under
section 2706(a)(3). Instead, Appellant was charged with, and convicted of,
violating section 2706(a)(1), which requires a settled intent to terrorize.
Thus, the Commonwealth’s argument that Appellant violated section
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2706(a)(3) is of no moment with respect to our review of the sufficiency of
the evidence.8
Viewing the totality of the circumstances in the light most favorable to
the Commonwealth, we hold that there was insufficient evidence that
Appellant intended to terrorize ADA Brown. Instead, the evidence only
supports the conclusion that Appellant made a spur-of-the-moment threat as
the result of anger during a random confrontation at a local shopping mall.
Appellant did not specifically threaten harm to ADA Brown presently or in the
future. Instead, Appellant made a very brief statement that the trial court
construed as a threat while being led away from ADA Brown. All of these
circumstances indicate that Appellant made a spur-of-the-moment threat
that does not evince a settled intent to terrorize. Thus, there was
insufficient evidence to find Appellant guilty of making terroristic threats.
Finally, Appellant argues that the evidence was insufficient to convict
him of harassment.9 “A person commits the crime of harassment when, with
8
We acknowledge that this Court has used imprecise language when reciting
the elements of the offense. In particular, we have conflated the elements
of section 2706(a)(1) with those of section 2706(a)(3). See, e.g., Vergilio,
103 A.3d at 833 (citation omitted). This Court explained the difference,
however, in Commonwealth. v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super.
2009), rev’d in part on other grounds, 30 A.3d 1105 (Pa. 2011).
9
At trial, Appellant conceded the evidence was sufficient to convict him of
harassment. See N.T., 7/1/14, at 33-39. As we find that Appellant’s
sufficiency challenge lacks merit, we decline to decide whether a defendant
waives a sufficiency challenge on appeal by conceding at trial that the
evidence was sufficient. Cf. Commonwealth v. Murray, 836 A.2d 956,
(Footnote Continued Next Page)
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intent to harass, annoy[,] or alarm another, the person . . . communicates
to or about such other person any lewd, lascivious, threatening[,] or
obscene words, language, drawings[,] or caricatures[.]” 18 Pa.C.S.A.
§ 2709(a)(4).
Appellant argues that he did not intend to harass, annoy, or alarm
ADA Brown. This argument is without merit. Unless you are attempting to
harass and annoy an individual, there is no reason to scream at someone
that she should die. We agree that Appellant’s actions are exactly the type
of behavior that the harassment statute was meant to cover. Accordingly,
we conclude that there was sufficient evidence to convict Appellant of
harassment.
In sum, we hold that retaliatory action taken against any individual is
sufficient to satisfy the first element of section 4953.1 so long as it is taken
in retaliation for a prosecutor or judicial official’s lawful action in the course
of his or her official duties. We further hold that the harm inflicted must be
distinct from the unlawful action. We therefore reverse Appellant’s
conviction on that count. We conclude that the evidence was insufficient to
convict Appellant of making terroristic threats and therefore reverse that
conviction. We conclude the evidence was sufficient to convict Appellant of
harassment and therefore affirm that conviction. As our reversal of
_______________________
(Footnote Continued)
963 (Pa. Super. 2003), overruled on other grounds, Commonwealth v.
Robinson, 970 A.2d 455 (Pa. Super. 2009) (en banc) (challenge to
sufficiency of evidence waived by pleading guilty).
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J-A05010-16
Appellant’s convictions for retaliatory conduct and making terroristic threats
convictions upsets the overall sentencing scheme, we vacate Appellant’s
judgment of sentence and remand for resentencing. See Commonwealth
v. Carter, 122 A.3d 388, 393 (Pa. Super. 2015).
Judgment of sentence affirmed in part, reversed in part, and vacated
in part. Case remanded. Jurisdiction relinquished.
Judge Ott joins this Opinion.
President Judge Emeritus Stevens files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2016
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