In the Int of: T.J.U., a Minor ( 2018 )

J-A11027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.J.U., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
Appellant :
:
:
:
:
: No. 1807 MDA 2017
Appeal from the Dispositional Order November 6, 2017
In the Court of Common Pleas of Schuylkill County Juvenile Division at
No(s): CP-54-JV-0000244-2017
BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 20, 2018
Appellant T.J.U. appeals from the dispositional order1 entered after his
adjudication of delinquency for acts constituting two counts of terroristic
threats.2 Appellant challenges the sufficiency of the evidence of his
adjudication and the increased grading of count one as a third-degree felony.
We affirm.
The juvenile court summarized the facts from the adjudication hearing
as follows:
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant purported to appeal from the November 6, 2017 adjudication of
delinquency. An appeal properly lies from the dispositional order. In re J.D.,
798 A.2d 210, 211 n.1 (Pa. Super. 2002). We have amended the caption
accordingly.
2 18 Pa.C.S. §§ 2706(a)(1) and 2706(a)(3).
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The testimony that this [c]ourt found credible was that the
juvenile, [Appellant], was a student at Pottsville Area High School
in Schuylkill County, Pennsylvania. [Appellant] was in 6th [period]
history class with three other students name[d], R.J.S., Z.V.O.,
and R.V.D. The three students knew [Appellant] from being in
history class together and they all got along but they weren’t
friends with [Appellant]. They were all in class together on
Thursday, October 12, 2017. A pep rally was scheduled for Friday,
October [13], 2017 because it was homecoming weekend and a
football game was scheduled for that Friday night. [Appellant]
told the three boys on Thursday after history class that they
should not go to the pep rally because something big was going
to happen. The boys questioned [Appellant] about what he meant
and he said if it happens he wouldn’t be in class on Monday. The
bell rang and the boys had to go to their next class and did not
discuss the statement further.
R.J.S. testified that after class [Appellant] told the other three
boys that he had something big planned for tomorrow and don’t
go to the pep rally. R.J.S. also testified that [Appellant] told him
that if it works, like whatever is going to happen Friday, he
wouldn’t be there Monday. R.J.S. testified that as the day went
on the statement caused him concern. Later Thursday night,
R.J.S. started a group chat on Snapchat[3] with Z.V.O. to discuss
the statements that [Appellant] made and other students were
added to the group chat. R.J.S. testified that he did not go to
school Friday. He testified that he did not feel too hot but he did
not see a doctor.
Z.V.O. testified that [Appellant] stated that he had a big plan for
Friday at the pep rally, not to go and that, like if it went well, he
wouldn’t be there Monday. Z.V.O. testified that he told one friend,
D.C. about the statements during the day. He went to swim
practice after school and then he was involved in a Snapchat about
the statements with R.J.S. Z.V.O testified that he was kind of
concerned about the statements and he also did not attend school
on Friday because he had a fever.
R.V.D. testified that [Appellant] said something was going to
happen at the pep rally and that me, R.J.S. and Z.V.O. shouldn’t
____________________________________________
3“Snapchat is a social media platform where users share photographs and
messages . . . .” Goldman v. Breitbart News Network, LLC, 302 F. Supp.
3d 585, 585 n.1 (S.D.N.Y. 2018).
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go to the pep rally. [Appellant] also told them that he would find
out on Monday. He testified that he didn’t tell anyone at school
because he didn’t think he was going to do it. He testified that he
began to worry later Thursday night when R.J.S. made the group
chat and everyone was calling the principal. He testified that he
went to school and the pep rally on Friday.
E.A., a senior at Pottsville Area High School heard about the
statement that [Appellant] made and he called R.J.S. to discuss
the statements that were made to him. E.A. testified that his sister
who is a sophomore at Pottsville Area High School was having
panic attacks about the situation. After E.A. spoke with R.J.S. to
confirm the statements made by [Appellant], E.A. testified that he
called everyone he knew and told them to be safe, even if that
meant not going to school on Friday.
Mrs. Tiffany Reedy [(Principal)] testified that she is the principal
of the Pottsville Area High School. She testified that she was at
the soccer game in the evening on Thursday, October 12, 2017
when she first learned of the statements made by [Appellant].
She received a text from the band director who received a
concerning phone call from a parent. She testified that she
contacted the superintendent who was also made aware of the
situation, as he was contacted by parents. [Principal] testified
that she was contacted by a number of parents, students, former
students as well as faculty and staff. She testified that she was
inundated with phone calls and texts from parents, staff, faculty
and students.
[Principal] wanted to confirm the information that she received so
she spoke to two of the three boys who heard the statements
made by [Appellant]. After having received confirmation of the
statements made by [Appellant], [Principal] was concerned about
the statements and had a meeting Thursday evening with the
superintendent of the school, the dean of students, and other
members of the administrative team. The school administrators
also contacted the Pottsville Police and informed them of the
situation and they were told by the police that several parents had
already called the police. [Principal] testified that the school
administrators met all of Thursday evening until 12:45 a.m. Friday
morning discussing all of the options available to the school
because it was an absolute panic.
The administrators discussed cancelling school, the pep rally and
the football game. The administrators received word from the
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Pottsville Police that [Appellant] was taken into custody late
Thursday evening so they made the decision not to cancel school,
the pep rally or the football game. [Principal] testified that
although [Appellant] was in custody on Friday morning, there was
still a disruption to the school’s usual activities. The average
attendance for each day that week was about 70 students absent
each day but on that Friday there were 116 students absent from
school. Friday morning [Principal] also had an emergency
meeting with the faculty and administrators so that they could talk
to the students and make them feel comfortable about the
situation. She testified that she never had a meeting like that
before and that she also had a meeting at the end of the day. She
testified that from the time she heard the statements on Thursday
evening, until Friday after school, she was not able to attend to
her usual and customary operations due to the statements made
by [Appellant].
Juvenile Ct. Op., 1/19/18, 1-4.
On October 13, 2017, a petition was filed against Appellant alleging one
count of a delinquent act of terroristic threats under 18 Pa.C.S. § 2706(a)(1),
graded as a third-degree felony. On October 23, 2017, the petition was
amended to include a second count of terroristic threats under 18 Pa.C.S. §
2706(a)(3), graded as a first-degree misdemeanor.
A hearing was held on November 6, 2017. At the conclusion of the
hearing, the court adjudicated Appellant delinquent on both acts and entered
a dispositional order placing Appellant on probation. Appellant filed a timely
notice of appeal on November 20, 2017. Both Appellant and the juvenile court
subsequently complied with Pa.R.A.P. 1925.
Appellant raises the following questions for our review:
1. Whether the evidence introduced at the juvenile hearing was
insufficient to sustain [Appellant]’s adjudication of two (2)
counts of terroristic threats?
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2. Whether the evidence introduced at the juvenile hearing was
insufficient for the grading of the offense under 18 Pa.C.S.A.
Section 2706(a)(1) as a felony under Section 2706(d)?
Appellant’s Brief at 6 (full capitalization omitted).
In support of his first issue, Appellant claims there was insufficient
evidence to establish terroristic threats because his statements did not
constitute a threat and he did not demonstrate an intent to terrorize another.4
Id. at 24. Appellant asserts that “[t]he statements [were] vague and
inconclusive” and did not amount to a threat. Id. at 19. Appellant instead
suggests that his statements were “merely idle juvenile chit chat, made in a
spur of the moment manner after history class.” Id.
Appellant further notes that his own demeanor was described by the
three other students as calm, even happy, when he made the statements. Id.
at 21-23. He emphasizes the three other students initially did not take
Appellant’s statements seriously, one of the students laughed in response to
the statements, and that same student and another student testified that they
would have reported the conversation if they were concerned. Id. at 20-22,
23. Appellant thus concludes that the juvenile court failed to consider the
totality of the circumstances and that the court’s “ruling was based largely
upon how people (including school officials) reacted after hearing about the
statements on a second or third hand basis later that day after school.” Id.
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4 Appellant does not argue that the evidence failed to establish that he
recklessly caused terror or serious public inconvenience.
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The Commonwealth counters that “perhaps 10, 15 or even 20 years ago
[Appellant] would be correct” in his assertions that his statements did not
constitute a threat conveyed with the intent to terrorize. Commonwealth’s
Brief at 6.
However, we cannot analyze these statements in a detached
vacuum. Saying to your classmates that ‘something big’ is going
to happen and following that statement up with a warning ‘do not
go to the pep rally tomorrow’ clearly contains all of the elements
of a threat the [t]rial [c]ourt justifiable found the necessary intent
to cause terror to others by virtue of fear.
Id. at 6-7.
When reviewing the sufficiency of the evidence, our standard of review
is de novo, and our scope of review is plenary. See In re R.R., 57 A.3d 134,
139 (Pa. Super. 2012) (citation omitted). “[W]e must determine whether the
evidence, and all reasonable inferences deducible therefrom, viewed in the
light most favorable to the Commonwealth as verdict winner, are sufficient to
establish all of the elements of the offense beyond a reasonable doubt.” In
re L.A., 853 A.2d at 388, 391 (Pa. Super. 2004). Additionally, “[t]he facts
and circumstances established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence, but the question of any doubt is
for the trier of fact unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined
circumstances.” In re B.R., 732 A.2d 633, 636 (Pa. Super. 1999).
Section 2706(a)(1) and (3) of the Crimes Code provide, in pertinent
part:
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A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize
another; [or]
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(3) otherwise cause serious public inconvenience, or cause
terror or serious public inconvenience with reckless
disregard of the risk of causing such terror or inconvenience.
18 Pa.C.S. § 2706(a)(1), (3). “The purpose of [section 2706] is to impose
criminal liability on persons who make threats which seriously impair personal
security or public convenience.” 18 Pa.C.S. § 2706 cmt.
Under the statutory language, with respect to the communication
element, a direct communication of the threat between the juvenile and the
intended victim is not required. In re L.A., 853 A.2d 388, 391 (Pa. Super.
2004). Further, “[i]t is unnecessary for an individual to specifically articulate
the crime of violence which he or she intends to commit where the type of
crime may be inferred from the nature of the statement and the context and
circumstances surrounding the utterance of the statement.” Commonwealth
v. Martinez, 153 A.3d 1025, 1028 (Pa. Super. 2016) (citation omitted).
“Neither 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. Anneski, 525 A.2d 373, 376 (Pa. Super. 1987).
“A person acts intentionally with respect to a material element of an
offense when . . . if the element involves the nature of his conduct or a result
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thereof, it is his conscious object to engage in conduct of that nature or to
cause such a result[.]” 18 Pa.C.S. § 302(b)(1)(i). “As intent is a subjective
frame of mind, it is of necessity difficult of direct proof.” Commonwealth v.
Matthews, 870 A.2d 924, 929 (Pa. Super. 2005) (en banc) (citations
omitted). “[I]ntent can be proven by direct or circumstantial evidence; it may
be inferred from acts or conduct or from the attendant circumstances.” Id.
Thus, “even a single verbal threat might be made in such terms or
circumstances as to support the inference that the actor intended to terrorize
or coerce.” In re B.R., 732 A.2d 633, 636 (Pa. Super. 1999) (citation
omitted).
In the case of In re B.R., a teacher overheard a juvenile and two other
students talking about disabling campus security cameras, destroying school
property, and bringing a gun to class. Id. at 635. As a result of his comments,
the juvenile was adjudicated delinquent for terroristic threats. Id. On appeal,
the juvenile challenged the sufficiency of the evidence, arguing his comments
amounted to “idle juvenile chit chat.” Id.
In affirming the juvenile’s adjudication, this Court held:
These types of statement are not as Appellant characterizes mere
“idle juvenile chit chat.” They are words with powerful and
disturbing ramifications. As [the trial court] noted: “Other
children of like age had made similar threats recently and had
carried them out with tragic consequences for both the juveniles
and their victims.”
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Our state’s Supreme Court has recently reemphasized, reflecting
the strong public interest in reducing the level of violence within
our schools and in the community in general, that it is of
paramount importance that our schools must be kept as centers
of learning free of fear for personal safety. This concept of safety
encompasses the notion of teachers and students being secure
and free from the fear of becoming victims of senseless violence.
However, freedom from this type of grim fear is destroyed by
statements such as [the juvenile’s].
Id. at 638-39 (footnote and citation omitted).
Instantly, Appellant referenced a particular time and place (the school
pep rally on Friday), and told the three other students not to attend because
“something big” was going to happen. Appellant’s statements involved a
specific school-sanctioned event at which there would be numerous attendees.
Appellant told the other students that he would not be at school the following
Monday. Although Appellant did not articulate a specific crime of violence, it
was reasonable to infer that Appellant conveyed a threat of violence. See
Martinez, 153 A.3d 1028; In re B.R., 732 A.2d at 638. When he made the
statements, Appellant was calm and soft spoken, N.T., 11/6/17, at 32, 61,
and the record does not establish circumstances evidencing the statement was
made “spur of the moment” out of transitory anger or “idle chit-chat.” See
Walls, 144 A.3d at 937; In re B.R., 732 A.2d at 638. Appellant’s argument
that his audience initially believed Appellant would not carry the threat out is
simply not an element of the offense. See Martinez, 153 A.3d at 1028. In
sum, when viewed under the totality of the circumstances, and drawing all
reasonable inference in favor of the Commonwealth, Appellant’s statements
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could be reasonably construed as a threat made with the intent to terrorize.
See In re R.R., 57 A.3d at 139.
In his second issue, Appellant challenges the sufficiency of the
evidence for grading the subsection (a)(1) offense as a third-degree felony.
Appellant’s Brief at 25. Appellant argues that the occupants of the school
were not diverted from their normal or customary operations as a result of his
comments. Id. at 26. He asserts that “[a]lthough school officials had
additional work dealing with the developing situation and had to work late
Thursday night, all school activities and functions continued as planned.” Id.
Appellant also references the principal’s testimony, stating that “although
there were increased absences in school on Friday, she could not establish
that the increased absences were due to what Appellant had said the prior day
in class.” Id. at 26.
Terroristic threats is generally graded as a misdemeanor of the first
degree. See 18 Pa.C.S. § 2706(d). However, the conduct constitutes a felony
of the third degree if “the threat causes the occupants of the building, place
of assembly or facility of public transportation to be diverted from their normal
or customary operations.” Id.
The juvenile court addressed Appellant’s claim as follows:
The juvenile argues that the school, pep rally, or football game
was not cancelled and therefore the threat did not divert the
occupants of the school from [their] normal customary operations.
However, it was due to the good work of the school administration
and the Pottsville Area School District that the juvenile was taken
into custody and school, the pep rally and football game did not
have to be cancelled. The school administrators had to spend all
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of Thursday evening addressing the statements that were made
by [Appellant] and how to handle those statements the following
day if there was school.
This [c]ourt found that there was ample evidence that the threat
caused the occupants of the Pottsville Area High School to be
diverted from their normal and customary operations. [Principal]
testified that there were normally approximately 70 students
absent from school each day and there were 116 students absent
on Friday morning. [Principal] testified that she spent her entire
day on Friday dealing with the issues caused by [Appellant’s]
statements. Also, [Principal] and the superintendent had to have
a meeting with all faculty and staff on Friday morning to address
the situation and go over with the faculty and staff how they
should address the students in the morning so the students felt
comfortable.
The students at the Pottsville Area High School clearly would also
have been impacted by the statements. Instead of going to school
and learning the students had to learn about a situation where a
threat was made to the safety of the school. The students had to
deal with the anxiety of that situation as they went through their
school day. It was clear from the evidence that [Appellant]’s
statements caused a substantial disruption for all faculty and staff,
in addition to the students, from their normal operations on
Friday, October 13, 2017.
Juvenile Ct. Op., 1/19/18, at 9-10.
We agree with the juvenile court’s conclusions. Although the school did
not cancel the events scheduled for Friday, October 13th, Appellant’s conduct
caused the administrators, staff, and students of Pottsville High School to be
diverted from their normal operations on both Thursday and Friday.5
Accordingly, we affirm.
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5In his brief, Appellant asserts that the juvenile court illegally increased the
grading of both charges to a felony and “penalized [Appellant] for filing a
Notice of Appeal.” Appellant’s Brief at 25. However, we note that although
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Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/20/2018
____________________________________________
the juvenile court stated in its 1925(a) opinion that the evidence was sufficient
to support a felony grading on either charge, the opinion itself did not have
the effect of altering Appellant’s adjudication for the 2706(a)(3) offense, which
was graded as a first-degree misdemeanor.
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