Com. v. Cooke, J. ( 2020 )

J-A02023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERRY LEE COOKE :
:
Appellant : No. 811 WDA 2019
Appeal from the Judgment of Sentence Entered May 24, 2019
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000204-2018
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 14, 2020
Appellant, Jerry Lee Cooke, appeals from the judgment of sentence
entered on May 24, 2019 in the Criminal Division of the Court of Common
Pleas of Greene County. We affirm.
On June 25, 2018, Agent Daniel Jena of the Office of the Attorney
General and Patrolman Adam Fichter of the Waynesburg Borough Police
Department were on a plainclothes, undercover detail in Waynesburg,
Pennsylvania. Both officers were seated in an unmarked vehicle facing west
on South Alley. As the officers watched a nearby intersection, a black GMC
truck driven by Appellant and travelling east along South Alley pulled
alongside the officers’ vehicle. The windows of both vehicles were rolled down
and, as the GMC truck drove passed, the officers heard the driver of the truck
yell, “Move your f***ing car.” N.T. Trial, 1/31/19, at 92. The truck then
passed the officers’ vehicle and came to a stop.
J-A02023-20
Both officers emerged from their vehicle, having determined to make
contact with the driver of the truck. As Agent Jena approached the rear of the
unmarked police vehicle, Appellant peered out of the truck window, deployed
a handgun, activated a green laser sighting device, and shined the laser site
at Patrolman Fichter and up and down Agent Jena’s body. Id. at 40. As the
laser light stopped momentarily on Agent Jena’s chest, Appellant was heard
to say, “Yeah, I didn’t think you wanted any of that.” Id. at 96. Both officers
reported that they were startled and scared when the laser site targeted them.
Id. at 40-41 and 97. Agent Jena then retrieved his firearm and ordered
Appellant to stop. Appellant, however, disregarded this command and hastily
departed the scene.
Appellant was subsequently stopped and taken into custody. A search
of the center console area of his truck yielded two firearms, including the one
used in the earlier incident involving Agent Jena. A breath test showed
Appellant’s blood alcohol level to be .18%.
On June 26, 2018, Waynesburg police filed a criminal complaint charging
Appellant with aggravated assault (18 Pa.C.S.A. § 2702(a)(6)), recklessly
endangering another person (18 Pa.C.S.A. § 2705), terroristic threats (18
Pa.C.S.A. § 2706), and driving under the influence of alcohol or controlled
substance (DUI) (75 Pa.C.S.A § 3802(a) and (c)). At the conclusion of trial
on January 31, 2019, a jury found Appellant guilty of terroristic threats and
DUI (§ 3802(c) – highest rate) and acquitted him of the remaining charges.
On May 22, 2019, the trial court imposed an aggregate sentence of 30 days’
-2-
J-A02023-20
incarceration, 11 months’ county intermediate punishment (house arrest),
and 48 months’ probation. See Trial Court Order, 5/23/19, at 3-4
(unpaginated). Appellant filed a timely notice of appeal on May 24, 2019.
After receiving extensions of time from the trial court, Appellant filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court issued its Rule 1925(a) opinion on August 16, 2019.
Appellant raises the following issue for our consideration.
If there [were] no evidence presented at trial that [Appellant]
communicated a threat, either directly or indirectly[,] to commit
a crime of violence with the intent to terrorize another, can
[Appellant] be found guilty of making [] terroristic threats based
upon his actions alone?
Appellant’s Brief at 3.
Appellant’s claim challenges the sufficiency of the evidence offered to
support his conviction for the offense of terroristic threats. We apply a well
settled standard of review in examining such claims.
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant's guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
-3-
J-A02023-20
Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (citation
omitted).
Appellant asserts that because he spoke “no words” in a threatening
manner, the evidence was insufficient to establish that he harbored an intent
to terrorize another, a required element of the crime of terroristic threats.
This claim lacks merit.
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.A. § 2706(a)(1). “[T]he term ‘communicates’ means
conveys in person or by written ... means.” 18 Pa.C.S.A.
§ 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.
In Commonwealth v. Campbell, 625 A.2d 1215 (Pa. Super.
1993), our Court emphasized the purpose behind the terroristic
threats statute:
The purpose of [§ 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, Official Comment -
- 1972. The offense does not require that the accused intend
to carry out the threat; it does require an intent to terrorize.
The harm sought to be prevented is the psychological distress
which follows from an invasion of another's sense of personal
security. Therefore, it is the making of the threat with intent
to terrorize that constitutes the crime.
Campbell, 625 A.2d at 1218-1219 (citation and quotation marks
omitted).
-4-
J-A02023-20
Commonwealth v. Kline, 201 A.3d 1288, 1290 (Pa. Super. 2019), appeal
denied, 216 A.3d 1038 (Pa. 2019).
Contrary to Appellant’s position on appeal, this Court previously applied
§ 2706 to non-verbal threats conveyed in the context of person-to-person
communications. In Kline, the defendant, on several prior occasions, stared
at the victim and her children from his nearby property as they entered and
exited their vehicle and home. One day, according to the victim’s testimony
at trial, the defendant made a hand gesture simulating the firing of a gun
aimed at the victim. After a jury found him guilty of making a terroristic
threat, Kline argued on appeal that the evidence was insufficient to prove he
possessed the intent to terrorize because his non-verbal gesture was
unaccompanied by a verbal communication of any sort. Rejecting this claim,
we held that the evidence was sufficient to permit the jury to find that the
defendant conveyed, with the intent to terrorize, a threat to commit a crime
of violence upon the victim. See Kline, 201 A.3d at 1291.
In light of Kline, we conclude that the evidence adduced at trial was
sufficient to prove that Appellant communicated, with the intent to terrorize,
a threat to commit a crime of violence and, hence, that he committed the
offense of terroristic threats. This is so despite the absence of a verbal threat.
The evidence at trial showed that Appellant deployed a handgun, activated a
green laser sighting device, and shined the laser light at Patrolman Fichter
and up and down Agent Jena’s body. The activation and deployment of a laser
-5-
J-A02023-20
sighting device that targeted Patrolman Fichter and Agent Jena offered the
jury ample grounds upon which to conclude that Appellant threatened to fire
his weapon at one or both of the officers. Moreover, prior to departing the
scene, Appellant was heard to say that he didn’t think Agent Jena “wanted
any part of this,” implying that Appellant himself understood both the nature
and severity of the non-verbal threat he recently conveyed. As Appellant’s
non-verbal conduct clearly inflicted the type of psychological stress that
follows a threatened invasion of an individual’s personal security, we have
little difficulty in affirming Appellant’s terroristic threats conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2020
-6-