In the Interest of: K.M.M.B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.M.M.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.M.M.B., A MINOR :
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: No. 821 EDA 2020
Appeal from the Dispositional Order Entered February 3, 2020
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): CP-45-JV-0000203-2019
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 15, 2021
Appellant, K.M.M.B., a minor, appeals from the juvenile court’s February
3, 2020 dispositional order adjudicating him delinquent of two counts of
terroristic threats (18 Pa.C.S. §§ 2706(a)(1) and 2706(a)(3)), possessing an
instrument of crime (PIC) (18 Pa.C.S. § 907(a)), and disorderly conduct (18
Pa.C.S. § 5503(a)(4)). After determining that Appellant was in need of
supervision, the court ordered him to serve a period of one-year probation,
with conditions and counseling requirements. After careful review, we affirm
the dispositional order.
Appellant was charged with the above-stated offenses based on
comments he made on a messaging app, Snapchat, about committing a
shooting and other violent acts at his school. The juvenile court explained
that,
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[a]n adjudication hearing was held November 27, 2019[,] at which
time [Appellant] was found delinquent as to all charges. A
diagnostic evaluation was ordered[,] which ultimately
recommended placement at a residential facility. Following a
dispositional hearing, [Appellant] was placed on probation with
conditions and counseling. Post-disposition motions were denied
and a timely appeal followed.
Juvenile Court Opinion (JCO), 10/16/20, at 1.
Appellant complied with the court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. 1 After waiting for
transcripts, which were delayed due to COVID-19, the court filed its Rule
1925(a) opinion on October 16, 2020. Herein, Appellant states three issues
for our review:
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1 We note that the court’s Rule 1925(b) order was filed on March 3, 2020, and
directed Appellant to file his concise statement within 21 days. Appellant’s
Rule 1925(b) statement was not filed until 28 days later, on March 31, 2020.
However, on March 16, 2020, the Pennsylvania Supreme Court declared a
general, statewide judicial emergency because of the coronavirus that causes
COVID-19. In re: General Statewide Judicial Emergency, 228 A.3d 1281(Pa. filed Mar. 16, 2020) (per curiam). In a March 18, 2020 order, the
Supreme Court generally suspended “all time calculations for purposes of time
computation relevant to court cases or other judicial business, as well as time
deadlines.” In re: General Statewide Judicial Emergency, 228 A.3d 1283(Pa. filed Mar. 18, 2020) (per curiam). As to the general suspension of time
calculations and deadlines, on April 28, 2020, the Supreme Court ordered that
“legal papers or pleadings (other than commencement of actions where
statutes of limitations may be in issue) which are required to be filed between
March 19, 2020, and May 8, 2020, generally shall be deemed to have been
filed timely if they are filed by close of business on May 11, 2020.” In re:
General Statewide Judicial Emergency, 230 A.3d 1015 (Pa. filed Apr. 28,
2020) (per curiam) (emphasis omitted). Therefore, we consider Appellant’s
Rule 1925(b) statement, which was due on March 24, 2020, as being timely
filed.
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A. Whether the juvenile court erred and abused its discretion in
adjudicating … Appellant delinquent[, as it was] against the weight
of the evidence adduced at the adjudication hearing?
B. Whether the juvenile court erred and abused its discretion in
adjudicating … Appellant delinquent where the evidence adduced
at the adjudication hearing was insufficient to establish that
[Appellant] had criminal intent to commit the crimes charged?
C. Whether the juvenile court erred and abused its discretion in
adjudicating … Appellant delinquent where the evidence adduced
at the adjudication hearing demonstrated that [Appellant’s]
comments were protected speech under the First Amendment of
the United States Constitution and Article I [,] Section [7] of the
Constitution of the Commonwealth of Pennsylvania?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
In his first issue, Appellant purports to challenge the weight of the
evidence to support his adjudications of delinquency. However, his argument
sounds in an attack on the sufficiency of the evidence, as he claims that the
Commonwealth failed to prove the intent element for his adjudications of
terroristic threats and PIC.2 Thus, we review his argument under the following
standard:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
____________________________________________2 Appellant only attacks his terroristic threats adjudication under 18 Pa.C.S. §
2706(a)(3); he makes no mention of his adjudication under section
2706(a)(1) (directly or indirectly threatening to commit any crime of violence
with intent to terrorize another). In addition, he presents no developed
argument concerning his disorderly conduct adjudication. Thus, any
challenges to his section 2706(a)(1) or disorderly conduct adjudications are
waived.
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133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
We will initially address Appellant’s attack on his terroristic threats
adjudication. “A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to[] … 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)(3). Here, Appellant insists that “he did not intend his comments to
alarm other[s], or to cause significant disruption or public inconvenience.”
Appellant’s Brief at 10. He contends that, instead, he was “purely venting
frustration[,] had no idea that others would be affected by his vents, and had
neither the means nor the intent to carry out any conduct in furtherance of
his musings.” Id.
The evidence presented at the adjudicatory hearing, which the juvenile
court “found relevant and believable[,]” does not support Appellant’s
argument. JCO at 1. The court summarized that evidence as follows:
In November 2019, the Stroudsburg High School Principal, Jeffery
Sodl, became aware of threats made on social media directed at
the school/students. The information was provided through a tip
to the “Safe 2 Say Something” initiative of the Attorney General’s
Office from a student who saw the social media posts on Snapchat.
The information that had been posted, and provided by the tip,
led school officials to believe it was posted by [Appellant]. The
posts contained the following statements:
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[]“I’m suffering from so much depression it’s not even funny
anymore.”
[]“I despise people being happy because I am not.”
[]“Like, I don’t really have any friends and if I would to
perhaps shoot the fucking school up right now I would be
looked at as crazy, right? This is why I hate people in
general.”
[]“Nobody wants to really talk to me for some weird ass
reason, people think I’m weird and I feel like slitting y’all
[sic] throats, how bout [sic] that, would that be cool if I just
do that?”
[]“I literally can’t sleep at all because I keep thinking about
how people keep acting funny to me, so someone has to pay
the consequences for their actions, right?”
[Appellant] was called down to the principal’s office, and he
admitted to the principal, the head of school security, and a vice
principal that he had made the posts. He was interviewed by the
school resource officer[,] and [Appellant] also admitted to [the
officer] that he authored the posts using his cellphone. The
cellphone was confiscated, and the messages were admitted at
[the] time of [the adjudicatory hearing]. [Appellant] told the
principal that nobody listens to him, and he felt that this would
get him attention. [Appellant] also admitted that he has thought
of actually doing what he posted. The principal believed these
were threats to the school and to the students there, and he was
very concerned. The posts were sent directly to at least … six
other students by Snapchat messaging, and approximately 48
people ended up viewing the posts. [Appellant’s] phone also
contained a picture with “Stroudsburg” at the bottom and in red
letters on a slant across the page appeared: “I feel like inflicting
pain on others for self-enjoyment.” The school resource officer
who filed the charges against [Appellant] testified that [Appellant]
exhibited no emotion and had a blank stare during his interview.
[Appellant] also made a written statement to the school resource
officer. [Appellant] was 17 years old and in 11th grade at the time
of the offense.
[Appellant] testified that he just wanted to release some stress by
making the posts. He stated it was a way for him to vent his
frustration and that it was not a true threat. He also testified that
he was just trying to express himself. [Appellant] sent the posts
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out on Snapchat at 4 or 5 in the morning, before school started
that day. On cross[-]examination, [Appellant] said he was aware
people could consider the posts as threats and alarming,
especially in light of the shootings that have occurred at other
schools. He also agreed that he knew students would be seeing
the posts. [Appellant] said that the comments were just
questions, and therefore, he didn’t mean them. However, he
seemed to agree that the language was rhetorical in nature and
that he was not seeking a response to the questions he posed.
[Appellant] also had a conversation with his friend who took
screenshots of the comments, because it concerned him that his
friend had done that. That friend … was the one who forwarded
the comments to school administrators as noted above. On re-
direct, [Appellant] said he wanted his friends on Snapchat to know
a little bit of what was on his mind. The written statement of
[Appellant] stated that he wanted to get people’s attention by
making the posts on Snapchat.
JCO at 1-3.
At the close of the adjudicatory hearing, the court explained why it was
adjudicating Appellant delinquent of terroristic threats under section
2706(a)(3):
There [were] … messages here that really serve[d] no legitimate
purpose, [and] certainly caused a public inconvenience. At least
one individual was concerned enough for your safety and the
safety of the public to report this. It was done with reckless
disregard. You didn’t necessarily think it was going to cause any
problems, but a prudent, careful person reasonably would not
send messages like that without thinking that it was going to
create concern by others; either terror or inconvenience.
N.T. Hearing, 11/27/19, at 65-66.
We discern no error in the court’s conclusion that the evidence proved
that Appellant acted with at least reckless disregard in causing terror or
serious public inconvenience to his fellow classmates and/or the
administrative and security staff of the school. Appellant acknowledged during
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his testimony that he knew other people — including students at his school —
would see the at-issue Snapchat messages. Id. at 55-56. He admitted that
he knew those messages could be considered as threats, and that they could
cause alarm. Id. at 57, 58. Clearly, this evidence was sufficient to sustain
Appellant’s adjudication for terroristic threats.
Next, Appellant challenges his PIC adjudication. A person commits PIC
“if he possesses any instrument of crime with intent to employ it criminally.”
18 Pa.C.S. § 907(a). An “instrument of crime” is defined as, inter alia,
“[a]nything used for criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful uses it may have.” 18
Pa.C.S. § 907(d).
Here, aside from setting forth the definition of PIC, Appellant’s entire
argument as to why the evidence was insufficient to support his adjudication
is as follows:
[A]ppellant possessed only his cell phone, and posted a message
on Snap[chat] … of fleeting thoughts of frustrations; not some
concrete and pointedly articulated plan of criminal conduct. In the
absence of any criminal intent, it cannot be said that … [A]ppellant
did, or intended to, employ his telephone criminally. His
adjudication of this charge, and the [d]isorderly conduct[, are] …
unsupported by the evidence.
Appellant’s Brief at 10.
Appellant’s undeveloped argument is unconvincing. First, we will not
address his challenge to his disorderly conduct adjudication, as Appellant only
tacks on a mention of that offense to his PIC argument, and fails to even
define the crime of disorderly conduct in his brief. In regard to his PIC
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adjudication, we have concluded, for the reasons set forth supra, that the
evidence proved Appellant acted with reckless disregard in posting threatening
messages on Snapchat. Thus, he possessed the requisite criminal intent for
terroristic threats, and he utilized his telephone to further his commission of
that offense. Consequently, the evidence supports his adjudication of PIC.
Finally, Appellant claims that his at-issue Snapchat messages
constituted speech protected by the United States and Pennsylvania
Constitutions. He insists that, “where, as here, there is no clear proof of any
intent to terrorize, there is no restriction on the right to express in writing[]
one’s thoughts, even if, as here, those thoughts are essentially a cry for help,
by a despondent individual.” Id. at 12. According to Appellant, “[t]he record
demonstrates that [he] never comprehended that his venting would alarm
others, and that he only wanted those with who[m] he communicated to know
his thoughts[,] as he was struggling with a lack of acceptance.” Id.
We agree with the Commonwealth that Appellant has waived this claim
for our review. See Commonwealth’s Brief at 13. Appellant does not point to
where he raised his constitutional challenge before the trial court. It appears
to this Court that it was presented for the first time in his Rule 1925(b)
statement. Our Supreme Court has declared that, “[c]onstitutional claims are
subject to waiver regardless of their importance.” Commonwealth v. Knox,
190 A.3d 1146, 1153 n.5 (Pa. 2018) (citations omitted); see also id. at 1153
n.4 (concluding that Knox preserved his first amendment argument by raising
it at trial, in his Rule 1925(b) statement, and before the Superior Court).
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Because Appellant did not raise his constitutional claim before the trial court,
we deem it waived on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Dispositional order affirmed.
Judge Nichols joins this memorandum.
Judge Kunselman files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2021
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