A.B. Ex Rel. Bennett v. Slippery Rock Area School District

OPINION BY

Judge PELLEGRINI.

The Slippery Rock Area School District (School District) appeals an order of the Court of Common Pleas of Butler County (trial court) reversing the decision of the School Board’s (Board) determination to expel A.B. from Slippery Rock Area Middle School (Slippery Rock).

A.B. was a sixth-grade student at Slippery Rock. From 8:42 a.m. to 8:44 a.m. on January 12, 2006, A.B. signed out of class to go the bathroom. While in the bathroom, A.B. found a bomb threat note on top of a toilet’s flushing mechanism which read, “A bomb will go off in the school tomorrow.”¹ The note was written on a tiny piece of paper torn off the corner of a sheet of notebook paper. As she was exiting the bathroom, A.B. saw another student and told her about the note she had just discovered. Both students notified their teacher who then notified the school’s principal, Joseph Raykie (Principal Rayk-ie). Principal Raykie secured the note and called the Pennsylvania State Police to investigate.

During the investigation, two police officers, David Bayer (Trooper Bayer) and Chris Birckbichler (Trooper Birckbichler), interviewed A.B. without anyone else present.² After extensive verbal questioning from the officers, A.B. produced a written confession in which she admitted to writing “a bomb note” approximately two weeks prior to the incident and giving it to a Mend as a joke. A.B. denied that she put this note in the bathroom, but indicated that she believed she had put it in somebody’s backpack or desk and that somebody else must have put it in the bathroom.³ A.B. wrote that she didn’t recognize the note’s handwriting as her own when she discovered it in the bathroom and brought it to her teacher. A.B. was immediately suspended from school for 10 days for violating the School District’s Policy 218.2, entitled “Terroristic Threats/ Acts.” ⁴

Before the Board, Principal Raykie testified that A.B. was a good student with a good attendance record and no disciplinary record. Principal Raykie testified that he provided student handwriting samples to the state police, but he had no contact with A.B. during the investigation. Principal Raykie did not testify to having any knowledge of the writing and placement of the note.

Trooper Birckbichler testified that the bathroom where the note was found had been cleaned the night before, and the janitor did not report seeing the note that evening. A.B. was in the bathroom the next morning from 8:42 until 8:44, right before the note was found and given to the teacher. He testified that he believed A.B. wrote the note because of her reactions to his questions and because of the similarities between the handwriting on the note and AB.’s handwriting on the bathroom sign-out sheet and her handwriting sample that she was asked to provide. He also testified that although she initially denied any involvement, she then verbally and in writing admitted that she wrote the bomb threat note as a joke. Although Trooper Birekbichler’s testimony indicated that he did not believe AB.’s written statement that she did not place the bomb threat in the bathroom, he stated that he did not know who had placed the note on the toilet and he had no direct evidence that A.B. had done so. A.B. did not testify or present any evidence regarding the note, although her father testified to his belief that AB.’s confession that she wrote the note was coerced. The Board did not find the testimony of A.B.’s father credible.

The Board found Birckbichler’s testimony more credible than that of A.B. and determined that the School District had shown by a preponderance of the evidence that A.B. wrote the note and placed it in the bathroom in violation of School District Policy 218.2. The School District expelled A.B. for the remainder of the 2005-2006 school year and left open the possibility that she could return for the 2006-2007 school year.

A.B. appealed her expulsion to the trial court, arguing that the evidence presented to the Board did not prove it more likely than not that she both wrote the note and placed it in the bathroom. The trial court agreed, finding that even under the preponderance of the evidence standard,⁵ the record did not contain substantial evidence to support the Board’s determination.⁶ The trial court reasoned that while it established that she wrote the bomb threat note, it failed to establish that A.B. intentionally communicated a threat to commit violence because the record was devoid of any evidence that A.B. placed the note in the bathroom. Because communication with this intent was a critical element of violating School District Policy 218.2, the trial court concluded that the School District had no proper basis to expel A.B. and ordered the School District to reinstate A.B. immediately to her status as a sixth-grade student at Slippery Rock. The School District then filed this appeal.⁷

The School District contends that it met the burden of establishing by a “preponderance of the evidence” that A.B. placed the note in the bathroom based on the circumstantial evidence⁸ that she wrote the note, found that note in the bathroom, gave the note to a teacher, initially denied that she wrote the note and that she was the one responsible for placing the note. A.B., however, argues that without any evidence proving that she put the note in the bathroom or conspired to do so, there is insufficient evidence to find that she communicated the threat with the intent to terrorize. A.B. asserts that, at most, she admitted to writing a bomb threat note two weeks before the incident, giving it to a friend as a joke, and that she did not recognize the note in the bathroom as her own.

Contrary to A.B.’s argument, there is no need for direct evidence to establish that she placed the note in the bathroom. If there were present sufficient facts from which the Board could draw a reasonable inference that she was the one who placed the note, that circumstantial evidence was sufficient to establish that she communicated the threat. For example, in Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa.Super.2005), the Superior Court upheld a 60-year sentence where the identity of a perpetrator was established by circumstantial evidence presented stating:

Initially, we must emphasize that the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa.Super.2003). Furthermore, even if the Commonwealth presented only circumstantial evidence and offered no positive identification of the assailant, we may not weigh the evidence and substitute our judgment for the fact-finder as long as the evidence was sufficient to prove Appellant’s guilt. Id.

Although the bulk of the evidence connecting Appellant to the crime was circumstantial, and although the testimonial evidence involves some contradiction, we conclude that the evidence was sufficient to link Appellant to the crime. The evidence, viewed in the Commonwealth’s favor, reveals that a jacket found in Appellant’s residence with the victim’s blood was worn on the night of the robbery. Appellant was placed near the scene of the crime at the approximate time of the attack, leaving Allen’s residence for a period of time and returned with a sum of money for which he had no explanation. Appellant also told Allen not to worry about where the money came from and not to talk about it with anyone else. The whole of the evidence unquestionably links Appellant to the commission of the crime.

If circumstantial evidence can support a guilty verdict where the standard is “beyond a reasonable doubt,” then circumstantial evidence here constitutes substantial evidence upon which a finding could be made that A.B. placed the note in the bathroom. From A.B.’s admissions that she wrote the note, found the note in the bathroom, gave the note to a teacher, after she initially denied that she wrote the note, all of which unquestionably link her to writing and discovery of the note, the Board could logically conclude based on that circumstantial evidence that A.B. was the one who left the note in the bathroom.

Accordingly, because when properly proved, circumstantial evidence is entitled to as much weight as direct evidence, Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991), and there was substantial evidence upon which the Board could find that A.B. wrote the note and left the note in the bathroom in violation of School District Policy 218, the order of the trial court is reversed and A.B.’s suspension is reinstated.

ORDER

AND NOW, this 31st day of August, 2006, the order of the Court of Common Pleas of Butler County, No. M.S.D. 06-40031, is reversed and AB.’s suspension is reinstated.

1 . The record indicates that the janitor had cleaned the bathroom the night before, and he did not see any note at that time.

2 . A.B.’s father was also a police officer, and he agreed to let Birckbichler and Bayer question A.B. without anyone else present. A.B.'s father agreed because he was told by Birckbi-chler that it would be a mild non-confrontational interview rather than a criminal investigation.

3 . A.B.'s written statement made after the verbal interview reads: “I wrote a bom (sic) note that says a bom (sic) will go off tomorrow about two weeks ago. I gave it to a friend just as a joke though. Someone put it in the bathroom but it wasn't me. When I went to the bathroom I saw a note on the toilet that said that but I didn't know it was mine so I told the teacher I didn’t know it was mine cause I didn’t recognize it.” (Reproduced Record at 122a).

4 .This policy defines a terroristic threat as "a threat to commit violence communicated with the intent to terrorize another, to cause evacuation of a building, or to cause serious public inconvenience, in reckless disregard of the risk of causing such terror or inconvenience.” (Reproduced Record at 119a-121a). The School District policy’s definition is identical to the Crime Code’s definition of that offense. See 18 Pa.C.S. § 2706.

5 . The level of proof required to establish a case before the Board is the same degree of proof as used in most civil proceedings, i.e., a preponderance of the evidence. Lansberry v. Pennsylvania Public Utility Commission, 134 Pa.Cmwlth. 218, 578 A.2d 600 (1990). A preponderance of the evidence is “such proof as leads the fact-finder ... to find that the existence of a contested fact is more probable than its nonexistence." Sigafoos v. Pennsylvania Board of Probation and Parole, 94 Pa. Cmwlth. 454, 503 A.2d 1076, 1079 (1986). "Substantial evidence” is defined as "such relevant evidence as a reasonable mind might accept to support a conclusion of law.” Miller v. Pennsylvania Board of Probation and Parole, 105 Pa.Cmwlth. 24, 522 A.2d 720, 721 (1987). In this case, if the School District established that it made out its claim by a preponderance of the evidence, then, necessarily, substantial evidence exists to support its finding that A.B. wrote and placed the note in the bathroom. The question is whether the School District established the "communicated” part of the School District Policy 218.2’s definition of terroristic threat.

6 . In particular, the Board relied upon the bomb threat note, the bathroom sign-out sheet, A.B.’s separate handwriting sample and A.B.'s written statement to the police. 7. Where a complete record is made before the local agency and the lower court takes no additional evidence, “[its] scope of review is limited to whether the local agency’s adjudication violated provisions of the local agency law, or made findings or fact necessary to support its adjudication which were not supported by substantial evidence.” Monaghan v. Board of School Directors, 152 Pa.Cmwlth. 348, 618 A.2d 1239, 1241 (1992). See also 2 Pa C.S. § 754(b).

8 . Circumstantial evidence has been defined as "evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred,” W. PAGE KEETON ET AL„ PROSSER AND KEETON ON THE LAW OF TORTS § 39, at 242 (5th ed.1984) in contrast to direct evidence where there is direct eyewitness testimony of the ultimate fact to be determined. Monaci v. State Horse Racing Commission, 717 A.2d 612 (Pa.Cmwlth.1998). The inference from which the conclusion is derived "is simply a clear, logical, reasonable and natural conclusion which the trier of fact may embrace or reject based on the evidence in the case.” Bixler v. Hoverter, 89 Pa.Cmwlth. 88, 491 A.2d 958, 959 (1985); see also Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972) ("an inference is no more that a logical tool enabling the trier of fact to proceed from one fact to another.”) The facts presented are the foundation of any inference and will determine whether that inference is reasonable. Ellis v. City of Pittsburgh, 703 A.2d 593 (Pa.Cmwlth.1997). A party is not entitled to an inference of fact which amounts to nothing more than a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, 231 A.2d 179 (1967). When properly proved, circumstantial evidence is entitled to as much weight as' direct evidence. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991).

7 . I note that, although the majority relies on Monad v. State Horse Racing Commission, 717 A.2d 612 (Pa.Cmwlth.1998), for the rule of law governing circumstantial evidence, the majority has ignored this element of the rule.