Com. v. Donahue, S.

J.A22033/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
SEAN DONAHUE, :
:
Appellee : No. 2184 MDA 2013
Appeal from the Order Entered October 28, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division No(s).: CP-40-CR-0003501-2012
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 19, 2015
The Commonwealth appeals from the order of the Luzerne County
Court of Common Pleas granting Appellee Sean Donahue’s pretrial petition
for writ of habeas corpus and dismissing the charges of terroristic threats
and harassment.1 The Commonwealth claims the trial court erred in holding
a prima facie case on both charges was lacking. We affirm the dismissal of
the harassment charge, reverse the dismissal of the terroristic threats
charge, and remand this matter to the trial court.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2706(a)(1), 2709(a)(3).
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The allegations pertinent to this appeal were set forth in the affidavit
of probable cause, which we reproduce in full.
On 17 August 2012, [Appellee] composed and sent an
e-mail to Luzerne County District Attorney Stefanie
Salavantis. On 21 August 2012 I, Detective Lieutenant
Kenneth Zipovsky received a request from Chief Frank V.
DeAndrea Jr. to investigate the threats that were made by
[Appellee] in this e-mail. I was also advised by Chief
DeAndrea that D.A. Salavantis was concerned and alarmed
about the threats that were directed toward her in this e-
mail.
In this written communication, [Appellee] threatens
that he will essentially engage in a gun fight with police
officers, if the District Attorney does not do as he desires.
Also in the e-mail, [Appellee] makes the not-so-veiled
threat that people will be killed if he does not get the
actions that he demands. The text of this e-mail is
attached below and is incorporated in this affidavit.
[Appellee] has also continued to send additional e-mails
to District Attorney Salavantis since the first
communication on 17 August 2012. These additional
communications also contain threats of violence toward
government employees and police officers. These words
and treats have caused terror, and harassed and annoyed
Salavantis. Based on the above facts, I respectfully
request that [Appellee] be charged with the violations [of
terroristic threats and harassment] listed in the Criminal
Complaint.
ATTACHED E-MAIL FROM [Appellee] ON 18 AUGUST
2012[2] FOLLOWS—
2
The reference to August 18th in the affiant’s preface to Appellee’s email
appears to be a typographical error as Appellee’s copy of the email indicated
it was sent on Friday, August 17, 2012. Ex. D-3, Appellee’s Pet. for Habeas
Corpus, 5/30/13. That exhibit also indicated the email was distributed to
twenty-one people, including federal, state, and local officials, as well as
members of the press, with the subject line “Harassment and Conspiracy
Complaints against Corporal Wetzel and others.” Id.
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Dear Luzerne County District Attorney Stephanie
Salevantis,□□[3]The firing squad used by police in
South Africa against mine workers demanding higher
pay that reported yesterday by CNN, is exactly the
kind of threat that was made against me by Corporal
Wetzel if I attempt to use the Hazleton Career Link.
He made it very clear to me that he will use police
power to prevent me from going to that facility.□□I
am getting tired of you ignoring me and am no
longer asking you to stop ignoring me. I am now
telling you. The idea that law enforcement thinks
that it can use force to take away my rights is
unacceptable to me. If you do not respond by telling
me that you will investigate the matter, I will
prepare myself to face off against a police firing line
that will be the result of any attempt by me to use
an unemployment office. I will not allow you to let a
corporal get away with threatening me with police
power. If charges are not brought against Corporal
Wetzel, Elaine Stalfa, their security guard, Alan
Smith, Lucy Ann Veirling and the employees in
Harrisburg responsible for illegally denying me
access to my rights, I WILL Re-SECURE MY RIGHTS
in my capacity as a citizen soldier at large. Because
you have allowed a law enforcement officer to
wrongfully threaten me with the wrongful use of
force and false arrest, despite my not having
committed a crime, I must anticipate that the
corporal and the Hazleton Career Link Staff will
follow through on their threat to use force to prevent
me from accessing an unemployment office and to
prevent me from making them do their jobs. I will
prepare myself to defend myself against these
threats and police reinforcements.□□As it stands
now, the only people trying to avoid going into a
courtroom over this matter are the Hazleton Police
Department, the Hazleton Career Link Workers, the
PA Department of Labor and Industry, the US DOL,
the L/S WIB and you, the DA. The very person who
3
The “□” symbol existed throughout the affidavit of probable cause and
apparently correlated with a new line in the original email.
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is supposed to intervene and see to it that societies
troubles are brought before a jury and judge. Now,
your allowing an officer and Career Link workers to
use threats of wrongful use of force as a means of
taking my rights away triggers the use of the US
Second Amendment and Section 13 of the PA
Constitution. I consider you to be an illegal
oppressive force that has repeatedly threatened the
use of both false arrest and physical police force to
prevent me from using the Hazleton Career Link and
to prevent me from making the Career Link Workers,
the Workforce Investment Board Workers and the PA
L&I workers do their jobs. I have exhausted all
possible peaceful means to resolve this problem and
my every attempt has been repeatedly ignored.
□□When asked by Judge Zola on February 2, 2011, is
anyone preventing me form using the Career Link,
Elaine Stalfa and Herbert Alan Smith testified, under
oath; “No”. Judge Zola said that because I did not
attempt to physically go there, I cannot claim that I
am being physically kept out of the facility and he
further claimed that I misinterpreted the situation.
However, I did not misinterpret the situation, Elaine
Stalfa and Herbert Alan Smith lied under oath. In so
doing, they perjured themselves. The entire hearing
took place in front of three Hazleton Police Officers
who heard the entire thing. After the hearing was
over, I was told by Career Link workers that I had
pissed people off and that they were told by their
boss, Stalfa and Vierling, that they would be fired if
they assisted me in any way in gaining employment.
A separate workforce counselor in Philadelphia was
told the same thing. Anyone caught assisting me
will be fired.□□I was told by Career Link workers that
they were backed by the FEDS. I then applied to the
Federal DOL to test this theory and was offered a job
in Washington that I cannot afford to take. I have
been told by a trooper that specific people in
government have it in for me and that is all there is
to it. I can do nothing other than leave
Pennsylvania. I have been told by Career Link
Workers several times that I am to be barred from
employment in our county and that I must leave and
start a new life elsewhere.□□I fought to get
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something in writing but the Erica Koub, of Corbett’s
office, refused to provide any documentation and
just insisted that an executive Pennsylvania Decision
had been made to deny me access to services.
Yudichack’s office[4] secured a letter from PA L&I GC
who stated the denial of access to federally funded
Career Link services is in retaliation for having filed
charges against Elaine Stalfa and for contacting the
Secretary of L&I, which she feels is not my place to
do.□□This is ILLEGAL. This is Harassment. This is
Official Oppression. This complaint is falling on deaf
ears. Therefore, I will ring the bell that is heard
around the world and your summary denial of my
rights will be physically challenged. I will not stand
there and die at the hands of a corporal or any other
officers in a firing line intended to keep me from
using my rights.□□“Give me Liberty or Give me
Death” but not necessarily my own!□□You have until
COB Monday Morning to assure me that I will be
given access to services, that the Career Link will do
its job, that charges will be filed against Corporal
Wetzel, Elaine Stalfa, Alan Smith, the Career Link
Security guard and both Frank DeAndrea and Rpbert
Ferdinand. You have denied me access to
democracy. You have denied me access to the
services available through the executive branch of
government, the legislature has denied me access to
relief through the legislative branch of government
and the judicial branch of government has denied me
access to relief through its channels. You are
conspiring to create a circumstance that enables you
to get me on something. The Magistrate says that I
must actually physically go to the Career Link and
the corporal and Career Link staff say that I will be
arrested for something if I attempt to do so. You
then ignore my every email complaint to resolve the
matter peacefully and you do so just so that you can
put me into a position that forces me to be the
physical aggressor and approach a police station or a
government office. That is why you won’t act on an
4
Appellee presumably referred to current State Senator, former State
Representative John Yudichak.
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e-mail. You are trying to set me up and the
magistrate is assisting. It is a coordinated
conspiracy and Judge Zola is part of it. You are
trying to trap me just like you try to trap drug
dealers and other criminals. In doing so, you are
harassing me.□□PA L&I, Corporal Wetzel, Elaine
Stalfa and Vierling have taken upon themselves to
label me an enemy of the state of PA and repeatedly
conducted their business as if they are backed by the
FEDS. Things have been repeatedly altered and
moved around in my home, as if someone had
entered. Yet, noting was stole, That is intel
collection, not burglary.□□Absolutely no one from
any level of law enforcement may contact me
without a warrant from a judge to do so. There was
an article in the paper about an overstuffed arms
locker under the control of the Luzerne County
Sheriff. I want the sheriff to tell me how I can take
ownership of a weapon and protective gear from the
county arms locker. I want the FBI to provide me
with a vest, kevlar plates and kevlar helmet. I want
the FBI or some other federal law enforcement
agency to order the Hazleton Police Department and
all other local law enforcement to not approach me
without first coordinating with federal officers and I
want all federal officers to be ordered to inform me
anytime local law enforcement intends to act.□□Law
Enforcement may only contact me through my
attorney and I will only have an attorney when Judge
Zola orders that one be appointed to represent me in
this string of matters. The FBI may ship the Kevlar
items and accompanying webbing and vest via UPS.
It may not include electronic surveillance devices, I
forbid it. The sheriff may deliver two weapons and
associated equipment and ammunition. One weapon
must be a US manufactured black rifle, 7.62 and
other must be a 45 pistol. The sheriff must also
grant me an exception to test-fire the weapons into
the ground or into a barrel filled with dirt or water.
The sheriff must grant me an exception, allowing me
to jog and walk the streets with the gear and
weapons when I leave the house and all law
enforcement must be told to stay away from me.
Law enforcement is bound by the US constitution to
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enable me to defend myself from the wrongful threat
of the use of physical force and wrongful arrest and
imprisonment. IT IS THEIR DUTY!!!! I EXPECT THEM
TO CARRY IT OUT!!!□□□Sincerely,□Sean M. Donahue
Aff. of Probable Cause, 8/21/12, at 1-3.
The Commonwealth filed the criminal complaint charging Appellee with
terroristic threats and harassment on August 21, 2012, the day after the
deadline referred to by Appellee. Officers of the Hazelton Police Department
also obtained and executed a search warrant for Appellee’s home and
seized, inter alia, several computer devices and a “Winchester Mod 94 30-
30” rifle from under a bed. Receipt/Inventory of Seized Property, 8/21/12,
at 1. Appellee was represented by counsel. The preliminary hearing in the
Magisterial District Court was continued until October 3, 2012. Although
there is no transcript from the preliminary hearing in the record, the
Magisterial District Court held the matter for court on October 3rd and filed
its papers in the Court of Common Pleas on October 5th. On October 22nd,
the Office of the Pennsylvania Attorney General filed the criminal information
in this case.
New counsel from the Office of the Public Defender entered an
appearance for Appellee on January 9, 2013. Appellee sent the trial court
pro se motions, which included motions to dismiss counsel. On May 15,
2013, present counsel entered his appearance on Appellee’s behalf.
On May 30, 2013, Appellee, through counsel, filed a petition for writ of
habeas corpus seeking dismissal of the charges. On June 10th, Appellee
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filed omnibus pretrial motion, including a motion for recusal of the presiding
judge. The following day, the presiding judge recused himself and a
specially appointed judge was assigned the matter. On October 2, 2013, the
trial court entered an order cancelling a hearing on Appellee’s motions and
indicating the parties agreed to have the pretrial motions decided based on
“the pleadings on the record” and the parties’ briefs. Order, 10/2/13, at ¶¶
1, 4. On October 28th, the court dismissed the charges against Appellee.
The Commonwealth filed a timely notice of appeal and complied with
the trial court’s order to file and serve a Pa.R.A.P. 1925(b) statement. The
trial court filed a Rule 1925(a) opinion holding that the Commonwealth failed
to establish Appellee engaged in a course of conduct necessary to sustain
the harassment charge. Trial Ct. Op., 3/17/14, at 3. The court also opined
it properly dismissed the terroristic threats charge because the
Commonwealth did not establish Appellee intended to terrorize the
complainant. Id. This appeal followed.
The Commonwealth presents a single question for our review:
“Whether the trial court abused its discretion by dismissing the charges
where [Appellee’s] threatening email to an elected district attorney
established a prima facie case of terroristic threats and summary
harassment?” Commonwealth’s Brief at 3. We reorder and summarize the
Commonwealth’s arguments on both charges.
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As to the harassment charge, the Commonwealth suggests the
affidavit of probable cause provided a basis to infer Appellee sent the
complainant multiple threatening emails. Id. at 17. It notes Appellee
complained in his email that the complainant repeatedly ignored his
requests. Id. It further contends the affiant alleged Appellee sent the
complainant multiple emails communicating threats of violence. Id. The
Commonwealth thus asserts the trial court misconstrued the record when it
concluded Appellee’s single email did not establish a course of conduct. Id.
at 17. We disagree and affirm that part of the court’s order dismissing the
charge of harassment.
As to the terroristic threats charge, the Commonwealth argues the trial
court erred in concluding Appellee did not intend to terrorize the
complainant. Id. at 14. The Commonwealth emphasizes Appellee
demanded the complainant take unrealistic actions, including compelling
CareerLink to provide unemployment services, charging and arresting
several individuals, and providing him with firearms and protective
equipment. Id. at 13-14 & n.6. It contends Appellee issued the following
ultimatums, which we have reproduced in bold in context of the email:
 “If you do not respond by telling me that you will
investigate the matter, I will prepare myself to face
off against a police firing line that will be the result
of any attempt by me to use an unemployment office.”
 “ If charges are not brought . . ., I WILL Re-SECURE
MY RIGHTS in my capacity as a citizen soldier at
large.”
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 “I must anticipate that the corporal and the Hazleton
Career Link Staff will follow through on their threat to
use force to prevent me from accessing an
unemployment office and to prevent me from making
them do their jobs. I will prepare myself to defend
myself against these threats and police
reinforcements.”
 “. . . your allowing an officer and Career Link workers to
use threats of wrongful use of force as a means of
taking my rights away triggers the use of the US
Second Amendment and Section 13 of the PA
Constitution. I consider you to be an illegal
oppressive force that has repeatedly threatened the
use of both false arrest and physical police force to
prevent me from using the Hazleton Career Link and to
prevent me from making the Career Link Workers, the
Workforce Investment Board Workers and the PA L&I
workers do their jobs. I have exhausted all possible
peaceful means to resolve this problem and my
every attempt has been repeatedly ignored.”
 “Therefore, I will ring the bell that is heard around the
world and your summary denial of my rights will be
physically challenged. I will not stand there and die
at the hands of a corporal or any other officers in a
firing line intended to keep me from using my
rights.□□[‘]Give me Liberty or Give me Death[’] but
not necessarily my own!”
 “You then ignore my every email complaint to resolve
the matter peacefully and you do so just so that you
can put me into a position that forces me to be
the physical aggressor and approach a police
station or a government office.”
Commonwealth’s Brief at 13 & n.3; Aff. of Probable Cause.
According to the Commonwealth, the affidavit of probable cause thus
established adequate evidence to find Appellee made unreasonable demands
and deliberate threats to commit crimes of violence. Id. at 14. This
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evidence would also permit a fact-finder to conclude Appellee intended to
terrorize the complainant. Id. Alternatively, the Commonwealth argues
the affidavit of probable cause established Appellee recklessly caused terror
because he failed to recognize his statements would provoke fear. Id. at
14-15. Consequently, the Commonwealth asserts it established a prima
facie case of terroristic threats. We find relief is due and reverse that part of
the trial court’s order dismissing the charge of terroristic threats.
Our standard and scope of review is as follows:
When reviewing a trial court’s decision to grant a habeas
corpus petition, we will not reverse the trial court’s
decision absent a manifest abuse of discretion. In order to
constitute an abuse of discretion, the record must disclose
that the trial court exercised manifestly unreasonable
judgment or based its decision on ill will, bias or prejudice.
Furthermore, our scope of review is limited to determining
whether the Commonwealth has established a prima facie
case.
Commonwealth v. Heckman, 66 A.3d 765, 768 (Pa. Super.) (citation
omitted), appeal denied, 83 A.3d 414 (Pa. 2013).
A prima facie case consists of evidence, read in
the light most favorable to the Commonwealth, that
sufficiently establishes both the commission of a
crime and that the accused is probably the
perpetrator of that crime. The Commonwealth need
not prove the defendant’s guilt beyond a reasonable
doubt. Rather, the Commonwealth must show
sufficient probable cause that the defendant
committed the offense, and the evidence should be
such that if presented at trial, and accepted as true,
the judge would be warranted in allowing the case to
go to the jury.
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In determining the presence or absence of a prima facie
case, inferences reasonably drawn from the evidence of
record that would support a verdict of guilty are to be
given effect, but suspicion and conjecture are not evidence
and are unacceptable as such.
Commonwealth v. Keller, 823 A.2d 1004, 1010-11 (Pa. Super. 2003)
(citations and quotation marks omitted).
Furthermore,
the Commonwealth must produce evidence of every
material element of the charged offense(s) . . . . In an
effort to meet its burden, the Commonwealth may utilize
the evidence presented at the preliminary hearing and also
may submit additional proof.
Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa. Super. 2007)
(citation omitted). Hearsay may be considered by the trial court when
determining whether a prima facie case exists. Commonwealth v.
Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004). However, hearsay alone
cannot be the basis for establishing a prima facie case. Id.
Section 2709 of the Crimes Code defines harassment, in relevant, as
follows:
(a) Offense defined.—A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
* * *
(3) engages in a course of conduct or repeatedly
commits acts which serve no legitimate purpose[.]
* * *
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[(f) Definitions.—] “Course of conduct.” A pattern of
actions composed of more than one act over a period of
time, however short, evidencing a continuity of conduct[.]
18 Pa.C.S. § 2709(a)(3), (f).
To establish harassment under subsection (a)(3), the Commonwealth
must establish the defendant acted with “specific intent” to harass, annoy,
or alarm another. Commonwealth v. Battaglia, 725 A.2d 192, 194 (Pa.
Super. 1999) (citation omitted). “A person acts intentionally” when “it is his
conscious object . . . to cause such a result.” 18 Pa.C.S. § 302(b)(1)(i). “An
intent to harass may be inferred from the totality of the circumstances.”
Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013).
Because Section 2709(a)(3) requires a course of conduct, “a single act
will not support a conviction.” Battaglia, 725 A.2d at 194 (citation
omitted). Moreover, “the conduct must be of a non-legitimate nature[.]”
Id.
Preliminarily, we are compelled to comment upon the sparse nature of
the record. The Commonwealth, when responding to Appellee’s petition for
habeas corpus relief, did not refer to, or produce, the notes of testimony
from the preliminary hearing or copies of Appellee’s other communications to
the complainant. Its brief in opposition to Appellee’s pretrial motions
contained boilerplate responses. Furthermore, the Commonwealth, as the
appellant in this appeal, did not seek to supplement the record in this Court
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or aver additional evidence was available. Accordingly, our scope of review
is limited to the allegations set forth in the affidavit of probable cause.
Instantly, Appellee’s email, which was reproduced in the affidavit of
probable cause, contained numerous statements, which a fact-finder could
construe as intending to cause the complainant alarm.5 The affiant further
alleged, “[Appellee] has also continued to send additional e-mails to District
Attorney Salavantis since the first communication on 17 August 2012.
These additional communications also contain threats of violence toward
government employees and police officers.” Aff. of Probable Cause.
However, the affiant’s description of the contents of the additional emails
was hearsay and potentially conveyed an opinion regarding an original
writing that could intrude upon the fact-finder’s province if presented at trial.
See Commonwealth v. Lewis, 623 A.2d 355, 357 (Pa. Super. 1993)
In light of the foregoing record, we discern no basis upon which to
disturb the trial court’s conclusion the Commonwealth failed to proffer
evidence to sustain the harassment charge under Section 2709(a)(3). The
Commonwealth bore the burden of adducing evidence that Appellee engaged
in a course of conduct or repeatedly committed acts which serve no
5
See Aff. of Probable Cause (stating, “I will prepare myself to face off
against a police firing line[,]” indicating Appellee “exhausted all possible
peaceful means[,]” stating, “[Y]our summary denial of my rights will be
physically challenged[,]” and alleging complainant “put [him] into a position
that forces [him] to be the physical aggressor and approach a police station
or a government office”).
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legitimate purpose. See 18 Pa.C.S. § 2709(a)(3); Carroll, 936 A.2d at
1152; Battaglia, 725 A.2d at 194. However, it elected to rely upon
questionable “evidence” requiring speculation that all of Appellee’s
communications were similar to the example in the affidavit of probable
cause.6 See Keller, 823 A.2d at 1010. Accordingly, we affirm that portion
of the order dismissing the harassment charge.
With respect to the terroristic threats charge, Section 2706 of the
Crimes Code states, in relevant part:
§ 2706. Terroristic threats
(a) Offense defined.—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[.]
18 Pa.C.S. § 2706(a)(1) (emphasis added).
This Court has described the elements of terroristic threats as follows:
[T]he Commonwealth must prove that 1) the defendant
made a threat to commit a crime of violence, and 2) the
6
We note Appellee’s petition for habeas corpus relief also asked the trial
court to balance the alleged invasions of the complainant’s sense of security
with Appellee’s right to petition for redress and free expression. See
Appellee’s Br. in Support of Pet. for Habeas Corpus, 6/7/13, at 1; See
generally Commonwealth v. Bender, 375 A.2d 354, 359 (Pa. Super.
1977) (“We should be extremely reluctant to infer a criminal intent to harass
solely from the filing of complaints with appropriate government agencies
and the making of telephone calls during regular office hours lest we
impermissibly chill a citizen’s constitutional freedoms”). Thus, the
Commonwealth’s failure to present Appellee’s additional emails is especially
puzzling.
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threat was communicated with the intent to terrorize
another or with reckless disregard for the risk of causing
terror.[7] The harm sought to be avoided is the
psychological distress that follows an invasion of the
victim’s sense of personal security. Consequently, neither
the defendant’s ability to carry out the threat nor the
victim’s belief that it will be carried out is an essential
element of the crime. Similarly, it 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. Thus, a direct communication between the
defendant and the victim is not required to establish the
crime.
Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009)
(citations and punctuation omitted), rev’d on other grounds, 30 A.3d 1105
(Pa. 2011).
“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.” Commonwealth v. Campbell,
7
This passage—which indicates a defendant may be convicted of terroristic
threats based on intent or reckless disregard—relied on case law interpreting
the former version of Section 2706(a). However, Section 2706(a) was
amended on December 15, 1999. Under the current version of Section
2706, subsection (a)(1) speaks to a threat “to commit a crime of violence
with intent to terrorize[.]” 18 Pa.C.S. § 2706(a)(1). Subsection (a)(3)
covers threats, which, inter alia, “cause terror or serious public
inconvenience with reckless disregard of the risk causing such terror or
inconvenience.” 18 Pa.C.S. § 2706(a) (3). Instantly, we need not address
the difference between our former case law and the present version of the
statute, as our review will focus on whether the Commonwealth adduced
adequate evidence to show Appellee acted with the intent to terrorize.
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625 A.2d 1215, 1218 (Pa. Super. 1993) (citations omitted). However,
“[b]eing angry does not render a person incapable of forming the intent to
terrorize.” Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super.
2000).
We do not quarrel with the trial court’s suggestion that the email’s
principal purpose was to express Appellee’s grievance over his alleged
inability to access unemployment services. Nevertheless, it is undisputed
that Appellee used violent imagery8 and referred to possible physical
confrontations with government officials.9 Of particular significance,
Appellee alluded to a government conspiracy and his right to use force
against the conspiracy.10
In light of the foregoing, and mindful of our standard of review, we
conclude a reasonable fact-finder could find Appellee harbored an actual fear
8
Aff. of Probable Cause (quoting Appellee’s reference to “[t]he firing squad
used by police in South Africa”).
9
Id. (indicating Appellee’s belief he will “face off against a police firing line”
and will be “physical aggressor and approach a police station or a
government office”).
10
Id. (stating, “I WILL Re-SECURE MY RIGHTS in my capacity as a citizen
soldier at large[,]” declaring, “[T]hreats of wrongful use of force as a means
of taking my rights away triggers the use of the US Second Amendment and
Section 13 of the PA Constitution[,]” and suggesting, “You [the complainant]
are conspiring to create a circumstance that enables you to get me on
something . . . You are trying to set me up and the magistrate is assisting.
It is a coordinated conspiracy and Judge Zola is part of it . . . You are trying
to trap me just like you try to trap drug dealers and other criminals . . . In
doing so, you are harassing me”).
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the alleged conspiracy threatened his life. Similarly, the evidence would
sustain a finding Appellee believed he was entitled to use force against
government officials and would do so imminently. Moreover, a fact-finder
could conclude Appellee purposefully expressed these beliefs to threaten
crimes of violence, if the complainant did not meet his demands. Lastly, the
email, as a whole, could reasonably be read as a deliberate and calculated
threat that evinced Appellee’s intent to terrorize. Thus, we cannot agree
with the trial court that Appellee’s email did not establish a prima facie case
of terroristic threats under Section 2706(a)(1). That Appellee raised a
grievance with an elected official did not preclude the possibility that a fact-
finder could reasonably find Appellee also expressed a “true threat” and
intended to terrorize to achieve his ends.11
In sum, we affirm that part of the trial court’s order dismissing the
harassment charge, but reverse that part of the order dismissing the
11
See generally Commonwealth v. Baker, 722 A.2d 718, 721-22 (Pa.
Super. 1998) (“When engaged in a constitutionally protected activity of the
fundamental nature of freedom of speech, we must exercise restraint in
prohibiting the activity lest we destroy the right. However, the right to free
speech is not absolute, and certain well-defined, limited classes of speech
may be prevented and punished without raising constitutional problems.
Lewd, obscene, profane, libelous and insulting or fighting words those which
by their very utterance inflict injury or tend to incite an immediate breach of
peace are not constitutionally protected. Only true threats fall within that
group of expressions, such as fighting words, which are not constitutionally
protected pure speech. A true threat is one which on its face and in the
circumstances in which it is made is so unequivocal, unconditionally
immediate and specific as to the person threatened, as to convey a gravity
of purpose and imminent prospect of execution.” (citations and quotation
marks omitted)).
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J. A22033/14
terroristic threats charge. Accordingly, we remand this matter to the trial
court for further proceedings.
Order affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2015
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