Com. v. Donahue, S.

J-A11013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN M. DONAHUE,
Appellant No. 1469 MDA 2016
Appeal from the Judgment of Sentence April 19, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003716-2015
BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED JUNE 05, 2017
Sean M. Donahue (“Appellant”) appeals from the judgment of sentence
entered in the Court of Common Pleas of Dauphin County on April 19, 2016,
following his conviction for two counts of harassment. The judgment of
sentence was made final by the August 30, 2016 order denying Appellant’s
post-sentence motion. After careful review, we affirm.
The trial court opinion related the factual background and procedural
history, which we adopt for purposes of this appeal. Trial Court Opinion,
11/9/16, at 1–4. In brief summary, on January 12, 2015, Appellant was
charged with one count of terroristic threats and two counts of harassment1
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2706 and 2709(a)(4), respectively.
J-A11013-17
for allegedly e-mailing threats to various Commonwealth employees. On
April 18, 2016, a jury trial commenced. The jury was hung as to the
terroristic-threats charge, but it found Appellant guilty of the two
harassment charges. Subsequently, the district attorney nol prossed the
terroristic-threats charge.
At trial, four e-mails, each sent to roughly fifty individuals between
November 26, 2014, and November 29, 2014, were entered into evidence.
Witnesses Lisa Sauder and Mary Jane McMillan both received courtesy copies
(“cc”) of the e-mails. Generally, the nature of the communications
concerned Appellant’s grievances and perceived injustices carried out by
Commonwealth employees related to his unsuccessful applications for
employment and his preferred status as a veteran. While the trial court
opinion quotes the e-mails in detail, for our purposes, we observe that
Appellant used the following language in his communications to the e-mail
recipients – “I will pursue punishment of you”; “[t]hat is a threat”; “You
won’t have to explain to a judge how you rectify me having spent so much
money on civil court actions instead of just buying a $200 gun and $20 box
of ammunition and killing your employees, like they accuse me of
having . . . a propensity towards”; and “I hope all of you suffer terrible
tragedies.” N.T., 4/19/16, at 22, 28, 36, 44; Commonwealth Exhibits 1–4.
At trial, Ms. Sauder testified that while she had communicated via e-
mail with Appellant over a period of years, his tone had changed, and she
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became alarmed after receiving the subject e-mails. N.T., 4/19/16, at 20–
21. Ms. Sauder stated that she had never received e-mails referencing guns
and that she was afraid. Id. at 34. She characterized the tone of the e-
mails as “extremely angry,” expressing “a potential to do harm.” Id. at 45.
Ms. McMillan also testified that she was alarmed after receiving the e-mails
and was concerned enough to notify her supervisor’s boss. Id. at 73.
As noted, on April 19, 2016, a jury found Appellant guilty of two
counts of harassment. On that same date, the trial court sentenced
Appellant to two consecutive terms of one-year probation. Appellant filed a
post-sentence motion that was denied by operation of law pursuant to
Pa.R.Crim.P. 720 (B)(3)(a).
Appellant raises the following issues for review:
I. Was not the evidence insufficient to support [Appellant’s]
conviction for harassment, 18 Pa.C.S. § 2709(a)(4), where
[Appellant’s] language cannot be construed as “true threats” and
is therefore protected speech under the United States and
Pennsylvania Constitutions?
II. Was it not a violation of [Appellant’s] double jeopardy rights
for the court to impose separate sentences for two counts of
harassment, 18 Pa.C.S. § 2709(a)(4), where the two counts
were redundant statements of the very same conduct?
Appellant’s Brief at 5 (full capitalization omitted).
Initially, Appellant submits that in reviewing his sufficiency argument,
this Court should employ an “independent review” standard because his
challenge is based upon the exercise of his First Amendment rights.
Appellant’s Brief at 19. The authority cited for the suggestion that we should
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J-A11013-17
not employ the general deferential sufficiency-of-the-evidence scrutiny is not
persuasive; nonetheless, because Appellant’s issue concerns a question of
law, our review is de novo. In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super.
2016).
Appellant was convicted of two counts of harassment under 18 Pa.C.S.
§ 2709(a)(4), which states:
(a) Offense defined.--A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:
* * *
(4) communicates to or about such other person any
lewd, lascivious, threatening or obscene words,
language, drawings or caricatures;
Appellant’s challenge to the sufficiency of the evidence is based on his
premise that his words cannot be construed as “true threats”; therefore, his
conduct was protected speech under the United States and Pennsylvania
Constitutions. See Commonwealth v. Baker, 722 A.2d 718, 721–722 (Pa.
Super. 1998) (en banc) (defining “true threat” as 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”) (citation omitted).
Appellant’s argument that none of the language included in the e-mails
indicates a specific threat of violence is unavailing. In his first e-mail,
Appellant stated that he was “pursuing punishment” of Commonwealth
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employees. In the second e-mail, he used violent imagery as an alternative
to accessing the courts for the relief he felt was due. Finally, although in his
fourth e-mail Appellant couched his language to infer that he would only
resort to legal means to redress his grievances, he wished “terrible
tragedies” on the recipients and referenced the formation of a militia of
similarly frustrated citizens. N.T., 4/19/16, at 22, 28, 44; Commonwealth
Exhibits 1, 2, and 4.
Appellant cannot credibly argue that his free speech rights were in any
way infringed in this matter. While Appellant is free to express his
disagreement with the Commonwealth employees concerning his
dissatisfaction with state policies, he is not empowered to threaten the
employees with reference to guns, ammunition, and militia, veiled though
they may be. We agree with the trial court that “this type of behavior is
exactly the type of behavior that the harassment statute is meant to
prohibit” and adopt its reasoning in concluding that sufficient evidence
supports Appellant’s conviction. Trial Court Opinion, 11/9/16, at 6.
Appellant next claims that his right against double jeopardy was
violated when the trial court imposed two separate sentences for two counts
of harassment. Specifically, Appellant contends that his conviction for two
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J-A11013-17
counts of harassment violates the prohibition against multiplicity, i.e., the
charging of multiple counts for a single criminal offense.2
We affirm the trial court’s decision in this regard based upon its well-
reasoned response to this assertion: “Appellant wrote three distinct e-mails
each of which could independently fulfill the elements of harassment as
charged. . . .[3] Each e-mail contained different statements so that this was
not just a single criminal act.” Trial Court Opinion, 11/9/16, at 7.
Accordingly, for the above-stated reasons and after careful review of
the parties’ arguments and the certified record, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
____________________________________________
2
“No crimes shall merge for sentencing purposes unless the crimes arise
from a single criminal act and all of the statutory elements of one offense
are included in the statutory elements of the other offense.” 42 Pa.C.S.
§ 9765.
3
The e-mail sent on November 29, 2014, is a duplicate of the e-mail sent
on November 28, 2014. N.T., 4/18/16, at 28, 36; Commonwealth Exhibits
2, 3.
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Circulated 05/23/2017 12:18 PM
,l!JDV ,D 9 2016
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS.
: DAUPHIN COUNTY, PENNSYLVANIA
v. : 1469 MDA 2016
: 3716 CR 2015
SEAN DONAHUE ~ CRIMINAL APPEAL
TRIAL COURT MEMORANDUM OPINION PURSUANT TO PENNSYLVANIA RULE
OF APPELLATE. PROCEDURE 1925{a)
Presently
.
before the Superior Court of Pennsylvania
.
is the appeal of Sean Donahue
(hereinafter "Appellant") from the judgment of sentence entered by this Court following a jury
trial.
Procedural History and Factual·Background.
On January 12, 2015, Appellant was charged with one count of first degree misdemeanor
(terroristic threats)' and two counts of third degree misdemeanor (harassment)2 for allegedly
emailing threats· to various Commonwealth employees and the media.
In July 2015, bail was set following the preliminary hearing. Shortly thereafter, a Petition
for Habeas Corpus and.a Petition for Release Pursuant to Rule 600 or, in the alternative, Petition
for Bail Reduction were filed. They were both denied, with the denial of the Bail Reduction
being reviewed by the Superior Court who denied the request.3
On April 18, 2016, a jury trial commenced. At trial, the jury was hung as to the terroristic
threats charge, but found guilty on the two harassment charges; The district attorney immediately
chose to nolle pros the terroristic threats charge. ·
1
18 Pa.C.S.A. § 2706
2
18 Pa.C.S.A. § 2709(a)(4) ·
'See 63 !\IDA 2015
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The Commonwealth limited itself to using only 4 emails in its case in chief. Those four
emails were each sent to roughly 50 individuals. Lisa Sauder and Mary Jane McMillan were both
courtesy copy recipients of the emails. Mary Jane Mclv[illan was m the '1o"-fiToo on one email
The first email reads, in part:
I now advise you that if you follow through and even
entertain the slightest bit of a notion that you and the rest of the
·Commission have the jurisdiction necessary to pass judgment over
my use of federal and state courts, I willpursue punishment of you,
the remaining Commission members and the senior employees of
the Commission for your even attempting to control access to the
courts. By doing so, you will face the very same court actions that ·
PA L&I now claims its employees faced and fear that they still face
from.me.
That is a threat and I make that threat with the full confidence
of Democracy and no fear whatsoever of the federal and state courts.
Print this explicit unapologetic threat out and take it to your nearest
FBI office or US Attorneys Office. You may take it to your local
state Attorney Generals office and Magistrate as well, for I will
show no respect for state level immunity for you in this matter.
The second email reads in part:
Congratulations. You've one. The amount of money I spent .
on paper copies trying to fight your agency in the courts over the
past decade has been more than enough to by a quality assault rifle
and an 'ample supply of ammunition or explosive materials, all of
which your staff: your employees and your affiliates accused me of
doing and all of which they repeatedly told police they feared. It was
all bullshit and you knew it. .. And you won't even have the balls to
walk into a courtroom and file a private criminal charge because you
can't push the Court around like you can the civil service
commission. You won't have to explain to a judge how you rectify
my having spent so much money on civil court actions instead of
just buying a $200 gun and $20 box of ammunition and killing-your
employees, like they accuse me of having been accusing me of
having a· propensity towards for about a decade ... be grateful that
your memory of me is associates with reams of paper and email
complaints so that you don't have to remember me every time you
walk past the hunting section of a department store, like your
employees have accused me of for so long, when they should have
· been focused on getting me a job making enough money to repay
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those student loans that are going to be paid off by your law firm's
income tax instead of my paycheck because I don't have a paycheck.
The third· email read exactly as the second, with a nearly identical recipient list> in a
different order.
The fourth email reads in part:
If L&I and the Civil Service Commission do not start
obeying the law· that grant me veterans preference for numerous
employment related benefits, I am going to find a LEGAL way to
pound the shit out of your government agencies and I am going to
· that method, whatever it is in whatever context makes it LEGAL, to.
pound your employees into submission until they stop denying me
my benefits.
I hope all of you suffer terrible tragedies as you leave office
and.I hope you suffer to a much greater degree than you arw actively
causing in my life very day. I hope that all of you who are involved
in manipulating the civil service laws to prevent me from being
employed die in a terrible tragedy of your own doing. I hope each of
you feels the regular daily pain that you have intentionally caused in
my life for years and still cause today. As you move aggressively to ·
cement that misery into my life before you leave office in January,
think ofFerguson, thinkofthe anger and frustration that government
oppression is causing in our society ...
I can't accomplish anything with a weapon. I need a unit. I
need a militia of equally as frustrated Pennsylvanians and
Americans who are fed up with being ignored by government.".
Lisa Sauder testified that while she had communicated via email with Appellant over a
period of years, the tone changed and she became alarmed. (Notes of Testimony, Jury Tria14, p.
2 I). While Ms. Sander's job required that she interact with people with grievances, she had never,
in 26 years at her job, received emails like these before, referencing guns, and she was afraid. (N.T.
34-35). She felt the email was extremely angry and expressed apotential to do harm, (N.T. 45) ..
Mary Jane McMillan was also alarmed after receiving the emails. (N'.T. 72). She had never
received emails with that sortof Ianguage and was concerned enough to notify her supervisor's
4
Hereinafter ''N.T."
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boss about them. (N.T. 72-73). She actually went above her supervisor's head because she was so
concerned; normally she would have told her supervisor first. (N.T. 73).
Corporal Richard Schur was given flie·emaiTsoy state employees andl1e was ass1gned to
investigate, He located Appellant and he ultimately charged Appellant in this case.
Appellant's Statement of Matters Complained of on Appeal
• The evidence was insufficient to support Defendant's conviction for Harassment, 18
Pa.C.S. § 2709(a)(4), where Defendant's language cannot be construed as "hue threats"
as is therefore protected speech under the First and Fourteenth Amendments of the
United States Constitution and Article I, Sections 7 and 20 of the Pennsylvania
Constitution.
• The Court imposed an illegal sentence when it sentenced Defendant on two separate
counts of Harassment under 18 Pa.C.S. § 2709(a)(4).
Discussion
"Evidence will be deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the
physical facts, in contravention to human experience and the laws of nature, then the evidence is
.insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view
the evidence in the light most favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence." Commonwealth v. Smith, 2004 PA
Super 77, ,I 24, 853 A.2d 1020J 1028 (2004)
In this case "A person commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or caricatures." 18 Pa.C.S.A. §
2709(a)(4).
"Communicates" is defined as:
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Conveys a message without intent of legitimate communication or
address by oral, nonverbal, written or electronic means, including.
telephone, ·electronic mail, Internet, facsimile, telex, wireless·
communication or similar transmission.
1-8-Pa:e-:-s~t2r-09t
Appellant communicated with the victims via email. Over the course of three days,
Appellant sent four emails to numerous people. In those emails, Appellant utilized capital letters,
which arc often commonly read as shouting. He wished "terrible tragedies" upon the recipients,
and he referenced guns, armed uprisings, and indicated he was threatening the recipients with
legal action.
Appellant argues that his words cannot be construed as "true threats" and thus are
protected under the First and Fourteenth Amendments of the United Sates Constitution and
Article I, Sections 7 and 20 of the Pennsylvania Constitution. Pennsylvania's Constitution sets
forth the right to freedom of speech in Article I, Section 7. In Article 1, Section 20, the ·
Pennsylvania Constitution provided that citizens may petition "those invested with the powers of
government for redress grievances or other proper purposes, by petition, address or
remonstrance."
"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" arc 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."
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Commonwealth v. Baker, 722 A.2d 718, 721-22 (Pa. Super. 1998), aff'd. 564 Pa. 192, 766 A.2d
328 (2001)(citations omitted)
In Commonwealth v. Walls, 144 A.3d 926 (Pa. Super. 2016) the Court found that there
was sufficient evidence for a conviction of harassment under 18 Pa.C.S.A. 2709(a)( 4) where the
defendant approached the victim, spoke with her at length, caused her to back up and request that
he leave her alone and then yelled that she caused his grandmother's death and she should be
next. The victim suffered no physical contact or harm. That defendant was then escorted· from
the store. TI1e Court reasoned that unless you are attempting to harass or annoy an individual,
there is no reason to do such a thing.
· Similarly, in this case, there is no reason to send four relatively lengthy emails, which
must have taken some time to compose, over such a short time period, if one does not intend to
harass or annoy the recipients.
In Walls, the defendant indicated that the victim should.be next. He did not indicate an
imminent prospect ~f causing her harm. He wished future harm to happen to her and did not
threaten to cause that hann·himself.
Appellant in. this case, wished future tragedies and harm upon the recipients of the emails.
He even took it a .step further in discussing how he should have just bought a rifle and
ammunition, rather than waste time with the system. He promises the recipients punishment,
nominally via the court, however, he then turns to indicate he promises he is making a threat and
has no fear of the courts. He says the recipients should be grateful their memory of him is
associated boxes of papers not the hunting section of the store. These statements are
inflammatory and clearly intended to alarm the recipients.
Much like the Court in Walls, we believe this type of behavior is exactly the type of
· behavior that the harassment statute is meant to prohibit.
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Next we tum to the multiplicity claim. Appellant contends that since the language utilized
in the charging document and the jury instructions relates only to one statute and subsection and
fai1sloaTfferentiate in any way, mcluchng oy naming arfferent vicfitns, ilie sentence violafeslhe
prohibition against double jeopardy found in both the United States and Pennsylvania
Constitutions".
' No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements of
one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court may
sentence the defendant only on the higher graded offense.
42 Pa.C.S.A.§ 9765
In this case, Appellant wrote
.
three distinct emails
. .
each of which could ·independently
fulfill the elements of harassment as charged and defined in the jury instructions. See
' .
Commonwealth v. Petterson, 2012 PA Super 146, 49 A.3d 903, 912 (2012) (where a defendant.
commits multiple distinct criminal acts, the concept of merger for sentencing purposes does not
apply). The three distinct emails contained messages which alarmed the recipients enough to
warrant contacting the police. Each email contained different statements so that this was not just
a single criminal act.
For these reasons, we ask the Superior Court to affirm our judgment of sentence.
5 U.S. Const. amend V; PA Const. art. I, 10
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Respectfully submitted:
Dated: Ir fr /1 &
~____,_/--1~-
Distribution:
The Superior Courtof Pennsylvania
Hon. Deborah E. Curcillo
Katie Adam, Esq., Dauphin County District Attorney's Office
James Karl, Esq., Dauphin County Public Defender's Office ;£0
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