J-A25031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
        Appellee

                     v.

CHRISTOPHER ROSS HECKER,

        Appellant                                    No. 2093 MDA 2015


             Appeal from the Judgment of Sentence July 10, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001253-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED DECEMBER 28, 2016

        Christopher Ross Hecker (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Centre County after a

jury convicted him on eleven counts of Terroristic Threats, eleven counts of

Harassment, and one count of Stalking1 in connection with a series of emails

and phone calls he placed to his ex-wife at her home and office. Sentenced

to twelve to twenty-four years’ incarceration, to be followed by four years’

probation, Appellant contends the court improperly directed a verdict when it

instructed the jury that it could consider his state of mind with respect to the

element of intent but could not discern an insanity or mental instability

defense to the crimes charged because Appellant failed to assert such

defenses during trial. We affirm.


1
    18 Pa.C.S.A. §§ 2706(a)(3), 2709(a)(4), and 2709.1(a)(2), respectively.


*Former Justice specially assigned to the Superior Court.
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       On May 29, 2014, Appellant contacted his ex-wife (“Complainant”) for

the first time after their three-year marriage ended in divorce seventeen

years earlier, in 1997.    In his three-page email, he expressed a desire to

reunite with her and asked numerous questions about her and her family,2

saying he had viewed their pictures of Facebook. N.T., 4/27/15, at 64. He

also   insinuated   that   Complainant   was   part   of   a   technology-based

surveillance society involved in harassing him, and he asked her to explain

why this surveillance was ongoing. Complainant construed this latter aspect

of the email as unfriendly and threatening, and she chose not to respond to

the unwelcome correspondence. N.T. at 60, 63.

       On June 1, 2014, Appellant sent two more emails to Complainant

within the span of one hour reiterating his desire for reunification and

pleading for her to respond, even if to say that she desired no further

contact from him. N.T. at 67. After some contemplation, Complainant acted

on Appellant’s invitation and replied, in the hope that he would desist once

and for all, that she was not interested in resuming any form of relationship

with him. Id. Twenty minutes later, Appellant sent a reply email asking for

her forgiveness because he was subjected to very cruel and abusive torment

by others, and he wished her “nothing but the best.”               N.T. at 68.

Complainant felt a sense of relief from this response, until three minutes

later, when Appellant sent her another email warning her “Don’t ever do it


2
 Complainant had re-married, and she and her husband have two children,
who were ages nine and seven at the time in question. N.T. at 59-60.


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again.”      N.T. at 68.     Complainant was then convinced that Appellant was

“going to keep coming at me.” Id.

       Forty-five minutes later, Complainant’s suspicions were confirmed

when Appellant sent another email stating his belief that she was lying and

he    will   always   love    her,   before   his   message   devolved   into   more

“inflammatory stuff about what he thinks I [Complainant] might or might not

be involved with or doing or something.”             N.T. at 69.   Six more hours

elapsed when Appellant sent another email in which he began with “You’re

lying, [Complainant].”          He   announced his plan to         overdose, which

Complainant viewed as nothing but an attempt to gain her response. N.T. at

70.    Eight minutes later, Appellant sent an email stating that others are

teasing him over her and that her denial of him was a lie. He concluded this

email with the assertion that “you are evil, and I can’t live like this. So I

need to find an overdose and kill myself and it really is that bad and you

know it and you couldn’t care less which is why I should . . . make you care

but I can’t so.” N.T. at 71.

       Only twenty-six minutes pass before Appellant emails Complainant

again, at 11:44 p.m., to call her a liar and threaten committing suicide on

her front porch.      Complainant now began to feel frightened that Appellant

was implying he had plans to come to her residence. Id. Just three minutes

later, Appellant sends another email in which he says, succinctly “You’re

fucking evil, [Commplainant]. Simple as that. I will have revenge, wait.”

N.T. at 72.


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      The following day, as Complainant drove to her place of employment

at The Pennsylvania State University, University Park campus (“Penn

State”), it occurred to her that a simple Google search of her name would

connect one to her office email and phone number. N.T. at 73-74. When

she arrived at work, two voicemails from Appellant were awaiting her. She

listened to them and walked out of her office when one of her staff said that

somebody “not very nice” had been calling for her. N.T. at 75. Complainant

advised the employee to stop answering the phone.

      The office phone continued to ring “nonstop,” and Complainant would

simply end the call each time without speaking. N.T. at 75-76. Sometime

later, her boss informed her that he had no choice but to call the Penn State

Police Department because threatening messages of a broader scope had

been placed on the main line. N.T. at 76. Investigators arrived, and during

their forty minutes at the office Appellant placed approximately fifteen more

phone calls threatening the lives of Complainant, her husband, her

coworkers, and others.      N.T. at 76, 84-99.       By 5:00 p.m., all of

Complainant’s employees left the office as a group and hurried to their

vehicles.

      Complainant obtained a Protection From Abuse Order on June 5, 2014,

but Appellant continued contacting her after he had been served with the

order. N.T. at 102-16. Appellant warned “People are still using your image

and attributes to convey abusive charades of mental abuse. It has to stop,

[Complainant]. I have been getting very volatile over the last few months.


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Stop this before I murder someone.” N.T. at 106. He also advised “I got

notice of your PFA, and I’m breaking it right now—fully knowledgeable that I

am breaking it right now.” Other messages included “I am coming out there

as soon as possible,” “I am out here-planning my strike,” and “Officer Miller,

you cannot stop me. The police cannot stop me. The Courts cannot stop

me either.”

      Included among the thirty-five specific messages of violence Appellant

directed at Complainant over the first week of June, 2014, were references

to school massacres, such as: “This is why people show up on college

campuses, [Complainant], and do horrible things . . . and [Complainant]

works where?    A college campus[;]” I might pass through Penn State and

there might be a problem on campus, and it might go international[;]” and,

“I hope lots of you get shot.”

      Appellant also threatened Complainant’s family numerous times,

including “[Complainant], I’m coming after you, and I want the truth, and

I’m gonna get it no matter what it takes. How many kids do you have now,

[Complainant]?” and “That three year old little girl thrown off a bridge in

front of a tractor trailer; the image would be horrible. I’m going to make it

worse than that.”

      Penn State Police investigators determined from the cell phone tower

ping evident on Appellant’s phone calls that he was placing his calls from the

State of Oregon.    N.T. at 168.   This information was consistent with an

address and a photograph that Appellant had included in an email he


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recently sent to Complainant.       N.T. at 169.    Investigators contacted the

Portland,   Oregon   Police     Department   and,   ultimately,   had   Appellant

extradited to Centre County, where the Penn State Police had filed a criminal

complaint against him on June 14, 2014. On July 9, 2014, Appellant waived

his right to a preliminary hearing and all charges were bound over to the

Court of Common Pleas. A criminal information was subsequently filed on

July 31, 2014, and, on August 6, 2014, Appellant was formally arraigned.

Unable to make bail, Appellant served pre-trial detention at the Centre

County Correctional Facility.

      Represented by court-appointed counsel from the Centre County Public

Defender’s Office, Appellant, on March 27, 2015, filed a motion in limine

seeking exclusions of references to alleged prior instances of misconduct,

including his violation of a PFA Order and his prior criminal record.

Subsequently, Appellant filed a supplemental motion in limine complaining

that it had served it with a “selectively edited CD of [Appellant’s] phone calls

to [Complainant] . . . depriving the [Appellant] of the ability to correct a

misleading impression as well as misleading the jury by taking the

statements contained in this selectively edited CD out of context.”

Supplemental Motion in Limine, filed 3/31/15, C.R. #16.3




3
  From nearly 150 minutes of recorded voicemails left by Appellant, the
Commonwealth considered eight and one-half minutes’ worth sufficiently
incriminating, and it placed those statements, alone, on a CD it intended to
admit at trial.


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      The Commonwealth, meanwhile, filed a supplemental motion in limine

of its own seeking, inter alia, preclusion of an insanity or mental infirmity

defense given Appellant’s failure to provide Pa.R.Crim.P. 579 notice of its

intention to offer such a defense. Under Rule 568(B), the Commonwealth

argued, the lack of such notice allowed the court to “exclude entirely any

evidence offered by the defense for the purpose of proving the defense,

except testimony by the defendant.” Commonwealth’s Supplemental Motion

in Limine, filed 4/20/2015, at 6 (quoting Pa.R.Crim.P. 568(B)). Accordingly,

the Commonwealth sought an order “barring any testimony, evidence,

and/or oral argument concerning whether [Appellant] was mentally insane

or suffering from mental infirmity at the time of the offense….” Id.

      At the hearing on the parties’ supplemental motions, counsel for

Appellant conceded the Commonwealth’s position against the presentation of

an insanity or mental instability defense, indicating that, pursuant to

Appellant’s direction, he would not be presenting an insanity defense. N.T.

4/23/15 at 7-8.4     Accordingly, the court granted the Commonwealth’s

4
  Defense counsel conceded that he was not presenting a case of insanity to
the jury:

      DEFENSE COUNSEL: I’m not offering an insanity defense. Mr.
      Hecker, we disagree about what he believes in and whether or
      not if his beliefs are real or delusional. We can have that
      disagreement, but I’m not arguing to the jury, [‘]find him not
      guilty by reason of insanity.[’] Mr. Hecker does not want me to
      do that. So, that should be granted. I’m not going to argue an
      insanity defense.

N.T. at 7.


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motion in that regard, but it otherwise granted Appellant’s motion seeking

inclusion of the entire two-and-one-half hour recording of Appellant’s phone

statements for purposes of providing context.

      Trial commenced on April 27, 2015, and, at the conclusion of evidence

and just prior to charging the jury, the court reviewed proposed jury

instructions with respective counsel. N.T. 4/28/15 at 299-305. Among the

instructions discussed was one pertaining to the lack of an insanity or mental

instability defense offered by Appellant. On this proposed charge, the court

expounded as follows:

      THE COURT:        So, based on the way the evidence came in,
      the Court came up with an instruction.         And after some
      discussion, Mr. Klena, on behalf of the defendant, did add some
      language which the court accepted and the Commonwealth
      accepted and I’m just going to read that instruction into the
      record. If anybody wants to make an objection, they can once I
      find the number. Thank you for not letting me forget that.

      The Court was going to give this instruction. [‘]Defendant has
      not asserted an insanity defense or a defense of mental
      instability. Therefore, you are not to consider any evidence of
      insanity or mental instability as a defense to the crimes
      charged.[’] The language that Mr. Klena wanted added would
      be: [‘]You may consider the defendant’s state of mind with
      regard to forming intent.[’] Is there any objection to the Court
      giving that?

      DEFENSE COUNSEL: I would object in terms of that being
      given at all. I understand the Court is going to give it which is
      why I asked that the additional language be used. But I do want
      for purpose of preserving the record for appeal [to] place my
      objection to that.

      I believe, again, it somewhat amounts to a directed verdict that
      may violate his presumption of innocence.



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      THE COURT:       I believe you offered some case law at the
      beginning which will be part of the record.

      DEFENSE COUNSEL: That’s correct.

      THE COURT:        Anything from the Commonwealth on the
      proposed instruction?

      COMMONWEALTH:           Obviously, we believe it should go in….
      Okay. Your Honor, the cases that Mr. Klena cited are Gearhart
      which is a DUI case in which the Court doesn’t instruct the jury
      that it may not consider something. It instructs the jury that it
      must find that the DUI must be found if they find the BAC was
      proven at .10 or higher.

      Because that isn’t a fact which comprises an element of the
      offense in that Court, the Court may never compel the inference
      and that comes from Commonwealth v. Difrancesco, at 329
      A.2d 204, and that would in that case amount to a shifting of the
      burden to the defendant to thus disprove his guilt.

      We believe that that is clearly distinguished from this case in
      that we are only seeking to include a jury instruction which tells
      the jury the exact opposite, not that they must consider a piece
      of evidence that we would have been required to prove, but that
      there is a piece of information which was never provided to them
      and, therefore, they may not take that into account.

      THE COURT:         The Court will overrule the defense objection
      and will give the instruction….

N.T. 4/28/15 at 302-05.

      The court charged the jury in conformance with this discussion,

incorporating the instruction at issue within an otherwise standard jury

instruction on the element of intent:

      THE COURT:        Defendant has not asserted an insanity
      defense or a defense of mental instability. Therefore, you are
      not to consider any evidence of insanity or mental instability as a
      defense to the crimes charged.          You may consider the
      defendant’s state of mind with regard to forming intent.


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      As I have told you, one of the elements of this crime is that the
      defendant intended a certain result. Ordinarily, it is not possible
      to prove intent, knowledge, or other states of mind by direct
      evidence unless, for example, there is evidence that the
      defendant made a statement concerning his state of mind.

      However, intent, knowledge, and other states of mind, like any
      other matter, may be proved by circumstantial evidence, that is,
      by inferences that reasonably may be drawn from all the facts
      and circumstances, including the defendant’s acts and conduct
      which have been shown by the evidence in this case. Thus, you
      may conclude that the defendant possessed the requisite state of
      mind based on circumstantial evidence alone but only if the
      circumstantial evidence is strong enough to convince you that
      the Commonwealth has established this state of mind beyond a
      reasonable doubt.

N.T. at 370-71.

      The jury returned with a guilty verdict on all charges. After the court

imposed sentence and denied Appellant’s post-sentence motions, Appellant

filed the present appeal.

      Appellant presents one question for our consideration:

      DID THE TRIAL COURT ERR IN GIVING THE JURY A DIRECTED
      VERDICT TELLING THE JURY IT COULD NOT FIND THE
      DEFENDANT NOT GUILTY BY REASON OF INSANITY?

Appellant’s brief at 4.

Our standard of review of a trial court's jury instructions is as follows.

      [T]his Court will look to the instructions as a whole, and not
      simply isolated portions, to determine if the instructions were
      improper. We further note that [ ] a trial court has broad
      discretion in phrasing its instructions, and may choose its own
      wording so long as the law is clearly, adequately, and accurately
      presented to the jury for its consideration. Only where there is
      an abuse of discretion or an inaccurate statement of the law is
      there reversible error.



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Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa.2014).              We note,

further, that in a court’s phrasing its instructions, there are no “magic,

talismanic words which must be uttered in order for a charge to pass

muster.” Commonwealth v. Foster, 764 A.2d 1076, 1084 (Pa.Super.

2000) (citation omitted). Moreover, “[t]he law presumes that the jury will

follow the instructions of the court.” Commonwealth v. Brown, 786 A.2d

961,   971    (Pa.2001)    (citation   omitted),   cert   denied,    Brown     v.

Pennsylvania, 537 U.S. 1187 (2003).

       Our jurisprudence denounces any instruction that would compel a jury

to presume a fact comprising an element of an alleged offense, for

mandating such an inference “would amount to a shifting of the burden of

producing evidence to the defendant and, in effect, a directed verdict of

guilty if the accused fails to rebut. Directed verdicts of guilt in criminal cases

negate the presumption of innocence and, as such, are never permissible.”

Commonwealth v. Gearhart, 384 A.2d 1321, 1323 (Pa.Super. 1978)

(citing Commonwealth v. Turner, 317 A.2d 298 (Pa. 1974) (condemning

directed verdict as “abhorrent to the criminal law.”).

       Here, in charging the jury that it could not identify an insanity or

mental infirmity defense to the crimes where Appellant never offered such a

defense, the trial court did not compel the jury to conclude that the state of

mind element to the charges was, thereby, established. Indeed, the court



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specifically informed jurors they were still to consider evidence of Appellant’s

state of mind and how such evidence bore upon his ability to form requisite

intent.    Only   if   the   Commonwealth     met   its   burden   of   producing

circumstantial evidence establishing the state of mind element beyond a

reasonable doubt, the instruction concluded, could the jury convict Appellant

of the charges.

      As a whole, therefore, the instruction never directed a verdict as to the

element of intent. Instead, it charged the jury to assess the circumstantial

evidence presented at trial and determine whether the Commonwealth

established, beyond a reasonable doubt, that Appellant had formed the

requisite state of mind. Because we view the instruction as representing a

fair and appropriate expression of both applicable law and the evidence

presented at trial, we discern no reversible error committed below.

      Judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2016




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