J-A24033-14



                                  2014 PA Super 254

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

FRANK VERGILIO,

                            Appellee                  No. 2628 EDA 2013


               Appeal from the Order Entered September 9, 2013
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0001821-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

OPINION BY PLATT, J.:                            FILED NOVEMBER 06, 2014

        The Commonwealth appeals from the trial court’s order granting the

petition of Appellee, Frank Vergilio, to dismiss for lack of jurisdiction.

Specifically, the court dismissed the charges of terroristic threats 1 based on

its finding that it lacked jurisdiction because the alleged threats from

Appellee originated from a telephone in New Jersey and were directly

received by the victim in Pennsylvania. We reverse.

        As observed by the trial court:

            [T]here is no dispute that the telephone calls at issue were
        made from New Jersey. [Appellee] and the victim had two
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See 18 Pa.C.S.A. § 2706(a)(1). Appellee’s petition did not seek the
dismissal of the charge of harassment. See 18 Pa.C.S.A. § 2709(a)(1).
J-A24033-14


        communications between December 3, 2011 and December 4,
        2011. On December 3, 2011, the victim called his mother in
        New Jersey to express his concern over mother’s boyfriend,
        [Appellee]. During the conversation, [Appellee] grabbed the
        phone from mother and proceeded to engage in a verbal
        altercation with victim, culminating in the alleged terroristic
        threats. Hence, the first alleged threat was made by [Appellee]
        to the victim, while [Appellee] was in New Jersey.
        Approximately fifteen minutes later, while still in New Jersey,
        [Appellee] called the victim back and allegedly made additional
        threats.   Again, [Appellee] made this phone call from New
        Jersey.

(Trial Court Opinion, 1/31/14, at 4 (record citations omitted)).

        On April 10, 2012, the Commonwealth charged Appellee with two

counts of terroristic threats and one count of harassment. On May 10, 2013,

Appellee filed a petition to dismiss the terroristic threats counts for lack of

jurisdiction. The court held argument on Appellee’s motion on September 4,

2013.     On September 9, 2013, the court granted Appellee’s petition and

dismissed the charges of terroristic threats.     The Commonwealth timely

appealed.2

        The Commonwealth raises one question for our review: “Whether the

[trial] court erred by concluding that it did not have jurisdiction over

terroristic threats charges, where [Appellee] in New Jersey communicated




____________________________________________


2
  Pursuant to the trial court’s order, the Commonwealth filed a Rule 1925(b)
statement on October 15, 2013. The court filed a Rule 1925(a) opinion on
January 31, 2014. See Pa.R.A.P. 1925.



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the    threats    over     the    phone        to    the    victim     in   Pennsylvania?”

(Commonwealth’s Brief, at 4).3

       The Commonwealth argues that the trial court improperly found that it

did not have jurisdiction4 where “[Appellee] communicated the threats to the

victim [who was in] Pennsylvania[, and thus] the communication . . .

occurred within the Commonwealth.” (Commonwealth’s Brief, at 13). After

a thorough review of the law on this issue, we agree.

       We begin by noting that, while we agree with Appellee that “[t]he

object of all interpretation and construction of a statute is to ascertain and

effectuate the intent of the General Assembly[,]” (Appellee’s Brief, at 14

(citations omitted)), we are not legally persuaded by his argument that the

General    Assembly      intended,     by      not   specifically    identifying   where   a

communication occurs for the purpose of the terroristic threats statute, that
____________________________________________


3
  Because the Commonwealth’s issue challenges the court’s finding that it
lacked jurisdiction, our standard of review is de novo and our scope of
review is plenary. See Commonwealth v. John, 854 A.2d 591, 593 (Pa.
Super. 2004), appeal denied, 870 A.2d 320 (Pa. 2005).
4
   Specifically, the trial court observed that, while the terroristic threats
statute does not address whether the threat is communicated when spoken
or when heard, the harassment statute expressly provides that
“[h]arassment may be deemed to have been committed at either the place
at which the communication or communications were made or at the place
where the communication or communications were received.” (Trial Ct. Op.,
at 4 (citing 18 Pa.C.S.A. § 2709(b.1)). The court reasoned, therefore, that,
because the terroristic threats statute did not contain language similar to
that of the harassment statute, it “lacked jurisdiction to address the
[t]erroristic [t]hreats counts against [Appellee].” (Id.).




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J-A24033-14


the communication must be considered made only in the place in which it is

uttered. (See id. at 14-15).5

       To establish the crime of terroristic threats pursuant to section

2706(a)(1) of the Crimes Code, the Commonwealth must prove that the

defendant “communicate[d], either directly or indirectly, a threat to . . .

commit any crime of violence with intent to terrorize another[.]”         18

Pa.C.S.A. § 2706(a)(1); see also Commonwealth v. Tizer, 684 A.2d 597,

600 (Pa. Super. 1996) (same). “[T]he elements [necessary to establish a

violation of the terroristic threats statute] are: (1) a threat to commit a

crime of violence; and (2) that the threat was communicated with the intent

to terrorize or with reckless disregard of the risk of causing such terror.”

Commonwealth v. Ferrer, 423 A.2d 423, 424 (Pa. Super. 1980) (footnote

omitted).      Section 2706 defines the word, “communicates,” to mean

“conveys in person or by written or electronic means, including telephone . .

. .” 18 Pa.C.S.A. § 2706(e).

____________________________________________


5
   We are cognizant of the principle espoused by Appellee, “that where
certain things are included in a statute, all omissions are to be understood
as exclusions.” (Appellee’s Brief, at 21-22 (citations omitted)). However,
merely because the terroristic threats statute does not include a venue
provision like the harassment statute about where a communication is
deemed to occur, this does not lead to the necessary conclusion that
jurisdiction lies only at the place where it was uttered. As discussed more
fully, infra, an equally and indeed more compelling argument can be made
that, by omitting the language, the legislature intended the usual use of the
term, “communicate,” and therefore jurisdiction lies also in the place where
received.



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      Our courts have not specifically addressed the definition of this word,

“communicates,” in section 2706.      See 18 Pa.C.S.A. § 2706.      Pursuant to

Rule of Statutory Construction 1928, penal statutes are to be strictly

construed.     See 1 Pa.C.S.A. § 1928(b)(1); see also id. at § 1921(a)

(providing, in part, that “[t]he object of all interpretation and construction of

statutes is to ascertain and effectuate the intention of the General

Assembly.”).    Section 105 of the Crimes Code provides, in pertinent part:

“The provisions of this title shall be construed according to the fair import of

their terms but when the language is susceptible of differing constructions it

shall be interpreted to further the general purposes stated in this title and

the special purposes of the particular provision involved.”      18 Pa.C.S.A. §

105. Section 102 states, in relevant part: “Except as otherwise provided in

this section, a person may be convicted under the law of this Commonwealth

of an offense committed by his own conduct . . . if . . . the conduct which is

an element of the offense or the result which is such an element occurs

within this Commonwealth[.]” 18 Pa.C.S.A. § 102(a).

      Here, the terroristic threats statute is clear and unambiguous that a

communication must be conveyed.         See 18 Pa.C.S.A. § 2706(a)(1); see

also 1 Pa.C.S.A. §§ 1928(b)(1).       The official comment to Section 2706

states, “[t]he purpose of the section is to impose criminal liability on persons

who make threats which seriously impair personal security or public

convenience.”    18 Pa.C.S.A. § 2706, official comment─1972; see also 1


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J-A24033-14


Pa.C.S.A. § 1921(a); Commonwealth v. Hardwick, 445 A.2d 796, 797

(Pa. Super. 1982) (same).

      Therefore, while the statute does not expressly address whether to

construe a threat as being made at the time it is uttered or at the time it is

received, we observe that a person’s “personal security” cannot be “seriously

impair[ed]” by a threat unless he hears it. Id. Accordingly, based on the

statute’s plain meaning, our strict construction of it, and the legislature’s

stated purpose in enacting it, we conclude that the term, “communicates,”

as used in the terroristic threats statute, contemplates that the threat be

received. Hence, jurisdiction in this case properly lies in the Pennsylvania

trial court because an element of the statute occurred here, i.e., the victim

received the threat, a necessary element of a communication.

      Moreover, we agree with the Commonwealth that interpreting the

terroristic threats statute in the manner proposed by Appellee and the trial

court leads to an untenable result in the face of current technology that

creates a “seemingly unlimited ability to connect people near and far.”

(Commonwealth’s Brief, at 13 (citing John, supra at 594-95)).        It would

render an offender who utters a threatening message in one state immune

from suit in any and all other states to which he intentionally sends his

illegal communication.

      While not precisely on point, we find John instructive. In John, the

defendant used computers in Delaware and Maryland to send emails to


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J-A24033-14


someone who he believed to be a thirteen year old girl in Pennsylvania. See

John, supra at 592. The supposed underage girl, in actuality, was an agent

from the Pennsylvania Attorney General’s office.     See id.   The defendant

argued that the courts in Pennsylvania lacked jurisdiction because the emails

were sent from outside the Commonwealth.        See id. at 593. In rejecting

this argument, this Court stated:

             The advent of the internet and its seemingly unlimited
      ability to connect people near and far have resulted in a
      tremendous increase in communication.        By virtue of this
      technology, a person sitting in Oregon can chat with someone in
      Florida, not to mention someone on the other side of the world.
      When the substance of those electronic communications is
      punishable by law, as in the written solicitation to engage in
      criminal conduct, we must ask: where does the conduct at issue,
      i.e., the solicitation, occur? . . .

Id. at 594-95.

      After reviewing a similar Pennsylvania case, and caselaw from other

jurisdictions, this Court concluded:

      Appellant here affirmatively made contact in Pennsylvania. He
      sent criminal solicitations to this state and those solicitations
      were received here. . . . [W]e hold that appellant’s solicitations
      were made in Delaware County when they were received there.
      Certainly, a person who receives a criminal solicitation while
      sitting at her computer terminal in Pennsylvania is being solicited
      within this Commonwealth. Jurisdiction of appellant’s solicitation
      crimes properly lies in Pennsylvania because appellant
      committed those crimes here.




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J-A24033-14


Id. at 596 (emphasis in original).6

       John’s interpretation of where a “solicitation” is made, as well as our

reading of the terroristic threats statute, comport with long-standing

principles in this Commonwealth. For example, it has long been held that

“[a]cts done outside a jurisdiction, but intended to produce and producing

detrimental effects[7] within it, justify a state in punishing the cause of the

harm. . . .” Commonwealth v. Bighum, 307 A.2d 255, 258 (Pa. 1973),

abrogated on other grounds, Commonwealth v. Randall, 528 A.2d 1326
____________________________________________


6
  Appellee attempts to distinguish John on the basis that, there, a panel of
this Court found that, because some of the subject emails were sent from his
home in Pennsylvania, “that fact alone vested Pennsylvania courts with
jurisdiction to prosecute the offences.” (Appellee’s Brief, at 23 (citing John,
supra at 593-94)). However, Appellee misrepresents the case’s holding.
While it is true that we observed, “[c]ertainly, any emails appellant sent
from his residence in York, Pennsylvania to Media, Pennsylvania would
subject him to the jurisdiction of the Pennsylvania courts[,]” the emails sent
from Pennsylvania were not the subject of the issue under review, and did
not form the basis for our holding. John, supra at 594 (citation omitted);
see also id. at 596 (concluding that solicitations sent from out-of-state and
received in Pennsylvania vested the Pennsylvania court with jurisdiction).

      Appellee also points out that the defendant in John travelled from his
place of work in Delaware to meet “Missy” in Pennsylvania, a fact that is not
present here. (See Appellee’s Brief, at 23-24). However, Appellee provides
no citation to John that this Court considered this factor in reaching its
holding, (see id.), and our review reveals that we did not do so.
7
  The trial court found that “detrimental effects or harm is not an element of
[t]erroristic [t]hreats.”   (Trial Ct. Op., at 5 (internal quotation marks
omitted)). We disagree. It is undisputed that a communication is an
element of the terroristic threats statute. See 18 Pa.C.S.A. § 2607(a)(1).
Communication requires, not merely the utterance of the threat, but the
victim’s receipt of it, which is the intended, detrimental effect or harm that,
in this case, occurred in Pennsylvania.



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J-A24033-14


(Pa. 1987) (citations and internal quotation marks omitted). This “[justifies]

a state in punishing the cause of the harm as if [the defendant] had been

present at the effect.”       Commonwealth v. Thomas, 189 A.2d 255, 259

(Pa. 1963), cert. denied, 375 U.S. 856 (1963) (citations omitted).      These

general principles provide further support for our conclusion that the

legislature intended that a communication under the terroristic threats

statute necessarily involves a person speaking the threat, and an individual

receiving it.

       Additionally, although our extensive research of this issue did not

reveal any Pennsylvania caselaw that has addressed the specific issue

presented here,8 we find the pertinent caselaw of other jurisdictions to be

____________________________________________


8
  The trial court and Appellee rely on Commonwealth v. Kelley, 664 A.2d
123 (Pa. Super. 1995), appeal denied, 674 A.2d 1068 (Pa. 1996), for the
proposition that, because “there does not need to be any direct contact
between the perpetrator and the victim[,]” the victim’s receipt of the
communication is not required. (Trial Ct. Op., at 3; see also Appellee’s
Brief, at 11). We disagree with this interpretation of the case.

      In Kelley, the defendant argued that the Commonwealth failed to
present a prima facie case at the preliminary hearing where “the
communicator of the threat . . . was not terrorized herself, nor was she
instructed by [a]ppellant to communicate the threat to the victims.” Kelley,
supra at 126. This Court concluded that the Commonwealth was not
required to prove “that the person to whom [a]ppellant communicated the
threat was actually frightened.” Id. at 127. In reaching this conclusion, we
observed that:

        . . . the evidence on the record established that [a]ppellant
       made a threat to commit a crime of violence and that he
       communicated such threat to [the intended recipient’s]
(Footnote Continued Next Page)


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J-A24033-14


persuasive.9    For example, in Kansas v. Woolverton, 159 P.3d 985 (Kan.

2007), the defendant was convicted of criminal threats10 for phone calls he

made from Missouri to the victim in Kansas.         See Woolverton, supra at

988.    On direct appeal, Woolverton argued, in pertinent part, that the

evidence was insufficient to support his conviction where the state failed to

prove that the crime occurred in Kansas because “the act of criminal threat

is complete when the threat is uttered.” Id. at 992.

       In dismissing this argument, the court found:

             Criminal threat, as it applies in this case, is defined as “any
       threat to: (1) Commit violence communicated with intent to
       terrorize another . . . or in reckless disregard of the risk of
       causing such terror.” K.S.A. 2006 Supp. 21-3419(a)(1). The
       plain language of the statute proscribes the act of
       communicating a threat to commit violence.                 The verb
       communicate is defined as “[t]o express oneself in such a way
       that one is readily and clearly understood.” The American
       Heritage Dictionary 299 (2d ed. 1985). The word “understood”
                       _______________________
(Footnote Continued)

       secretary, when she asked if she could give [the intended
       recipient] a message. This threat was in turn communicated to
       the intended recipient[]. Accordingly, [a]ppellant’s conduct met
       the requirement that the threat be communicated to the victims.

Id. at 127. Contrary to the assertions of Appellee and the trial court, the
holding of Kelley actually supports our conclusion that, for a threat to be
“communicated,” it must be received.
9
  “While a decision from another jurisdiction is certainly not binding, it may
be persuasive.” Tagouma v. Investigative Consultant Serv., Inc., 4
A.3d 170, 175 n.3 (Pa. Super. 2010) (citation omitted).
10
  Woolverton also was convicted of telephone harassment, but this fact is
not relevant to our review.




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J-A24033-14


       means “perceived and comprehended.” The American Heritage
       Dictionary, 1318 (2d ed. 1985). Thus, the term “communicate”
       as used in K.S.A. 2006 Supp. 21-3419(a) requires a declarant
       and a receiver for the threat because the threat must be
       perceived and comprehended.

                                           *   *   *

              Pursuant to K.S.A. 21-3104(1)(a), the State has
       jurisdiction over any crime that is committed wholly or partly
       within Kansas. An offense is committed partly within this state if
       an act comprising a constituent and material element of the
       offense is committed within the state. K.S.A. 21-3104(2).
       Because the offense of criminal threat requires a communication,
       which involves both the declaration of a threat and the
       perception and comprehension of the threat, there are two acts
       comprising the constituent and material elements of the
       offense—speaking and perceiving.         Although Woolverton
       spoke the threat in Missouri, [the victim] perceived the
       threat at her home in Johnson County, Kansas. Thus, an
       act comprising a constituent and material element of
       criminal threat was committed in Kansas.

Id. at 993.

       In Sykes v. Minnesota, 578 N.W.2d 807 (C.A. Minn. 1998), cert.

denied, 525 U.S. 1055 (1998), the defendant was charged with six counts of

terroristic threats11 following phone calls he made and letters he sent from

England to individuals in Minnesota.           See Sykes, supra at 809.     Sykes

argued that Minnesota lacked jurisdiction where “there was no operative
____________________________________________


11
   Minnesota’s Criminal Code provides, in pertinent part, that a person is
guilty of terroristic threats if he “threatens, directly or indirectly, to commit
any crime of violence with purpose to terrorize another.” M.S.A. § 609.713.

       The Code further provides that a person can be convicted in Minnesota
if he, “being without the state, intentionally causes a result within the state
prohibited by the criminal laws of this state.” Id. at § 609.025.



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J-A24033-14


event that took place within Minnesota that could constitute the essential

elements of the crime of making terroristic threats.” Sykes, supra at 810

(internal quotation marks omitted).      In analyzing Sykes’ claim, the court

noted that “[f]or a district court in Minnesota to have jurisdiction in this

case, some part of the offense of terroristic threats had to be committed

within the territorial boundaries of Minnesota.” Id. at 811.

      The court observed that the pertinent section of the terroristic threats

statute required that the “defendant utter the threat with the purpose of

terrorizing another.” Id. While the court acknowledged that the effect of a

terroristic threat is not an element of the offense, it is circumstantial

evidence relevant to the evidence of intent. See id.

  The court concluded:

             When Sykes composed the threatening letter and made
      the telephone call from England, he intended those threats to
      reach victims within the territorial boundaries of Minnesota.
      Sykes accomplished that. Had Sykes not communicated his
      threats to his intended victims, he could not have been charged
      with making terroristic threats in Minnesota.       For instance,
      assume that he drafted a letter, but then never sent it. Or
      assume that he wrote a threatening letter, but it got lost in the
      mail in England and was never received. In those hypothetical
      situations, Sykes would have an arguable defense, both on the
      merits and on the issue of whether Minnesota had jurisdiction.
      An individual cannot be guilty of making terroristic threats if the
      threat of violence is not communicated to the intended victim.

                                  *     *      *

      . . . [T]he crime of making terroristic threats was complete when
      Sykes’s threats were received by the victims in Minnesota. At
      that point, a significant part of the situs of the crime was within
      Minnesota’s territorial boundaries. We conclude that because

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J-A24033-14


       Sykes’s threats were received within the territorial
       boundaries of Minnesota, “some part of the charged
       offense” was committed within Minnesota.

Id. at 811-12 (emphasis added).

       Similarly, in Hawaii v. Meyers, 825 P.2d 1062 (Haw. 1992), Meyers

was charged with terroristic threats12 after she made a threatening phone

call from California to her probation officer in Hawaii. See Meyers, supra

at 1063. In analyzing Meyers’ argument that Hawaii lacked jurisdiction, the

court observed the long standing United States Supreme Court precedent

that “[a]cts done outside a jurisdiction, but intended to produce and

producing detrimental effects within it, justify a state in punishing the cause

of the harm as if he had been present at the effect[.]” Id. at 1064 (citing

Strassheim v. Daily, 221 U.S. 280, 285 (1911)).

       In finding that the court in Hawaii had jurisdiction, the Meyers court

observed:

              To “threaten” is to “utter a threat against.” Random House
       Dictionary of the English Language 1975 (1987). A “threat,” in
       turn, is defined as “[a] communicated intent to inflict physical or
       other harm on any person or property.” Black’s Law Dictionary
       1480 (6th ed. 1990). To be subject to criminal prosecution for
       terroristic threatening, therefore, the threat must be conveyed to
       either the person who is the object of the threat or to a third
       party.     An uncommunicated threat, by definition, cannot
____________________________________________


12
   Hawaii Revised Statute 707-715 provides, in pertinent part: “A person
commits the offense of terroristic threatening if the person threatens, by
word or conduct, to cause bodily injury to another person . . . [w]ith the
intent to terrorize, or in reckless disregard of the risk of terrorizing, another
person[.]” Haw.Rev.Stat. § 707-715(1).



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J-A24033-14


      threaten. . . . [A] person making threats does not commit a
      crime until the threat is heard by one other than the speaker.
      When the telephone is employed as an instrument to transmit
      threats, it is clear that the caller must communicate the threats
      to someone on the receiving end of the telephone line. Threats
      uttered to a busy signal, a dial tone, or to a series of
      unanswered rings threaten no one.

Id. (case citation and some quotation marks omitted).             Based on the

foregoing analysis, the court concluded:

             We hold that for purposes of establishing criminal
      jurisdiction, a telephone call constitutes conduct in the
      jurisdiction in which the call is received. Although Meyers’s
      threats were uttered from California, the threats were
      communicated to [the victim] in Hawaii. Thus, because [the
      victim] heard the threats in Hawaii, jurisdiction over the
      offense properly lies in the State of Hawaii.

Id. at 1064-65 (emphasis added); see also State v. J.M., 28 P.3d 720,

725 (Wash. 2001) (observing terroristic threats statute requires that person

threatened must receive the threat).

      The above analyses and resulting conclusions realized in Sykes,

Woolverton, and Myers comport with the long-standing legal principles in

our Commonwealth and the legislature’s stated purpose in enacting the

terroristic   threats     statute.    See    18   Pa.C.S.A.   §   2706,   official

comment─1972; Bighum, supra at 258; Thomas, supra at 259; John,

supra at 596.           Therefore, their holdings, that a terroristic threat is

committed, at least in part, in the state in which the victim receives it, are

persuasive and are compatible with our conclusion that, in order for a




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J-A24033-14


communication to be conveyed in satisfaction of the terroristic threats

statute, it must be received by another person.

       Accordingly, based on the legislative intent of the terroristic threats

statute, our review of caselaw within and outside this Commonwealth, and

because the victim received Appellee’s alleged threat in Montgomery County,

Pennsylvania,13 the trial court has jurisdiction to “punish[] the cause of the

harm.”     Bighum, supra at 258; see also 18 Pa.C.S.A. § 2706, official

comment─1972; John, supra at 596; Thomas, supra at 259; Sykes,

supra at 811-12; Woolverton, supra at 993; Myers, 1064-65. Hence, the

law requires we conclude that the trial court committed an error of law when

it found that it lacked jurisdiction, and dismissed the Commonwealth’s claims

for terroristic threats.     See John, supra at 523.   We reverse the court’s

order granting Appellee’s motion to dismiss, and remand for disposition.

       Reversed and remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014
____________________________________________


13
   It is undisputed that the telephone calls were between Appellee in New
Jersey and the victim in Pennsylvania. (See Commonwealth’s Brief, at 5-6;
Trial Ct. Op., at 4; Appellee’s Brief, at 2).



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