J. A02033/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
GEORGE J. SHALLENBERGER,                   :          No. 399 WDA 2019
                                           :
                          Appellant        :


         Appeal from the Judgment of Sentence Entered March 4, 2019,
             in the Court of Common Pleas of Washington County
               Criminal Division at No. CP-63-CR-0003107-2017


BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 26, 2020

        George J. Shallenberger appeals from the March 4, 2019 judgment of

sentence entered by the Court of Common Pleas of Washington County

following his conviction of terroristic threats with intent to terrorize another.1

The trial court sentenced appellant to a term of 2-23 months’ incarceration.

After careful review, we affirm.

        The trial court provided the following factual history:

              The first witness for the Commonwealth was Chief
              Clayton Shell, who is employed as the “chief of police
              for Ringgold School District Police Department.”
              Chief Shell testified that between October 18, 2017
              and November 21, 2017, the teachers of the Ringgold
              School District “were on strike” and “were on the
              roadways at the edge of the [school] property,
              picketing.” The teachers “were picketing at all four
              schools” of the Ringgold School District.          On

1   18 Pa.C.S.A. § 2706(a)(1).
J. A02033/20

          November 9, 2017 at “about 11:15, 11:20 that
          morning,” Chief Shell received a telephone call from a
          Ringgold teacher about several Facebook posts “that
          everybody was seeing.”          This teacher “texted”
          Chief Shell “some screenshots of the posts.” The first
          post was made by “George Shallenberger” on
          November 8, 2017 and stated: “Happiness is a Warm
          Gun.”      The next post was also made by
          “George Shallenberger” on the same date and stated:
          “Guns don’t kill people, I kill people.” Both of these
          posts were made to [a]ppellant’s “personalized
          Facebook profile page.”

          Chief Shell also received screenshots of several posts
          [a]ppellant made that day — November 9, 2017 — on
          a Facebook page [en]titled “Mon Valley Views,” which
          was described by Chief Shell as a “thread about the
          strike; people for it, against it; for the teachers,
          against the teachers; this was all within that thread.”
          On this page, one individual made a post in which he
          or she asserted that “not one of the district’s proposals
          has done anything to make Ringgold even remotely
          competitive with surrounding districts.”             This
          individual stated that “[w]e would surely never be able
          to retain staff” by paying “a teacher with 11 years in
          the district and a master’s degree a salary of $45,100
          (or less) in 2021-2022.” Finally, the individual stated:
          “Failing to pay the teachers a competitive wage is
          educationally irresponsible.”       Appellant directly
          responded to this individual, saying: “You’re an idiot.”
          Beneath that post, [a]ppellant made his own post,
          stating: “Let’s raise taxes for these worthless
          assholes...I want to take away from my family to give
          to them. They sure have some nice cars for not
          making any money. D-bags.” Immediately after that
          post, [a]ppellant posted: “Easiest job in the world but
          they need more money. Shoot them and start over.”

          ....

          The [trial] court also heard testimony from
          Officer Kevin Harris of the City of Monongahela Police
          Department. Officer Harris confirmed that Chief Shell
          contacted him on November 9, 2017 and informed


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            him of [a]ppellant’s Facebook posts. After obtaining
            a search warrant for [a]ppellant’s Facebook records,
            Officer Harris received records of [a]ppellant’s “home
            page, as well as his biographical information from
            Facebook.” In receiving these records, Officer Harris
            discovered that [a]ppellant made a post on his home
            page on October 6, 2017, which stated: “Fucking
            schoolteachers need to get real jobs.             Damn
            snowflakes.” Officer Harris confirmed, through these
            records, that [a]ppellant’s “Guns don’t kill people, I
            kill people” post was made on November 8, 2017, and
            stated that it was made at 3:24 p.m. Appellant’s
            “Happiness is a warm gun” post was also confirmed to
            be posted on November 8, 2017 at 3:25 p.m.
            Officer Harris confirmed that the November 8, 2017
            posts were made on [a]ppellant’s home page and that
            the November 9, 2017 posts, including the “Shoot
            them and start over” post, were not made on
            [a]ppellant’s home page.

Trial court opinion, 5/7/19 at 5-7 (citations to the record omitted).

            The first witness for the defense was [a]ppellant.
            Appellant denied that he intended to frighten any
            teachers or that he intended to cause any kind of
            evacuation with his Facebook posts. In regards to his
            November 8, 2017 posts, [a]ppellant stated that
            neither post had anything to do with the Ringgold
            teachers or the strike. Appellant explained that he is
            a fan of the musical group The Beatles and that
            “Happiness is a Warm Gun” is a song by this group.
            He stated that he had heard the song on the radio on
            November 8, 2017 and posted the lyrics on his
            Facebook home page when he returned to his
            residence “[b]ecause it’s a song you don’t hear very
            often.” He testified that he had previously posted the
            song on Facebook “a few years ago.” Furthermore,
            [a]ppellant claimed the “Guns don’t kill people. I kill
            people” post was not meant to express “anger or
            frustration” about the strike. Instead, he stated that
            this phrase was a reference to the film Happy Gilmore,
            in which one of the characters wears a t-shirt bearing
            that exact phrase. Appellant stated that he posted
            the phrase on his Facebook home page because he


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          and his co-workers had been “talking about it that
          night at work.”

          Appellant stated that he made the November 8, 2017
          posts after his shift ended and before he went to
          sleep, but this contradicts Officer Harris’ testimony
          that [a]ppellant made these posts at 3:24 p.m. and
          3:25 p.m. according to his Facebook records.
          Appellant testified about his work schedule and
          explained that he leaves his residence at “around
          6:00 p.m.” for work and returns to his residence at
          “[a]bout 8:00 a.m.,” and then goes to sleep at
          “[a]bout 9 o’clock, 9:30.” When asked about this
          discrepancy    on    cross-examination,    [a]ppellant
          modified his version of events and agreed that the
          posts were made at 3:24 p.m. and 3:25 p.m.

          Appellant then addressed his “Shoot them and start
          over” post on November 9, 2017. When asked if he
          made this post with the intention of putting the
          teachers in fear, he stated: “No, I was just blowing
          off some steam, that’s all. I’m really sorry I put them
          in fear, but I didn’t mean to. It wasn’t my intent.”
          Appellant claimed he was not referring to teachers in
          the “Shoot them and start over” post, and he
          repeatedly      made       this     assertion    during
          cross-examination. He also repeatedly described the
          posts as “blowing off some steam” or “running [his]
          mouth.” He did, however, admit that he was referring
          to teachers in the post immediately before the “Shoot
          them and start over” post, which stated: “Let’s raise
          taxes for these worthless assholes...I want to take
          away from my family to give to them. They sure have
          some nice cars for not making any money. D-bags.”
          Regarding the Mon Valley Views Facebook page,
          [a]ppellant testified that he was able to access the
          page “without any kind of special subscription” and
          indicated that it was publicly available. Appellant also
          indicated that there were “other various people”
          posting on this page.

          Appellant also admitted he was referring to teachers
          in his October 6, 2017 post: “Fucking schoolteachers
          need to get real jobs.     Damn snowflakes.”     He


                                   -4-
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          indicated he made this post because he disagreed with
          the Ringgold teachers going on strike to acquire
          increased wages. When asked if he felt the teachers
          of Ringgold School District deserved a “raise” in
          wages, he answered, “No, I don’t think they needed
          one.” He also expressed concern that his taxes may
          be increased if the teachers were to receive increased
          wages. Appellant testified that he was motivated to
          post on the Mon Valley Views Facebook page because
          he “saw something on there, somebody wanted to
          raise taxes to give the teachers a raise, and I didn’t
          agree with that.” However, in spite of his stated
          disagreement with the strike and with increased
          wages for the Ringgold teachers, [a]ppellant
          maintained that he “hardly even thought about” the
          Ringgold teachers or the strike.

          After appellant’s testimony, the [trial] court heard
          testimony from seven character witnesses: Dennis
          Kelly, Sandra Shallenberger, Dorothy Shallenberger,
          Marianne Krajnik, Father Vincent Velas, Richard Cook,
          and Christopher Wilson.         Sandra Shallenberger,
          [a]ppellant’s wife, testified that he never made any
          statements to her about “wanting to hurt the teachers
          or put them in fear.” She testified that [a]ppellant
          was a fan of The Beatles and that “Happiness is a
          Warm Gun” is one of his favorite songs. She also
          indicated that [a]ppellant had previously “posted it on
          Facebook     back     in    2014.”        Furthermore,
          Mrs. Shallenberger testified that [a]ppellant was a fan
          of Happy Gilmore. When asked if [a]ppellant ever told
          her that he made the November 8, 2017 posts “to
          make a comment or statement about the Ringgold
          schoolteachers,” Mrs. Shallenberger replied: “No.”

          With the exception of Sandra Shallenberger, [defense
          counsel] asked each character witness about
          [a]ppellant’s reputation in the community, and each
          witness stated that [a]ppellant has a reputation as
          being a law-abiding citizen. On cross-examination,
          [the Commonwealth] asked each witness who
          testified to [a]ppellant’s law-abiding reputation about
          [a]ppellant’s    2000      conviction   for   recklessly
          endangering another person, and specified to each


                                   -5-
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            witness that the incident involved [a]ppellant pointing
            a firearm at his girlfriend. Each witness indicated that
            [a]ppellant’s conviction did not cause him or her to
            raise an objection to his law-abiding reputation.

Id. at 10-13 (citations to the record omitted).

      Prior to trial, appellant filed a motion for partial change of venue, which

the trial court denied.

      Following trial, a jury convicted appellant of one count of terroristic

threats with the intent to terrorize another on December 5, 2018. On March 4,

2019, the trial court imposed sentence.      Appellant filed a timely notice of

appeal on March 8, 2019. The trial court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and appellant timely complied. The trial court subsequently filed an opinion

pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            1.    Did the trial judge commit an abuse of discretion
                  in failing to dismiss the Commonwealth’s case
                  as a matter of law as the Commonwealth failed
                  to offer sufficient evidence to establish []
                  appellant committed any crime of terroristic
                  threats?

            2.    Did the trial judge commit an abuse of discretion
                  in denying appellant’s motion to preclude the
                  Commonwealth from offering into evidence []
                  appellant’s Facebook postings on his homepage
                  from November 8, 2017 and October 6, 2017?

            3.    Did the trial judge commit an abuse of discretion
                  by denying appellant’s motion to preclude the
                  Commonwealth from using appellant’s prior



                                      -6-
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                     guilty plea to the crime of terroristic threats in
                     the year 2000?

              4.     Did the trial judge commit an abuse of discretion
                     by precluding [] appellant and his wife from
                     offering evidence of mitigating circumstances as
                     to why [] appellant pled guilty to the crime of
                     terroristic threats in the year 2000?

              [5.]   Did the cumulative effect of all of the errors on
                     evidentiary rulings deprive appellant of a fair
                     trial?

              [6.]   [Did] the [trial] court err[] in denying
                     [appellant’s] request for a change of venue[?]

Appellant’s brief at 8 (extraneous capitalization omitted).2

                                         I.

        In his first issue, appellant contends that the Commonwealth failed to

produce sufficient evidence to warrant a conviction of terroristic threats with

the intent to terrorize another.        Specifically, appellant argues that the

Commonwealth failed to establish beyond a reasonable doubt that appellant

made a threat to commit a crime of violence and communicated that threat

with the intent to terrorize. (Id. at 16.)

        Our well-settled standard of review for sufficiency of the evidence claims

is as follows:

                     As a general matter, our standard of
                     review of sufficiency claims requires that
                     we evaluate the record in the light most
                     favorable to the verdict winner giving the
                     prosecution the benefit of all reasonable
                     inferences to be drawn from the evidence.

2   Appellant’s issues have been re-ordered for ease of discussion.


                                        -7-
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                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.
                Nevertheless, the Commonwealth need
                not establish guilt to a mathematical
                certainty.      Any doubt about the
                defendant’s guilt is to be resolved by the
                fact finder unless the evidence is so weak
                and inconclusive that, as a matter of law,
                no probability of fact can be drawn from
                the combined circumstances.

                The Commonwealth may sustain its
                burden by means of wholly circumstantial
                evidence. Accordingly, [t]he fact that the
                evidence establishing a defendant’s
                participation in a crime is circumstantial
                does not preclude a conviction where the
                evidence coupled with the reasonable
                inferences drawn therefrom overcomes
                the     presumption      of      innocence.
                Significantly, we may not substitute our
                judgment for that of the fact finder; thus,
                so long as the evidence adduced,
                accepted in the light most favorable to the
                Commonwealth,         demonstrates      the
                respective elements of a defendant’s
                crimes beyond a reasonable doubt, the
                appellant’s convictions will be upheld.

          Commonwealth v. Franklin, 69 A.3d 719, 722-723
          (Pa.Super. 2013) (internal quotations and citations
          omitted). Importantly, “the jury, which passes upon
          the weight and credibility of each witness’s testimony,
          is free to believe all, part, or none of the evidence.”
          Commonwealth v. Ramtahal, [] 33 A.3d 602, 607
          ([Pa.] 2011).

Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).




                                   -8-
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      This court has held that, “[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[.]” Commonwealth v. Walls, 144 A.3d 926, 936 (Pa.Super. 2016),

appeal denied, 167 A.3d 698 (Pa. 2017), quoting Commonwealth v.

Vergilio, 103 A.3d 831, 833 (Pa.Super. 2014), appeal denied, 114 A.3d 416

(Pa. 2015). We have also held that a threat to commit a crime of violence

need not be directly communicated to anyone in order to warrant a conviction

of terroristic threats.   Commonwealth v. Beasley, 138 A.3d 39, 47

(Pa.Super. 2016) (citation omitted), appeal denied, 161 A.3d 791 (Pa.

2016). As further noted by this court,

            The Commonwealth does not have to prove that the
            defendant had the ability to carry out the threat or
            that the threatened individual believed the defendant
            would carry out the threat, as neither is an element of
            the offense. In re J.H., 797 A.2d 260, 262 (Pa.Super.
            2002) (citation omitted). Rather, the statute seeks to
            prevent the psychological distress that follows from an
            invasion of another's sense of personal security.
            Beasley, 138 A.3d at 46.

            The Official Comment to Section 2706 explains: “The
            purpose of th[is] section 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.”
            18 Pa.C.S.[A.]    §    2706      cmt.      See     also
            Commonwealth v. Tizer, 684 A.2d 597, 600
            (Pa.Super. 1996) (noting that the statute is not meant
            to penalize spur-of-the-moment threats arising out of
            anger during a dispute).



                                      -9-
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Commonwealth v. Crosby, 226 A.3d 104, 107 (Pa.Super. 2020), appeal

denied, ---A.3d---, 2020 WL 3529440 (Pa. June 30, 2020).

      In the instant case, appellant admitted that on November 9, 2017, he

made the following post to a thread discussing the Ringgold teachers’ strike

on the Facebook page entitled Mon Valley Views: “Easiest job in the world but

they need more money.         Shoot them and start over.”         (See notes of

testimony, 12/4/18 at 200, 206-207.)

      Turning to the second element of terroristic threats—whether the threat

was communicated with the intent to terrorize—appellant argues that he did

not communicate his threat directly to any Ringgold teacher. (Appellant’s brief

at 17.) Further, appellant maintains that, “[w]ere it not for the actions of

Lynette Rowe[3] trolling through social media cites [sic] and coming across

this conversation, feeling uncomfortable, and calling her fellow teachers, this

unfortunate incident would not have occurred.” (Id.) During trial, appellant

testified that he did not post the statement at issue for teachers to see. (Notes

of testimony, 12/4/18 at 207.) Appellant’s argument misses the mark.

      Here, the record reflects that appellant made his post on a public

Facebook page in a thread described by Chief Shell as a “thread about the

strike; people for it, against it; for the teachers, against the teachers; this was




3 Ms. Rowe is a teacher at Ringgold High School who discovered appellant’s
November 9, 2017 post to the Mon Valley News Facebook page and
subsequently discovered appellant’s November 8, 2017 posts to his personal
Facebook page. (Notes of testimony, 12/4/18 at 130-133.)


                                      - 10 -
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all within that thread.” (Notes of testimony, 12/4/18 at 52; see also trial

court opinion, 5/7/19 at 23.)     We, therefore, agree with the trial court’s

analysis with regard to appellant’s intent:

            Appellant [] was fully aware that his threat would be
            seen by many people in the community. Appellant’s
            choice to post the threat on the [Mon Valley Views]
            Facebook page as opposed to his profile page, where
            the threat was less likely to seen by many people,
            demonstrates that [a]ppellant made the threat with
            the intent to terrorize the teachers.

Trial court opinion, 5/7/19 at 23-24.

      Moreover, the Commonwealth introduced a series of Facebook posts

authored by appellant in which he referenced the Ringgold teachers’ strike.

The record reflects that on October 6, 2017, appellant posted the following to

his personal Facebook page: “F**king schoolteachers need to get real jobs.

Damn snowflakes.”      (Notes of testimony, 12/4/18 at 89-90.)          On the

Mon Valley Views Facebook page, prior to posting “Shoot them and start

over,” appellant posted the following on November 8, 2017: “Let’s raise taxes

for those worthless assholes . . . I want to take away from my family to give

to them? They sure have some nice cars for not making any money. D-bags.”

(Id. at 57.) Appellant admitted that he was referring to the Ringgold teachers,

to the extent of owning nice cars. (Id. at 215.) As noted by the trial court,

this series of Facebook postings by appellant established an animus toward

the Ringgold teachers and his opposition to their decision to strike. (See trial

court opinion, 5/7/19 at 22.)



                                     - 11 -
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      Additionally, the record reflects that on November 8, 2017, appellant

posted “Happiness is a Warm Gun,” and “Guns don’t kill people, I kill people”

to his personal Facebook page.      (Notes of testimony, 12/4/18 at 53, 55.)

Appellant respectively attributed these posts to a song written by The Beatles

and to a t-shirt worn by a character in the film Happy Gilmore.          (Id. at

204-205.)    Appellant further testified that he made both of these posts

because he had both heard “Happiness is a Warm Gun” on the radio and had

been discussing Happy Gilmore with his co-workers the previous day. (Id.)

      The trial court concluded that appellant’s November 8, 2017 posts

reflect his approval of the use of firearms and that he sought to portray himself

as someone who commits acts of violence with firearms. (Trial court opinion,

5/7/19 at 21.) In reviewing the evidence in the light most favorable to the

Commonwealth, we find that the jury could have reasonably inferred that

appellant’s November 8, 2017 posts on his personal Facebook page reflected

both his approval of the use of firearms and his intention to portray himself

as someone who commits acts of violence with firearms. Sebolka, 205 A.3d

at 337, quoting Franklin, 69 A.3d at 723. Further, it is exclusively within the

jury’s purview as to whether it chose to accept that appellant’s November 8,

2017 posts on his personal Facebook page were innocuous references to

The Beatles and Happy Gilmore, as appellant testified. Sebolka, 205 A.3d at

337, quoting Ramtahal, 33 A.3d at 607.




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      Accordingly, after viewing the evidence in the light most favorable to

the Commonwealth, we find that the Commonwealth established the elements

of terroristic threats with intent to terrorize another beyond a reasonable

doubt and appellant’s first issue is without merit.

                                       II.

      In his next three issues, appellant raises allegations of trial court error

in evidentiary rulings. Appellate review of evidentiary rulings by the trial court

are governed by the following standard of review:

            Appellate courts review evidentiary decisions for an
            abuse of discretion. Commonwealth v. Walker, []
            92 A.3d 766, 772 ([Pa.] 2014) (citations omitted).
            “An abuse of discretion is not merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence of
            record, discretion is abused.” Id. at 772-773 (internal
            quotation marks and citations omitted).

Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017), cert. denied

sub nom. Jacoby v. Pennsylvania, 139 S.Ct. 58 (2018).

      In his second issue, appellant avers that the trial court erred when it

denied appellant’s motion in limine to preclude the Commonwealth from

offering into evidence October 6, 2017 and November 8, 2017 postings from

appellant’s personal Facebook page. (Appellant’s brief at 19.) The trial court

determined that the postings at issue were admissible under Pa.R.E. 404(b)

as res gestae. (Trial court opinion, 5/7/19 at 17.)




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          The particular Pennsylvania Rule of Evidence
          governing the admission of “prior bad acts” is
          Pa.R.E. 404(b) which provides, in relevant part:

          (b)   Other crimes, wrongs, or acts.

                ....

                (2)    Evidence of other crimes,
                       wrongs, or acts may be
                       admitted for other purposes,
                       such as proof of motive,
                       opportunity,            intent,
                       preparation, plan, knowledge,
                       identity or absence of mistake
                       or accident.

                (3)    Evidence of other crimes,
                       wrongs, or acts proffered
                       under subsection (b)(2) of
                       this rule may be admitted in a
                       criminal case only upon a
                       showing that the probative
                       value     of   the  evidence
                       outweighs its potential for
                       prejudice.

          Pa.R.E. 404(b)(1)-(3). Under this rule, the admission
          of prior “bad acts” is inadmissible for the sole purpose
          of proving the defendant has a bad character, or a
          “criminal propensity.” Commonwealth v. Powell, []
          956 A.2d 406, 419 ([Pa.] 2008). Nevertheless, this
          rule permits the admissibility of such evidence for
          other relevant purposes such as:

                showing the defendant’s motive in
                committing the crime on trial, the absence
                of mistake or accident, a common scheme
                or design, . . . to establish identity [,][or]
                where the acts were part of a chain or
                sequence of events that formed the
                history of the case and were part of its
                natural development.



                                   - 14 -
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              Id.   However, admission for these purposes is
              allowable only whenever the probative value of the
              evidence exceeds its potential for prejudice.
              Pa.R.E. 404(b)(3).

Commonwealth v. Briggs, 12 A.3d 291, 336-337 (Pa. 2011), cert. denied

sub nom. Briggs v. Pennsylvania, 565 U.S. 889 (2011). Our supreme court

further held that res gestae evidence of prior bad acts may be admissible

“when relevant to furnish the complete story or context of events surrounding

the crime.”    Commonwealth v. Crispell, 193 A.3d 919, 936 (Pa. 2018),

quoting Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013) (citations

omitted). The Crispell court further noted that “[w]hen the trial court admits

evidence of a defendant’s prior bad acts, ‘the defendant is entitled to a jury

instruction that the evidence is admissible only for a limited purpose.’”

Crispell, 193 A.3d at 937, quoting Commonwealth v. Solano, 129 A.3d

1156, 1178 (Pa. 2015). It is well settled that juries are presumed to following

the trial court’s instructions. Commonwealth v. Aikens, 168 A.3d 137, 143

(Pa. 2017), citing Commonwealth v. Bullock, 913 A.2d 207, 218 (Pa. 2006),

cert. denied sub nom. Bullock v. Pennsylvania, 550 U.S. 941 (2007).

      Here, appellant argues that his October 6 and November 8, 2017 posts

to his personal Facebook page were too vague and too remote to be admitted

as res gestae evidence. (Appellant’s brief at 20-21.) Additionally, appellant

contends that his November 8, 2017 posts “are simply irrelevant.” (Id. at

20.) In support of his position, appellant directs us to Commonwealth v.




                                    - 15 -
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Yocolano, 169 A.3d 47 (Pa.Super. 2017). Appellant’s reliance on Yocolano

is misplaced.

      In Yocolano, the defendant was convicted of rape and other related

crimes. Id. at 50. During trial, the defendant sought to introduce Facebook

posts made by the victim in the month following the incident central to the

case that the defendant claimed were probative in showing the desire of the

victim to prevail in a child custody dispute with the defendant. Id. at 58-59.

Specifically, the defendant sought to introduce the following three posts into

evidence: “I’m bulletproof”; “Everything is finally falling right into place”; and

“This is a picture of my son. I am so glad that we’ll be spending New Year’s

together all by myself.” Id. at 59. The Yocolano court held that the above

posts were vague and remote, as the posts never mentioned the defendant

specifically and never referenced the parties’ custody dispute. Id. The court

further concluded that the posts at issue “could conceivably refer to any

number of matters. The posts simply do not support a reasonable inference

or presumption regarding a material fact of whether sexual assaults occurred.”

Id.

      The same cannot be said in the instant case.           Indeed, appellant’s

October 6, 2017 post directly references teachers.          Moreover, appellant

admitted that his October 6, 2017 post was in reference to the Ringgold

teachers’ strike and that the post was a means for appellant to voice his

disagreement with the teachers’ position during their labor dispute with the



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school district.   (Notes of testimony, 12/4/18 at 218.)     We also find that

appellant’s October 6, 2017 post, as well as appellant’s November 8, 2017

posts to his personal Facebook page—“Happiness is a Warm Gun” and “Guns

don’t kill people, I kill people”—were properly admitted as res gestae

evidence, as these posts may be reasonably inferred by the jury to be part of

the sequence of events leading to appellant’s “Shoot them and start over” post

from November 9, 2017. See Crispell, 193 A.3d at 936.

      Appellant further contends that the trial court’s admission of his

October 6 and November 8, 2017 posts had the effect of prejudicing the jury

against appellant, thereby eviscerating appellant’s right to a fair trial.

(Appellant’s brief at 19-20.)

      Here, the record reflects that the trial court provided the following jury

instruction to the jury after the Commonwealth introduced evidence of

appellant’s November 8, 2017 posts:

            . . . I want to give the jury a brief, cautionary
            instruction on these posts.

            The only post that is the actual subject of the
            terroristic threat charge is the final one that was made
            on November 9th, “Easiest job in the world, but they
            need more money. Shoot them and start over.”

            The other posts which were just published to the jury
            being on November 8th or 9th are not, themselves,
            subjects of the terroristic threat charges filed against
            [appellant]. The Commonwealth is offering them,
            however, to provide circumstantial evidence of
            [appellant’s] state of mind or intent, or to provide an
            overall context to the final post of November 9th,
            which is the subject of the terroristic threat charge.


                                     - 17 -
J. A02033/20



Notes of testimony, 12/4/18 at 61-62.4

      We note, however, and the trial court acknowledges, that the trial court

did not provide the jury with a cautionary instruction with regard to appellant’s

October 6, 2017 post. (See trial court opinion, 5/7/19 at 18.) We find that

any error on the part of the trial court in failing to provide a cautionary

instruction to the jury pertaining to appellant’s October 6, 2017 post is

harmless.

      “The harmless error doctrine, as adopted in Pennsylvania, reflects the

reality that the accused is entitled to a fair trial, not a perfect trial.”

Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014), quoting

Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994) (citation

omitted). Our supreme court has recognized that harmless error exists if the

record demonstrates that “the error did not prejudice the defendant or the

prejudice was de minimus[.]”          Hairston, 84 A.3d at 671, quoting

Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997) (citation

omitted).

      Here, the record reflects that appellant was not prejudiced by the trial

court’s failure to provide the jury with a cautionary instruction with regard to

appellant’s October 6, 2017 post. Because the trial court instructed the jury

that only appellant’s November 9, 2017, “Shoot them and start over,” post


4The trial court did not address this issue in its final instructions to the jury
prior to deliberations.


                                     - 18 -
J. A02033/20

formed the basis for the terroristic threats charge, we hold that the probative

value of the October 6, 2017 post exceeds its potential for prejudice.

Pa.R.E. 404(b)(3); Briggs, 12 A.3d at 336-337; Aikens, 168 A.3d at 143.

      We, therefore, discern no abuse of discretion on the part of the trial

court when it admitted appellant’s October 6, 2017 and November 8, 2017

Facebook posts as res gestae evidence.

                                       III.

      In his third and fourth issues, appellant contends that the trial court

erred when it denied appellant’s motion in limine to preclude the

Commonwealth from introducing evidence of his 2000 guilty plea to one count

of recklessly endangering another person (“REAP”),5 and that the trial court

further erred when it failed to permit appellant and his wife to testify as to the

mitigating circumstances of that guilty plea. (See appellant’s brief at 22-24.)

      In his third issue, appellant specifically argues that the 2000 guilty plea

to REAP was too remote in time to be relevant, that REAP is not a crimen

falsi offense, and that the trial court’s ruling was more prejudicial than

probative.   (Id. at 22.)      The Pennsylvania Rules of Evidence permit a

defendant in a criminal case to offer evidence of the defendant’s pertinent




5 We note that in his statement of questions presented and in the argument
section of his brief, appellant refers to a 2000 guilty plea to terroristic threats.
(Appellant’s brief at 8, 22, 24.) The record reflects that the Commonwealth
sought to introduce evidence of appellant’s guilty plea to one count of REAP
from 2000. (See notes of testimony, 12/3/18 at 3-4.) Accordingly, our
analysis will address evidence of appellant’s 2000 REAP conviction.


                                      - 19 -
J. A02033/20

trait. Pa.R.E. 404(a)(2)(A); see also Pa.R.E. 405(a) (permitting testimony

about a person’s reputation). In cases where such evidence is admitted, the

Commonwealth may offer evidence to rebut the defendant’s character

evidence. Id. As this court has previously warned, a defendant’s choice to

introduce character evidence does not come without risk. Commonwealth

v. Ross, 856 A.2d 93, 101 (Pa.Super. 2004), appeal denied, 889 A.2d 1215

(Pa. 2005), cert. denied sub nom. Ross v. Pennsylvania, 547 U.S. 1045

(2006), citing Commonwealth v. Nellom, 565 A.2d 770, 775 (Pa.Super.

1989) (citation omitted). Indeed, the Commonwealth may cross-examine a

defendant’s character witnesses with “questions regarding the defendant’s

prior convictions for crimes involving the relevant character trait[,]” for the

purpose of testing “the accuracy and completeness of the witness’s knowledge

of the defendant’s reputation.” Id. (citations omitted).

            [Our supreme court] has consistently repeated that
            although evidence of good character may not be
            rebutted by evidence of specific acts of misconduct, a
            character witness may be cross-examined regarding
            his or her knowledge of particular acts of misconduct
            by the defendant to test the accuracy of his or her
            testimony and the standard by which he or she
            measures reputation.

Commonwealth v. Kouma, 53 A.3d 760, 769 (Pa.Super. 2012), quoting

Commonwealth v. Fletcher, 861 A.2d 898, 915-916 (Pa. 2004) (quotation

marks, quotation, and citation omitted).

      This is not to be confused with Pa.R.E. 609, which permits the

introduction of evidence of a witness’s conviction of a crime involving


                                    - 20 -
J. A02033/20

dishonesty or false statement as a means of attacking the credibility of a

witness. Pa.R.E. 609(a) (emphasis added). Rule 609 provides limitations on

using evidence of a conviction if more than 10 years have passed since the

witness’s conviction. Pa.R.E. 609(b). Such limitations are not applicable when

evidence of a defendant’s previous convictions is introduced pursuant to

Rules 404 and 405. Ross, 856 A.2d at 102 (emphasis added).

      Here, appellant called six character witnesses to testify on his behalf, all

of whom testified that they understood appellant’s reputation in the

community to be that of a law-abiding citizen. (Notes of testimony, 12/4/18

at 235, 252-253, 258; 12/5/18 at 8-9, 13-14, 19.) On cross-examination,

the Commonwealth asked each of appellant’s character witnesses if the overall

community was aware that appellant pleaded guilty to REAP when he was

accused of pointing a handgun at his girlfriend. (Notes of testimony, 12/4/18

at 236-237, 253-255, 258-259; 12/5/18 at 10, 14-15, 20-21.)

      By introducing evidence of appellant’s reputation in the community as a

law-abiding citizen, appellant opened the door for the Commonwealth to

confront appellant’s character witnesses on cross-examination with evidence

of his 2000 guilty plea to REAP. In the instant case, the time of appellant’s

previous guilty plea and whether the previous guilty plea was for a

crimen falsi offense are of no import. Therefore, we find that the trial court’s

denial of appellant’s motion in limine was not an abuse of discretion.

Accordingly, appellant’s third issue is without merit.



                                     - 21 -
J. A02033/20

                                     IV.

      In his fourth issue, appellant avers that the trial court erred when it

failed to permit appellant and his wife from testifying as to the mitigating

circumstances surrounding his 2000 REAP guilty plea. Appellant states that

he “is unaware of any legal authority which would preclude [a defendant] from

presenting mitigating evidence to explain his one and only brush with the law

from nineteen years earlier.” (Appellant’s brief at 24.)

      The trial court concluded that testimony regarding the details

surrounding appellant’s 2000 REAP guilty plea would not be relevant. (Trial

court opinion, 5/7/19 at 26.) The Pennsylvania Rules of Evidence state that

evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence; and the fact is of consequence

in determining the action.” Pa.R.E. 401 (formatting omitted). Our supreme

court further defined relevant evidence as “evidence that ‘logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable[,] or supports a reasonable inference or presumption regarding

a material fact[.]’” Commonwealth v. Jordan, 65 A.3d 318, 324 (Pa. 2013),

quoting Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006). In the

alternative, even if evidence is found to be relevant, a trial court may still

exclude it if the evidence’s “probative value is outweighed by a danger of one

or more of the following: unfair prejudice, confusing the issue, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative



                                    - 22 -
J. A02033/20

evidence.”    Commonwealth v. Brown, 212 A.3d 1076, 1086 (Pa.Super.

2019), appeal denied, 221 A.3d 643 (Pa. 2019), quoting Pa.R.E. 403; see

also Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013).

      In the instant case, the trial court concluded that the evidence at issue

is “clearly irrelevant” and that the circumstances of appellant’s 2000 guilty

plea to REAP did “not in any way tend to prove any material fact and [had] no

bearing on the matter at hand.” (Trial court opinion, 5/7/19 at 27.) The trial

court further concluded that even if the evidence at issue was relevant, it

would have “posed a significant distraction and would have diverted the jury

from its duty of determining whether [a]ppellant was guilty of terroristic

threats.” (Id. at 28.) The trial court ultimately determined that the probative

value of such evidence would have been outweighed “by the dangers of

confusing the issues, misleading the jury, and wasting time.” (Id.)

      We, therefore, discern no abuse of discretion on the part of the trial

court. Accordingly, appellant’s fourth issue is without merit.

                                        V.

      In his fifth issue, appellant complains that the cumulative effect of the

trial court’s errors on evidentiary rulings deprived him a fair trial. (Appellant’s

brief at 27.) Our supreme court has held that, “there can be no ‘cumulative

effect’   prejudice   when   there   was     no   harm   in   the   first   instance.”

Commonwealth v. McGill, 680 A.2d 1131, 1136 (Pa. 1996), cert. denied

sub nom. McGill v. Pennsylvania, 519 U.S. 1152 (1997). The McGill court



                                      - 23 -
J. A02033/20

further noted that a cumulative effect of evidentiary errors claim, “is a mere

makeweight, and a rather blatant attempt to bootstrap. . . . [N]o number of

failed claims may collectively attain merit if they could not do so individually.”

Id., quoting Commonwealth v. Murphy, 657 A.2d 927, 936 n.6 (Pa. 1995)

(citation omitted).

      Here, the vast majority of appellant’s argument consists of a litany of

rhetorical questions that we have answered in our discussion of appellant’s

previous evidentiary issues. Having found that none of appellant’s previous

evidentiary claims entitled him to relief, we likewise find that the cumulative

effect of the trial court’s evidentiary rulings did not deprive appellant of a fair

trial. McGill, 680 A.2d at 1136.

                                       VI.

      In his sixth issue, appellant argues that the trial court erred when it

denied appellant’s motion to change the venue of the trial.            Specifically,

appellant claims that the media attention that this case received prior to trial

tainted the Washington County pool of prospective jurors. (Appellant’s brief

at 25.) Further, appellant claims that the trial court’s decision not to hold a

hearing on his motion was an abuse of discretion. (Id.)

            A trial court’s decision on a defendant’s motion for a
            change of trial venue based on the claimed existence
            of pretrial publicity prejudicial to his or her right to
            trial before an impartial jury is one vested within its
            sound discretion, and a trial court’s decision to deny
            such a motion will not be overturned by this Court on
            appeal, unless the record evidences that the trial court
            has abused its discretion in making its ruling.


                                      - 24 -
J. A02033/20

          Commonwealth v. Weiss, 776 A.2d 958, 964 (Pa.
          2001). We have recognized that “the trial court is in
          the best position to assess the atmosphere of the
          community and to judge the necessity of any
          requested change.” Commonwealth v. Tharp, []
          830 A.2d 519, 529 ([Pa.] 2003). In reviewing the trial
          court decision not to grant a change of venue the
          focus of our inquiry is to determine whether any juror
          formed a fixed opinion of the defendant’s guilt or
          innocence      due    to     the   pretrial  publicity.
          Commonwealth v. Drumheller, [] 808 A.2d 893,
          902 ([Pa.] 2002).

          A change in venue is compelled whenever a trial court
          concludes a fair and impartial jury cannot be selected
          from the residents of the county where the crime
          occurred. Weiss, [] 776 A.2d at 964. As a general
          rule, for a defendant to be entitled to a change of
          venue because of pretrial publicity, he or she must
          show that the publicity caused actual prejudice by
          preventing the empaneling of an impartial jury.
          Commonwealth v. Robinson, [] 864 A.2d 460, 484
          ([Pa.] 2004) (quoting Drumheller, [] 808 A.2d at
          902); [Commonwealth v.] Karenbauer, [] 715
          A.2d [1086,] 1092 [(Pa. 1998)]. The mere existence
          of pretrial publicity alone, however, does not
          constitute actual prejudice.         Simply because
          prospective jurors may have heard about a case
          through media reports does not render them
          incapable of jury service, since, in today’s
          “information age,” where news of community events
          are disseminated virtually instantaneously by an ever
          multiplying array of delivery methods, it would be
          difficult to find 12 jurors who do not at least have
          some knowledge of the facts of [a case].

          ....

          Prejudice will be presumed whenever a defendant
          demonstrates that the pretrial publicity: “(1) was
          sensational, inflammatory, and slanted toward
          conviction, rather than factual and objective;
          (2) revealed the defendant’s prior criminal record, if
          any, or referred to confessions, admissions or


                                  - 25 -
J. A02033/20

            reenactments of the crime by the defendant; or
            (3) derived from official police or prosecutorial
            reports.” Tharp, [] 830 A.2d at 529; Karenbauer,
            [] 715 A.2d at 1092. However, if the defendant
            proves the existence of one or more of these
            circumstances, a change of venue will still not be
            compelled unless the defendant also demonstrates
            that the presumptively prejudicial pretrial publicity
            “was so extensive, sustained, and pervasive that the
            community must be deemed to have been saturated
            with it, and that there was insufficient time between
            the publicity and the trial for any prejudice to have
            dissipated.” Tharp, [] 830 A.2d at 529.

Commonwealth v. Briggs, 12 A.3d 291, 313-314 (Pa. 2011), cert. denied

sub nom. Briggs v. Pennsylvania, 565 U.S. 889 (2011).

      In his brief, appellant’s argument contains general allegations about the

extent of local media coverage of his case and the number of people living in

Washington County with direct or indirect affiliation with Ringgold School

District teachers.   (Appellant’s brief at 25.)   Appellant’s argument further

contains an “aside” alleging that 11 of the 40 members of the jury pool “were

either retired teachers, relatives of teachers, or active teachers.”   (Id. at

25-26.)

      Applying our supreme court’s holding in Briggs, the trial court reached

the following conclusion:

            Because appellant’s assertions are not supported by
            any evidence whatsoever, [the trial] court [found]
            that appellant’s motion for partial change of venue
            was properly denied. Appellant has not demonstrated
            that actual prejudice has “prevented the empaneling
            of an impartial jury.” Briggs, 12 A.3d at 313. Even
            if this case received some amount of pretrial publicity,
            “[t]he mere existence of pretrial publicity alone . . .


                                     - 26 -
J. A02033/20

            does not constitute actual prejudice.                 Id.
            Furthermore, appellant has not demonstrated any of
            the three circumstances stated in Briggs. Even if one
            or more of these circumstances had been
            demonstrated, appellant would still have to show that
            the community was “saturated” by the pretrial
            publicity, and that “there was insufficient time
            between the publicity and the trial for any prejudice
            to have dissipated. Id. at 314. Appellant completely
            fails to fulfill any of the requirements for establishing
            prejudice, and therefore, his [venue] claim should be
            dismissed.

Trial court opinion, 5/7/19 at 15 (extraneous capitalization and some

quotation marks omitted).

      Based on our review of the record, we can discern no abuse of discretion

on the part of the trial court when it denied appellant’s motion to change the

venue of the trial. Accordingly, appellant’s sixth issue is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/26/2020




                                     - 27 -
