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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
BARRY LEE KAUFFMAN, JR.                     :
                                            :
                          Appellant         :     No. 1632 MDA 2015

            Appeal from the Judgment of Sentence August 31, 2015
                 In the Court of Common Pleas of York County
               Criminal Division No(s): CP-67-CR-0005881-2014

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JULY 22, 2016

        Appellant, Barry Lee Kauffman, Jr., appeals from the judgment of

sentence entered in the Court of Common Pleas of York County after a jury

convicted Appellant of Terroristic Threats and the trial court found Appellant

guilty of the summary offense of Public Drunkenness.1 After careful review,

we affirm the conviction for Terroristic Threats but vacate the conviction for

Public Drunkenness because the Commonwealth failed to present sufficient

evidence that Appellant was in a public place while intoxicated.

                    FACTUAL AND PROCEDURAL HISTORY

        The factual and procedural history is as follows.      On July 26, 2014,

Michael Boyd and his wife Holly Boyd returned to their home from a day trip


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2706(a)(1), 18 Pa.C.S. § 5505, respectively.
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with Mr. Boyd’s son Mikey around 10:00 PM. (N.T., Trial, 7/20/15, at 48,

66). As they exited the car, Appellant, who was their next-door neighbor,

stood on his porch and yelled obscenities at the family. Id. at 48-49, 66-67.

During testimony, Mr. and Mrs. Boyd both recalled that Appellant blamed

them for testifying against him a month or two earlier in an eviction

proceeding.   Id. at 48-49, 67.   Appellant proceeded to walk off his porch

and approached Mr. Boyd face-to-face on the property line between the two

neighboring yards. Id. at 59-60, 68. Ms. Boyd testified that Appellant also

came “into our driveway.” Id. at 68, 70. Mr. Boyd testified that Appellant

yelled “he was going to burn our fucking house down with our child in it.”

Id. at 51. Mrs. Boyd testified that Appellant “looked at me and Mikey and

said that I’ll burn your fucking house down with your family in it.” Id. at 68.

At some point, Mr. Boyd told Appellant that there was a no trespassing sign

on Mr. Boyd’s property, to “please leave him and his family alone,” and that

he was going to call the police. Id. at 60, 68. Mr. and Mrs. Boyd observed

that Appellant appeared to be intoxicated, had “slurred speech,” and “was

swaying around quite a lot.” Id. at 61, 68. The Boyd family entered their

home and called the police. Id. at 51-52, 68-69. Mrs. Boyd testified that

once inside, Mikey was “very shook up…he was crying and upset and asked

me if [Appellant] was going to kill us by burning our house down.” Id. at

68-69.   Responding police officer John Biesecker observed that Appellant

was “very intoxicated. He had glassy, bloodshot eyes, and slurred speech.



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He also had great trouble maintaining his balance.       He was continuously

swaying back and forth.” Id. at 73. Appellant admitted to Officer Biesecker

that he was “buzzed.” Id.

      On July 21, 2015, a jury convicted Appellant of Terroristic Threats and

the trial court found Appellant guilty of Public Drunkenness. Trial Ct. Op.,

filed 12/23/15, at 3.      On August 31, 2015, the trial court sentenced

Appellant to a term of six to twelve months’ incarceration for the Terroristic

Threats conviction and ordered Appellant to pay a $150 fine for the Public

Drunkenness conviction. Id. at 3-4.

      Appellant filed a timely Post-Sentence Motion, which the trial court

denied on September 14, 2015. On September 22, 2015, Appellant filed a

timely Notice of Appeal.    Appellant and the trial court both complied with

Pa.R.A.P. 1925.

                        ISSUES RAISED ON APPEAL

      Appellant raises the following issues on appeal:

   1. Whether the Commonwealth failed to present sufficient evidence in
      order to convict Appellant beyond a reasonable doubt of Terroristic
      Threats because Appellant’s threatening statement was spur-of-the-
      moment as a result of transitory anger and a product of a heated
      exchange?

   2. Whether the guilty verdict for Terroristic Threats is against the weight
      of the evidence because the circumstances giving rise to Apellant’s
      threatening statement indicate it was made spur-of-the-moment as a
      result of transitory anger and a product of a heated exchange?

   3. Whether the Commonwealth failed to present sufficient evidence in
      order to convict Appellant beyond a reasonable doubt of Public



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      Drunkenness because Appellant was not in a public place while
      intoxicated?

Appellant’s Brief at 5.

                             LEGAL ANALYSIS

      Appellant first challenges the sufficiency of the evidence supporting his

conviction for Terroristic Threats. This is a question of law; the standard of

review is de novo and the scope of review is plenary. See Commonwealth

v. Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).             “When reviewing the

sufficiency of the evidence, an appellate court must determine whether the

evidence, and all reasonable inferences deducible from that, viewed in the

light most favorable to the Commonwealth as verdict winner, are sufficient

to establish all of the elements of the offense beyond a reasonable doubt.”

Commonwealth v. Weiss, 776 A.2d 958, 963 (Pa. 2001) (citation

omitted). Further, the Pennsylvania Supreme Court has instructed:

      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubts
      regarding a defendant's guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. . . . Moreover, in applying the above test, the
      entire record must be evaluated and all evidence actually
      received must be considered.      Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.


Ratsamy, supra at 1236 n. 2.


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     The crime of making a terroristic threat is defined by statute as

follows: “[a] person commits the crime of terroristic threats if the person

communicates, either directly or indirectly, a threat to [] commit any crime

of violence with intent to terrorize another. . . .” 18 Pa.C.S. § 2706(a)(1).

To obtain a conviction for making a terroristic threat, the Commonwealth

must prove the following elements beyond a reasonable doubt: (1) Appellant

made a threat to commit a crime of violence; and (2) Appellant

communicated the threat with the intent of terrorizing or with reckless

disregard for the risk of causing terror. Commonwealth v. Campbell, 625

A.2d 1215, 1219 (Pa. Super. 1993).

     There is little dispute that Appellant yelled a threatening statement to

commit a crime of violence. The Commonwealth presented uncontroverted

testimony that Appellant yelled at the Boyd family that he was going to

“burn [their] fucking house down” with their child and family in it.   (N.T.,

Trial, at 51, 68). This Court has held that a threat to destroy property by

fire is a threat to commit a crime of violence under this Section. See, e.g.,

Commonwealth v. Speller, 458 A.2d 198, 201 (Pa. Super 1983).

Therefore, Appellant’s verbal threat to commit a crime of violence clearly

satisfies the first element of Terroristic Threats. See Campbell, supra at

1219; see also Speller, supra at 201.

     Appellant’s argument that the Commonwealth failed to present

sufficient evidence to convict him of Terroristic Threats because his


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“threatening statement was spur-of-the-moment as a result of transitory

anger and a product of a heated exchange” is essentially a challenge to

whether Appellant had the requisite intent to terrorize the Boyd family.

Appellant’s Brief at 12.

      To determine whether Appellant had the requisite intent, we must

examine the surrounding circumstances. This Court has held that “a spur-

of-the-moment threat resulting from transitory anger” after a heated

exchange between two neighbors lacked the requisite intent for a Terroristic

Threats conviction. See Commonwealth v. Anneski, 525 A.2d 373, 376

(Pa. Super. 1987) (holding defendant lacked the requisite intent when

defendant threatened to get gun and use it on neighbor because surrounding

circumstances indicated that statement was spur-of-the-moment threat

resulting from transitory anger prompted by neighbor's threat to hit

defendant's children with her car if they obstructed her vehicle's passage).

However, this Court has rejected arguments that a threat resulted in “the

spur-of-the-moment” when the threat involved a “planned . . . method of

attack” which “indicated a settled intent to terrorize.” See In re L.A., 853

A.2d 388, 392 (Pa. Super. 2004) (evidence was sufficient to support

adjudication of delinquency for making terroristic threats; L.A.’s threat that

she would kill her caseworker by hiring a man dressed in a black outfit to

wait for the caseworker behind the caseworker's silver Neon supports a




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finding that L.A. had planned a method of attack and indicated a settled

intent to terrorize).

      In the instant case, the trial court concluded, “[Appellant’s] threat

circumstantially showed his settled intent to terrorize the victims when, in

expressing his desire to burn the victim’s house down with the family inside,

he displayed that he planned a method of attack.” Trial Ct. Op. at 7. We

agree.

      Further, while Appellant argues that his threatening statements were

the result of a heated exchange between him and Mr. Boyd, the trial court

concluded, “little evidence was introduced to show that [Appellant] was

engaged in a heated exchange with the victims prior to making the threat.”

Trial Ct. Op. at 8. Mr. and Mrs. Boyd returned home, exited their vehicle,

and Appellant immediately confronted the couple yelling “obscenities” at

them from his porch.       (N.T., Trial, at 48-49, 66-67).      The trial court

accurately opined:

      While Michael Boyd agreed that he and [Appellant] were
      “arguing face-to-face’ the testimony introduced at trial showed
      that Michael Boyd directed very few statements toward
      [Appellant] during the brief encounter. Specifically, Michael
      Boyd told [Appellant] that there were “no trespassing” signs on
      his property, and he was going to call the police. Holly Boyd
      testified that her husband additionally told Defendant to leave
      his family alone. Thus, any characterization of the events of July
      26, 2015, as a “heated exchange” seems to stretch the meaning
      of that phrase.

Trial Ct. Op. at 8-9 (emphasis in original, internal citations omitted).




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

Commonwealth, we find that the trial court correctly determined that

Appellant and Mr. Boyd were not engaged in a heated exchange, that

Appellant did not make the threatening statement “spur-of-the-moment” as

a result of “transitory anger,” that Appellant had the requisite intent to

terrorize, and that there was sufficient evidence to convict Appellant of

Terroristic Threats.

      Appellant next challenges the weight of the evidence supporting his

conviction for Terroristic Threats. The standard of review is as follows:

      A motion for a new trial alleging that the verdict was against the
      weight of the evidence is addressed to the discretion of the trial
      court. An appellate court, therefore, reviews the exercise of
      discretion, not the underlying question whether the verdict is
      against the weight of the evidence. The factfinder is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses. The trial court will award a new trial
      only when the jury's verdict is so contrary to the evidence as to
      shock one's sense of justice. In determining whether this
      standard has been met, appellate review is limited to whether
      the trial judge's discretion was properly exercised, and relief will
      only be granted where the facts and inferences of record disclose
      a palpable abuse of discretion.

Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007). Further,

this Court will give the “gravest consideration to the findings and reasons

advanced by the trial [court]” because the trial court had the opportunity to

hear and see the evidence presented.       Commonwealth v. Widmer, 744

A.2d 745, 753 (Pa. 2000).




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      Here, the trial court determined that “the verdict of guilty was not

against the weight of the evidence as the jury’s verdict was not so contrary

to the evidence as to shock one’s sense of justice.” Trial Ct. Op. at 9-10.

The record supports the trial court’s findings and we find no abuse of

discretion.

      Lastly, Appellant argues that there was insufficient evidence to convict

Appellant beyond a reasonable doubt of Public Drunkenness because

Appellant was not in a public place while intoxicated. We agree.

      The      Pennsylvania   Crimes    Code    defines    the    crime   of   Public

Drunkenness, in relevant part, as follows: “A person is guilty of a summary

offense if he appears in any public place manifestly under the influence of

alcohol.”     18 Pa.C.S. § 5505 (emphasis added).         It is not in dispute that

Appellant had been drinking alcohol that night; he even admitted to Officer

Biesecker that he was “buzzed.”        (N.T., Trial, at 73).     Therefore, the only

question before this court is whether Appellant was in a “public place.”

      Section 5505 does not define the term “public.” This Court, however,

has observed that the Pennsylvania Crimes Code defines the term in two

other sections – namely Section 5902 dealing with Prostitution and Section

5503 dealing with Disorderly Conduct. See Commonwealth v. Meyer, 431

A.2d 287, 289 (Pa. Super. 1981).         Section 5902 defines “public place” as

“any place to which the public or any substantial group thereof has access.”

18 Pa.C.S. § 5902 (f). Section 5503 defines “public” as “affecting or likely to



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affect persons in a place to which the public or a substantial group has

access . . . or any premises which are open to the public."            18 Pa.C.S. §

5503(c).    Further, Black’s Law Dictionary defines “public property” as

“[s]tate – or community – owned property not restricted to any one

individual’s use or possession.”     Black’s Law Dictionary (10th ed. 2014).

Also, in Meyer, this Court found that the area directly outside of a private

club was not public property:

      [It] cannot be said here that the public at large has the right to
      enter V.F.W. Post 118 or make use of its facilities, nor can it be
      said that V.F.W. Post 118 is “easy to enter” when the individual
      attempting entry is not a member or the guest of a member. The
      same applies to the area outside the Post in this case.

Meyer, 431 A.2d at 289.

      Our   review   of   the   record,   in   a   light   most   favorable   to     the

Commonwealth, reveals insufficient evidence to establish that Appellant

“appeared in a public place,” and therefore insufficient evidence to establish

the “public” element of Public Drunkenness.            18 Pa.C.S. § 5505.          First,

Appellant yelled at the Boyd family from his own porch, which is private

property. (N.T., Trial, at 48, 56). Next, Appellant left the porch and got into

an altercation with Mr. Boyd along the property line, remaining on his own

private property.     Id. at 59-60, 63.            The Commonwealth presented

conflicting testimony about where Appellant was standing when he shouted

the threat. While Mr. Boyd testified that Appellant remained on Appellant’s




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own property, Mrs. Boyd testified that Appellant was “coming into her

driveway.” Id. at 59-64, 70.2

      Whether Appellant remained on his own private property or began to

enter Mr. and Mrs. Boyd’s private property, the fact remains that he did not

“appear in a public place.” The Commonwealth did not present any evidence

to indicate that Appellant’s property or the Boyd’s property was a “public

place.”   No evidence established that either property was “state – or

community – owned” or that a “substantial group” had access to the

properties. See Black’s Law Dictionary (10th ed. 2014); see also 18 Pa.C.S.

§ 5902(f); see also 18 Pa.C.S. § 5503(c).             On the contrary, the

Commonwealth presented evidence that Mr. Boyd had no trespassing signs

on his property to ensure that the public did not have access to his private

property. (N.T., Trial, at 60).

      Further, the trial court erroneously relies on Commonwealth v.

Whritenour, 751 A.2d 687 (Pa. Super. 2000), to determine that Appellant

was in a public place. In Whritenour, this Court concluded that a road in a


2
   We note that we find the Appellant’s behavior not only excessive and
inappropriate, but also detrimental to the safety and sanctity of
neighborhoods and communities. The Crimes Code, however, limits this
offense only to defendants whose offensive acts occur in public. Since we are
limited by the language of the Crimes Code, we must reverse the conviction.
We, however, see no difference in the harm caused by drunken behavior
that occurs in public or in residential areas and ask the Legislature to
consider expanding the application of this offense to those acts that occur in
residential areas as well.




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gated community was “public” because “the road was located in a

neighborhood, whatever its legal constitution, and was traversed by

members of the community and their invitees or licensees.” Id. at 688. In

the instant case, the trial court relied on Whritenour to conclude that the

incident took place on property within a residential neighborhood, and

thereby determined that the property was “public.” Trial Ct. Op. at 12. We

disagree. Whritenour, where the incident took place on a private road that

numerous people had access to, is not analogous to the instant case where

Appellant was on his own private property and then his neighbor’s private

property, both of which were not open to members of the community.

     The evidence, viewed in a light most favorable to the Commonwealth,

reveals that Appellant was on his own private property and then his

neighbors’ property – neither of which qualify as “public property.”   The

Commonwealth failed to prove that Appellant was in a public place while

intoxicated, and therefore failed to present sufficient evidence to prove

Public Drunkenness.

     Judgment of sentence for Terroristic Threats affirmed; judgment of

sentence for Public Drunkenness vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016


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