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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

COREY MAXEY,

                           Appellant                    No. 2821 EDA 2014


             Appeal from the Judgment of Sentence August 7, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-15146-2013


BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 05, 2016

       Corey Maxey appeals from the judgment of sentence of six to twelve

months incarceration imposed by the trial court after it found him guilty of

one count of terroristic threats with intent to terrorize another. After careful

review, we reverse.

       The   Commonwealth’s      evidence   presented    to   the   trial   court   is

summarized as follows.         Appellant was an inmate at the Philadelphia

Detention Center.      On the morning of September 3, 2013, Correctional

Officer David Lucas, observing that Appellant did not return to his cell when

directed, twice ordered Appellant to do so.        When Appellant, who was

handcuffed to a travel belt, refused to comply, Officer Lucas grabbed the

handcuffed Appellant’s travel belt and again ordered Appellant to enter his


*
    Former Justice specially assigned to the Superior Court.
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cell because it was “time to take it in.” N.T., 2/7/12, at 13. Officer Lucas

began to remove Appellant’s handcuffs.

       Appellant then became “combative and hostile,” using profanity and

speaking aggressively and disrespectfully.       N.T., 2/7/12, at 14.   The two

continued to argue until Appellant, no longer handcuffed,1 stepped within

two or three feet of Officer Lucas with his arms raised at his chest, which

Officer Lucas perceived as a threat. Officer Lucas then punched Appellant on

the chin, and Appellant responded by punching Officer Lucas twice in the

face, knocking him to the ground. A second correctional officer intervened,

tackling Appellant to the ground and handcuffing him. Officer Lucas received

three stiches as a result of the altercation.

       Though Appellant was charged with assault, terroristic threats, and

reckless endangerment, the trial court, sitting nonjury, acquitted him of

assault and reckless endangerment and convicted him of only terroristic

threats. He was thereafter sentenced to six to twelve months incarceration.

This timely appeal follows.

       Appellant complied with the trial court’s directive to provide a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the trial

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1
  Appellant urges that “[i]t is unclear whether [he] was still handcuffed”
when he raised his arms and stepped towards Officer Lucas. Appellant’s
brief at 7 n. 5. However, since we view all evidence in a light most favorable
to the Commonwealth as the verdict winner, we reject his account.



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court provided a Rule 1925(a) opinion.       This matter is now ready for our

review. Appellant presents one question on appeal: “Was not the evidence

insufficient as a matter of law to sustain [A]ppellant’s conviction for

terroristic threats pursuant to 18 Pa.C.S. § 2706 where [A]ppellant uttered

no threatening words whatsoever?” Appellant’s brief at 3.

      Our standard of review in assessing a sufficiency claim is well settled.

We are limited to evaluating “whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winner, there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

a reasonable doubt.”    Commonwealth v. Harden, 103 A.3d 107, 111

(Pa.Super. 2014).    This Court will not re-weigh evidence, but we will

evaluate the whole record and consider all evidence actually received,

recognizing that the factfinder evaluates the credibility of witnesses and may

believe all, part, or none of the evidence. Id. While we cannot substitute

the trial court’s findings of fact with our own, where a sufficiency challenge

involves a legal conclusion drawn from the facts found by the trial court, we

will review the decision of that court for an error of law. In re Ullman, 995

A.2d 1207, 1213 (Pa.Super. 2010) (citation omitted). Thus, “[a]s with all

questions of law, the appellate standard of review is de novo and the

appellate scope of review is plenary.” Id.

      Appellant argues that the record does not indicate that Appellant “ever

uttered one threatening word,” but only that he was combative, hostile, and

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disrespectful.    Appellant’s brief at 6.           Accordingly, he contends that the

record contains insufficient evidence to sustain Appellant’s conviction, as the

crime of terroristic threats requires a verbal communication.

       The Commonwealth maintains that Appellant’s proposal is improperly

narrow, arguing instead that nonverbal conduct satisfies the communicative

element of the crime.2        It continues that Appellant’s threatening gesture,

raising his arms and stepping toward Officer Lucas, when coupled with his

general    verbal    aggression      and       hostility,   represented   communication

sufficient to support his conviction. We do not agree.

       Appellant was convicted of 18 Pa.C.S. § 2706(a)(1), which states: “A

person commits the crime of terroristic threats if the person communicates,


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2
  We reject the Commonwealth’s argument that Appellant waived his sole
issue because he “failed to present it with sufficient specificity in his Rule
1925(b) statement.” Commonwealth’s brief at 5.           In support of that
contention, the Commonwealth cites to Commonwealth v. Gibbs, 981
A.2d 274 (Pa.Super. 2009), and Commonwealth v. Williams, 959 A.2d
1252 (Pa.Super. 2008). However, unlike the appellants in those cases,
Appellant herein was convicted of only one crime, which has two elements.
Appellant’s averment that there was “insufficient evidence in the record to
support a finding of terroristic threats beyond a reasonable doubt,” which
may in other instances be inadequate, is of sufficient particularity to permit
our review of his issue. Pa.R.A.P. 1925(b) statement, 10/27/14, at 1. See
Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (holding that
the appellant was entitled to review of issues, though vaguely articulated in
his Pa.R.A.P. 1925(b) statement, because the trial court “readily
apprehended [his] claim and addressed it in substantial detail”).




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either directly or indirectly, a threat to. . . commit any crime of violence with

intent to terrorize another[.]”

      At specific issue in this matter is whether the word “communicates” as

used in subsection (a) includes nonverbal communication.            The statute

defines “communicates” as “conveys in person or by written or electronic

means, including telephone, electronic mail, Internet, facsimile, telex and

similar transmissions.” 18 Pa.C.S. § 2706(e).

      The facts, as credited by the trial court, indicate that Appellant cursed

at and became combative with Officer Lucas.         They further indicate that

Appellant stepped within two or three feet of Officer Lucas with his hands

raised to his chest area. What they do not indicate, however, is that any

threat was uttered by Appellant to Officer Lucas to commit a crime. After

review of the entire record and, even viewing all evidence in a light most

favorable to the Commonwealth, we cannot find that the Commonwealth

presented evidence sufficient to sustain the trial court’s finding of guilt with

respect to Appellant’s terroristic threat charge.

      Notably, neither the trial court in its 1925(a) opinion nor the

Commonwealth in its brief were able to point to any binding case to support

the contention that body language alone can constitute “communication” for

the purposes of a terroristic threat conviction.    Instead, they both rely on

this Court’s guidance in Commonwealth v. White, 335 A.2d 436 (Pa.Super

1975).   Though the White Court looked to the “totality of the appellant’s

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conduct” to establish a guilty finding, it still involved the situation where the

defendant verbally threatened to grab the victim prior to any physical action.

Id. at 440. In fact, the defendants in each case cited by the Commonwealth

actually spoke identifiable threats to their respective victims before or while

utilizing nonverbal conduct.        See Commonwealth v. Sinnott, 976 A.2d

1184, 1186 (Pa.Super. 2009), affirmed in part, reversed in part on other

grounds, 30 A.3d 1105 (Pa. 2011) (appellant told victim that he would kill

her father while shouting obscenities and racial slurs before charging at the

victim while wielding a hammer); In re Maloney, 636 A.2d 671, 672

(Pa.Super. 1994) (actor told victim to “get the f- out of here” while pointing

a gun at him);3 Commonwealth v. Hudgens, 582 A.2d 1352, 1355

(Pa.Super. 1990) (defendant, drawing a sword that had been concealed in

his trousers, told victim that he was “going to get him”).

       In Commonwealth v. Sullivan, 409 A.2d 888, 889 (Pa.Super. 1979),

this Court agreed with outside jurisdictions that a “threat must be uttered

with the purpose of terrorizing another, and that ‘terrorize’ means to cause

extreme fear by use of violence or threats.” Id. Herein, Appellant did not

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3
  Though the Maloney Court called for a comparison between the facts
before it and the trial court in Commonwealth v. Wintz, 1 D. & C. 4th 299
(Bucks Co. 1988) (holding that, though he uttered no words, a defendant
communicated a terroristic threat when he pointed a shotgun at occupants
of a passing vehicle), we again note that the Maloney defendant uttered a
verbal threat to a victim.



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use violence to terrorize Officer Lucas, and the record contains no evidence

that he uttered any threat.

      The Sullivan Court also looked to the Official Comment to the then-

effective provision of the Model Penal Code upon which Pennsylvania based

its statute. Today’s statute is likewise derived from the Model Penal Code §

211.3, which is silent regarding nonverbal conduct. The commentary to that

provision, however, instructs us regarding the purpose of the terroristic

threat statute: “In drafting legislation penalizing threats, we would not wish

to authorize grave sanctions against the kind of verbal threat which

expresses transitory anger rather than settled purpose to carry out the

threat or to terrorize the other person.” Model Penal Code, § 211.3, Tent.

Draft No. 11 at 9 (1960) (emphasis added).         See Commonwealth v.

Ferrer, 423 A.2d 423 (Pa.Super. 1980); Commonwealth v. Ashford, 407

A.2d 1328 (1979). In the comment to our own terroristic threat statute, we

learn that the provision was intended to cover “oral threats as well as

written threats.”   Tellingly, that same descriptive comment contains no

reference to nonverbal conduct.

      The oft-recited rule of statutory construction, expressio unius est

exclusion alterius, is instructive herein. Since the General Assembly chose

not to include nonverbal communication in our terroristic threats statute and

that neither explanatory comment specifies the statute’s applicability to the

same, we find that the omission of language addressing solely nonverbal

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conduct should be understood as an exclusion and decline to impose it here.

See Commonwealth v. Dixon, 53 A.3d 839 (Pa.Super. 2012).

      Having been unable to find any authority that suggests that solely

nonverbal conduct, especially consisting only of raising ones hands to his

chest, constitutes a threat for the purposes of the terroristic threat statute

and in light of the Commonwealth’s inability to present evidence that

Appellant uttered any words to suggest that he intended to terrorize Officer

Lucas, we conclude that there was insufficient evidence to find that Appellant

committed the crime of terroristic threats. Accordingly, we reverse.

      Judgment of sentence reversed.         Case remanded.       Jurisdiction

relinquished.

      Judge Panella concurs in the result.

      Justice Fitzgerald files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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