J-S03006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

AARON H. JOHNSON,

                          Appellant                   No. 2870 EDA 2017


       Appeal from the Judgment of Sentence Entered August 4, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010282-2016

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 27, 2019

      Appellant, Aaron H. Johnson, appeals from the judgment of sentence of

an aggregate term of 5 years’ probation, imposed after he was convicted of

one count each of simple assault (18 Pa.C.S. § 2701) and terroristic threats

(18 Pa.C.S. § 2706(a)(1)).      Appellant challenges the sufficiency of the

evidence to sustain his conviction for terroristic threats. We affirm.

      The facts which led to Appellant’s convictions are set forth by the trial

court in the following portion of its Pa.R.A.P. 1925(a) opinion:

             On August 1, 2016, the [c]omplainant was at her home in
      the city and county of Philadelphia. [Appellant] resided there with
      the [c]omplainant, his maternal grandmother (“Complainant”).
      On this particular day, an altercation arose between []
      Complainant and [] Appellant. [] Complainant wanted Appellant’s
      friend to leave so she went to Appellant’s room and told him that
      his company had to leave. Appellant told [] Complainant, “Bitch,
      I hope you fall down the steps and break your neck[,]” and
      [C]omplainant responded she would call police. Once downstairs,
      Appellant threw [] Complainant’s newspaper and said “bitch, you
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       are something. I’ll pick this chair up and bust you in your head.”
       Appellant continued to pick up a dining room chair but did not hit
       [] Complainant with it. [] Complainant sprayed roach spray at
       Appellant while he picked up the chair.

             Later on the same day, [] Complainant’s daughter came
       over. Appellant and Complainant started to tussle because []
       Complainant wanted to throw away a bed in his room. []
       Complainant described “tussling” as grabbing her forearms and
       shaking her. [] Complainant was on the front porch attempting
       to get the paper and called Appellant “honorary”[1] [to] which
       Appellant said “bitch, you’re crazy or something like that.”
       Appellant then continued to pick up the chair and said, “I ought to
       bust you in your fucking head with this.” Complainant went to get
       a [Protection from Abuse (“PFA”) Order]. After getting home with
       the PFA, the second tussle started where Appellant threw her on
       the bed and she twisted her rib area causing pain. Appellant had
       her arms while she was trying to get him off of her and she ended
       up with a bruise. The incident stopped when Complainant’s
       daughter got him out of the house after he tore everything up.
       Police Officer Garfield indicated on his police paperwork that this
       was a verbal dispute and Complainant was visibly upset, crying,
       and shaking.

Trial Court Opinion (“TCO”), 8/22/18, at 2-3 (unpaginated; citations to record

omitted).

       Based on the aforementioned evidence presented at a non-jury trial on

August 4, 2017, Appellant was found guilty of the crimes stated supra, and

was sentenced by the court to 5 years’ probation. On September 5, 2017,

Appellant filed a timely notice of appeal, followed by a timely, court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant presents the following sole issue for our review:



____________________________________________


1The transcript reflects the word “honorary,” see N.T. Trial, 8/4/17, at 16;
however, we presume that the intended word was “ornery.”

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      Was not the evidence insufficient to support Appellant’s conviction
      on the charge of terroristic threats insofar as there were no threats
      to commit any crime of violence with the intent to terrorize
      another but rather any statements made were the product of
      transitory anger of the sort that does not show a settled intent to
      terrorize and thus cannot form the basis for a conviction of this
      offense?

Appellant’s Brief at 4.

      To begin, we note our standard of review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

      The crime of terroristic threats is defined as follows:

      § 2706. Terroristic threats

      (a)   Offense defined.—A person commits the crime of
            terroristic threats if the person communicates, either
            directly or indirectly, a threat to:

            (1)    commit any crime of violence with intent to terrorize
                   another;

            (2)    cause evacuation of a building, place of assembly or
                   facility of public transportation; or

            (3)    otherwise cause serious public inconvenience, or
                   cause terror or serious public inconvenience with
                   reckless disregard of the risk of causing such terror or
                   inconvenience.

18 Pa.C.S. § 2706.



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      As this Court has previously explained, for a defendant to be convicted

of terroristic threats:

      “the Commonwealth must prove that 1) the defendant made a
      threat to commit a crime of violence, and 2) the threat was
      communicated with the intent to terrorize another or with reckless
      disregard for the risk of causing terror.” Commonwealth v.
      Tizer, … 684 A.2d 597, 600 ([Pa. Super.] 1996). “Neither the
      ability to carry out the threat, nor a belief by the person
      threatened that the threat will be carried out, is an element of the
      offense.” In re J.H., 797 A.2d 260, 262 (Pa. Super. 2002).
      “Rather, the harm sought to be prevented by the statute is the
      psychological distress that follows from an invasion of another’s
      sense of personal security.” Tizer, 684 A.2d at 600.

Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016) (quoting

Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003)).

      Here, Appellant asserts that the evidence was insufficient to support his

terroristic threats conviction, because his statements to Complainant were

“made out of transitory anger, without a settled intent to terrorize[.]”

Appellant’s Brief at 10.   Appellant states that he and Complainant were

“involved in an hours-long sporadic domestic argument that occasionally

turned, if not actually violent, at least physical.”    Id. at 11.    Appellant

acknowledges that during the course of their interaction, he told Complainant

“that he hoped she would fall down the stairs and break her neck and that he

should strike her with a chair he had picked up.” Id. (internal quotation marks

omitted).    While Appellant admits that his stating that he should strike

Complainant with a chair was a threat, he insists that it was “a spur-of-the-

moment threat resulting from anger of the sort explicitly meant to be excluded



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from criminal liability.” Id. at 13. In support of his argument, Appellant points

to the Official Comment to section 2706, which states that section 2706 “is

not intended to penalize mere spur-of-the-moment threats which result from

anger.” Id. (citing 18 Pa.C.S. § 2706, Official Comment—1972).

      Appellant’s argument is founded on his claim that he lacked the requisite

intent to terrorize. Thus, the real issue, here, is whether the Commonwealth

presented sufficient evidence to establish the required mens rea, not whether

Appellant made the statements in the context of a heated dispute.           See

Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super. 2003)

(discussing the focus on the mens rea element in determining whether

evidence is sufficient to support terroristic threats conviction). “Being angry

does not render a person incapable of forming the intent to terrorize.” Id.

(quoting Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super. 2000)).

      In finding that the Commonwealth provided sufficient evidence to

establish the requisite mens rea to support Appellant’s conviction of terroristic

threats, the trial court opined:

      Here, there was an altercation between Appellant and
      [Complainant]. He told her “Bitch, I hope you fall down the steps
      and break your neck” and when she replied by saying she would
      call the police, [A]ppellant threw the newspaper and said: “bitch,
      you are something. I’ll pick this chair up and bust you in your
      head.” Appellant continued to pick up the dining room chair but
      did not hit [] Complainant with it. His words coupled with his
      actions show that [] [A]ppellant intended to terrorize which is an
      element of terroristic threats. The threat cannot be considered a
      product of transitory anger.

TCO at 4 (unpaginated) (emphasis added).


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        Moreover, the trial court compared the instant matter to the scenario in

Commonwealth v. Anneski, 525 A.2d 373 (Pa. Super. 1987), in which this

Court found that the appellant, who was convicted of terroristic threats, lacked

a settled purpose to terrorize the other person. In Anneski, the appellant

said she would “get a gun and use it” after the other woman threatened to hit

the Anneski children with her car. The appellant’s “threat” to get a gun was

considered to be a spur-of-the-moment threat resulting from transitory anger

prompted by the other woman’s threat to run over her children. Id. at 376.

By contrast, in the present case, Complainant merely asked Appellant’s friend

to leave, which prompted Appellant’s threats and his action of picking up a

chair. The trial court proffered that the original request in the instant matter

“is not a request that would insight transitory anger” and, therefore, concluded

“Appellant made the threats with an intent to terrorize [] Complainant.” TCO

at 4-5 (unpaginated).

        Additionally, the court recalled:

        In another altercation that day, [] Complainant and Appellant
        were tussling where Appellant physically grabbed her forearms
        and began shaking her. After calling [him] “honorary[,]” [2]
        [Appellant] picked up a chair and said “I ought to bust you in your
        fucking head with this[.]” … [T]he threat of busting in someone’s
        head and then raising a chair up would give rise to an inference
        of intent to terrorize.[3] This prompted Complainant to go and get
        a PFA. Again, the threatening words along with a physical action
____________________________________________


2   See n.1, supra.

3 See Commonwealth v. Butcher, 644 A.2d 174 (Pa. Super. 1994)
(determining the appellant’s words and conduct, when viewed together in
context, could be reasonably interpreted as a threat to assault the victim).

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      matching those threats indicate Appellant made threats to commit
      a crime of violence and intended to terrorize [C]omplainant. After
      getting home with the PFA, another tussle began and Appellant
      threw Complainant on the bed and she twisted her rib area which
      caused her pain. Appellant had her arms and she tried to free
      herself from Appellant’s grip. A police officer who responded
      expressed on his paperwork that [] Complainant was visibly upset,
      crying, and shaking.

Id. at 5 (unpaginated).

      Based on our review of the facts in the light most favorable to the

Commonwealth as the verdict winner, we conclude there was sufficient

evidence to support the trial court’s finding that Appellant committed

terroristic threats. Therefore, we uphold Appellant’s conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/19




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