J-A11013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SEAN M. DONAHUE,

                            Appellant                  No. 1469 MDA 2016


             Appeal from the Judgment of Sentence April 19, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003716-2015


BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 05, 2017

       Sean M. Donahue (“Appellant”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Dauphin County on April 19, 2016,

following his conviction for two counts of harassment.         The judgment of

sentence was made final by the August 30, 2016 order denying Appellant’s

post-sentence motion. After careful review, we affirm.

       The trial court opinion related the factual background and procedural

history, which we adopt for purposes of this appeal.       Trial Court Opinion,

11/9/16, at 1–4.       In brief summary, on January 12, 2015, Appellant was

charged with one count of terroristic threats and two counts of harassment1

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2706 and 2709(a)(4), respectively.
J-A11013-17


for allegedly e-mailing threats to various Commonwealth employees.                  On

April 18, 2016, a jury trial commenced.             The jury was hung as to the

terroristic-threats   charge,    but   it   found   Appellant   guilty   of   the   two

harassment charges.      Subsequently, the district attorney nol prossed the

terroristic-threats charge.

      At trial, four e-mails, each sent to roughly fifty individuals between

November 26, 2014, and November 29, 2014, were entered into evidence.

Witnesses Lisa Sauder and Mary Jane McMillan both received courtesy copies

(“cc”) of the e-mails.          Generally, the nature of the communications

concerned Appellant’s grievances and perceived injustices carried out by

Commonwealth employees related to his unsuccessful applications for

employment and his preferred status as a veteran.               While the trial court

opinion quotes the e-mails in detail, for our purposes, we observe that

Appellant used the following language in his communications to the e-mail

recipients – “I will pursue punishment of you”; “[t]hat is a threat”; “You

won’t have to explain to a judge how you rectify me having spent so much

money on civil court actions instead of just buying a $200 gun and $20 box

of ammunition and killing your employees, like they accuse me of

having . . . a propensity towards”; and “I hope all of you suffer terrible

tragedies.” N.T., 4/19/16, at 22, 28, 36, 44; Commonwealth Exhibits 1–4.

      At trial, Ms. Sauder testified that while she had communicated via e-

mail with Appellant over a period of years, his tone had changed, and she


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J-A11013-17


became alarmed after receiving the subject e-mails. N.T., 4/19/16, at 20–

21. Ms. Sauder stated that she had never received e-mails referencing guns

and that she was afraid. Id. at 34. She characterized the tone of the e-

mails as “extremely angry,” expressing “a potential to do harm.” Id. at 45.

Ms. McMillan also testified that she was alarmed after receiving the e-mails

and was concerned enough to notify her supervisor’s boss. Id. at 73.

      As noted, on April 19, 2016, a jury found Appellant guilty of two

counts of harassment.        On that same date, the trial court sentenced

Appellant to two consecutive terms of one-year probation. Appellant filed a

post-sentence motion that was denied by operation of law pursuant to

Pa.R.Crim.P. 720 (B)(3)(a).

      Appellant raises the following issues for review:

      I. Was not the evidence insufficient to support [Appellant’s]
      conviction for harassment, 18 Pa.C.S. § 2709(a)(4), where
      [Appellant’s] language cannot be construed as “true threats” and
      is therefore protected speech under the United States and
      Pennsylvania Constitutions?


      II. Was it not a violation of [Appellant’s] double jeopardy rights
      for the court to impose separate sentences for two counts of
      harassment, 18 Pa.C.S. § 2709(a)(4), where the two counts
      were redundant statements of the very same conduct?

Appellant’s Brief at 5 (full capitalization omitted).

      Initially, Appellant submits that in reviewing his sufficiency argument,

this Court should employ an “independent review” standard because his

challenge is based upon the exercise of his First Amendment rights.

Appellant’s Brief at 19. The authority cited for the suggestion that we should

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J-A11013-17


not employ the general deferential sufficiency-of-the-evidence scrutiny is not

persuasive; nonetheless, because Appellant’s issue concerns a question of

law, our review is de novo. In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super.

2016).

      Appellant was convicted of two counts of harassment under 18 Pa.C.S.

§ 2709(a)(4), which states:

         (a)    Offense defined.--A person commits the crime of
                harassment when, with intent to harass, annoy or alarm
                another, the person:

                                    * * *

               (4) communicates to or about such other person any
               lewd, lascivious, threatening or obscene words,
               language, drawings or caricatures;

      Appellant’s challenge to the sufficiency of the evidence is based on his

premise that his words cannot be construed as “true threats”; therefore, his

conduct was protected speech under the United States and Pennsylvania

Constitutions. See Commonwealth v. Baker, 722 A.2d 718, 721–722 (Pa.

Super. 1998) (en banc) (defining “true threat” as one which “on its face and

in the circumstances in which it is made is so unequivocal, unconditionally

immediate and specific as to the person threatened, as to convey a gravity

of purpose and imminent prospect of execution”) (citation omitted).

      Appellant’s argument that none of the language included in the e-mails

indicates a specific threat of violence is unavailing.    In his first e-mail,

Appellant stated that he was “pursuing punishment” of Commonwealth



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J-A11013-17


employees. In the second e-mail, he used violent imagery as an alternative

to accessing the courts for the relief he felt was due. Finally, although in his

fourth e-mail Appellant couched his language to infer that he would only

resort to legal means to redress his grievances, he wished “terrible

tragedies” on the recipients and referenced the formation of a militia of

similarly frustrated citizens.   N.T., 4/19/16, at 22, 28, 44; Commonwealth

Exhibits 1, 2, and 4.

      Appellant cannot credibly argue that his free speech rights were in any

way infringed in this matter.        While Appellant is free to express his

disagreement     with   the      Commonwealth    employees     concerning    his

dissatisfaction with state policies, he is not empowered to threaten the

employees with reference to guns, ammunition, and militia, veiled though

they may be.    We agree with the trial court that “this type of behavior is

exactly the type of behavior that the harassment statute is meant to

prohibit” and adopt its reasoning in concluding that sufficient evidence

supports Appellant’s conviction. Trial Court Opinion, 11/9/16, at 6.

      Appellant next claims that his right against double jeopardy was

violated when the trial court imposed two separate sentences for two counts

of harassment. Specifically, Appellant contends that his conviction for two




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J-A11013-17


counts of harassment violates the prohibition against multiplicity, i.e., the

charging of multiple counts for a single criminal offense.2

       We affirm the trial court’s decision in this regard based upon its well-

reasoned response to this assertion: “Appellant wrote three distinct e-mails

each of which could independently fulfill the elements of harassment as

charged. . . .[3] Each e-mail contained different statements so that this was

not just a single criminal act.” Trial Court Opinion, 11/9/16, at 7.

       Accordingly, for the above-stated reasons and after careful review of

the parties’ arguments and the certified record, we affirm.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017

____________________________________________


2
   “No crimes shall merge for sentencing purposes unless the crimes arise
from a single criminal act and all of the statutory elements of one offense
are included in the statutory elements of the other offense.” 42 Pa.C.S.
§ 9765.

3
   The e-mail sent on November 29, 2014, is a duplicate of the e-mail sent
on November 28, 2014. N.T., 4/18/16, at 28, 36; Commonwealth Exhibits
2, 3.



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                                                                                     Circulated 05/23/2017 12:18 PM



                                                                                   ,l!JDV ,D 9 2016
    COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS.
                                 : DAUPHIN COUNTY, PENNSYLVANIA

                            v.                          : 1469 MDA 2016
                                                        : 3716 CR 2015

    SEAN DONAHUE                                        ~ CRIMINAL APPEAL


    TRIAL COURT MEMORANDUM OPINION PURSUANT TO PENNSYLVANIA RULE
                    OF APPELLATE. PROCEDURE 1925{a)

          Presently
          .
                    before the Superior Court of Pennsylvania
                                                     .
                                                              is the appeal of Sean Donahue

(hereinafter "Appellant") from the judgment of sentence entered by this Court following a jury

trial.

                            Procedural History and Factual·Background.

          On January 12, 2015, Appellant was charged with one count of first degree misdemeanor

(terroristic threats)' and two counts of third degree misdemeanor (harassment)2 for allegedly

emailing threats· to various Commonwealth employees and the media.

          In July 2015, bail was set following the preliminary hearing. Shortly thereafter, a Petition

for Habeas Corpus and.a Petition for Release Pursuant to Rule 600 or, in the alternative, Petition

for Bail Reduction were filed. They were both denied, with the denial of the Bail Reduction

being reviewed by the Superior Court who denied the request.3

          On April 18, 2016, a jury trial commenced. At trial, the jury was hung as to the terroristic

threats charge, but found guilty on the two harassment charges; The district attorney immediately

chose to nolle pros the terroristic threats charge. ·




1
    18 Pa.C.S.A. § 2706
2
  18 Pa.C.S.A. § 2709(a)(4) ·
'See 63 !\IDA 2015


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       The Commonwealth      limited itself to using only 4 emails in its case in chief. Those   four

emails were each sent to roughly 50 individuals. Lisa Sauder and Mary Jane McMillan were both

courtesy copy recipients of the emails. Mary Jane Mclv[illan was m the '1o"-fiToo on one email

       The first email reads, in part:

                       I now advise you that if you follow through and even
               entertain the slightest bit of a notion that you and the rest of the
              ·Commission have the jurisdiction necessary to pass judgment over
              my use of federal and state courts, I willpursue punishment of you,
               the remaining Commission members and the senior employees of
               the Commission for your even attempting to control access to the
               courts. By doing so, you will face the very same court actions that ·
               PA L&I now claims its employees faced and fear that they still face
               from.me.
                       That is a threat and I make that threat with the full confidence
               of Democracy and no fear whatsoever of the federal and state courts.
               Print this explicit unapologetic threat out and take it to your nearest
               FBI office or US Attorneys Office. You may take it to your local
               state Attorney Generals office and Magistrate as well, for I will
               show no respect for state level immunity for you in this matter.

       The second email reads in part:

                         Congratulations. You've one. The amount of money I spent .
                on paper copies trying to fight your agency in the courts over the
                past decade has been more than enough to by a quality assault rifle
                and an 'ample supply of ammunition or explosive materials, all of
                which your staff: your employees and your affiliates accused me of
                doing and all of which they repeatedly told police they feared. It was
                all bullshit and you knew it. .. And you won't even have the balls to
                walk into a courtroom and file a private criminal charge because you
                can't push the Court around like you can the civil service
                commission. You won't have to explain to a judge how you rectify
                my having spent so much money on civil court actions instead of
                just buying a $200 gun and $20 box of ammunition and killing-your
                employees, like they accuse me of having been accusing me of
                having a· propensity towards for about a decade ... be grateful that
                your memory of me is associates with reams of paper and email
                complaints so that you don't have to remember me every time you
                walk past the hunting section of a department store, like your
                 employees have accused me of for so long, when they should have
              · been focused on getting me a job making enough money to repay




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                   those student loans that are going to be paid off by your law firm's
                   income tax instead of my paycheck because I don't have a paycheck.

          The third· email read exactly as the second, with a nearly identical recipient list> in a

different order.

          The fourth email reads in part:

                             If L&I and the Civil Service Commission do not start
                     obeying the law· that grant me veterans preference for numerous
                     employment related benefits, I am going to find a LEGAL way to
                     pound the shit out of your government agencies and I am going to
                   · that method, whatever it is in whatever context makes it LEGAL, to.
                     pound your employees into submission until they stop denying me
                     my benefits.
                             I hope all of you suffer terrible tragedies as you leave office
                     and.I hope you suffer to a much greater degree than you arw actively
                     causing in my life very day. I hope that all of you who are involved
                     in manipulating the civil service laws to prevent me from being
                     employed die in a terrible tragedy of your own doing. I hope each of
                     you feels the regular daily pain that you have intentionally caused in
                     my life for years and still cause today. As you move aggressively to ·
                      cement that misery into my life before you leave office in January,
                      think ofFerguson, thinkofthe anger and frustration that government
                      oppression is causing in our society ...
                              I can't accomplish anything with a weapon. I need a unit. I
                     need a militia of equally as frustrated Pennsylvanians and
                      Americans who are fed up with being ignored by government.".

           Lisa Sauder testified that while she had communicated via email with Appellant over a

period of years, the tone changed and she became alarmed. (Notes of Testimony, Jury Tria14, p.

2 I). While Ms. Sander's job required that she interact with people with grievances, she had never,

in 26 years at her job, received emails like these before, referencing guns, and she was afraid. (N.T.

34-35). She felt the email was extremely angry and expressed apotential to do harm, (N.T. 45) ..

           Mary Jane McMillan was also alarmed after receiving the emails. (N'.T. 72). She had never

received emails with that sortof Ianguage and was concerned enough to notify her supervisor's



4
    Hereinafter ''N.T."


                                                    3 of 8
boss about them. (N.T. 72-73). She actually went above her supervisor's head because she was so

concerned; normally she would have told her supervisor first. (N.T. 73).

        Corporal Richard Schur was given flie·emaiTsoy state employees andl1e was ass1gned to

investigate, He located Appellant and he ultimately charged Appellant in this case.

                 Appellant's Statement of Matters Complained of on Appeal

    •   The evidence was insufficient to support Defendant's conviction for Harassment, 18
        Pa.C.S. § 2709(a)(4), where Defendant's language cannot be construed as "hue threats"
        as is therefore protected speech under the First and Fourteenth Amendments of the
        United States Constitution and Article I, Sections 7 and 20 of the Pennsylvania
        Constitution.

    •   The Court imposed an illegal sentence when it sentenced Defendant on two separate
        counts of Harassment under 18 Pa.C.S. § 2709(a)(4).

                                            Discussion

        "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. Where the evidence offered to support the verdict is in contradiction to the

physical facts, in contravention to human experience and the laws of nature, then the evidence is

.insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view

the evidence in the light most favorable to the verdict winner giving the prosecution the benefit

of all reasonable inferences to be drawn from the evidence." Commonwealth v. Smith, 2004 PA

 Super 77, ,I 24, 853 A.2d 1020J 1028 (2004)

        In this case "A person commits the crime of harassment when, with intent to harass,

 annoy or alarm another, the person communicates to or about such other person any lewd,

 lascivious, threatening or obscene words, language, drawings or caricatures." 18 Pa.C.S.A. §

 2709(a)(4).

         "Communicates" is defined as:


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                 Conveys a message without intent of legitimate communication or
                 address by oral, nonverbal, written or electronic means, including.
                 telephone, ·electronic mail, Internet, facsimile, telex, wireless·
                 communication or similar transmission.
1-8-Pa:e-:-s~t2r-09t

        Appellant communicated with the victims via email. Over the course of three days,

Appellant sent four emails to numerous people. In those emails, Appellant utilized capital letters,

which arc often commonly read as shouting. He wished "terrible tragedies" upon the recipients,

and he referenced guns, armed uprisings, and indicated he was threatening the recipients with

legal action.

        Appellant argues that his words cannot be construed as "true threats" and thus are

protected under the First and Fourteenth Amendments of the United Sates Constitution and

Article I, Sections 7 and 20 of the Pennsylvania Constitution. Pennsylvania's Constitution sets

forth the right to freedom of speech in Article I, Section 7. In Article 1, Section 20, the ·

Pennsylvania Constitution provided that citizens may petition "those invested with the powers of

government for redress grievances or other proper purposes, by petition, address or

remonstrance."

                   "When engaged in a constitutionally protected activity of the
                   fundamental nature of freedom of speech, we must exercise restraint
                   in prohibiting the activity lest we destroy the right." However, the
                   right to free speech is not absolute, and certain well-defined, limited
                   classes of speech may be prevented and punished without raising
                   constitutional problems. Lewd) obscene, profane, libelous and
                   insulting or "fighting words those which by their very utterance .
                   inflict injury or tend to incite an immediate breach-of peace" arc not
                   constitutionally protected. Only "true threats" fall within that group
                   of expressions, such as fighting words, which are not
                   constitutionally protected "pure speech." A true threat is one which
                   "on its face and in the circumstances in which it is made is so
                   unequivocal, unconditionally immediate and specific as to the
                 . person threatened, as to convey a gravity of purpose and imminent
                · prospect of execution."




                                                  5 of 8
Commonwealth v. Baker, 722 A.2d 718, 721-22 (Pa. Super. 1998), aff'd. 564 Pa. 192, 766 A.2d
328 (2001)(citations omitted)

        In Commonwealth v. Walls, 144 A.3d 926 (Pa. Super. 2016) the Court found that there

was sufficient evidence for a conviction of harassment under 18 Pa.C.S.A. 2709(a)( 4) where the

defendant approached the victim, spoke with her at length, caused her to back up and request that

he leave her alone and then yelled that she caused his grandmother's death and she should be

next. The victim suffered no physical contact or harm. That defendant was then escorted· from

the store. TI1e Court reasoned that unless you are attempting to harass or annoy an individual,

there is no reason to do such a thing.

       · Similarly, in this case, there is no reason to send four relatively lengthy emails, which

must have taken some time to compose, over such a short time period, if one does not intend to

harass or annoy the recipients.

        In Walls, the defendant indicated that the victim should.be next. He did not indicate an

imminent prospect ~f causing her harm. He wished future harm to happen to her and did not

threaten to cause that hann·himself.

        Appellant in. this case, wished future tragedies and harm upon the recipients of the emails.

He even took it a .step further in discussing how he should have just bought a rifle and

ammunition, rather than waste time with the system. He promises the recipients punishment,

nominally via the court, however, he then turns to indicate he promises he is making a threat and

has no fear of the courts. He says the recipients should be grateful their memory of him is

 associated boxes of papers not the hunting section of the store. These statements are

 inflammatory and clearly intended to alarm the recipients.

         Much like the Court in Walls, we believe this type of behavior is exactly the type of

· behavior that the harassment statute is meant to prohibit.



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          Next we tum to the multiplicity        claim. Appellant   contends that since the language utilized

in the charging document         and the   jury instructions relates only to one statute and subsection and

fai1sloaTfferentiate in any way, mcluchng           oy naming    arfferent vicfitns, ilie sentence violafeslhe

prohibition against double jeopardy found in both the United States and Pennsylvania

Constitutions".

                 ' No crimes shall merge for sentencing purposes unless the crimes
                   arise from a single criminal act and all of the statutory elements of
                   one offense are included in the statutory elements of the other
                   offense. Where crimes merge for sentencing purposes, the court may
                   sentence the defendant only on the higher graded offense.

42 Pa.C.S.A.§ 9765

          In this case, Appellant wrote
                                   .
                                        three distinct emails
                                                       . .
                                                              each of which could ·independently

fulfill the elements of harassment as charged and defined in the jury instructions. See
                     '       .
Commonwealth v. Petterson, 2012 PA Super 146, 49 A.3d 903, 912 (2012) (where a defendant.

commits multiple distinct criminal acts, the concept of merger for sentencing purposes does not

apply). The three distinct emails contained messages which alarmed the recipients enough to

warrant contacting the police. Each email contained different statements so that this was not just

a single criminal act.

           For these reasons, we ask the Superior Court to affirm our judgment of sentence.




5   U.S. Const. amend V; PA Const. art. I, 10


                                                        7 of 8
                                                                 Respectfully submitted:




                                                       Dated:       Ir fr /1 &
                                                                ~____,_/--1~-
Distribution:
The Superior Courtof Pennsylvania
Hon. Deborah E. Curcillo
Katie Adam, Esq., Dauphin County District Attorney's Office
James Karl, Esq., Dauphin County Public Defender's Office ;£0




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