J-S46009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: G.S., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: G.S., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 3420 EDA 2018

                   Appeal from the Order Entered October 15, 2018
                  In the Court of Common Pleas of Delaware County
                 Criminal Division at No(s): CP-23-JV-0000345-2018


BEFORE:         PANELLA, P.J., OLSON, J., and COLINS, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED DECEMBER 20, 2019

        G.S.,      a   minor,1    appeals      from   the   October    15,   2018

adjudicatory/dispositional hearing order entered in the Court of Common Pleas

of Delaware County, which adjudicated him as delinquent on the charge of

terroristic threats. See 18 Pa.C.S.A. § 2706(a)(1). G.S. challenges the

sufficiency of the evidence utilized in the juvenile court’s finding of

delinquency. After thorough review, we agree and reverse.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 G.S. reached the age of majority on September 11, 2019. However, for
consistency sake, we identify him in accordance with the case’s caption.
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       On April 1, 2018, a Sunday, G.S., while in New Jersey, posted an image

to his Snapchat2 account containing a song lyric from the song Snap by the

band Spite without attribution or quotation marks:

       Everyone, I despise everyone! Fuck you, eat shit, blackout, the
       world is a graveyard! All of you, I will fucking kill off all of you!
       This is me, this is my, snap!

No other text was contained in the image.

       The Commonwealth did not present the testimony of anyone who was

an original, intended recipient of the Snapchat image. Instead, the primary

witness at trial was the mother of a student who attended the same school as

G.S. When questioned on how her son became aware of the Snapchat image,

she indicated that she did not believe her son received the image directly from

G.S. and that a third party had forwarded it to her son.

       The mother testified that the image upset her greatly and led her to

refer the matter to the Pennsylvania State Police. Shortly thereafter, officials

at G.S.’s high school and the State Police were contacted by dozens of

concerned individuals. Many of these communications inquired as to whether

it was safe for children to attend G.S.’s school the following day.
____________________________________________


2 For purposes of context, we note that “Snapchat is a social media platform
where users share photographs and messages; a Snapchat story is a series of
photos a user posts—each photo is available for twenty-four hours only.”
Goldman v. Breitbart News Network, LLC, 302 F.Supp.3d 585, 587 n.1
(S.D.N.Y. 2018). However, the juvenile court found that the evidence
presented at trial was insufficient to establish “the precise nature of this social
media outlet, especially the settings that might have influenced the extent of
the publication [of G.S.’s post.]” Trial Court Opinion, 1/15/19, at 2 n.4.



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       Later that same Sunday, the Pennsylvania State Police interviewed

G.S., finding G.S. to be forthcoming and believable and the content of answers

to be truthful. However, G.S. was still taken into custody, and the

Commonwealth charged G.S. with terroristic threats pursuant to 18 Pa.C.S.A.

§ 2706(a)(1).

      The following day, April 2, 2018, the Pennsylvania State Police provided

a visible safety-related presence at G.S.’s high school, but attendance figures

suffered, with some 360 students being absent or tardy from school.

      Ultimately, after hearing testimony and having several of G.S.’s

psychological evaluations at its disposal, the trial court concluded that G.S.

required treatment, rehabilitation, or supervision and adjudicated him

delinquent. G.S. did not testify during the adjudication hearing.    See Trial

Court Opinion, 1/15/19, at 2-4.

      G.S. filed a timely appeal, and while the trial court issued an opinion

pursuant to Pa.R.A.P. 1925, it did not require G.S. to identify the issues he

sought to raise on appeal.

      In this appeal, G.S. raises two issues for our review: (1) Whether the

evidence was sufficient to establish beyond a reasonable doubt that G.S.

intended to terrorize another, in accordance with 18 Pa.C.S.A. § 2706(a)(1);

and (2) whether G.S. was inappropriately adjudicated delinquent under 18

Pa.C.S.A. § 2706(a)(3) when there is no mention of this subsection in his

juvenile petition. See Appellant’s Brief, at 5.




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      Our review of a sufficiency challenge to an adjudication of delinquency

is well-settled:

      When a juvenile is charged with an act that would constitute a
      crime if committed by an adult, the Commonwealth must establish
      the elements of the crime by proof beyond a reasonable doubt.
      When considering a challenge to the sufficiency of the evidence
      following an adjudication of delinquency, we must review the
      entire record and view the evidence in the light most favorable to
      the Commonwealth.

      In determining whether the Commonwealth presented sufficient
      evidence to meet its burden of proof, the test to be applied is
      whether, viewing the evidence in the light most favorable to the
      Commonwealth, and drawing all reasonable inferences therefrom,
      there is sufficient evidence to find every element of the crime
      charged. The Commonwealth may sustain its burden of proving
      every element of the crime beyond a reasonable doubt by wholly
      circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not be absolutely incompatible with a defendant's innocence.
      Questions of doubt are for the hearing judge, unless the evidence
      is so weak that, as a matter of law, no probability of fact can be
      drawn from the combined circumstances established by the
      Commonwealth.

In re V.C., 66 A.3d 341, 348–349 (Pa. Super. 2013) (citation omitted).

      A determination of evidentiary sufficiency is a question of law, and

therefore, our standard of review is de novo and our scope of review is

plenary. See Commonwealth v. Woodard, 129 A.3d 480, 489 (Pa. 2015).

      We must address G.S.’s second issue first, as it concerns the scope of

our review. G.S. argues that the juvenile court improperly adjudicated him

delinquent under 18 Pa.C.S.A. § 2706(a)(3). A review of the juvenile petition

filed against G.S. reveals that he was charged only with violating 18 Pa.C.S.A.

§ 2706(a)(1). Further, the record does not contain any request by the

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Commonwealth to amend the petition before, during, or after trial. Indeed,

the Commonwealth concedes on appeal that it did not charge G.S. under

subsection (a)(3) and did not amend the petition.

      The Commonwealth contends, in contrast, that: (1) the juvenile court

did not adjudicate G.S. delinquent pursuant to subsection (a)(3); and (2) the

juvenile court’s discussion of subsection (a)(3) did not influence the court’s

decision to adjudicate G.S. delinquent. After reviewing the record, we agree

with the Commonwealth that G.S. was not adjudicated delinquent under

(a)(3). See Adjudicatory/Dispositional Hearing Order, 10/15/18, Exhibit A

(identifying subsection (a)(1) as the statutory basis of the adjudication of

delinquency). However, we cannot agree that the court’s consideration of

subsection (a)(3) did not improperly influence the court’s adjudication of

delinquency. To see why, we must proceed to address G.S.’s first issue,

challenging the sufficiency of the evidence under subsection (a)(1).

      Under subsection (a)(1), “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.” Importantly,

subsection (a)(1) requires, as an element of the offense, an individual to act

“with a subjective intent to terrorize or intimidate.” Commonwealth v. Knox,

190 A.3d 1146, 1158 (Pa. 2017). G.S. contends the evidence presented by

the Commonwealth was insufficient to establish that he intended to terrorize

anyone when he posted the song lyrics to Snapchat.




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      We have stated that “[a]n express or specific threat is not necessary to

sustain a conviction for terroristic threats.” Commonwealth v. Martinez,

153 A.3d 1025, 1028 (Pa. Super. 2016) (citation omitted). Moreover, “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[.]” Id., at

1029 (citation omitted). “Nevertheless, whether the person threatened

actually believes the threat will be carried out is irrelevant, as such a factor is

not an element of the offense.” Id. (citation omitted).

      Here, the juvenile court began its discussion of the sufficiency of the

evidence by noting that “when juxtaposed with the evidence presented, it is

clear that only subsections (1) and (3) reasonably apply.” Trial Court Opinion,

1/15/19, at 5. Further, the juvenile court performed its analysis of G.S.’s

challenge to the sufficiency of the evidence “under both subsection (1) and

(3).” Id. at 7.

      This finding is not an inconsequential observation: under subsection

(a)(3), the Commonwealth need only prove a “reckless disregard of the risk

of causing such terror or inconvenience,” as opposed to the burden of proving

an intent to terrorize under (a)(1). As a result, the juvenile court’s reference

to subsection (a)(3) allowed for an adjudication of delinquency based on a

finding of recklessness. In contrast, a finding of recklessness would not

support an adjudication of delinquency under subsection (a)(1).

      As noted, the record reveals, and the Commonwealth concedes, G.S.

was not charged with or adjudicated delinquent under subsection (a)(3). Since

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G.S. was not adjudicated delinquent under subsection (a)(3), we must exclude

any of the trial court’s findings that relate to a reckless state of mind. For

example, the court’s discussion of “objective recklessness in publishing” the

lyrics in a Snapchat image, Trial Court Opinion, 1/15/19, is not relevant under

subsection (a)(1).

      Significantly, the juvenile court did make several findings regarding

intent. First, the court found that the Commonwealth did not present any

evidence to establish that the Snapchat posting was “a threat to the school or

that it was somehow intended to cause the evacuation of the school facility.”

Id. at 5. The court then pivoted to examining culpability under the

recklessness standard of subsection (a)(3) before returning to the issue of

whether the evidence was sufficient to support a finding of an intent to

terrorize. However, the only circumstance considered by the court in this part

of its analysis is the express language of the lyrics. See id. at 7-8.

      While the court was considering its verdict, the Supreme Court of

Pennsylvania published Knox. The Knox case also concerned the publication

of violent and explicit song lyrics. There, the appellant and his co-defendant

had previously been arrested for a multitude of crimes arising from a routine

traffic stop initiated by Officer Michael Kosko, who was assisted by Detective

Daniel Zeltner. See Knox, 190 A.3d at 1148-49. Among the charged crimes

was possession of a loaded stolen firearm. See id.

      While these charges were pending, the appellant and his co-defendant

wrote and recorded a song entitled “F—k the Police.” See id. at 1149. The

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lyrics of the song expressed a hatred of police officers and described the

murder of police informants and police officers. See id.

      Further, the lyrics of the song identified Kosko and Zeltner by name and

implied knowledge of when Kosko and Zeltner ended their shifts and that

murders might occur in their homes. See id. A recording of the appellant and

his co-defendant performing the song was uploaded to YouTube by a third

party, which was linked on a publicly accessible Facebook page that trial

evidence “strongly suggested” belonged to the co-defendant. Id.

      The appellant was convicted of terroristic threats under subsection

(a)(1). Our Supreme Court indicated that “an objective, reasonable-listener

standard … is no longer viable for purposes of a criminal prosecution pursuant

to a general anti-threat enactment.” Id., at 1156-57. It also concluded that

sub-section (a)(1) was a general anti-threat statute. See id., at 1157, n.9. In

so concluding, the Supreme Court established that a “totality of the

circumstances” test was the appropriate basis to ascertain intent and stated

that “in evaluating whether the speaker acted with an intent to terrorize or

intimidate, evidentiary weight should be given to contextual circumstances[.]”

Id, at 1158. Specifically, in accordance with the First Amendment, there must

be “an inquiry into the speaker’s mental state.” Id. In addition, our Supreme

Court employed factors such as “whether the threat was conditional, whether

it was communicated directly to the victim, whether the victim had reason to

believe the speaker had a propensity to engage in violence, and how the

listeners reacted to the speech.” Id., at 1159.

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      The Supreme Court concluded that the lyrics at issue in Knox were not

“meant to be understood as an artistic expression of frustration,” but were

instead “both threatening and highly personalized to the victims.” Id., at

1159. The lyrics described “in graphic terms how [the appellant] intends to

kill those [police] officers.” Id. In using a factor-based approach to conclude

that there was sufficient evidence at the trial court to establish intent, the

Supreme Court determined the most salient factor was the “calling out by

name of two officers involved in [a]ppellant’s criminal cases who were

scheduled to testify against him, and the clear expression repeated in various

ways that these officers are being selectively targeted in response to prior

interactions with [a]ppellant[.] Id., at 1160-61 (emphases added).

      Here, the only circumstance explicitly considered by the juvenile court

was “the threat of death combined with the express verbiage, ‘This me, this

is my, snap!’” Trial Court Opinion, 1/15/19, at 7. The court did not consider

whether the threat of death was conditional, whether it was communicated

directly to the victim, whether the victim had reason to believe the speaker

had a propensity to engage in violence, and how the listeners reacted to the

speech. In fact, as the court noted, the Commonwealth failed to present any

evidence regarding G.S.’s intended audience for the Snapchat post. Nor did

the Commonwealth present any testimony from the direct recipient(s) of the

Snapchat post.

      As a result, the evidence here is easily distinguishable from the evidence

found sufficient in Knox. First, G.S. was not the author of the lyrics that he

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posted, but was republishing already established song lyrics. Second, the

lyrics at issue did not mention any person or group of people by name, but

merely referred to “everyone,” thereby providing no basis for an inference

that he was selectively targeting any person or group. Third, aside from

debunked rumors, see Trial Court Opinion, 1/15/19 at 4, 9-10 (stating that

the “hit list” incident “was a fabrication by another student and that G.S. did

not engage in any act that created a suggestion or risk of harm”), 3 there is

nothing in the record to support a finding that those observing G.S.’s Snapchat

post had reason to believe he might engage in violence.4 Fourth, the

Commonwealth failed to present any evidence from a person who was a direct


____________________________________________


3 The mother who was the Commonwealth’s primary witness testified that the
fear created by G.S.’s Snapchat post was influenced by her knowledge of a
prior incident that she believed had led to the expulsion of G.S. from the
district. See N.T., 8/16/18, at 9. The principal of the school testified that the
incident the mother testified about arose from a report that G.S. had a “kill
list.” Id. at 91. However, the principal did not have any direct knowledge of
that incident; he only knew what others had told him about it. See id. at 91-
92. G.S.’s father testified that he had provided the school district with written
admissions from the students involved that they had made up the story about
G.S.’s “kill list” in order to get G.S. in trouble. See id. at 108. G.S. was not
expelled due to the allegations, and the Commonwealth never pressed
charges. See id. at 109.

4 Interestingly, G.S. moved to have his psychological evaluation made part of
the record for the court to consider in the adjudicatory phase. See N.T.,
8/16/18, at 116-117. The Commonwealth did not object. See id. at 117. This
report contains a significant amount of evidence regarding G.S. and the
circumstances surrounding the Snapchat post at issue. It also contains an
opinion on whether G.S. had the requisite intent to terrorize. While the court
properly ignored the report’s opinion regarding the ultimate fact at issue, we
note that the court also did not explicitly consider any of the report’s evidence
concerning the circumstances of the Snapchat post.

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recipient of G.S.’s Snapchat post. Finally, the Commonwealth failed to present

any evidence of the Snapchat settings utilized by G.S. when he posted the

image of the lyrics.

          The Commonwealth suggests that if G.S. would have “post[ed] the lyrics

in a fashion that made it clear that he was merely republishing a song lyric

which he liked,” Appellee’s Brief, at 15, the outcome could have been different.

The Commonwealth asserts that G.S.’s Snapchat post, by its very nature,

“plainly expressed an intent to commit crimes of violence.” Id. Further, G.S.

conveyed “the threatening message in a fashion guaranteed to be taken

seriously as a threat by those who saw it[.]” Id. The Commonwealth does not

cite to anything in the record to demonstrate intent to terrorize other than the

Snapchat post itself. The Commonwealth fails to identify evidence of record to

support its assertion that G.S.’s allegedly knew that “those who saw [the post]

were people [G.S.] associated with, including fellow high school students and

their families.” Id. However, as noted previously, the trial court found, and

our review of the record confirms, that the Commonwealth failed to present

any evidence capable of establishing G.S.’s intended audience. The

Commonwealth also failed to present any testimony from a person who was

part of G.S.’s intended audience regarding their reaction to seeing the song

lyrics.

          There was no evidence capable of establishing who G.S. intended to see

the lyrics. Nor was there evidence capable of establishing that G.S. should

have known the Snapchat image would be distributed beyond his intended

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audience. Even viewing all of the evidence in the light most favorable to the

Commonwealth, including all reasonable inferences gleaned therefrom, we

find no basis to conclude that G.S. had the requisite intent to terrorize another.

      However, nothing in this memorandum should be construed as

criticizing the investigation here. The Snapchat post, when viewed by the

parents of fellow students, school officials, and the state police, justified the

investigation. We confine our analysis solely to the question presented on

appeal: whether the evidence of record is legally sufficient to support the

adjudication for terroristic threats.

      Adjudication of delinquency reversed. Jurisdiction relinquished.

      Judge Olson joins in the memorandum.

      Judge Colins notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/19




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