J-S35003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN MOSES

                            Appellant                 No. 1763 WDA 2015


          Appeal from the Judgment of Sentence September 15, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013123-2013


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                               FILED JUNE 9, 2017

        Kevin Moses appeals from his judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, after he was convicted of

terroristic threats1 and harassment.2 After careful review, we affirm.

        Moses was charged with one count each of stalking and terroristic

threats, and two counts of harassment.         The charges stemmed from a

telephone call placed to Moses’ ex-girlfriend, Mary Kay Colemen, where the

caller threatened to kill Coleman and her mother. Moses and Coleman had

dated for two years; their relationship ended in 2010. After their breakup,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2706(a)(1).
2
    18 Pa.C.S. § 2709(a)(4).
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Moses married and moved to Kentucky. He returned to the Pittsburgh area

in 2013.

      At trial, Coleman testified that around 8:00 p.m. on the evening of July

10, 2013, she received a telephone call from an unidentified individual who

stated that “he would come down to the FOR[, Coleman’s workplace, and]

buy a gun, [and] shoot [her] and shoot [her mother] in front of everybody

there.” N.T. Non-Jury Trial, 9/10/15, at 4-5. Coleman told the caller not to

call her again and that she would be reporting the call to the police. Id. at

6. Coleman testified that she recognized the voice of the caller as Moses’.

She also testified that the number that appeared on the caller identification

feature on her phone was Moses’ number.        Because she was scared and

“thought [Coleman] was going to come down and shoot [her and her

mother], ” Coleman lodged a complaint against Moses at the McKees Rocks

Police Department the following day. Id. at 5, 9, 11. Coleman also testified

that she received a “couple” of voicemails from Moses after the incident; she

did not speak with Moses or return his calls. Id. at 7.

      After the Commonwealth presented its case, Moses moved for a

judgment of acquittal on stalking and harassment charges, with respect to

Coleman’s mother, which the court granted. The defense called Moses and

his aunt, Mary Womack, as witnesses. Moses testified that he had been in a

romantic relationship with Coleman for approximately 2½ years and that

during a portion of that period he had lived with Coleman and her mother.

Moses stated that after he and Coleman parted ways, he married another

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woman, moved to Kentucky, and, in 2013, moved back to Pittsburgh with

his wife.        Moses’ aunt testified that during the time her nephew dated

Coleman, Coleman’s mother and friends treated Moses terribly, depriving

him of food and physically assaulting him.          Id. at 23.   She also testified,

however, that Moses and Coleman’s breakup was mutual and friendly. Id.

at 24.

         Following a one-day bench trial, held on September 10, 2015, the trial

judge found Moses guilty of terroristic threats and harassment.                  On

September 15, 2015, the court sentenced Moses to two years of probation

for the terroristic threats charge and a concurrent term of one year of

probation for harassment.3          Moses filed post-sentence motions that were

denied.        Moses filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of matters complained of on appeal.                Moses

raises the following issues for our consideration:

         (1)     Should [Moses’] convictions for the crimes of Terroristic
                 Threats [] and Harassment [] be vacated due to the
                 insufficiency of the evidence4 at his trial on the element of
                 identity?
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3
 The court also ordered that Moses “have no contact with . . . Coleman or
her mother directly, indirectly, by any modern means of communication or
anyone on his behalf.” N.T. Sentencing, 9/15/15, at 5.

4
    When examining a challenge to the sufficiency of evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at trial in
(Footnote Continued Next Page)


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      (2)     Should [Moses’] convictions for the crimes of Terroristic
              Threats and Harassment be vacated due to the
              insufficiency of the evidence at his trial on the elements of
              intent to terrorize (as must be proven in a § 2706(a)(4)
              Terroristic Threats prosecution) and intent to harass,
              annoy or alarm (as must be proven in a § 2709(a)(4)
              Harassment prosecution)?

      (3)     Should [Moses’] convictions for the crimes of Terroristic
              Threats and Harassment be vacated due to his violations of
              the statutes defining those crimes being de minim[i]s
              violations given the totality of the circumstances?

      Moses first claims that the Commonwealth failed to prove his identity

as the individual who threatened Coleman over the telephone. We disagree.

      It is well established that “[t]he recipient of a telephone call can testify

to the conversation whenever the identity of the calling party can be

established    by      sufficient   evidence,     which   may   be   circumstantial.”
                       _______________________
(Footnote Continued)

      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. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder. In addition, we note that the 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. 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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).



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Commonwealth v. DeRohn, 282 A.2d 256 (Pa. 1971).                     Here, Coleman

unequivocally testified that she recognized Moses’ voice, having been in a

long-term relationship with him for over two years. See Commonwealth

v. Carpenter, 372 A.2d 806 (Pa. 1977) (identity of calling party is generally

done by testimony as to witness’s recognition of calling party’s voice).

Moreover,     the    phone     number     that   registered   on   Coleman’s   caller

identification feature matched that of Moses. Finally, it is of no moment that

the call lasted less than 10 seconds, where the circumstantial evidence

sufficiently proved that Coleman immediately recognized Moses as the

individual who made the threatening phone call to Coleman.

       Moses next asserts that the Commonwealth did not prove the intent

element, or mens rea, of the crimes for which he was convicted.

Specifically, he claims that the evidence did not establish an intent to cause

terror or to harass, annoy or alarm. Appellant’s Brief, at 37, 53.

       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)

(emphasis added).5 Moreover, a person commits the crime of harassment


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5
  We note that under 18 Pa.C.S. § 6102, murder is one of many crimes
considered a “crime of violence.” Moreover, under section 2706, the term
“communicates” means 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) (emphasis added).



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“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. § 2709(a)(4)6 (emphasis added).

       The purpose of section 2706 “is to impose criminal liability on persons

who make threats which seriously impair personal security or public

convenience.”     Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super.

2016) (emphasis added).           The statute is not intended to penalize mere

“spur-of-the-moment threats” that result from anger. Id., citing 18 Pa.C.S.

§ 2706 cmt. Here, the caller told Coleman that he was going to come to her

place of business and kill her and her mother in front of everyone.

Threatening to kill Coleman and her mother was not the product of anger

where Coleman had not talked to Moses in almost three years and where

she had not threatened to harm him in any way. Commonwealth v. Tizer,

684 A.2d 597 (Pa. Super. 1996).                Finally, Coleman, herself, testified that

Moses’ voice sounded serious, that she took the threat seriously, and that

she was scared by the threat. Accordingly, we conclude that Moses’ words




____________________________________________


6
  Similarly, a communication under section 2709 includes the conveyance of
“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.”
Id. at § 2709(f) (emphasis added).



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could have no other intent but to terrorize Coleman and her mother by

“seriously impair[ing] their personal security.” Walls, supra.

     Moreover, based on the evidence, the trial court properly concluded

that the words uttered to Coleman, which she testified were said seriously

and which scared her, were threatening and made with intent to harass,

annoy or alarm her under section 2709.      See Commonwealth v. Miller,

689 A.2d 238 (Pa. Super. 1997) (even though defendant’s actions only

caused victim to have an “uneasy feeling” and where defendant did not

attempt to approach or physically harm victim, defendant’s intent to cause

reaction satisfied “intent to annoy, harass, or alarm” element under section

2709).

     In his final issue, Moses claims that, assuming he was the individual

who called Coleman, “his violations of the Terroristic Threats statute and of

the Harassment statute were de minim[i]s given the totality of the

circumstances.” Appellant’s Brief, at 58.

     Under the Crimes Code, a de minimis infraction is defined as:

     § 312. De minimis infractions

     (a) General rule.—The court shall dismiss a prosecution if,
     having regard to the nature of the conduct charged to constitute
     an offense and the nature of the attendant circumstances, it
     finds that the conduct of the defendant:

         (1) was within a customary license or tolerance, neither
         expressly negatived by the person whose interest was
         infringed nor inconsistent with the purpose of the law
         defining the offense;




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            (2) did not actually cause or threaten the harm or evil
            sought to be prevented by the law defining the offense or
            did so only to an extent too trivial to warrant the
            condemnation of conviction; or

            (3) presents such other extenuations that it cannot
            reasonably be regarded as envisaged by the General
            Assembly or other authority in forbidding the offense.

18 Pa.C.S.A. § 312(a)(1)-(3). In Commonwealth v. Moses, 504 A.2d 330,

332 (Pa. Super. 1986), our Court stated, “[w]e believe the legislature

enacted [section] 312 to apply to situations in which there was no harm

done to either the victim or society. Therefore, it is incumbent upon the trial

court not to dismiss criminal conduct that is injurious to the victim or to

society.”

      Here, Coleman testified that she took Moses’ verbal threat to kill her

and her mother seriously, was scared by his words, and went to the police

station and reported the incident to the authorities the day after it occurred.

Accordingly, we do not find that Moses’ conduct constituted a mere de

minimis infraction where his words were injurious to Coleman.             Id.;

Commonwealth v. Hartzell, 988 A.2d 141, 144 (Pa. Super. 2009) (where

defendant’s harassing actions could have possibly injured victim, infractions

could not be considered de minimis.)

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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