J-A07032-16


                                   2016 PA Super 92

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

RASHEE BEASLEY

                             Appellant                   No. 1149 WDA 2014


           Appeal from the Judgment of Sentence February 6, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0001275-2013
                                         CP-02-CR-0003835-2013


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

OPINION BY JENKINS, J.:                                   FILED APRIL 28, 2016

       Appellant Rashee Beasley appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his bench

trial convictions for intimidation of witnesses, terroristic threats, conspiracy

and hindering apprehension.1 We affirm.

       The underlying facts and procedural history of this appeal are as

follows. On April 17, 2012, Officer Michael Kosko and Officer David Derbish

approached a Jeep Cherokee that had just parked without using a turn

signal.   N.T., 11/12/2013, at 20-23. Officer Kosko asked the driver a few

questions through the window of his car.            Id. at 23. After the officers
____________________________________________


1
   18 Pa.C.S.       §§      4952(a)(1),   2706(a)(1),   903(c),   and   5105(a)(1),
respectively.
J-A07032-16


ascertained that the driver, Jamal Knox, did not have a valid license, Knox

drove the Cherokee away from the scene quickly, with Appellant as his

passenger. Id. at 23-25. After crashing a few times, the vehicle became

disabled, and Knox and Appellant exited the Jeep through their respective

windows and fled from the police on foot. Id. at 26-28. Police recovered 30

stamp bags of heroin and $1,489.00 from Knox and two cell phones and

$323.00 from Appellant Id. at 28, 37. Additionally, Officer Gromek searched

the vehicle and found a firearm.    Id. at 30.   Officer Daniel Zeltner also

responded to the scene and advised the other officers that Knox, who had

identified himself as “Dante Jones,” was actually Jamal Knox. Id. at 66. He

knew this because of previous dealings with Knox. Id. Officer Zeltner had

also encountered Appellant on September 26, 2011, when Appellant fled

after Officer Zeltner pulled him over. Appellant was charged with fleeing or

attempting to elude law enforcement. Id. at 143-144. Neither the April 17,

2012 nor the September 26, 2011 incidents are the subject of this appeal,

but criminal cases relating to these incidents were pending when police

discovered the YouTube video that gave rise to most of Appellant’s present

convictions.

      On November 15, 2012, Officer Aaron Spangler viewed the Facebook

page of Beaz Mooga, whom Officer Spangler believed was Appellant. Id. at

178-79. From the Facebook page, Officer Spangler accessed several links to

YouTube pages that showed rap music videos made by Knox and Appellant,


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J-A07032-16


one of which was entitled “Fuck the Police.” Id. at 187. The video showed

pictures of Appellant and Knox, and the song referenced Officer Zeltner, the

officer involved in the September 26, 2011 incident, and Officer Kosko, one

of the officers involved in the April 17, 2012 incident. Id. at 192. The video

made references to killing police officers. Id. at 193. The song provides, in

relevant part:

         “Fuck the Police”
         This first verse is for Officer Zeltner and all you FED
         force bitches and Mr. Kosko can suck my dick for
         knocking my riches.
         Want beef, well cracker I’m wit it, that whole department
         can get it.
         All these soldiers in my committee gonna fuck over you
         bitches, fuck the police bitch, I said it loud
         The fuckin city can’t stop me
         Ya’ll gonna need Jesus ta bring me down
         And he ain’t fuckin wit you dirty devils,
         We makin prank phone calls and as soon as you bitches
         come we bustin heavy metal (sound of gunfire)
         So now (Kosko?) gonna chase me through these streets
         and I’m a jam this rusty knife all in his guts and chop his
         feet.
         You takin money away from Beaz, and all that shit away
         from me, well your shift over at three and I’m a fuck
         up where you sleep.
         (Unintelligible) has got you watchin my moves and talkin
         bout me to your partner,
         I’m watchin you to and I see better when it’s darker.
         Highland Park gonna be Jurassic Park, keep on fuckin wit
         me.
         Hey Beaz go grab (Dre?) and (Squeeze?) and them two
         two threes, It’s Mayhem.
         …
         The cops be on my dick like a rubber when I’m fuckin, so
         them bitches better run and duck for cover when I’m
         buckin.
         Thetto superstar committee bitch we ain’t scared of
         nothing.

                                    -3-
J-A07032-16


          I keep a forty on waist, I’m gonna wet you like a mop
          nigga, clip filled to the tippy top wit som cop killas.
          Fuck the police, don’t bring us no peace
          That’s why I keep my heat when I’m roamin the
          streets, cause if you jump out it’s gonna be a dump out.
          I got my glock and best believe dog gonna bring the pump
          out, and I’m hittin your chest. Don’t tell me stop cause
          I’m resisting arrest.
          I ain’t really a rapper, but I spit wit the best.
          I ain’t carry no 38 dog, I spit wit a tec
          Tha’t like 50 shots nigga, that’s enough to hit one cop on
          50 blocks nigga
          I said fuck the cops nigga.
          They got me sittin in a cell, watchin my life just pass me,
          but I ain’t wit that shit like Poploski,[2] I’m strap nasty.
          …
          They killed Rhine, and ever since then I’ve been mugging
          you bitches.
          My Northview niggas they don’t fuck wit you bitches, I
          hate your fuckin guts, I hate you.
          My momma told me not to put this on C.D., but I’m
          gonna make this fuckin city believe me, so nigga turn
          me up.
          If Dre was here they wouldn’t fuck wit dis here.
          Loccs in the army, when he comes back it’s real nigga, you
          bootin up.
          Fuck the police, I said it Loud, we’ll repeat that.
          Fuck the Police, I’m blowin loud wit my seat back.
          They cool and that, well Mr. Fed, if you can hear me bitch,
          go tell your daddy that we’re booming bricks.
          And them informants that you got, fit to be layin in the
          posse and I know exactly who workin, and I’m gonna
          kill him wit a glock.
          Quote that!
          Cause when you find that pussy lyin in the street, look at
          the shells and put my shit on repeat, and that’s on.
          Jesus’ blood.
____________________________________________


2
  “Poploski” is the spelling in the affidavit of probable cause. In 2009,
Richard Poplawski opened fire on Pittsburgh police officers, ultimately killing
three and injuring other officers. See Commonwealth v. Poplawski, 130
A.3d 697, 708 (Pa.2015).



                                           -4-
J-A07032-16


           Let’s kill these cops, cause they don’t do us no good, pullin
           your glock out cause I live in the hood.
           You dirty Bitches, Bitch.

Affidavit of Probable Cause3 (emphasis added). Officer Spangler sent the

video to Officers Zeltner and Kosko, and Appellant was charged at CP-02-

CR-0003835-2013 with two counts each of intimidation of a witness or

victim, retaliation against a witness, victim or party, and terroristic threats,

and one count of criminal conspiracy.

        On January 8, 2013, Detective Michael Wilkes went to Tara Beasley’s4

home to serve an arrest warrant on Knox.         Paul Webb answered the door

and told the officer that only he and his sons were at the residence, but then

let the officer in after a voice called from upstairs not to let the police into

the house. Detective Wilkes saw several males upstairs and, believing him

to be Knox and calling him Knox, arrested Appellant.          Appellant did not

protest or tell the detective that he was not Knox. He later identified himself

at the police station when officers asked for his name.        Detective Wilkes

returned to the home and found Knox hiding in the ceiling behind tiles that

he had noticed were loose when he arrested Appellant.             At CP-02-CR-



____________________________________________


3
  During trial, the officers testified about some of the lyrics, and the YouTube
video was introduced into evidence.
4
    Tara Beasley is Appellant’s mother.




                                           -5-
J-A07032-16


0001275-2013, Appellant was charged with two counts of hindering

apprehension or prosecution.5

       On November 21, 2013, the court found appellant guilty of two counts

each of intimidation of witnesses and terroristic threats, and one count each

of criminal conspiracy and hindering apprehension.      The court acquitted

Appellant of retaliation against a witness.

       On February 6, 2014, the court sentenced Appellant to 12-36 months’

incarceration, plus 2 years’ probation for intimidation of witnesses.    The

court imposed concurrent 2-year terms of probation on the second

intimidation of witnesses count, and each of his 2 terroristic threat counts,

and a concurrent term of 6-12 months’ incarceration for hindering

apprehension.       The court imposed no further penalties on his other

convictions.

       On February 14, 2014, Appellant filed a motion to reconsider sentence,

which the court denied by operation of law on June 19, 2014. On July 18,

2014, Appellant timely filed a notice of appeal. On September 3, 2014, the

court ordered Appellant to file a 1925(b) statement by November 2, 2014.

On November 7, 2014, Appellant filed a Rule 1925(b) statement along with a

motion for nunc pro tunc extension to file a 1925(b) statement.           On


____________________________________________


5
 On June 26, 2013, the Commonwealth filed a motion for joinder for CP-02-
CR-0001275-2013 and 02-CR-0003835-2013, which the court granted.



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J-A07032-16


December 4, 2014, the court granted Appellant’s motion and deemed

Appellant’s Rule 1925(b) statement timely filed.

     Appellant raises the following issues for our review:

        1. WERE [APPELLANT’S] DUE PROCESS RIGHTS UNDER
        THE FOURTEENTH AMENDMENT TO THE UNITED STATES
        CONSTITUTION    AND    ARTICLE  I §    9  OF   THE
        PENNSYLVANIA CONSTITUTION VIOLATED WHEN HE WAS
        CONVICTED OF TWO COUNTS OF 18 PA.C.S. § 2706
        TERRORISTIC THREATS, TWO COUNTS OF 18 PA.C.S. §
        4952 ATTEMPTED INTIMIDATION OF A WITNESS, ONE
        COUNT OF 18 PA.C.S. § 903 CRIMINAL CONSPIRACY, AND
        ONE COUNT OF 18 PA.C.S. § 5105 HINDERING
        APPREHENSION OR PROSECUTION BASED ON LEGALLY
        INSUFFICIENT EVIDENCE?

        2. WITH RESPECT TO [APPELLANT’S] TWO TERRORISTIC
        THREATS CONVICTIONS, WAS THE EVIDENCE TO
        CONVICT HIM OF THOSE CHARGES INSUFFICIENT AS A
        MATTER OF LAW, WITH THE COMMONWEALTH HAVING
        FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT
        EITHER APPELLANT OR A PERSON FOR WHOSE CONDUCT
        HE WAS LEGALLY RESPONSIBLE HAD COMMUNICATED,
        EITHER DIRECTLY OR INDIRECTLY, A THREAT — IN THIS
        CASE, A PERCEIVED THREAT AGAINST THE TWO
        OFFICERS CONTAINED IN THE RAP VIDEO “F— THE
        POLICE” — TO EITHER OFFICER MICHAEL KOSKO OR
        DETECTIVE DANIEL ZELTNER?

        3. WITH RESPECT TO [APPELLANT’S] TWO ATTEMPTED
        INTIMIDATION OF WITNESS CONVICTIONS, WAS THE
        EVIDENCE TO CONVICT HIM OF THOSE CHARGES
        INSUFFICIENT AS A MATTER OF LAW, WITH THE
        COMMONWEALTH HAVING FAILED TO PROVE, BEYOND
        REASONABLE    DOUBT,   THAT  THE   OBJECTIVE   OF
        APPELLANT AND/OR A PERSON FOR WHOSE CONDUCT HE
        WAS LEGALLY RESPONSIBLE WAS, IN CREATING THE “F—
        THE POLICE” RAP VIDEO AND HAVING IT UPLOADED
        ONTO THE INTERNET WEBSITE YOUTUBE, TO INDUCE
        EITHER OFFICER MICHAEL KOSKO OR DETECTIVE DANIEL
        ZELTNER TO EITHER REFRAIN FROM TESTIFYING AGAINST
        APPELLANT AND/OR HIS CO-DEFENDANT, JAMAL KNOX,

                                    -7-
J-A07032-16


         REGARDING THE EVENTS RESULTING IN THE ARREST OF
         THE TWO MEN ON APRIL 17, 2012, OR ELSE TO PROVIDE
         FALSE OR MISLEADING TESTIMONY REGARDING THOSE
         EVENTS, OR ELSE TO FAIL TO APPEAR IN COURT TO
         TESTIFY REGARDING THOSE EVENTS, WITH HIS OR THEIR
         ULTIMATE GOAL BEING TO OBSTRUCT, IMPEDE, IMPAIR,
         PREVENT, OR OTHERWISE INTERFERE WITH THE
         ADMINISTRATION OF CRIMINAL JUSTICE?

         4.  WITH    RESPECT  TO   [APPELLANT’S]  CRIMINAL
         CONSPIRACY CONVICTION, WAS THE EVIDENCE TO
         CONVICT HIM ON THAT CHARGE INSUFFICIENT AS A
         MATTER OF LAW, WITH THE COMMONWEALTH HAVING
         FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT
         APPELLANT HAD ENTERED INTO AN AGREEMENT WITH
         JAMAL KNOX SEEKING TO COMMUNICATE A THREAT TO
         EITHER OFFICER KOSKO OR DETECTIVE ZELTNER, WITH
         THE ULTIMATE GOAL OF THAT COMMUNICATION BEING
         TO INDUCE THE OFFICERS TO REFRAIN FROM TESTIFYING
         AGAINST THEM IN THEIR PENDING CRIMINAL CASE OR
         OTHERWISE SLANT THEIR TESTIMONY IN A MANNER THAT
         WOULD FAVOR THE DEFENSE IN THAT CASE?

         5. FINALLY, WITH RESPECT TO [APPELLANT’S] HINDERING
         APPREHENSION OR PROSECUTION CONVICTION, WAS THE
         EVIDENCE TO CONVICT HIM OF THAT CHARGE
         INSUFFICIENT AS A MATTER OF LAW, WITH THE
         COMMONWEALTH HAVING FAILED TO PROVE, BEYOND A
         REASONABLE DOUBT, THAT APPELLANT WAS AWARE OF
         THE FACT THAT JAMAL KNOX WAS HIDING INSIDE HIS
         MOTHER’S HOUSE AND THAT HE (I.E., APPELLANT)
         AFFIRMATIVELY ACTED TO CONCEAL KNOX WITHIN THAT
         RESIDENCE?

Appellant’s Brief at 3-6.

      Appellant’s issues challenge the sufficiency of the evidence for his

convictions.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:


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J-A07032-16


          The standard we apply in reviewing the sufficiency of the
          evidence is 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. 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), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

       In his second issue,6 Appellant claims the Commonwealth failed to

present sufficient evidence that he communicated the video to the officers.

He argues that neither he nor Knox tried to communicate the video and that

their posting of the video on YouTube and linking it to a Facebook page does

not constitute the requisite communication because it is not direct
____________________________________________


6
  Appellant’s first issue challenges the sufficiency of the evidence for all of
his convictions. Our discussion of Appellant’s second through fifth issues will
resolve his first issue.



                                           -9-
J-A07032-16


communication.    He claims that the video was not posted with intent or

reckless disregard to terrorize the police officers.   He argues that because

communication is an element of terroristic threats, the evidence is

insufficient to support his conviction. We disagree.

      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.

      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.

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J-A07032-16


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

      Here, Appellant does not claim that he did not sing the words of his

rap song, which unquestionably threaten violence. Further, he does not aver

that the officers never saw the threatening video. He argues, rather, that he

did not intentionally or recklessly communicate the threat to the officers.

         Here, the terroristic threats statute is clear and
         unambiguous that a communication must be conveyed.
         See 18 Pa.C.S.[] § 2706(a)(1); see also 1 Pa.C.S.[] §
         1928(b)(1). The official comment to Section 2706 states,
         “[t]he purpose of the section is to impose criminal liability
         on persons who make threats which seriously impair
         personal security or public convenience.” 18 Pa.C.S.[] §
         2706, official comment–1972; see also 1 Pa.C.S.[] §
         1921(a); Commonwealth v. Hardwick, 445 A.2d 796,
         797 ([Pa.Super.]1982) (same).

         Therefore, while the statute does not expressly address
         whether to construe a threat as being made at the time it
         is uttered or at the time it is received, we observe that a
         person’s “personal security” cannot be “seriously
         impair[ed]” by a threat unless he hears it. Id. Accordingly,
         based on the statute’s plain meaning, our strict
         construction of it, and the legislature’s stated purpose in
         enacting it, we conclude that the term, “communicates,” as
         used in the terroristic threats statute, contemplates that
         the threat be received.

Commonwealth v. Vergilio, 103 A.3d 831, 833-34 (Pa.Super.2014)

appeal denied, 114 A.3d 416 (Pa.2015).

      Terroristic threats do not have to be communicated directly.            See

Commonwealth v. Kelley, 664 A.2d 123, 127 (Pa.Super.1995) (holding a

threat was communicated when the appellant gave a secretary a message to

threaten violence to certain intended recipients). Further, a defendant does


                                    - 11 -
J-A07032-16


not need to intend to carry out the consequence of the threat to

communicate a threat.     See Commonwealth v. Cancilla, 649 A.2d 991,

994 (Pa.Super.1994) (holding a threat was communicated by a phone call

that stated a bomb was in a building, although there was no bomb).

      The Supreme Court of the United States addressed the subject of

Facebook posts as terroristic threats in Elonis v. United States, 135 S. Ct.

2001, 2011, 192 L. Ed. 2d 1 (2015).       In that case, the defendant posted

threatening comments on Facebook in response to people having viewed his

posts. The jury convicted the defendant of terroristic threats after the trial

court instructed that the Government needed to prove that a reasonable

person would regard the defendant’s communications as threats.               The

Supreme Court found this jury instruction was error because it failed to

consider the defendant’s mental state. The Supreme Court held that “[t]he

mental state requirement must therefore apply to the fact that the

communication contains a threat.” Id. at 2012. In reaching this holding, the

Court considered how the “presumption in favor of a scienter requirement

should apply to each of the statutory elements that criminalize otherwise

innocent conduct.” Id.

      Here, Appellant had a link on his Facebook page to a YouTube video

titled “Fuck the Police.” Although his Facebook page did not list his full, legal

name, he used the name “Beaz Mooga” which does not completely disguise

his last name, Beasley. The rap video specifically threatened to kill Officers


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J-A07032-16


Zeltner and Kosko “wit a glock.” We need not ponder whether deciding to

broadcast songs or linking YouTube videos to one’s Facebook page generally

indicates intent to communicate, because Appellant stated his intent by

saying in his rap song: “My momma told me not to put this on C.D., but I’m

gonna make this fuckin city believe me, so nigga turn me up.”            Appellant

chose not to listen to his mother because he wanted Officers Zeltner and

Kosko to hear his message, and they did. He successfully and intentionally

communicated his threat. Thus, Appellant’s challenge to the sufficiency of

the evidence for his terroristic threats convictions merits no relief.

      Next, Appellant argues there was insufficient evidence to convict him

of intimidation of a witness or attempt thereof, because the Commonwealth

did not present evidence that he posted the video on YouTube with the

intent of getting the police to do any of the enumerated objectives in the

intimidation statute.

      Appellant was convicted under the following statute:

         § 4952. Intimidation of witnesses or victims

         (a) Offense defined.--A person commits an offense if,
         with the intent to or with the knowledge that his conduct
         will obstruct, impede, impair, prevent or interfere with the
         administration of criminal justice, he intimidates or
         attempts to intimidate any witness or victim to:

            (1) Refrain from informing or reporting to any law
            enforcement officer, prosecuting official or judge
            concerning any information, document or thing relating
            to the commission of a crime.




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J-A07032-16


           (2) Give any false or misleading information or
           testimony relating to the commission of any crime to
           any law enforcement officer, prosecuting official or
           judge.

           (3) Withhold any testimony, information, document or
           thing relating to the commission of a crime from any
           law enforcement officer, prosecuting official or judge.

           (4) Give any false or misleading information or
           testimony or refrain from giving any testimony,
           information, document or thing, relating to the
           commission of a crime, to an attorney representing a
           criminal defendant.

           (5) Elude, evade or ignore any request to appear or
           legal process summoning him to appear to testify or
           supply evidence.

           (6) Absent himself from any proceeding or investigation
           to which he has been legally summoned.

     18 Pa.C.S. § 4952.

     Further, we observe:

        [A]ctual intimidation of a witness is not an essential
        element of the crime. The crime is committed if one, with
        the necessary mens rea, “attempts” to intimidate a witness
        or victim. …The trier of the facts, therefore, could find that
        appellant attempted to intimidate his accuser and that he
        did so intending or, at least, having knowledge that his
        conduct was likely to, impede, impair or interfere with the
        administration of criminal justice…. The Commonwealth is
        not required to prove mens rea by direct evidence.
        Frequently such evidence is not available. In such cases,
        the Commonwealth may rely on circumstantial evidence.

Commonwealth v. Collington, 615 A.2d 769, 770 (Pa.Super.1992).

     Here, Appellant posted a rap song on YouTube that specifically

threatened to kill Officers Zeltner and Kosko while Appellant had criminal


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J-A07032-16


charges pending against him in which these officers were going to testify.7

This was sufficient evidence from which the court could infer that Appellant

posted the video in an attempt to interfere with the administration of the

justice system by convincing the police to withhold testimony, and from

which the court found the elements of intimidation of a witness beyond a

reasonable doubt.

        Next, Appellant argues that he and Knox never conspired to commit

any crime, and thus they could not be guilty of criminal conspiracy.      He

admits that they made the video together but contends it was not a crime to

do so. Again, we disagree.

        The crime of criminal conspiracy is defined by statute:

           § 903. Criminal conspiracy

           (a) Definition of conspiracy.--A person is guilty of
           conspiracy with another person or persons to commit a
           crime if with the intent of promoting or facilitating its
           commission he:

               (1) agrees with such other person or persons that they
               or one or more of them will engage in conduct which
               constitutes such crime or an attempt or solicitation to
               commit such crime; or

               (2) agrees to aid such other person or persons in the
               planning or commission of such crime or of an attempt
               or solicitation to commit such crime.

           *     *     *

____________________________________________


7
    As previously discussed, Appellant intended to communicate his message.



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J-A07032-16


         (e) Overt act.--No person may be convicted of conspiracy
         to commit a crime unless an overt act in pursuance of such
         conspiracy is alleged and proved to have been done by him
         or by a person with whom he conspired.

18 Pa.C.S. § 903.

      Appellant and Knox made a YouTube video together in which they

threatened to kill Officers Zeltner and Kosko, a communication which

supported   Appellant’s   terroristic    threats   and   intimidation   of   witness

convictions. Thus, his creation of the video was an overt act, and he and

Knox were part of a criminal conspiracy to commit terroristic threats and

intimidation of witnesses.

      In his final issue, Appellant argues that he did not affirmatively hinder

the apprehension of Knox, and that his decision to refrain from stating his

name or telling police that he was not Knox was permissible. He claims that,

in the criminal information, the Commonwealth asserted that he had

“concealed” Knox in his home, but it did not assert that he harbored him.

Further, he contends the Commonwealth failed to produce evidence that

Appellant knew Knox was hiding in the ceiling of his mother’s home, a few

feet above where police accidentally arrested Appellant because they

believed he was Knox. Appellant’s final issue merits no relief.

      The relevant statute regarding hindering apprehension or prosecution

provides:

         § 5105. Hindering apprehension or prosecution




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J-A07032-16


         (a) Offense defined.--A person commits an offense if,
         with intent to hinder the apprehension, prosecution,
         conviction or punishment of another for crime or violation
         of the terms of probation, parole, intermediate punishment
         or Accelerated Rehabilitative Disposition, he:

            (1) harbors or conceals the other;

            (2) provides or aids in providing a weapon,
            transportation, disguise or other means of avoiding
            apprehension or effecting escape;

            (3) conceals or destroys evidence of the crime, or
            tampers with a witness, informant, document or other
            source of information, regardless of its admissibility in
            evidence;

            (4) warns the other of impending discovery or
            apprehension, except that this paragraph does not
            apply to a warning given in connection with an effort to
            bring another into compliance with law; or

            (5) provides false information to a law enforcement
            officer.

18 Pa.C.S. § 5105.

      In Commonwealth v. Haynes, 116 A.3d 640, 657 (Pa.Super.2015),

appeal denied, 125 A.3d 1199 (Pa.2015), this Court held that evidence of a

defendant giving shelter to a fugitive for one night was sufficient to sustain

the jury’s finding of hindering apprehension.

      Here, the Commonwealth presented evidence that Appellant was

upstairs in a room in his mother’s home when the police came to the door

looking for Knox.    Someone in that room called down and asked the man

who had opened the door not to let the police inside the house, but the

police came inside anyway. When the officer entered the room, he saw scuff

                                    - 17 -
J-A07032-16


marks on the wall, leading up toward the ceiling, where a ceiling tile was out

of place. He arrested Appellant, calling him “Knox,” and Appellant did not

correct him or tell the officer that Knox was in the ceiling.         The court

reasonably inferred that Appellant was aware Knox was hiding in the ceiling

from the evidence that both Knox and Appellant were in Appellant’s mother’s

home, Appellant was aware police were searching for Knox, and there were

scuffmarks on the walls leading up toward a displaced ceiling tile.

      Although Appellant did not affirmatively lie to police and stated his

true name when questioned, like the appellant in Haynes, Appellant

concealed Knox’s whereabouts so that he would not be arrested, and

harbored Knox. Although Appellant contends that he was not charged with

“harboring” Knox, the statute specifically states that one is guilty of

hindering apprehension if one conceals or harbors another. Here, there was

sufficient evidence for the court to conclude that Appellant concealed Knox.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




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