J. S83008/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
MATTHEW FRANCIS SUNDO,                      :         No. 2015 WDA 2015
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, November 20, 2015,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0005101-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED DECEMBER 22, 2016

        Matthew Francis Sundo appeals from the November 20, 2015

judgment of sentence entered in the Court of Common Pleas of Allegheny

County after a jury convicted him of one count each of terroristic threats

with intent to terrorize another, simple assault, and harassment.1 The trial

court imposed an aggregate sentence of 4 to 8 months’ incarceration, with

credit for time served and immediate parole, followed by 18 months of

probation. We affirm.

        The trial court set forth the following factual history:

                   On March 18, 2015, Anthony DiGristina, while
              at work, received a phone call from his girlfriend,
              Lauren Foster, informing him that their neighbor,

* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(3), and 2709(a)(1), respectively.
J. S83008/16


          [appellant], had been continuously harassing her
          that afternoon. Mr. DiGristina and Ms. Foster live in
          Sharpsburg, a suburb of Pittsburgh, in a duplex in
          which [appellant] lives in the other unit. The units
          share a common interior wall, as well as basement
          space that is divided by a wall and a wooden door.
          The units also share a common porch that is
          approximately twelve (12) feet long.        The porch
          contains a small brick wall divider that separates the
          units and is approximately three (3) feet high.

                 Ms. Foster was at home with her fifteen (15)
          month old baby and nine (9) year old child when
          [appellant] began “bothering” her on the afternoon
          of the incident.     The bothersome and harassing
          behavior was a series of almost thirty (30) phone
          calls from [appellant] within a three (3) to four (4)
          hour timeframe. Ms. Foster attempted to ignore
          [appellant] and not respond to his calls, but then
          [appellant] began to bang loudly on her basement
          door. [Appellant] screamed at Ms. Foster to let him
          inside of her residence as he continued to pound on
          her basement door. When Ms. Foster did not open
          the basement door, [appellant] moved back upstairs
          and began banging on her dining room wall. At this
          point, Ms. Foster called [appellant] to address his
          behavior. [Appellant] told Ms. Foster to “shut the f’g
          baby up” or else he would come over and kill her and
          her daughter.       [Appellant’s] statement terrified
          Ms. Foster, prompting her to call her boyfriend,
          Mr. DiGristina, as well as her neighbor, Pete Rupert.

                 After speaking to his girlfriend, Mr. DiGristina
          left work early at approximately 3:00 p.m. that
          afternoon.     When he arrived home, he found
          Ms. Foster to be “hysterical” and crying.         After
          reviewing some of the messages that his girlfriend
          had     received    from    [appellant]    that   day,
          Mr. DiGristina called [appellant] to address the
          situation, but the call quickly degenerated into an
          argument. During the phone call, [appellant] was
          swearing at and badmouthing Mr. DiGristina before
          he asked Mr. DiGristina to come outside on the
          porch. Mr. DiGristina complied with [appellant’s]


                                   -2-
J. S83008/16


          request, exiting his home and going onto the front
          porch to speak with [appellant]. He did so because,
          at the time, he considered [appellant] to be a friend,
          and he believed that they could resolve the matter
          by having a conversation.

                Very shortly after Mr. DiGristina stepped out
          onto his porch, [appellant] emerged from his
          residence, wearing a hospital gown and what
          appeared to be a police-style tactical bulletproof
          vest.    [Appellant] was acting “belligerent” and
          “crazy,” and he was in possession of a three (3) foot
          black baton-like stick that he was wielding over his
          head as if he was preparing to throw it or hit
          someone with it. [Appellant] was screaming and
          cursing at Mr. DiGristina, and he appeared to
          Mr. Di[G]ristina to be intoxicated. Armed with the
          vest and the large baton, [appellant] continued to
          move closer to Mr. DiGristina’s location, standing
          only a foot away from him at one point.

                 After lodging a barrage of insults at
          Mr. DiGristina, [appellant] told Mr. DiGristina to go
          “F” himself and that he was going to kill him.
          [Appellant’s] threat to kill Mr. DiGristina was made
          while [appellant] was holding the baton above his
          head     and    moving     toward      Mr.  DiGristina.
          Mr. DiGristina felt scared, afraid, and intimidated
          after [appellant] threatened to kill him and as he saw
          [appellant] moving closer to him. Mr. DiGristina
          responded to [appellant’s] threat by picking up a
          wicker chair from his side of the porch and throwing
          it at [appellant]. Ms. Foster and Mr. DiGristina both
          saw the chair hit [appellant] in the chest.

                [Appellant] retreated back into his apartment
          after being struck by the chair. When he went inside
          the apartment, there was no blood on his face.
          However, when he reappeared in the doorway
          approximately one (1) minute later, he had blood on
          his face. At this time, a neighbor, Pete Rupert,
          approached the duplex, observing [appellant]
          standing in his doorway trying to “taunt”
          Mr. DiGristina into a fight. He also saw [appellant]


                                   -3-
J. S83008/16


            holding what he believed was a knife.      Officers
            arrived at the residence shortly thereafter, and
            [appellant] was taken into custody. Officer Brian
            Hoebel responded to the scene and observed that
            Ms. Foster was “highly upset,” “agitated,” and
            “crying” and that Mr. DiGristina was “very upset,”
            “angry,” and emotional about the incident.

Trial court opinion, 8/11/16 at 5-9 (citations to notes of testimony omitted).

      The record reflects that appellant filed timely post-sentence motions

that included a motion for judgment of acquittal and two motions to modify

sentence. The trial court denied appellant’s motion for judgment of acquittal

and his first motion to modify sentence. The trial court, however, granted

appellant’s second motion to modify sentence and modified appellant’s terms

of parole to permit him to live with a relative, as opposed to being required

to live in a halfway house. This timely appeal followed.

      Appellant raises the following issue for our review:

            WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF
            LAW TO CONVICT [APPELLANT] OF TERRORISTIC
            THREATS WHERE THE COMMONWEALTH’S EVIDENCE
            DEMONSTRATED ONLY THAT HE MADE MERE SPUR-
            OF-THE-MOMENT THREATS WHICH RESULTED FROM
            ANGER IN THE COURSE OF A DISPUTE, NOT THAT
            HE INTENDED TO TERRORIZE OR ACTED WITH
            RECKLESS DISREGARD FOR THE RISK OF CAUSING
            TERROR?

Appellant’s brief at 5.

            In reviewing a challenge to the sufficiency of the
            evidence, we must determine whether, viewing the
            evidence in the light most favorable to the
            Commonwealth as verdict winner, together with all
            reasonable inferences therefrom, the trier of fact
            could have found that each and every element of the


                                     -4-
J. S83008/16


            crimes charged was established beyond a reasonable
            doubt.

Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).

      Here, a jury convicted appellant of committing terroristic threats under

18 Pa.C.S.A. § 2706(a)(1), which states that a person commits that crime “if

the person communicates, either directly or indirectly, a threat to commit

any crime of violence with intent to terrorize another[.]”        The section

mandates that the Commonwealth 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. Sinnott, 976 A.2d 1184, 1188

(Pa.Super. 2009), rev’d on other grounds, 30 A.3d 1105 (Pa. 2011).

Additionally,

            [f]or 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, 454 Pa.Super. 1, 684
            A.2d 597, 600 (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., 2002 PA Super 108, 797
            A.2d 260, 262 (Pa.Super. 2002). “Rather, the harm
            sought to be prevented by the statute is the
            psychological distress that follows from an invasion
            of another’s sense of personal security.” Tizer, 684
            A.2d at 600.

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



                                     -5-
J. S83008/16


       With respect to Lauren Foster, the record reflects that on the morning

of March 18, 2015, Ms. Foster was home with her 15-month-old daughter

when appellant, who lived in the neighboring duplex, began to repeatedly

call her, bang on her basement door while telling her to “let [him] in,” and

bang on her dining room walls.      (Notes of testimony, 10/27-28/15 at 75-

76).   Ms. Foster estimated that appellant called her in excess of 30 times

and banged on her basement door and dining room walls for three to four

hours when she finally telephoned him and appellant told her to “shut the f’g

baby up before he comes over and kills [Foster] and [her] baby.” (Id. at

78, 81.) This evidence demonstrated that appellant threatened to commit

murder and that the threat was communicated with the intent to terrorize

Ms. Foster or with reckless disregard for the risk of causing her to suffer

terror because he communicated his threat to kill during the three-to-four-

hour period when he repeatedly telephoned her, banged on her basement

door while directing her to let him in, and banged on her dining room walls.

Therefore, viewing this evidence in the light most favorable to the

Commonwealth and all reasonable inferences therefrom, it was sufficient to

support the jury’s factual determination that appellant committed the crime

of terroristic threats against Ms. Foster.

       With respect to Anthony DiGristina, appellant contends that:

            [a] careful review of the facts reveals [appellant’s]
            emotions (and DiGristina’s, for that matter) were
            running high, that both men were angry, and that
            the threat was one which was uttered spur-of-the-


                                      -6-
J. S83008/16


            moment and out of anger in the course of a heated,
            seemingly hysterical, dispute among two neighbors,
            not one legitimately meant to terrorize DiGristina.

Appellant’s brief at 17. The record, however, belies appellant’s contention.

      The record reflects that appellant wielded a baton that measured

approximately 3 feet in length and 7 inches in width, while he came within

2 to 3 feet of Mr. DiGristina, and, in a “belligerent,” “crazy” manner,

threatened to kill Mr. DiGristina.     (Notes of testimony, 10/27-28/15 at

82-86, 114-115.) This evidence demonstrated that appellant did not merely

engage in a heated dispute with Mr. DiGristina.        To the contrary, the

evidence that appellant wielded a baton while he simultaneously threatened

to kill Mr. DiGristina established that appellant had the present ability to

complete his threats to kill Mr. DiGristina. Therefore, viewing this evidence

in the light most favorable to the Commonwealth and all reasonable

inferences therefrom, it was sufficient to support the jury’s factual

determination that appellant intended to terrorize Mr. DiGristina in violation

of 18 Pa.C.S.A. § 2706(a)(i). See Commonwealth v. Hudgens, 582 A.2d

1352, 1358 (Pa.Super. 1990) (holding evidence sufficient to support intent

to terrorize when defendant threatened to “stick the victim with the sword”

that defendant simultaneously held in his hand).

      Judgment of sentence affirmed.




                                     -7-
J. S83008/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016




                          -8-
