J.A22033/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
                                            :
SEAN DONAHUE,                               :
                                            :
                          Appellee          :     No. 2184 MDA 2013


                Appeal from the Order Entered October 28, 2013
                In the Court of Common Pleas of Luzerne County
               Criminal Division No(s).: CP-40-CR-0003501-2012

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 19, 2015

        The Commonwealth appeals from the order of the Luzerne County

Court of Common Pleas granting Appellee Sean Donahue’s pretrial petition

for writ of habeas corpus and dismissing the charges of terroristic threats

and harassment.1 The Commonwealth claims the trial court erred in holding

a prima facie case on both charges was lacking. We affirm the dismissal of

the harassment charge, reverse the dismissal of the terroristic threats

charge, and remand this matter to the trial court.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2706(a)(1), 2709(a)(3).
J. A22033/14


     The allegations pertinent to this appeal were set forth in the affidavit

of probable cause, which we reproduce in full.

           On 17 August 2012, [Appellee] composed and sent an
        e-mail to Luzerne County District Attorney Stefanie
        Salavantis. On 21 August 2012 I, Detective Lieutenant
        Kenneth Zipovsky received a request from Chief Frank V.
        DeAndrea Jr. to investigate the threats that were made by
        [Appellee] in this e-mail. I was also advised by Chief
        DeAndrea that D.A. Salavantis was concerned and alarmed
        about the threats that were directed toward her in this e-
        mail.

            In this written communication, [Appellee] threatens
        that he will essentially engage in a gun fight with police
        officers, if the District Attorney does not do as he desires.
        Also in the e-mail, [Appellee] makes the not-so-veiled
        threat that people will be killed if he does not get the
        actions that he demands. The text of this e-mail is
        attached below and is incorporated in this affidavit.

           [Appellee] has also continued to send additional e-mails
        to   District    Attorney  Salavantis   since    the   first
        communication on 17 August 2012. These additional
        communications also contain threats of violence toward
        government employees and police officers. These words
        and treats have caused terror, and harassed and annoyed
        Salavantis.    Based on the above facts, I respectfully
        request that [Appellee] be charged with the violations [of
        terroristic threats and harassment] listed in the Criminal
        Complaint.

          ATTACHED E-MAIL FROM [Appellee] ON 18 AUGUST
        2012[2] FOLLOWS—

2
   The reference to August 18th in the affiant’s preface to Appellee’s email
appears to be a typographical error as Appellee’s copy of the email indicated
it was sent on Friday, August 17, 2012. Ex. D-3, Appellee’s Pet. for Habeas
Corpus, 5/30/13. That exhibit also indicated the email was distributed to
twenty-one people, including federal, state, and local officials, as well as
members of the press, with the subject line “Harassment and Conspiracy
Complaints against Corporal Wetzel and others.” Id.



                                    -2-
J. A22033/14



              Dear Luzerne County District Attorney Stephanie
          Salevantis,□□[3]The firing squad used by police in
          South Africa against mine workers demanding higher
          pay that reported yesterday by CNN, is exactly the
          kind of threat that was made against me by Corporal
          Wetzel if I attempt to use the Hazleton Career Link.
          He made it very clear to me that he will use police
          power to prevent me from going to that facility.□□I
          am getting tired of you ignoring me and am no
          longer asking you to stop ignoring me. I am now
          telling you. The idea that law enforcement thinks
          that it can use force to take away my rights is
          unacceptable to me. If you do not respond by telling
          me that you will investigate the matter, I will
          prepare myself to face off against a police firing line
          that will be the result of any attempt by me to use
          an unemployment office. I will not allow you to let a
          corporal get away with threatening me with police
          power. If charges are not brought against Corporal
          Wetzel, Elaine Stalfa, their security guard, Alan
          Smith, Lucy Ann Veirling and the employees in
          Harrisburg responsible for illegally denying me
          access to my rights, I WILL Re-SECURE MY RIGHTS
          in my capacity as a citizen soldier at large. Because
          you have allowed a law enforcement officer to
          wrongfully threaten me with the wrongful use of
          force and false arrest, despite my not having
          committed a crime, I must anticipate that the
          corporal and the Hazleton Career Link Staff will
          follow through on their threat to use force to prevent
          me from accessing an unemployment office and to
          prevent me from making them do their jobs. I will
          prepare myself to defend myself against these
          threats and police reinforcements.□□As it stands
          now, the only people trying to avoid going into a
          courtroom over this matter are the Hazleton Police
          Department, the Hazleton Career Link Workers, the
          PA Department of Labor and Industry, the US DOL,
          the L/S WIB and you, the DA. The very person who

3
  The “□” symbol existed throughout the affidavit of probable cause and
apparently correlated with a new line in the original email.



                                   -3-
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          is supposed to intervene and see to it that societies
          troubles are brought before a jury and judge. Now,
          your allowing an officer and Career Link workers to
          use threats of wrongful use of force as a means of
          taking my rights away triggers the use of the US
          Second Amendment and Section 13 of the PA
          Constitution.     I consider you to be an illegal
          oppressive force that has repeatedly threatened the
          use of both false arrest and physical police force to
          prevent me from using the Hazleton Career Link and
          to prevent me from making the Career Link Workers,
          the Workforce Investment Board Workers and the PA
          L&I workers do their jobs. I have exhausted all
          possible peaceful means to resolve this problem and
          my every attempt has been repeatedly ignored.
          □□When asked by Judge Zola on February 2, 2011, is
          anyone preventing me form using the Career Link,
          Elaine Stalfa and Herbert Alan Smith testified, under
          oath; “No”. Judge Zola said that because I did not
          attempt to physically go there, I cannot claim that I
          am being physically kept out of the facility and he
          further claimed that I misinterpreted the situation.
          However, I did not misinterpret the situation, Elaine
          Stalfa and Herbert Alan Smith lied under oath. In so
          doing, they perjured themselves. The entire hearing
          took place in front of three Hazleton Police Officers
          who heard the entire thing. After the hearing was
          over, I was told by Career Link workers that I had
          pissed people off and that they were told by their
          boss, Stalfa and Vierling, that they would be fired if
          they assisted me in any way in gaining employment.
          A separate workforce counselor in Philadelphia was
          told the same thing. Anyone caught assisting me
          will be fired.□□I was told by Career Link workers that
          they were backed by the FEDS. I then applied to the
          Federal DOL to test this theory and was offered a job
          in Washington that I cannot afford to take. I have
          been told by a trooper that specific people in
          government have it in for me and that is all there is
          to it.      I can do nothing other than leave
          Pennsylvania.     I have been told by Career Link
          Workers several times that I am to be barred from
          employment in our county and that I must leave and
          start a new life elsewhere.□□I fought to get


                                  -4-
J. A22033/14


          something in writing but the Erica Koub, of Corbett’s
          office, refused to provide any documentation and
          just insisted that an executive Pennsylvania Decision
          had been made to deny me access to services.
          Yudichack’s office[4] secured a letter from PA L&I GC
          who stated the denial of access to federally funded
          Career Link services is in retaliation for having filed
          charges against Elaine Stalfa and for contacting the
          Secretary of L&I, which she feels is not my place to
          do.□□This is ILLEGAL. This is Harassment. This is
          Official Oppression. This complaint is falling on deaf
          ears. Therefore, I will ring the bell that is heard
          around the world and your summary denial of my
          rights will be physically challenged. I will not stand
          there and die at the hands of a corporal or any other
          officers in a firing line intended to keep me from
          using my rights.□□“Give me Liberty or Give me
          Death” but not necessarily my own!□□You have until
          COB Monday Morning to assure me that I will be
          given access to services, that the Career Link will do
          its job, that charges will be filed against Corporal
          Wetzel, Elaine Stalfa, Alan Smith, the Career Link
          Security guard and both Frank DeAndrea and Rpbert
          Ferdinand.       You have denied me access to
          democracy.      You have denied me access to the
          services available through the executive branch of
          government, the legislature has denied me access to
          relief through the legislative branch of government
          and the judicial branch of government has denied me
          access to relief through its channels.        You are
          conspiring to create a circumstance that enables you
          to get me on something. The Magistrate says that I
          must actually physically go to the Career Link and
          the corporal and Career Link staff say that I will be
          arrested for something if I attempt to do so. You
          then ignore my every email complaint to resolve the
          matter peacefully and you do so just so that you can
          put me into a position that forces me to be the
          physical aggressor and approach a police station or a
          government office. That is why you won’t act on an

4
  Appellee presumably referred to current State Senator, former State
Representative John Yudichak.



                                   -5-
J. A22033/14


          e-mail.    You are trying to set me up and the
          magistrate is assisting.       It is a coordinated
          conspiracy and Judge Zola is part of it. You are
          trying to trap me just like you try to trap drug
          dealers and other criminals. In doing so, you are
          harassing me.□□PA L&I, Corporal Wetzel, Elaine
          Stalfa and Vierling have taken upon themselves to
          label me an enemy of the state of PA and repeatedly
          conducted their business as if they are backed by the
          FEDS. Things have been repeatedly altered and
          moved around in my home, as if someone had
          entered.     Yet, noting was stole, That is intel
          collection, not burglary.□□Absolutely no one from
          any level of law enforcement may contact me
          without a warrant from a judge to do so. There was
          an article in the paper about an overstuffed arms
          locker under the control of the Luzerne County
          Sheriff. I want the sheriff to tell me how I can take
          ownership of a weapon and protective gear from the
          county arms locker. I want the FBI to provide me
          with a vest, kevlar plates and kevlar helmet. I want
          the FBI or some other federal law enforcement
          agency to order the Hazleton Police Department and
          all other local law enforcement to not approach me
          without first coordinating with federal officers and I
          want all federal officers to be ordered to inform me
          anytime local law enforcement intends to act.□□Law
          Enforcement may only contact me through my
          attorney and I will only have an attorney when Judge
          Zola orders that one be appointed to represent me in
          this string of matters. The FBI may ship the Kevlar
          items and accompanying webbing and vest via UPS.
          It may not include electronic surveillance devices, I
          forbid it. The sheriff may deliver two weapons and
          associated equipment and ammunition. One weapon
          must be a US manufactured black rifle, 7.62 and
          other must be a 45 pistol. The sheriff must also
          grant me an exception to test-fire the weapons into
          the ground or into a barrel filled with dirt or water.
          The sheriff must grant me an exception, allowing me
          to jog and walk the streets with the gear and
          weapons when I leave the house and all law
          enforcement must be told to stay away from me.
          Law enforcement is bound by the US constitution to


                                  -6-
J. A22033/14


            enable me to defend myself from the wrongful threat
            of the use of physical force and wrongful arrest and
            imprisonment. IT IS THEIR DUTY!!!! I EXPECT THEM
            TO CARRY IT OUT!!!□□□Sincerely,□Sean M. Donahue

Aff. of Probable Cause, 8/21/12, at 1-3.

      The Commonwealth filed the criminal complaint charging Appellee with

terroristic threats and harassment on August 21, 2012, the day after the

deadline referred to by Appellee. Officers of the Hazelton Police Department

also obtained and executed a search warrant for Appellee’s home and

seized, inter alia, several computer devices and a “Winchester Mod 94 30-

30” rifle from under a bed. Receipt/Inventory of Seized Property, 8/21/12,

at 1. Appellee was represented by counsel. The preliminary hearing in the

Magisterial District Court was continued until October 3, 2012.      Although

there is no transcript from the preliminary hearing in the record, the

Magisterial District Court held the matter for court on October 3rd and filed

its papers in the Court of Common Pleas on October 5th. On October 22nd,

the Office of the Pennsylvania Attorney General filed the criminal information

in this case.

      New counsel from the Office of the Public Defender entered an

appearance for Appellee on January 9, 2013. Appellee sent the trial court

pro se motions, which included motions to dismiss counsel.       On May 15,

2013, present counsel entered his appearance on Appellee’s behalf.

      On May 30, 2013, Appellee, through counsel, filed a petition for writ of

habeas corpus seeking dismissal of the charges.      On June 10th, Appellee


                                    -7-
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filed omnibus pretrial motion, including a motion for recusal of the presiding

judge.    The following day, the presiding judge recused himself and a

specially appointed judge was assigned the matter. On October 2, 2013, the

trial court entered an order cancelling a hearing on Appellee’s motions and

indicating the parties agreed to have the pretrial motions decided based on

“the pleadings on the record” and the parties’ briefs. Order, 10/2/13, at ¶¶

1, 4. On October 28th, the court dismissed the charges against Appellee.

       The Commonwealth filed a timely notice of appeal and complied with

the trial court’s order to file and serve a Pa.R.A.P. 1925(b) statement. The

trial court filed a Rule 1925(a) opinion holding that the Commonwealth failed

to establish Appellee engaged in a course of conduct necessary to sustain

the harassment charge. Trial Ct. Op., 3/17/14, at 3. The court also opined

it   properly       dismissed      the    terroristic    threats     charge     because     the

Commonwealth          did    not   establish     Appellee     intended    to    terrorize   the

complainant. Id. This appeal followed.

       The Commonwealth presents a single question for our review:

“Whether the trial court abused its discretion by dismissing the charges

where [Appellee’s] threatening email to an elected district attorney

established     a    prima    facie      case   of    terroristic   threats    and   summary

harassment?” Commonwealth’s Brief at 3. We reorder and summarize the

Commonwealth’s arguments on both charges.




                                                -8-
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     As to the harassment charge, the Commonwealth suggests the

affidavit of probable cause provided a basis to infer Appellee sent the

complainant multiple threatening emails.           Id. at 17. It notes Appellee

complained in his email that the complainant repeatedly ignored his

requests.     Id.   It further contends the affiant alleged Appellee sent the

complainant multiple emails communicating threats of violence.                Id.    The

Commonwealth thus asserts the trial court misconstrued the record when it

concluded Appellee’s single email did not establish a course of conduct. Id.

at 17. We disagree and affirm that part of the court’s order dismissing the

charge of harassment.

     As to the terroristic threats charge, the Commonwealth argues the trial

court erred in concluding        Appellee    did   not    intend   to    terrorize   the

complainant.        Id. at 14.     The Commonwealth emphasizes Appellee

demanded the complainant take unrealistic actions, including compelling

CareerLink to provide unemployment services, charging and arresting

several   individuals,   and   providing    him    with   firearms      and   protective

equipment. Id. at 13-14 & n.6. It contends Appellee issued the following

ultimatums, which we have reproduced in bold in context of the email:

             “If you do not respond by telling me that you will
              investigate the matter, I will prepare myself to face
              off against a police firing line that will be the result
              of any attempt by me to use an unemployment office.”

             “ If charges are not brought . . ., I WILL Re-SECURE
              MY RIGHTS in my capacity as a citizen soldier at
              large.”


                                       -9-
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           “I must anticipate that the corporal and the Hazleton
            Career Link Staff will follow through on their threat to
            use force to prevent me from accessing an
            unemployment office and to prevent me from making
            them do their jobs. I will prepare myself to defend
            myself    against     these     threats   and     police
            reinforcements.”

           “. . . your allowing an officer and Career Link workers to
            use threats of wrongful use of force as a means of
            taking my rights away triggers the use of the US
            Second Amendment and Section 13 of the PA
            Constitution.      I consider you to be an illegal
            oppressive force that has repeatedly threatened the
            use of both false arrest and physical police force to
            prevent me from using the Hazleton Career Link and to
            prevent me from making the Career Link Workers, the
            Workforce Investment Board Workers and the PA L&I
            workers do their jobs. I have exhausted all possible
            peaceful means to resolve this problem and my
            every attempt has been repeatedly ignored.”

           “Therefore, I will ring the bell that is heard around the
            world and your summary denial of my rights will be
            physically challenged. I will not stand there and die
            at the hands of a corporal or any other officers in a
            firing line intended to keep me from using my
            rights.□□[‘]Give me Liberty or Give me Death[’] but
            not necessarily my own!”

           “You then ignore my every email complaint to resolve
            the matter peacefully and you do so just so that you
            can put me into a position that forces me to be
            the physical aggressor and approach a police
            station or a government office.”

Commonwealth’s Brief at 13 & n.3; Aff. of Probable Cause.

     According to the Commonwealth, the affidavit of probable cause thus

established adequate evidence to find Appellee made unreasonable demands

and deliberate threats to commit crimes of violence.        Id. at 14.   This


                                    - 10 -
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evidence would also permit a fact-finder to conclude Appellee intended to

terrorize the complainant.    Id.    Alternatively, the Commonwealth argues

the affidavit of probable cause established Appellee recklessly caused terror

because he failed to recognize his statements would provoke fear.         Id. at

14-15.   Consequently, the Commonwealth asserts it established a prima

facie case of terroristic threats. We find relief is due and reverse that part of

the trial court’s order dismissing the charge of terroristic threats.

      Our standard and scope of review is as follows:

         When reviewing a trial court’s decision to grant a habeas
         corpus petition, we will not reverse the trial court’s
         decision absent a manifest abuse of discretion. In order to
         constitute an abuse of discretion, the record must disclose
         that the trial court exercised manifestly unreasonable
         judgment or based its decision on ill will, bias or prejudice.
         Furthermore, our scope of review is limited to determining
         whether the Commonwealth has established a prima facie
         case.

Commonwealth v. Heckman, 66 A.3d 765, 768 (Pa. Super.) (citation

omitted), appeal denied, 83 A.3d 414 (Pa. 2013).

               A prima facie case consists of evidence, read in
            the light most favorable to the Commonwealth, that
            sufficiently establishes both the commission of a
            crime and that the accused is probably the
            perpetrator of that crime. The Commonwealth need
            not prove the defendant’s guilt beyond a reasonable
            doubt.     Rather, the Commonwealth must show
            sufficient probable cause that the defendant
            committed the offense, and the evidence should be
            such that if presented at trial, and accepted as true,
            the judge would be warranted in allowing the case to
            go to the jury.




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           In determining the presence or absence of a prima facie
           case, inferences reasonably drawn from the evidence of
           record that would support a verdict of guilty are to be
           given effect, but suspicion and conjecture are not evidence
           and are unacceptable as such.

Commonwealth v. Keller, 823 A.2d 1004, 1010-11 (Pa. Super. 2003)

(citations and quotation marks omitted).

      Furthermore,

           the Commonwealth must produce evidence of every
           material element of the charged offense(s) . . . . In an
           effort to meet its burden, the Commonwealth may utilize
           the evidence presented at the preliminary hearing and also
           may submit additional proof.

Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa. Super. 2007)

(citation omitted).    Hearsay may be considered by the trial court when

determining whether a prima facie case exists.           Commonwealth v.

Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004). However, hearsay alone

cannot be the basis for establishing a prima facie case. Id.

      Section 2709 of the Crimes Code defines harassment, in relevant, as

follows:

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

                                   *     *      *

               (3) engages in a course of conduct or repeatedly
             commits acts which serve no legitimate purpose[.]

                                   *     *      *




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            [(f) Definitions.—] “Course of conduct.” A pattern of
         actions composed of more than one act over a period of
         time, however short, evidencing a continuity of conduct[.]

18 Pa.C.S. § 2709(a)(3), (f).

      To establish harassment under subsection (a)(3), the Commonwealth

must establish the defendant acted with “specific intent” to harass, annoy,

or alarm another. Commonwealth v. Battaglia, 725 A.2d 192, 194 (Pa.

Super. 1999) (citation omitted). “A person acts intentionally” when “it is his

conscious object . . . to cause such a result.” 18 Pa.C.S. § 302(b)(1)(i). “An

intent to harass may be inferred from the totality of the circumstances.”

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013).

      Because Section 2709(a)(3) requires a course of conduct, “a single act

will not support a conviction.”     Battaglia, 725 A.2d at 194 (citation

omitted).   Moreover, “the conduct must be of a non-legitimate nature[.]”

Id.

      Preliminarily, we are compelled to comment upon the sparse nature of

the record. The Commonwealth, when responding to Appellee’s petition for

habeas corpus relief, did not refer to, or produce, the notes of testimony

from the preliminary hearing or copies of Appellee’s other communications to

the complainant.    Its brief in opposition to Appellee’s pretrial motions

contained boilerplate responses.   Furthermore, the Commonwealth, as the

appellant in this appeal, did not seek to supplement the record in this Court




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or aver additional evidence was available. Accordingly, our scope of review

is limited to the allegations set forth in the affidavit of probable cause.

      Instantly, Appellee’s email, which was reproduced in the affidavit of

probable cause, contained numerous statements, which a fact-finder could

construe as intending to cause the complainant alarm.5 The affiant further

alleged, “[Appellee] has also continued to send additional e-mails to District

Attorney Salavantis since the first communication on 17 August 2012.

These additional communications also contain threats of violence toward

government employees and police officers.”            Aff. of Probable Cause.

However, the affiant’s description of the contents of the additional emails

was hearsay and potentially conveyed an opinion regarding an original

writing that could intrude upon the fact-finder’s province if presented at trial.

See Commonwealth v. Lewis, 623 A.2d 355, 357 (Pa. Super. 1993)

      In light of the foregoing record, we discern no basis upon which to

disturb the trial court’s conclusion the Commonwealth failed to proffer

evidence to sustain the harassment charge under Section 2709(a)(3). The

Commonwealth bore the burden of adducing evidence that Appellee engaged

in a course of conduct or repeatedly committed acts which serve no

5
  See Aff. of Probable Cause (stating, “I will prepare myself to face off
against a police firing line[,]” indicating Appellee “exhausted all possible
peaceful means[,]” stating, “[Y]our summary denial of my rights will be
physically challenged[,]” and alleging complainant “put [him] into a position
that forces [him] to be the physical aggressor and approach a police station
or a government office”).




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legitimate purpose.   See 18 Pa.C.S. § 2709(a)(3); Carroll, 936 A.2d at

1152; Battaglia, 725 A.2d at 194.            However, it elected to rely upon

questionable   “evidence”   requiring   speculation   that   all   of   Appellee’s

communications were similar to the example in the affidavit of probable

cause.6 See Keller, 823 A.2d at 1010. Accordingly, we affirm that portion

of the order dismissing the harassment charge.

     With respect to the terroristic threats charge, Section 2706 of the

Crimes Code states, in relevant part:

        § 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[.]

18 Pa.C.S. § 2706(a)(1) (emphasis added).

     This Court has described the elements of terroristic threats as follows:

        [T]he Commonwealth must prove that 1) the defendant
        made a threat to commit a crime of violence, and 2) the

6
  We note Appellee’s petition for habeas corpus relief also asked the trial
court to balance the alleged invasions of the complainant’s sense of security
with Appellee’s right to petition for redress and free expression. See
Appellee’s Br. in Support of Pet. for Habeas Corpus, 6/7/13, at 1; See
generally Commonwealth v. Bender, 375 A.2d 354, 359 (Pa. Super.
1977) (“We should be extremely reluctant to infer a criminal intent to harass
solely from the filing of complaints with appropriate government agencies
and the making of telephone calls during regular office hours lest we
impermissibly chill a citizen’s constitutional freedoms”).        Thus, the
Commonwealth’s failure to present Appellee’s additional emails is especially
puzzling.



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        threat was communicated with the intent to terrorize
        another or with reckless disregard for the risk of causing
        terror.[7]   The harm sought to be avoided is the
        psychological distress that follows an invasion of the
        victim’s sense of personal security. Consequently, neither
        the defendant’s ability to carry out the threat nor the
        victim’s belief that it will be carried out is an essential
        element of the crime. Similarly, it is unnecessary for an
        individual to specifically articulate the crime of violence
        which he or she intends to commit where the type of crime
        may be inferred from the nature of the statement and the
        context and circumstances surrounding the utterance of
        the statement. Thus, a direct communication between the
        defendant and the victim is not required to establish the
        crime.

Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009)

(citations and punctuation omitted), rev’d on other grounds, 30 A.3d 1105

(Pa. 2011).

     “The purpose of [Section 2706] is to impose criminal liability on

persons who make threats which seriously impair personal security or public

convenience. It is not intended by this section to penalize mere spur-of-the-

moment threats which result from anger.” Commonwealth v. Campbell,

7
  This passage—which indicates a defendant may be convicted of terroristic
threats based on intent or reckless disregard—relied on case law interpreting
the former version of Section 2706(a). However, Section 2706(a) was
amended on December 15, 1999. Under the current version of Section
2706, subsection (a)(1) speaks to a threat “to commit a crime of violence
with intent to terrorize[.]” 18 Pa.C.S. § 2706(a)(1). Subsection (a)(3)
covers threats, which, inter alia, “cause terror or serious public
inconvenience with reckless disregard of the risk causing such terror or
inconvenience.” 18 Pa.C.S. § 2706(a) (3). Instantly, we need not address
the difference between our former case law and the present version of the
statute, as our review will focus on whether the Commonwealth adduced
adequate evidence to show Appellee acted with the intent to terrorize.




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625 A.2d 1215, 1218 (Pa. Super. 1993) (citations omitted).             However,

“[b]eing angry does not render a person incapable of forming the intent to

terrorize.”   Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super.

2000).

      We do not quarrel with the trial court’s suggestion that the email’s

principal purpose was to express Appellee’s grievance over his alleged

inability to access unemployment services.       Nevertheless, it is undisputed

that Appellee used violent imagery8 and referred to possible physical

confrontations with government officials.9          Of particular significance,

Appellee alluded to a government conspiracy and his right to use force

against the conspiracy.10

      In light of the foregoing, and mindful of our standard of review, we

conclude a reasonable fact-finder could find Appellee harbored an actual fear


8
 Aff. of Probable Cause (quoting Appellee’s reference to “[t]he firing squad
used by police in South Africa”).
9
 Id. (indicating Appellee’s belief he will “face off against a police firing line”
and will be “physical aggressor and approach a police station or a
government office”).
10
   Id. (stating, “I WILL Re-SECURE MY RIGHTS in my capacity as a citizen
soldier at large[,]” declaring, “[T]hreats of wrongful use of force as a means
of taking my rights away triggers the use of the US Second Amendment and
Section 13 of the PA Constitution[,]” and suggesting, “You [the complainant]
are conspiring to create a circumstance that enables you to get me on
something . . . You are trying to set me up and the magistrate is assisting.
It is a coordinated conspiracy and Judge Zola is part of it . . . You are trying
to trap me just like you try to trap drug dealers and other criminals . . . In
doing so, you are harassing me”).



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the alleged conspiracy threatened his life.     Similarly, the evidence would

sustain a finding Appellee believed he was entitled to use force against

government officials and would do so imminently.       Moreover, a fact-finder

could conclude Appellee purposefully expressed these beliefs to threaten

crimes of violence, if the complainant did not meet his demands. Lastly, the

email, as a whole, could reasonably be read as a deliberate and calculated

threat that evinced Appellee’s intent to terrorize.    Thus, we cannot agree

with the trial court that Appellee’s email did not establish a prima facie case

of terroristic threats under Section 2706(a)(1).      That Appellee raised a

grievance with an elected official did not preclude the possibility that a fact-

finder could reasonably find Appellee also expressed a “true threat” and

intended to terrorize to achieve his ends.11

      In sum, we affirm that part of the trial court’s order dismissing the

harassment charge, but reverse that part of the order dismissing the

11
   See generally Commonwealth v. Baker, 722 A.2d 718, 721-22 (Pa.
Super. 1998) (“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 are 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.” (citations and quotation
marks omitted)).



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terroristic threats charge.   Accordingly, we remand this matter to the trial

court for further proceedings.

      Order affirmed in part and reversed in part.          Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2015




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