J-S13014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JARED THRONE,

                            Appellant                   No. 1925 EDA 2016

         Appeal from the Judgment of Sentence Entered May 24, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001483-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED APRIL 17, 2017

        Appellant, Jared Throne, appeals from the judgment of sentence of

one year probation, imposed after he was convicted of single counts of

terroristic threats, 18 Pa.C.S. § 2709(a)(1), disorderly conduct, 18 Pa.C.S. §

5503(a)(1), and harassment, 18 Pa.C.S. § 2709(a)(1).           Appellant solely

challenges the sufficiency of the evidence to sustain his conviction of

terroristic threats. After careful review, we affirm.

        Appellant was arrested and charged with the above-stated offenses

based on an altercation with Barry and Susan Epstein, during which

Appellant made threatening remarks to the Epsteins. Appellant proceeded

to a non-jury trial on May 24, 2016, and at the close thereof, the court

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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convicted him of the offenses listed, supra. That same day, Appellant was

sentenced to a one-year period of probation.         He filed a timely notice of

appeal, and he also timely complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.         Herein, he

raises the following, single issue for our review:

      A. Was the evidence sufficient to support the conviction?

Appellant’s Brief at 4.

      To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Appellant challenges the sufficiency of the evidence to support his

terroristic threats conviction. That offense is defined in the Crimes Code as

follows:

      (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[.]


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18 Pa.C.S. § 2706(a)(1).     “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.”

Comment to 18 Pa.C.S. § 2706. As this Court has stated, “the real issue [i]s

whether the Commonwealth presented sufficient evidence to establish the

required mens rea, not whether the defendant made the statements in the

context of a heated discussion. Being angry does not render a person

incapable of forming the intent to terrorize.” Commonwealth v. Walker,

836 A.2d 999, 1001 (Pa. Super. 2003) (internal quotation marks and citation

omitted).

      In this case, the trial court summarized the evidence presented by the

Commonwealth at Appellant’s trial, as follows:

            Victims Barry Epstein, and his wife, Susan Epstein, were at
      the [Hong Kong Pearl] restaurant having dinner [on November 8,
      2015 at approximately 6:00 p.m.]. [Appellant] and his family
      were also at the restaurant. Mr. Epstein testified that after
      [Appellant’s] family left the restaurant, [Appellant] approached
      the Epsteins’ table and asked them, “Do you know who I am?”
      [Appellant] stated, “My name is Jared Throne and because of
      your f---ing dy-- daughter, I spent time in jail and it cost me
      $10,000.” [Appellant] repeatedly stated, “I’m going to f--- you
      up.” [Appellant] told the victims, “I have an AK-47. I am going
      to get you people.” [Appellant] was then removed from the
      restaurant by members of his family. Mr. Epstein called 911.

            Officer William Gredone of the Middletown Township Police
      Department responded to the scene.           With regard to his
      interview of Mr. and Mrs. Epstein, Officer Gredone testified,

         Mr. Epstein and his wife were visibly upset and shaken.
         They said that an incident had just occurred at the

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        restaurant with a known subject, who[se family] they have
        had trouble with … in the past. Mr. Throne, who is seated
        next to [defense counsel], had approached them and
        basically told them multiple times that he was going to f---
        them up. They said it came out of nowhere. It just
        happened.       And before he left, … Mr. Throne had
        threatened that he had an AK-47 and he was going to
        come f--- them up.

        [Appellant], having left the scene, was initially interviewed
     [by police] by telephone. During that interview, [Appellant]
     indicated to the police that he was provoked. [Appellant] told
     police that Mr. Epstein repeatedly gave his family dirty looks
     during the entire time they were having dinner. He stated that
     when he walked by the Epstein[s’] table, Mr. Epstein called him
     a “b----” and that he and Mr. Epstein then got into a verbal
     confrontation. [Appellant] was asked what statements he made
     to Mr. Epstein. He told police that he just told Mr. Epstein to
     leave his family alone. He did not tell police that he threatened
     the victims with a gun.

           The recording obtained from the restaurant’s surveillance
     system corroborated Mr. Epstein’s account.         The recording
     depicts [Appellant’s] approaching the victim[s’] table, addressing
     Mr. and Mrs. Epstein and being physically escorted from the
     property by his family. While most of the verbal exchange is
     inaudible due to the background noise in the restaurant,
     [Appellant] can clearly be heard using the word[s] “snitch” and
     “AK-47.”

           Mr. Epstein’s account was also corroborated by [an]
     independent witness, Eric Blaustein, who was at the restaurant
     dining with his wife and his parents. Mr. Blaustein testified that
     he heard [Appellant] say, “I will f--- you up” in a loud and
     threatening voice. Mr. Blaustein testified that, when [Appellant]
     reached the vestibule of the restaurant, [Appellant] yelled, “I
     know where you live. I am going to f--- you up.”

             After he was advised that there was an eyewitness and
     surveillance footage from the restaurant that contradicted his
     initial account, [Appellant] gave a different version of the events.
     [Appellant] provided the police with the following[, verbatim
     (aside from the omission of vulgar language)] account in a hand-
     written statement:



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       My family and I were at Hong Kong Pearl. We were
       finishing up dinner. As we were there, my sister had told
       me the Epsteins were there. It bothered me because I
       knew them my whole life, but eight years ago their
       daughter lied to Bensalem Police and had me arrested and
       it ruined my life since. I received my degree, but can’t get
       a job with a background. I decided not to say anything.
       As we were leaving, I went to the bathroom and came out.
       As I was walking out, I passed their table where he then --
       what I heard was [b----]. This has been going on with him
       and my family for some time now. I replied to him saying,
       do you know who I am? And I said, I am Jared Throne.
       Your daughter ruined my life eight years ago and you are
       going to start with me because you own a gun. Which only
       reason I know is that is because my parents were friends
       for a while when I was young from 4 through 13. Then he
       just kept proceeding with cocky replies, which I knew he
       wanted to get under my skin, which I was not going to let
       happen. I just said to him, do you know your daughter is
       a drug addict, only because I ran into her a few times and
       she was out there. Then he stood up, got into my face
       when I was going to walk away. My whole family was
       there, my nephew, who is 11 who I coach. I wouldn’t let
       him see that. But as he stood up he kept saying, I am
       going to get you locked back up. He kept saying it and
       saying it. And then he said to my dad, George, get your
       son. I am going to get him locked up or I am going to
       shoot him. I replied, I wish I had an AK to shoot you,
       which was so stupid to say, stoop down to his level and
       gave him what he wanted. I went home with my family
       and watched the Eagles. I never really thought he was
       going to get me locked up.

            At trial, [Appellant] admitted that he blames the Epsteins’
     daughter for his 2009 possession with intent to deliver conviction
     because he believes that she provided information about his
     drug activity to the police. He testified that, as can be heard in
     the video, he did say the word “snitch,” but claimed he was
     referring to Mr. Epstein because he was threatening to call the
     police. He referred to an “AK-47” but denied threatening to “f---
     up” the victims.




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Trial Court Opinion (TCO), 8/11/16, at 1-4 (footnotes containing citations to

the record omitted).

     On appeal, Appellant contends that the evidence failed to establish

that he had the requisite intent to terrorize Mr. and Mrs. Epstein. Rather,

Appellant avers that,

     his statements that “I’m going to fuck you up, I have an AK-47.
     I’m going to get you people,” were spur-of-the-moment threats
     resulting from transitory anger. They were prompted by an
     incident occurring in 2008, wherein the Epsteins’ daughter
     implicated Appellant in a drug delivery. There had been no
     contact between [Appellant] and that witness for the past eight
     years.

Appellant’s Brief at 14.    Appellant further argues that, considering the

circumstances surrounding his threats to the Epsteins, it is apparent that he

did not have a “settled purpose” to terrorize them, nor any intent to actually

carry out those threats.   Id.   Instead, Appellant stresses that he merely

“said things without meaning them” in a moment of anger.            Id. at 16

(internal quotation marks omitted).

     In rejecting Appellant’s argument, the trial court reasoned:

            [Appellant] asserts that the Commonwealth failed to prove
     that he intended to terrorize Mr. Epstein, his wife or his
     daughter. At trial, [Appellant] relied on Commonwealth v.
     Kidd, 442 A.2d 826, 827 (Pa. Super. 1982). In Kidd, the
     defendant, who had been taken into custody for public
     drunkenness, repeatedly shouted obscenities and generally
     caused a disturbance while being treated in the emergency room
     of a hospital.     It was in that context that the defendant
     threatened to kill police.     The [C]ourt held that there was
     insufficient evidence to establish that the defendant intended to
     place police officers in a state of fear in view of the defendant’s
     obvious state of inebriation and agitation. This case did not


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       involve the type of drunken hyperbole addressed in Kidd. Here,
       the evidence established that [Appellant] harbored a deep-
       seated resentment of the Epstein family, blaming Mr. and Mrs.
       Epstein’s daughter for his arrest, conviction and incarceration
       years before. In retaliation for conduct [Appellant] described as
       having “ruined [his] life,” [Appellant] initiated this confrontation
       with the intent to cause emotional harm to the family that he
       perceived [had] harmed him. Based on that evidence, this
       [c]ourt found that [Appellant’s] statements were a measured
       response to a wrong he perceived had been committed against
       him and that they were not the product of mere “transitory
       anger” in the face of an immediate and emotionally stressful
       event. The fact that [Appellant] was angry at the time he
       initiated this confrontation does not preclude a finding of an
       intent to terrorize. … Walker, 836 A.2d [at] 1001 … (citing
       Commonwealth         v.     Fenton,     750     A.2d    863,    865
       (Pa.[]Super.[]2000)).      It was anger and resentment that
       motivated him to threaten the Epstein family. Finally,
       [Appellant’s] testimony established that he intended to threaten
       the Epsteins. [Appellant] testified, “I figured if someone is
       threatening me[,] … I threaten them.”                 Under these
       circumstances, this [c]ourt properly found that the element of
       intent had been proven beyond a reasonable doubt.

TCO at 6-7 (footnotes and citations to the record omitted).1
____________________________________________


1
  We have omitted from our recitation of the trial court’s analysis one
footnoted comment, in which the court states:
          [Appellant’s] reliance on the concept of transitory anger is
          further undermined by the fact that he testified that he
          was not angry when he made the statements. N.T. pp.
          79-80.

TCO at 7 n.19. In the portion of the record cited by the court, Appellant was
discussing his initial question to the Epsteins of whether they knew who he
was. See N.T. Trial, 5/26/16, at 79. After that testimony, the court asked
Appellant, “And you were already angry at this point?” Id. (emphasis
added). Appellant replied, “No, not at all.” Id. The court followed that
response by asking, “Weren’t you bothered at the table?” Id. Appellant
answered, “No. No. No, not at all.” Id. at 79-80. This testimony was about
Appellant’s emotional state prior to, and at the start of, his interaction with
the Epsteins; thus, it does not support the court’s conclusion that Appellant
(Footnote Continued Next Page)


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      The trial court’s reasoning is sound. In particular, we agree with the

court that Appellant’s case is distinguishable from Kidd. Appellant was not

inebriated, or as out of control, as was Kidd when the threats were made.

Additionally, Appellant held a personal grudge against the Epsteins, whereas

Kidd threatened random police officers. Appellant’s long-held resentment of

the Epstein family supports a conclusion that his threatening remarks to

them were made with the intent to terrorize them, as Appellant believed that

the Epstein’s daughter had ‘ruined his life.’     Thus, we agree with the trial

court that the totality of the circumstances in this case demonstrates that

Appellant had the requisite mens rea to support his terroristic threats

conviction.   See Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.

Super. 2003) (stating that, “[t]his Court must consider the totality of [the]

circumstances to determine whether the threat was a result of a heated

verbal exchange or confrontation” so as to negate the intent element of

terroristic threats) (citation omitted).

      We also note that this case is distinguishable from the two other cases

on which Appellant relies. First, Appellant’s reliance on Commonwealth v.

Anneski, 525 A.2d 373 (Pa. Super. 1987), is misplaced, as in that case, we

reversed Anneski’s conviction on weight-of-the-evidence grounds, and

                       _______________________
(Footnote Continued)

admitted “that he was not angry when he made the statements[,]” which
came at the end of Appellant’s encounter with the Epsteins. TCO at 7 n.19
(emphasis added).




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indicated that the evidence was in fact sufficient to sustain Anneski’s

conviction.   See Anneski, 525 A.2d at 375-76.        Here, Appellant did not

preserve below, and does not assert herein, a challenge to the weight of the

evidence. Accordingly, our analysis in Anneski is irrelevant to the case at

hand.

        Additionally, Appellant’s reliance on Commonwealth v. Sullivan, 409

A.2d 888 (Pa. Super. 1988), is unconvincing. There, Sullivan was convicted

of two counts of terroristic threats. The first count was based on Sullivan’s

calling a state police barracks and telling the trooper who answered the

phone that he would kill the local sheriff. Id. at 888. The trooper testified

that Sullivan “had been ‘very angry and not rational’ during the … call….”

Id. at 888-89. Sullivan’s second terroristic threats count was based on the

fact that, the morning after Sullivan had called the barracks, he had a

chance encounter with the local sheriff and, during “[a] loud shouting

match…,” Sullivan had “again threatened to kill the [s]heriff.”     Id. at 889.

In deeming the evidence insufficient to sustain either of Sullivan’s terroristic

threats convictions, we stated:

        The evidence shows that [Sullivan] uttered the telephone threat
        in what was, to say the least, an agitated and angry state of
        mind. There is no evidence to show that [Sullivan] had any
        intention of carrying out the threat. [Sullivan’s] second threat
        was the emotional product of a chance meeting with the [s]heriff
        the following morning which had quickly become what both men
        described as a “mouth battle.” There is likewise no evidence
        that this threat was made with any intention of carrying it out.

Id. at 889.


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      Here, unlike Sullivan’s emotional state when he called the police

barracks, there was no evidence presented at Appellant’s trial that

suggested he was irrationally angry. We reiterate that simply being angry

at the time a threat is made does not automatically dispel an intent to

terrorize. Walker, 836 A.2d at 1001.

      Additionally, we are unconvinced by Appellant’s argument that, like in

Sullivan, his encounter with the Epsteins should be considered a “chance

meeting in a restaurant.” Appellant’s Brief at 13. While it is true that it was

by mere chance that Appellant was eating dinner at the same restaurant as

the Epsteins, Appellant planned the actual confrontation with the Epsteins.

Specifically, Appellant chose to walk directly by their table as he left the

restaurant, and as he did so, he stopped, turned around, and asked if they

knew who he was.      Appellant then began barraging them with threats to

‘fuck them up.’

      Moreover, unlike the mutual ‘shouting match’ between Sullivan and

the sheriff, the trial court here found credible Mr. Epstein’s account of the

incident, in which he described Appellant as making “one threat after the

other[,] after the other[,] many times saying, [‘]I am going to fuck you up

and I have an AK-47.[’]” N.T. Trial at 12. Mr. Epstein claimed that it was

only after Appellant began threatening him that he stood up and asked that

Appellant’s father remove Appellant from the restaurant before they “have a

problem.” Id. at 13. Therefore, unlike in Sullivan, Appellant’s threats to




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the Epsteins were made during an incident solely provoked by Appellant, and

during which Appellant was the only aggressive participant.

      Consequently, we conclude that the evidence was sufficient to

demonstrate that Appellant threatened the Epsteins with the intent to

terrorize them, based in large part on his long-standing resentment of the

Epstein family. Accordingly, his conviction of terroristic threats is supported

by adequate evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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