J-S60007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: Y.A.J., A         :   IN THE SUPERIOR COURT OF
 MINOR                                 :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: Y.A.J., A MINOR            :
                                       :
                                       :
                                       :
                                       :   No. 718 MDA 2018

          Appeal from the Dispositional Order February 26, 2018
   In the Court of Common Pleas of Luzerne County Juvenile Division at
                     No(s): CP-40-JV-0000017-2018

 IN THE INTEREST OF: Y.A.J., A         :   IN THE SUPERIOR COURT OF
 MINOR                                 :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: Y.A.J., A MINOR            :
                                       :
                                       :
                                       :
                                       :   No. 719 MDA 2018

      Appeal from the Dispositional Order Entered February 26, 2018
   In the Court of Common Pleas of Luzerne County Juvenile Division at
                     No(s): CP-40-JV-0000451-2017


BEFORE:   SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                      FILED OCTOBER 23, 2018




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Appellant, Y.A.J., presently twelve years old, appeals from the

dispositional order1 entered on February 26, 2018, in the Court of Common

Pleas of Luzerne County. We affirm.

       Appellant was charged at docket number JV 451-2017 with receiving

stolen property,2 a misdemeanor of the first degree, as a result of an incident

on May 15, 2017. Appellant was alleged to have stolen a bicycle from the

garage of Deborah and Christopher Parker. N.T., 2/26/18, at 45, 51. Mr.

Parker eventually found the bicycle, damaged, but with its original serial

number intact, outside of Appellant’s elementary school. Id. at 48–49, 52–

54. While Appellant initially claimed his parents bought him the bicycle, there

was no such supporting evidence offered at the adjudicatory hearing. Id. at

55–56, 63.

       While on informal probation, Appellant was charged at docket number

JV 17-2018 with terroristic threats, a misdemeanor of the first degree, and

one count each of three summary offenses—harassment, disorderly conduct,



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1  “In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. The order of disposition in a juvenile matter is akin to the
judgment of sentence in a criminal matter in that both are final orders subject
to appeal.” In Interest of P.S., 158 A.3d 643, 649 (Pa. Super. 2017)
(internal citations omitted), appeal denied, 174 A.3d 1029 (Pa. 2017).

2   18 Pa.C.S. § 3925(a).




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and criminal trespass—as a result of an incident on January 7, 2018.3

Appellant, accompanied by three other juveniles, entered a Save-A-Lot store

on January 7, 2018, at approximately 4:15 p.m. N.T., 2/26/18, at 10–12.

Appellant began cursing and hurling racial epithets at employees, who told

Appellant to leave the store. Id. at 6, 7, 10–11. Appellant stepped out of the

store, stood at the open doorway and yelled, “I will blast you, nigger, you

don’t know me,” and opened his jacket, revealing the black handle of a

firearm. Id. at 7–8.

       The juvenile court summarized the procedural history as follows:

             [Appellant] had been on informal probation commencing on
       January 2, 2018[,] under Petition JV# 451-2017 and as a result
       of the incident alleged in JV# 17-2018 he was detained and placed
       in shelter care. [Appellant] had a detention hearing before the
       hearing officer on January 18, 2018[,] and was returned to his
       home under house arrest with electronic monitoring and directed
       to comply with a psychological evaluation at Children’s Service
       Center. The evaluation occurred on January 30, 2018.

             An adjudication hearing was held on February 26, 2018[,]
       on both petitions at which time [Appellant] was found factually
       responsible for all charges contained in the two stated petitions.
       Having been found factually responsible for the delinquent acts of
       Receiving Stolen Property under Petition JV# 451-2017 and
       Terroristic Threats under Petition JV# 17-2018[,] the juvenile was
       found to be in need of treatment, rehabilitation and supervision
       and declared a delinquent child in accordance with the Law of the
       Commonwealth of Pennsylvania.           Following testimony and
       arguments, the [c]ourt ordered placement at Glen Mills Academy.

Juvenile Court Opinion, 4/4/18, at 1–2.


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3   18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1), 5503(a)(1), and 3503(b)(1),
respectively.

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      On March 6, 2018, Appellant filed a post-dispositional motion for

reconsideration, which the juvenile court denied on April 4, 2018. Appellant

filed timely notices of appeal to this Court. We consolidated the appeals sua

sponte on May 23, 2018.

      Appellant raises the following two issues on appeal:

      1. Whether the evidence, in 17-JV-2018, was sufficient to
      establish that [Appellant] was responsible for terroristic threats
      where it failed to establish that [Appellant] made a threat or
      possessed the intent to terrorize?

      2. Whether the juvenile court erred or abused its discretion in the
      disposition imposed where the disposition was neither the least
      restrictive nor most individualized disposition that could have,
      under the circumstances, been imposed?

Appellant’s Brief at 3.

      Appellant’s first issue challenges the sufficiency of the evidence to

support his adjudication of terroristic threats. When examining a challenge to

the sufficiency of the evidence supporting an adjudication of delinquency, this

Court employs a well-settled standard of review:

            When a juvenile is charged with an act that would constitute
      a crime if committed by an adult, the Commonwealth must
      establish the elements of the crime by proof beyond a reasonable
      doubt. When considering a challenge to the sufficiency of the
      evidence following an adjudication of delinquency, we must review
      the entire record and view the evidence in the light most favorable
      to the Commonwealth.             In determining whether the
      Commonwealth presented sufficient evidence to meet its burden
      of proof, the test to be applied is whether, viewing the evidence
      in the light most favorable to the Commonwealth and drawing all
      reasonable inferences therefrom, there is sufficient evidence to
      find every element of the crime charged. The Commonwealth may
      sustain its burden of proving every element of the crime beyond
      a reasonable doubt by wholly circumstantial evidence.

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            The facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with a
      defendant’s innocence. Questions of doubt are for the hearing
      judge, unless the evidence is so weak that, as a matter of law, no
      probability of fact can be drawn from the combined circumstances
      established by the Commonwealth. The finder of fact is free to
      believe some, all, or none of the evidence presented.

Interest of P.S., 158 A.3d at 650 (citing In Interest of J.G., 145 A.3d 1179,

1188 (Pa. Super. 2016) (internal citations omitted)).

      The juvenile court determined that Appellant committed, inter alia,

terroristic threats with the intent to terrorize another, which is defined 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;

18 Pa.C.S. § 2706. “The elements necessary to establish a violation of the

terroristic threats statute are: (1) a threat to commit a crime of violence; and

(2) that the threat was communicated with the intent to terrorize.”

Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super. 2016), appeal

denied, 167 A.3d 698 (Pa. 2017) (citing Commonwealth v. Vergilio, 103

A.3d 831, 833 (Pa. Super. 2014)).

      Appellant contends that the evidence was insufficient to establish that

he either terrorized the victim or intended to terrorize another. Appellant’s

Brief at 6. His tripartite claim avers, in alternative arguments, that 1) the


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victims were unaware of the threat, 2) Appellant did not utter a threat, and

3) Appellant lacked the requisite intent to terrorize. Id. at 6–12. We disagree.

       Appellant asserts that the only Save-A-Lot employee to testify at the

adjudication hearing, Sav-A-Lot night manager Thaliya Dublin, testified that

Appellant and his cohorts were cursing at Diane Grigan, also referred to as

Ms. Dee,4 and the store manager, Mr. Jones.5 Appellant’s Brief at 4, 7–8.

Appellant maintains that because Ms. Dublin was “not a named victim,” the

evidence was insufficient to establish that Mr. Jones or Ms. Dee either heard

or were made aware of the threat or saw the firearm. Id. at 10. Appellant

also avers that because he never “mentioned a gun,” his statement, “I will

blast you, [******], you don’t know me,” did not “rise to a threat of violence.”

Id. at 11.    Lastly, Appellant argues that his threat was a mere “result of

transitory anger, rather than a result of an intent to terrorize.” Id. at 12.

       In contrast to Appellant’s version, Ms. Dublin testified that Appellant had

been in the store on prior occasions and had been asked to leave “a lot of

times.” N.T., 2/26/18, at 6. Ms. Dublin described the scene on January 7,

2018, as follows:



____________________________________________


4 Ms. Dee was hospitalized with the flu on the date of the hearing and did
not testify. N.T., 2/26/18, at 9.

5   Mr. Jones’s first name is not identified in the record.




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              Well, when I came to the situation [Appellant] was like
       cursing at Miss Jones,[6] telling her, You n........, and Eff you, and
       all this stuff. I was like, What’s going on? And Miss Dee was like,
       Oh, this kid came again. I was like, Can you please leave the
       store[?] And then they were asking him to leave the store and as
       he proceeded out the store I was with him in front of the store.
       And I was telling him, You’re too young, just go, just leave, just
       go home. And he was still there cursing, arguing.

                                          * * *

              Then he continued cursing. He was like, I will blast you,
       n….., you don’t know me. I was telling him, you’re too young,
       just leave, just go home. You don’t want to go to jail. And Miss
       Dee proceed[ed] to call the police. And he was like with his hand
       in his jacket. That’s when I saw like a black handle and I realized
       it was a gun. And I told Miss Dee, I said that’s a gun. I think
       that’s a gun.

Id. at 7–8.

       Contrary to Appellant’s assertion, “[D]irect communication of [a] threat

between the perpetrator and the victim is not a requisite element of the crime

of terroristic threats.” Commonwealth v. Kelley, 664 A.2d 123, 127 (Pa.

Super. 1995). Moreover, Appellant’s assumption that neither Ms. Dee or Mr.

Jones could have heard Appellant’s threat is not supported in the record. Ms.

Dublin described Appellant as standing “[i]n front of the store. In front of the

door.” N.T., 2/26/18, at 7. She stated Appellant “was telling my co-worker

that he gonna blast him and shoot him, and he was telling Miss Dee, You’re a

bitch, and that stuff.” Id. at 8. Ms. Dublin described Appellant’s threats as


____________________________________________


6  It is unclear from the record whether the reference to Miss Jones is a
typographical error referring to Mr. Jones, the Sav-A-Lot manager, or a
reference to another employee.

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“Very loud.” Id. When Appellant made the threat and revealed the gun in his

jacket, Ms. Dublin told Miss Dee, “[T]hat’s a gun.” Id. at 8. Accordingly,

Appellant’s    conduct      met   the   requirement     that    the   threat    must   be

communicated to the victim.             Kelley, 664 A.2d at 127 (defendant’s

communication of a threat to the victim’s secretary, who later told the victim,

was sufficient communication of a threat).             As noted supra, the crime of

terroristic threats requires that the defendant communicates a threat “either

directly or indirectly.” 18 Pa.C.S. § 2706(a) (emphasis added). We recently

reiterated that “terroristic threats do not have to be communicated directly.”

Commonwealth v. Beasley, 138 A.3d 39, 47 (Pa. Super. 2016), appeal

denied, 161 A.3d 791 (Pa. 2016).           Here, the Commonwealth proved that

Appellant made a threat to commit a crime of violence, and 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), aff’d in part, rev’d in part on other grounds, 30 A.3d

1105 (Pa. 2011). Because the evidence reflects that Appellant successfully

and intentionally communicated his threat, this challenge to the sufficiency of

the evidence for his terroristic-threats conviction merits no relief.

        We also reject Appellant’s claim that his threat was not a threat but

merely was nonverbal communication that was insufficient to support the

crime    of   terroristic   threats.     Appellant’s    Brief   at    10.      Appellant’s

communication constituted both a verbal threat, “I will blast you, [******],”


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and a threatening gesture, by moving aside his jacket to reveal a firearm.

N.T., 2/26/18, at 7–8.

      We similarly reject Appellant’s final challenge to the sufficiency of the

evidence, that his statement was a mere spur-of-the-moment outburst.

Appellant’s Brief at 11. Appellant relies upon Walls, 144 A.3d 926, claiming

that his threat was merely a result of “transitory anger, rather than a result

of an intent to terrorize.” Appellant’s Brief at 12. We disagree. This Court

acknowledged numerous times that “[b]eing angry does not render a person

incapable of forming the intent to terrorize.” Id. at 936; Commonwealth v.

Walker, 836 A.2d 999, 1001 (Pa. Super. 2003); Commonwealth v.

Reynolds, 835 A.2d 720, 730–731 (Pa. Super. 2003).

      Moreover, the fact pattern in Walls is dissimilar. We noted therein that

the appellant did not specifically threaten harm to the prosecutor presently or

in the future, he merely made a spur-of-the-moment statement as he was

being led away. Walls, 144 A.3d at 937. That is not the case here. Appellant

carried a gun into a store from which he previously had been banned, he

shouted “I will blast you, [******],” while simultaneously revealing his

concealed weapon.    N.T., 2/26/18, at 7–8.    As the Commonwealth avers,

Appellant “cannot now claim innocence because the situation he deliberately

[created] allegedly made him angry.” Commonwealth’s Brief at 14. Like the

juvenile court, we find the evidence more than ample to establish terroristic

threats.


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      In his second issue, Appellant asserts that the juvenile court erred or

abused its discretion in the disposition imposed because it was “neither the

least restrictive nor most individualized disposition” that could have been

imposed. Appellant’s Brief at 12. As noted, the juvenile court placed Appellant

at Glen Mills, a residential facility for the treatment of twelve to fourteen-year-

old adolescents that typically is a six-month program. Id. at 12, 15; N.T.,

2/26/18, at 77.    Appellant argues that the Glen Mills disposition is “overly

restrictive and punitive,” and the juvenile court overlooked several other

programs. Appellant’s Brief at 13, 15.

      Our standard of review of a dispositional order is settled. “[T]he Juvenile

Act grants to the court broad discretion in disposition. 42 Pa.C.S.A. § 6341,

§ 6352; In re Love, 646 A.2d 1233 (Pa. Super. 1994).” Commonwealth v.

K.M.-F., 117 A.3d 346, 350 (Pa. Super. 2015) (quoting In the Interest of

A.D., 771 A.2d 45, 53 (Pa. Super. 2001) (en banc)). Therefore, we may not

overturn a juvenile court’s decision unless that discretion was manifestly

abused. In re R.D., 44 A.3d 657, 664 (Pa. Super. 2012).

      Pennsylvania Rule of Juvenile Court Procedure 512, “Dispositional

Hearing,” provides, in pertinent part, that the juvenile court state on the

record in open court its disposition, the reasons therefore, the terms,

conditions, and limitations of the disposition, and if the court removes the

juvenile from his home, findings and conclusions of law that formed the basis




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of its decision consistent with 42 Pa.C.S. §§ 6301 and 6352.        Pa.R.J.C.P.

512(D). This juvenile court explained its disposition as follows:

             The [c]ourt considered all factors listed in Rule 512(D) and
      found the least restrictive option to be placing [Appellant] at Glen
      Mills Academy.

            The [c]ourt heard inter alia, extensive testimony from
      juvenile probation Officer Jamie Harned regarding her familiarity
      with [Appellant] and involvement in his supervision. (N.T.: pg. 65
      thru 76), Paul McDonough, (N.T. 76 thru 78), Kathleen Lech, (N.T.
      78 thru 81) and Portia Brown, (N.T. 81 thru 88) all incorporated
      herein by reference. In particular at N.T. 92 thru 94 the [c]ourt
      outlined its reasons for the disposition at Glen Mills Academy and
      specifically found:

           Out-of-home placement is appropriate and I direct that
      [Appellant] shall be placed at Glen Mills Young Offender Program.

            The following facts that indicate out-of-home placement [is]
      appropriate include, but not limited to, the serious nature of the
      offenses. He presents a clear danger to himself and others in the
      community. There has been a history of failure under community
      supervision.    Home life renders removal imperative, and
      [Appellant] has treatment needs that require specialized care.
      This disposition is best suited to [Appellant’s] treatment,
      supervision, rehabilitation and welfare, imposing the minimum
      amount of confinement that is consistent with the protection of
      the public, and the rehabilitative needs of this young man,
      providing balanced attention to the protection of the community,
      imposition of accountability for offenses committed, and the
      development of competencies to enable this young man to
      become a responsible and productive member of the community.

             This disposition and placement is necessary to address the
      serious issues of [Appellant] which cannot be addressed with least
      restrictive measures. Out-of-home placement was considered,
      and there has been a history of failure not only in school but in
      the community. I feel he poses a danger to himself and others. I
      incorporate the entire record. And I do believe he has specialized
      needs which will be best addressed at Glen Mills which will address
      any anger, emotional, behavioral, educational, health, substance
      issues, inter alia.

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            I am concerned for his safety and the safety of others. I
      incorporate the entire record of this proceeding, including the
      history of failure under community supervision, and home life,
      rendering removal imperative, along with the treatment needs as
      outlined to me today that require specialized attention.

Juvenile Court Opinion, 4/4/18, at 21–22.

      At the hearing, Appellant’s statements, when he previously was confined

at Vision Quest, were read into the record by Appellant’s probation officer, Ms.

Jamie Harned:

      [Appellant] stated on multiple occasions that he will fight, shout
      or do whatever he has to. [Appellant] described taking six shots
      at anybody who tells him to do something he doesn’t like.
      [Appellant] also stated he will punch out his probation [officer] or
      judge if he doesn’t go home. [Appellant] would also describe how
      he would cut his monitor off if he was on house arrest. [Appellant]
      stated that his family taught him to live and think this way and he
      doesn’t make threats, they are promises.

N.T., 2/26/18, at 68.    Ms. Harned testified that Appellant had not “taken

accountability for his negative behavior.” Id. at 70.

      Ms. Harned also described Appellant’s behavior at Lynwood Elementary

School as consistent with his attitude expressed above.     At the dispositional

hearing, she identified nine incidents, including a fight with another student

that required the intervention of six staff members to subdue Appellant, the

destruction of a “de-escalation room,” and threats directed to staff.        N.T.,

2/26/18, at 66–67.      Ms. Harned recommended confinement at the Young

Offender Program at Glen Mills School. Id. at 70.




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      Based on the foregoing, we conclude that Appellant’s issue is devoid of

merit.   Therefore, we affirm the juvenile court’s February 26, 2018

dispositional orders.

      Dispositional orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2018




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