J-A02023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JERRY LEE COOKE                         :
                                         :
                   Appellant             :   No. 811 WDA 2019

        Appeal from the Judgment of Sentence Entered May 24, 2019
    In the Court of Common Pleas of Greene County Criminal Division at
                      No(s): CP-30-CR-0000204-2018


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED FEBRUARY 14, 2020

      Appellant, Jerry Lee Cooke, appeals from the judgment of sentence

entered on May 24, 2019 in the Criminal Division of the Court of Common

Pleas of Greene County. We affirm.

      On June 25, 2018, Agent Daniel Jena of the Office of the Attorney

General and Patrolman Adam Fichter of the Waynesburg Borough Police

Department were on a plainclothes, undercover detail in Waynesburg,

Pennsylvania. Both officers were seated in an unmarked vehicle facing west

on South Alley. As the officers watched a nearby intersection, a black GMC

truck driven by Appellant and travelling east along South Alley pulled

alongside the officers’ vehicle. The windows of both vehicles were rolled down

and, as the GMC truck drove passed, the officers heard the driver of the truck

yell, “Move your f***ing car.” N.T. Trial, 1/31/19, at 92.    The truck then

passed the officers’ vehicle and came to a stop.
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      Both officers emerged from their vehicle, having determined to make

contact with the driver of the truck. As Agent Jena approached the rear of the

unmarked police vehicle, Appellant peered out of the truck window, deployed

a handgun, activated a green laser sighting device, and shined the laser site

at Patrolman Fichter and up and down Agent Jena’s body. Id. at 40. As the

laser light stopped momentarily on Agent Jena’s chest, Appellant was heard

to say, “Yeah, I didn’t think you wanted any of that.” Id. at 96. Both officers

reported that they were startled and scared when the laser site targeted them.

Id. at 40-41 and 97.     Agent Jena then retrieved his firearm and ordered

Appellant to stop. Appellant, however, disregarded this command and hastily

departed the scene.

      Appellant was subsequently stopped and taken into custody. A search

of the center console area of his truck yielded two firearms, including the one

used in the earlier incident involving Agent Jena.     A breath test showed

Appellant’s blood alcohol level to be .18%.

      On June 26, 2018, Waynesburg police filed a criminal complaint charging

Appellant with aggravated assault (18 Pa.C.S.A. § 2702(a)(6)), recklessly

endangering another person (18 Pa.C.S.A. § 2705), terroristic threats (18

Pa.C.S.A. § 2706), and driving under the influence of alcohol or controlled

substance (DUI) (75 Pa.C.S.A § 3802(a) and (c)). At the conclusion of trial

on January 31, 2019, a jury found Appellant guilty of terroristic threats and

DUI (§ 3802(c) – highest rate) and acquitted him of the remaining charges.

On May 22, 2019, the trial court imposed an aggregate sentence of 30 days’

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incarceration, 11 months’ county intermediate punishment (house arrest),

and 48 months’ probation.         See Trial Court Order, 5/23/19, at 3-4

(unpaginated). Appellant filed a timely notice of appeal on May 24, 2019.

After receiving extensions of time from the trial court, Appellant filed a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court issued its Rule 1925(a) opinion on August 16, 2019.

      Appellant raises the following issue for our consideration.

      If there [were] no evidence presented at trial that [Appellant]
      communicated a threat, either directly or indirectly[,] to commit
      a crime of violence with the intent to terrorize another, can
      [Appellant] be found guilty of making [] terroristic threats based
      upon his actions alone?

Appellant’s Brief at 3.

      Appellant’s claim challenges the sufficiency of the evidence offered to

support his conviction for the offense of terroristic threats. We apply a well

settled standard of review in examining such claims.

      A challenge to the sufficiency of the evidence is a question of law,
      subject to plenary review. When reviewing a sufficiency of the
      evidence claim, the appellate court must review all of the evidence
      and all reasonable inferences drawn therefrom in the light most
      favorable to the Commonwealth, as the verdict winner. Evidence
      will be deemed to support the verdict when it establishes each
      element of the crime charged and the commission thereof by the
      accused, beyond a reasonable doubt. The Commonwealth need
      not preclude every possibility of innocence or establish the
      defendant's guilt to a mathematical certainty. Finally, the trier of
      fact while passing upon the credibility of witnesses and the weight
      of the evidence produced, is free to believe all, part or none of the
      evidence.




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Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013) (citation

omitted).

      Appellant asserts that because he spoke “no words” in a threatening

manner, the evidence was insufficient to establish that he harbored an intent

to terrorize another, a required element of the crime of terroristic threats.

This claim lacks merit.

      A person commits the crime of terroristic threats if the person
      “communicates, either directly or indirectly, a threat to ... commit
      any crime of violence with intent to terrorize another.” 18
      Pa.C.S.A. § 2706(a)(1). “[T]he term ‘communicates’ means
      conveys in person or by written ... means.”           18 Pa.C.S.A.
      § 2706(e). Moreover, “[n]either the ability to carry out the threat
      nor a belief by the person threatened that it will be carried out is
      an essential element of the crime.” Commonwealth v. Fenton,
      750 A.2d 863, 865 (Pa. Super. 2000). “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.”
      Id.

      In Commonwealth v. Campbell, 625 A.2d 1215 (Pa. Super.
      1993), our Court emphasized the purpose behind the terroristic
      threats statute:

        The purpose of [§ 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. 18 Pa.C.S.A. § 2706, Official Comment -
        - 1972. The offense does not require that the accused intend
        to carry out the threat; it does require an intent to terrorize.
        The harm sought to be prevented is the psychological distress
        which follows from an invasion of another's sense of personal
        security. Therefore, it is the making of the threat with intent
        to terrorize that constitutes the crime.

      Campbell, 625 A.2d at 1218-1219 (citation and quotation marks
      omitted).


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Commonwealth v. Kline, 201 A.3d 1288, 1290 (Pa. Super. 2019), appeal

denied, 216 A.3d 1038 (Pa. 2019).

      Contrary to Appellant’s position on appeal, this Court previously applied

§ 2706 to non-verbal threats conveyed in the context of person-to-person

communications. In Kline, the defendant, on several prior occasions, stared

at the victim and her children from his nearby property as they entered and

exited their vehicle and home. One day, according to the victim’s testimony

at trial, the defendant made a hand gesture simulating the firing of a gun

aimed at the victim.    After a jury found him guilty of making a terroristic

threat, Kline argued on appeal that the evidence was insufficient to prove he

possessed the intent to terrorize because his non-verbal gesture was

unaccompanied by a verbal communication of any sort. Rejecting this claim,

we held that the evidence was sufficient to permit the jury to find that the

defendant conveyed, with the intent to terrorize, a threat to commit a crime

of violence upon the victim. See Kline, 201 A.3d at 1291.

      In light of Kline, we conclude that the evidence adduced at trial was

sufficient to prove that Appellant communicated, with the intent to terrorize,

a threat to commit a crime of violence and, hence, that he committed the

offense of terroristic threats. This is so despite the absence of a verbal threat.

The evidence at trial showed that Appellant deployed a handgun, activated a

green laser sighting device, and shined the laser light at Patrolman Fichter

and up and down Agent Jena’s body. The activation and deployment of a laser


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sighting device that targeted Patrolman Fichter and Agent Jena offered the

jury ample grounds upon which to conclude that Appellant threatened to fire

his weapon at one or both of the officers. Moreover, prior to departing the

scene, Appellant was heard to say that he didn’t think Agent Jena “wanted

any part of this,” implying that Appellant himself understood both the nature

and severity of the non-verbal threat he recently conveyed. As Appellant’s

non-verbal conduct clearly inflicted the type of psychological stress that

follows a threatened invasion of an individual’s personal security, we have

little difficulty in affirming Appellant’s terroristic threats conviction.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




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