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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SCOTT D. GRANT,

                            Appellant                No. 1000 MDA 2014


      Appeal from the Judgment of Sentence entered February 26, 2014,
              in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0004215-2013


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED JUNE 05, 2015

        Scott D. Grant (“Appellant”) appeals from the judgment of sentence

imposed after the trial court convicted him of terroristic threats and

retaliation against a victim, witness or party.1 We affirm.

        The notes of testimony reveal the following:    Ephrata Police Officer

Kenneth E. Lockhart, Jr. testified that in April of 2012, he was the lead

investigator in a criminal case involving Appellant.   N.T., 2/6/14, at 9-10,

14. Based on his investigation of Appellant in 2012, Officer Lockhart became

a Commonwealth witness. Id. at 10.

        In February of 2013, Detective Joseph Hockley from the Lancaster

County District Attorney’s office contacted Officer Lockhart and advised him

____________________________________________


1
    18 Pa.C.S.A. §§ 2706(a)(1) and 4953.
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that Appellant had made verbal and written statements which caused Officer

Lockhart to be “concerned that someone out there within the community

[was] going to attempt to harm me or members of my family.”         Id. at 10-

11, 20, 26.

      Hank Faleski testified to being cellmates with Appellant in the

Lancaster County Prison in December of 2012. Id. at 30. Mr. Faleski said:

            [Appellant] made me aware that Detective Lockhart had
      previously arrested him and that this was the second time he
      had been arrested by Detective Lockhart, and he expressed what
      I would consider a tremendous amount of animosity towards
      Detective Lockhart.

Id. at 31.

      Specifically, Mr. Faleski related that Appellant, “on multiple occasions”

… “said he wanted to kill [Detective Lockhart].”      Id. at 32.   Mr. Faleski

testified:

             [Appellant] told me he had a 12-gauge shotgun and 9-
      millimeter pistol, Smith & Wesson. He would be waiting for
      [Detective Lockhart] when he came to the door. He would be
      sitting in a chair, recliner-type chair, and that his first line of
      defense would be the 12-gauge shotgun and pistol when he
      opened the door and came in, he was going to let him have it.

                                     ***

            Again, [Appellant] expressed on a daily basis a lot of
      animosity and anger and hatred towards Detective Lockhart. On
      occasion, you know, he would talk about his demise.

                                     ***

           He expressed he wanted to kill him a number of times. I
      would say at least six, maybe twelve.

                                     ***

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            He told me he owned guns. … He told me he had a storage
      unit and it was 20 by 60 and it was in Ephrata.

Id. at 32-33.

      When he was released from prison, Mr. Faleski relayed Appellant’s

comments to his probation officer. Id. at 34. Mr. Faleski explained that he

told his probation officer about the statements because Appellant discussed

“collateral damage of other victims,” and Appellant “didn’t care if innocent

people died in a shoot-out that was eventually going to follow.” Id. at 35.

Mr. Faleski stated that he “absolutely” was concerned about the safety of the

community.      Id.   Mr. Faleski additionally conceded that it was “probably

accurate or at least a factor to some extent” that he wanted to advantage

himself in his upcoming probation violation hearing. Id. at 36-37, 54. He

testified:

      … I wasn’t going to let a deal benefitting me jeopardize the lives
      of a detective or victim or innocent people on the street. I’m not
      going to hold up knowledge that I have of an offense about to be
      committed because I want a deal. A life was involved here.

Id. at 50. Mr. Faleski added that he “wanted to be on good terms” with his

probation officer. Id. at 56.

      After Mr. Faleski relayed the information to his probation officer, the

probation officer directed him to the District Attorney’s Office, where Mr.

Faleski spoke with Detective Hockley. Id. at 34.

      Arnold Sensenig testified to being “friendly” with Appellant. Id. at 59.

When Appellant was in prison, Mr. Sensenig communicated with him by



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telephone, in written letters, and in “face-to-face” visits. Id. at 64-65. On

or about January 31, 2013, while in prison, Appellant sent Mr. Sensenig a

letter. Id. at 63; Commonwealth Exhibit 1. Mr. Sensenig read the letter:

             Hi, Arnold, this is [Appellant]. It’s time to end this cop’s
      career. He screwed up enough of people’s lives in Ephrata by his
      lies and deception. There will be an unknown person coming to
      visit to pick up two of the items I told you we won’t talk about on
      the phone. Don’t ask any names or where they live. Everything
      would be good and safe. If I am losing 200,000 because of him,
      he is going to lose something he thinks very much of and means
      very much to him. Also, like the Good Book says, an eye for an
      eye, tooth for a tooth.

Id. at 63.

      Mr. Sensenig testified that he “assumed” that the “items that you

won’t talk about on the phone” were guns. Id. Mr. Sensenig testified that

he gave the letter to Detective Hockley.      Id.   With regard to Appellant’s

reference to “this cop,” Mr. Sensenig testified, “I think I heard a name.” Id.

at 70. He identified the name as “Detective Lockhart.” Id. With regard to a

verbal statement by Appellant, Mr. Sensenig testified: “If I recall right, he

just said he is going to get him, even if he is six feet under.” Id. at 80.

      Lancaster County Detective Joseph Hockley testified that on February

11, 2013, he spoke with Mr. Faleski, who provided details regarding

statements made by Appellant.         Id. at 89.     Detective Hockey further

testified that Mr. Sensenig contacted him on March 11, 2013, and “[Mr.

Sensenig] also made the statement that – he said he remembers in one of

the letters, talking about his letters he had been receiving from [Appellant],


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and one stating that the officer in this case had to be dealt with, even if it

meant six feet under.” Id. at 106. Mr. Sensenig voluntarily gave the letter

to Detective Hockley. Id. at 107; Commonwealth Exhibit 1.

      Thereafter, Detective Hockley filed terroristic threats and retaliation

charges against Appellant. A bench trial convened on February 6, 2014, and

the trial court rendered its guilty verdicts on February 7, 2014. On February

26, 2014, the trial court sentenced Appellant to two (2) to seven (7) years of

incarceration. On or about April 9, 2014, Appellant filed a motion for post-

conviction collateral relief, seeking nunc pro tunc reinstatement of his direct

appeal rights.    By order dated May 15, 2014, the trial court reinstated

Appellant’s direct appeal rights nunc pro tunc. Appellant filed his notice of

appeal on June 11, 2014. The trial court and Appellant have complied with

Pa.R.A.P. 1925.

      Appellant raises a single issue for our review:

           CAN AN ACTOR BE CULPABLE OF CRIMINAL OFFENSES
      BASED UPON THREATENING A POLICE OFFICER WHO INITIATED
      A CRIMINAL PROSECUTION AGAINST HIM, WHEN THE ACTOR
      COMMUNICATED SUCH THREATS TO THIRD PARTIES UNKNOWN
      TO THE POLICE OFFICER WITH NO INTENT THAT SUCH
      PERSONS EVER RELAY THE THREATS TO THE POLICE OFFICER?

Appellant’s Brief at 4.

      Appellant claims that there was insufficient evidence to support his

convictions because “[Appellant] did not communicate the threats to the

police detective. Instead, he communicated the threats to persons who did

not know the police detective.        The evidence did not establish that

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[Appellant] intended for those third parties to communicate the threats to

the police detective.” Appellant’s Brief at 8.

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to
      resolve any doubts regarding a defendant's guilt unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. When evaluating the credibility and weight of
      the evidence, the fact-finder is free to believe all, part or none of
      the evidence.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).

      With regard to terroristic threats, we recently explained:

             To establish the crime of terroristic threats pursuant to
      section 2706(a)(1) of the Crimes Code, the Commonwealth must
      prove that the defendant “communicate[d], 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); see
      also Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597,
      600 (1996) (same). “[T]he 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 or with reckless
      disregard of the risk of causing such terror.” Commonwealth v.
      Ferrer, 283 Pa.Super. 21, 423 A.2d 423, 424 (1980) (footnote
      omitted). Section 2706 defines the word, “communicates,” to
      mean “conveys in person or by written or electronic means,
      including telephone ....” 18 Pa.C.S.A. § 2706(e).

            Our courts have not specifically addressed the definition of
      this word, “communicates,” in section 2706. See 18 Pa.C.S.A. §
      2706. Pursuant to Rule of Statutory Construction 1928, penal
      statutes are to be strictly construed.       See 1 Pa.C.S.A. §
      1928(b)(1); see also id. at § 1921(a) (providing, in part, that

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      “[t]he object of all interpretation and construction of statutes is
      to ascertain and effectuate the intention of the General
      Assembly.”).      Section 105 of the Crimes Code provides, in
      pertinent part: “The provisions of this title shall be construed
      according to the fair import of their terms but when the language
      is susceptible of differing constructions it shall be interpreted to
      further the general purposes stated in this title and the special
      purposes of the particular provision involved.” 18 Pa.C.S.A. §
      105. Section 102 states, in relevant part: “Except as otherwise
      provided in this section, a person may be convicted under the
      law of this Commonwealth of an offense committed by his own
      conduct ... if ... the conduct which is an element of the offense
      or the result which is such an element occurs within this
      Commonwealth[.]” 18 Pa.C.S.A. § 102(a).

             Here, the terroristic threats statute is clear and
      unambiguous that a communication must be conveyed. See 18
      Pa.C.S.A. § 2706(a)(1); see also 1 Pa.C.S.A. § 1928(b)(1). The
      official comment to Section 2706 states, “[t]he purpose of the
      section is to impose criminal liability on persons who make
      threats which seriously impair personal security or public
      convenience.” 18 Pa.C.S.A. § 2706, official comment–1972; see
      also 1 Pa.C.S.A. § 1921(a); Commonwealth v. Hardwick, 299
      Pa.Super. 362, 445 A.2d 796, 797 (1982) (same).

            Therefore, while the statute does not expressly address
      whether to construe a threat as being made at the time it is
      uttered or at the time it is received, we observe that a person's
      “personal security” cannot be “seriously impair[ed]” by a threat
      unless he hears it. Id. Accordingly, based on the statute's plain
      meaning, our strict construction of it, and the legislature's stated
      purpose in enacting it, we conclude that the term,
      “communicates,” as used in the terroristic threats statute,
      contemplates that the threat be received.

Commonwealth v. Vergilio, 103 A.3d 831, 833-834 (Pa. Super. 2014).

      Appellant argues that he did not possess the intent or recklessness

necessary to support his terroristic threats conviction. See Appellant’s Brief

at 25-26.   The trial court, sitting as the fact finder, disagreed.    The trial

court credited all four of the Commonwealth’s witnesses and explained:


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            In addition to the testimony of Mr. Faleski, Mr. Sensenig,
      and Detective Hockley, the Commonwealth offered the testimony
      of Detective Lockhart, who detailed his experiences with
      [Appellant] and knowledge of [Appellant’s] threatening
      statements. …. As discussed above, to prove that [Appellant]
      committed the crime of terroristic threats, the Commonwealth
      had to prove beyond a reasonable doubt that he communicated
      a threat with the intent to terrorize another. Based on the
      evidence and testimony discussed above, which the court
      carefully considered and assigned weight based on credibility
      and substance, the undersigned was satisfied that the
      Commonwealth had met its burden in proving that [Appellant]
      had communicated a threat with the intent to terrorize another.
      Because the Commonwealth met its burden of proof as to each
      material element of the crime, the undersigned found
      [Appellant] guilty of terroristic threats.

Trial Court Opinion, 12/16/14, at 6-7. Because the trial court’s reasoning is

supported by both the record and law, Appellant’s sufficiency argument

relative to terroristic threats lacks merit.

      With regard to the sufficiency of the evidence supporting his conviction

for retaliation, Appellant offers a scant one paragraph argument, in which he

“submits that the same analysis applies to the offense of retaliation …

[Appellant] cannot be guilty of the offense without being responsible for the

conveyance of the statements to the object under either a ‘knowing’ or

‘reckless’ culpability standard.”        Appellant’s Brief at 26.    Appellant’s

argument     is   undeveloped      and     therefore   waived.      See,   e.g.,

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006)

(“Arguments not appropriately developed are waived.”); Commonwealth v.

Brewer, 876 A.2d       1029,    1035 (Pa. Super. 2005) (argument deficient

where it was not appropriately developed by citation to authority).


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     We nonetheless note the applicable statute:

     Retaliation against witness, victim or party


     (a) Offense defined.--A person commits an offense if he
     harms another by any unlawful act or engages in a course of
     conduct or repeatedly commits acts which threaten
     another in retaliation for anything lawfully done in the
     capacity of witness, victim or a party in a civil matter.

18 Pa.C.S.A. § 4953 (emphasis added).

     The record supports the trial court’s conclusion that Appellant was

guilty of retaliation, where Officer Lockhart testified that he had been a

witness against Appellant, and was “very concerned” upon learning about

threatening verbal and written statements Appellant had made in reference

to Detective Lockhart. N.T., 2/6/14, at 10-11.

     Given the foregoing, Appellant’s sufficiency claims are without merit.

We therefore affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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