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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: K.L.,                                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
APPEAL OF: K.L.,                            :
                                            :
                          Appellant         :     No. 1500 EDA 2014

                Appeal from the Dispositional Order March 5, 2014
               In the Court of Common Pleas of Philadelphia County
                 Juvenile Division No(s).: CP-51-JV-1000175-2013


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

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 02, 2015

      Appellant, K.L., appeals from the dispositional order entered in the

Philadelphia County Court of Common Pleas following his adjudication of

delinquency for terroristic threats.1    He challenges the sufficiency of the

evidence. We affirm.

      Appellant, a sixteen-year-old high school student at the time of the

underlying incident, lived in a group home in Montgomery County.

Appellant’s parents lived in Philadelphia County. His father explained he and

Appellant’s mother placed him in the group home because they “thought it

would be better for him to be off the street [and] put him in there for his



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2706(a)(1).
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own sake because of where [they] live . . . .” N.T. Adjudication, 5/29/13, at

75-76.

     At the May 29, 2013 adjudication hearing held by the Montgomery

County Court of Common Pleas, Appellant’s teacher testified to the following.

“[A] few weeks prior” to the underlying incident, Appellant made a gesture

of a gun with his hand. Id. at 7. Appellant did not say anything and made

the gesture towards a wall, not at his teacher or another student. Id. at 13.

He was unaware his teacher saw him. Id. She told him, “I saw what you

did . . . .     [T]his will never happen in this classroom or in this school

again . . . .    [T]his is not appropriate for school.”   Id. at 7-8.   Appellant

looked at the teacher and “was kind of shocked,” but answered, “[T]his will

never happen again.”         Id. at 7, 9.   While the teacher did not know why

Appellant pretended to shoot a wall, she testified, “[Y]ou can’t make that

gesture in school.” Id. at 13.

     His teacher further testified to the following. On October 25, 2012 at

approximately 12:45 p.m., Appellant was in her history class.           Id. at 3.

Students were working quietly at their desks when Appellant “kept

stretching his arms out, and it was disrupting the two students who were

sitting . . . behind him, in the row next to him.” Id. at 4. His teacher asked

Appellant to stop and to sit up. Id. at 4, 12. Appellant said, “I’m not doing

anything.”      Id. at 12.   The teacher told Appellant she found his behavior

disruptive, both to the other students and to her teaching, and again asked,



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“Can you please stop?” Id. at 4. Appellant “raised his hand and made the

shape of a gun,” pointed his index finger directly at the teacher, and

pretended to shoot twice.      Id. at 4, 12.     When asked about Appellant’s

demeanor when he made the gesture, the teacher testified he “seemed

angry and upset that [she] asked him to stop disrupting the students behind

him.” Id. at 5. When asked to rate his anger on a scale of one to ten, she

testified it was “probably about a six or a seven.” Id. After Appellant made

the gun gesture, the teacher told him to go to the principal’s office. Id. at

9.

      Appellant replied, “I didn’t do anything. I’m not leaving this classroom,”

and became “more angry.” Id. His teacher called the principal. Id. at 48.

The principal and two other school officials came to the classroom and asked

Appellant to leave. Id. at 48-49. Appellant again refused to leave. Id. at

49.   The principal and officials told Appellant to “make a good choice and

leave,” after which they escorted Appellant out of the classroom. Id.

      At the adjudication hearing, Appellant testified to the following. He did

not recall making a gun gesture at a wall or receiving a warning from his

teacher prior to the underlying incident. Id. at 43-44. He denied making a

gun gesture on the day of the underlying incident.            Id. at 40.     He

remembered talking with his classmate and fellow group-home resident,

T.B., during class that day.        Id. at 39.   His teacher told him to stop

disrupting other students.    Id.    After her warning, he turned around and



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continued to talk with T.B. Id. His teacher asked him to “go to the office.”

Id. He “turned to [T.B.] and [made] a gesture with [his] finger,” and said,

“She always do that [sic].” Id. at 39. He pointed toward the front of the

class with his right index finger, but did not point directly at his teacher. Id.

at 40. When asked why he made the gesture, Appellant testified, “Because I

always speak with my hands.” Id. He testified he did not intend to “make a

gun sign,” threaten, or terrorize his teacher.      Id. at 40-41.    He further

testified, “I didn’t mean nothing by it.     I didn’t mean no harm with [my

teacher].”   Id. at 41.      Appellant also denied he was angry during this

encounter. Id. at 45.

    Appellant called T.B. to testify at the adjudication hearing. T.B. testified

to the following.   Appellant was leaning back to speak with T.B. when the

teacher asked Appellant to be quiet.       Id. at 24. Appellant then told T.B.,

“She always does this,” and “point[ed] toward the front of the classroom,

or . . . the smart board.”    Id. at 25.   Appellant wagged his pointed finger

and shook his head, smiling.      Id. at 26.    Appellant did not make a gun

gesture and did not point at the teacher.       Id. at 26, 31-32.   T.B. further

testified the teacher was “sensitive and emotional.” Id. at 27.

    A delinquency petition was filed, charging Appellant with terroristic

threats, harassment, and disorderly conduct.       Id. at 2.   The Montgomery

County Court of Common Pleas found Appellant committed terroristic threats

but dismissed all other charges.       Order, 5/29/13.     A representative of



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Appellant’s group home advised the court Appellant would be discharged

from the home if he were adjudicated delinquent.               N.T. at 64.      A

representative of the alternative school Appellant attended during his

suspension testified, “He’s done well” in that program. Id. at 65. Based on

these statements, the court withheld adjudication to allow Appellant to finish

summer school and transferred disposition of the case to the Philadelphia

County Court of Common Pleas. Id. at 74. By August 2013, when the Court

of Common Pleas in Philadelphia accepted Appellant’s case, he had returned

to his parents’ home in Philadelphia. Id.

    On March 5, 2014, the Philadelphia County Court of Common Pleas

adjudicated Appellant delinquent and entered the underlying disposition

placing him in a residential juvenile facility. Appellant filed a timely notice of

appeal and complied with the court’s order to file a Pa.R.A.P. 1925(b)

statement of errors complained of, as well as a later supplemental statement

of errors.2

    On appeal, Appellant presents one issue for review: the sufficiency of

evidence for terroristic threats.     Despite his testimony during his first

adjudication hearing, Appellant now concedes he “pantomime[d] a gun” and

acted inappropriately. Appellant’s Brief at 8. However, he contends that his


2
   Appellant’s Pa.R.A.P. 1925(b) statement also raised a challenge to
improper admission of prior bad acts evidence, which he does not pursue in
this appeal.




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gesture, taken in context, did not communicate a threat to commit a violent

act.    Id.   According to Appellant, his pantomime of a gun was merely a

juvenile, angry response to his teacher’s discipline, meant to communicate

insubordination and disrespect. Id. at 8, 13. He concedes the gesture could

communicate a threat if it were, for example, “[c]ombined with a verbal

threat, a threatening demeanor or a history of violence,” but maintains,

“none of these facts were present in [his] case.”       Id. at 17.   Appellant

further argues he lacked intent to terrorize another. Id. at 21. Instead, he

avers, he only intended to display disrespect and acted impulsively out of

transitory anger, displaying his immaturity as a juvenile.      Id. at 22-23.

Appellant likens this case to those in which this Court has held that threats

made during bouts of transitory anger or heated disputes were insufficient

evidence of intent to terrorize another.      Id. (citing Commonwealth v.

Kidd, 442 A.2d 826, 827 (Pa. Super. 1982); Commonwealth v. Sullivan,

409 A.2d 888, 889 (Pa. Super. 1979)). He distinguishes his case from those

where defendants planned violent attacks, verbalized explicit threats, or

testified to requisite intent. Id. at 19-20 (citing In re L.A., 853 A.2d 388

(Pa. Super. 2004); In re J.H., 797 A.2d 260 (Pa. Super. 2002);

Commonwealth v. Campbell, 625 A.2d 1215 (Pa. Super. 1993)). We find

no relief is due.

       When reviewing sufficiency of the evidence from a juvenile adjudication

hearing, “we must determine whether the evidence, and all reasonable



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inferences deducible therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, are sufficient to establish all of the

elements of the offense beyond a reasonable doubt.” In re L.A., 853 A.2d

at 391.   “In a juvenile proceeding, the hearing judge sits as the finder of

fact. The weight to be assigned the testimony of the witnesses is within the

exclusive province of the fact finder.” Id.

          The facts and circumstances established by the
          Commonwealth need not be absolutely incompatible with
          the defendant’s innocence, but the question of any doubt
          is for the trier of fact unless the evidence is so weak and
          inconclusive that, as a matter of law, no probability of fact
          can be drawn from the combined circumstances.

In re B.R., 732 A.2d 633, 636 (Pa. Super. 1999).

    To satisfy the elements of terroristic threats under 18 Pa.C.S. §

2706(a)(1), the Commonwealth must establish a person “communicate[d],

either directly or indirectly, a threat to . . . commit any crime of violence

with intent to terrorize another[.]”    18 Pa.C.S. § 2706(a)(1).     To satisfy

these elements, “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.”

Commonwealth v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super. 1990).

“Neither the ability to carry out the threat, nor a belief by the person

threatened that the threat will be carried out, is an element of the offense.”

In re J.H., 797 A.2d at 262.             “Rather, the harm sought to be


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prevented . . . is the psychological distress that follows from an invasion of

another’s sense of personal security.” In re B.R., 732 A.2d at 636.

    “[A]s a result of the numerous incidents of violence which have occurred

in the school setting over the past several years, this Court recognizes the

seriousness of any threat made by a student against a teacher or another

student.”   In re J.H., 797 A.2d at 263.            We have stated, “[I]t is of

paramount importance that our schools must be kept as centers of learning

free of fear for personal safety.” In re B.R., 732 A.2d at 639.

    For example, in In re B.R., three students, awaiting a meeting with

their principal, talked about destroying school “communications” and

bringing guns to school. Id. at 635. B.R. said he would bring a gun on the

last day of school, and one of the other students said he would “line up all

the . . . teachers and shoot them.” Id. Although the students were talking

to each other, a teacher assigned to monitoring them testified “the

threatening statements appeared to be directed to him” and that he was

concerned because of a recent incident in Pennsylvania in which a student

shot a teacher at a dance. Id. at 637.

    “Intent . . . is a subjective element . . . .    Generally speaking, one is

presumed    to   intend   the   normal    consequences      of   one’s   actions.”

Commonwealth v. Robinson, 817 A.2d 1153, 1159 (Pa. Super. 2003).




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Recognizing the legislature’s intent in enacting 18 Pa.C.S. § 2706, 3 this

Court has not found the requisite intent to satisfy Section 2706 where

threatening words were merely the result of a heated conflict or an outburst

of rage.   See, e.g., Kidd, 442 A.2d at 827 (finding no intent to establish

terroristic threats where defendant, who was under police custody at

hospital, “was obviously inebriated and in an agitated and angry state of

mind” and whose “conduct expressed transitory anger rather than a settled

purpose to carry out the threat” to shoot or kill police officers); Sullivan,

409 A.2d at 889 (finding, inter alia, “no evidence that [defendant], by his

acts, intended to put the [victim] Sheriff into a state of ‘extreme fear or fear

that agitates body and mind’” and instead threat to sheriff was “emotional

product of a chance meeting . . .” which led to “loud shouting match”).4

    Nevertheless, “being angry does not render a person incapable of

forming the intent to terrorize.” In re J.H., 797 A.2d at 263. In In re J.H.,

a high school drama teacher reprimanded her student several times for

using profanity. Id. The student “apologized and promised to stop.” Id.



3
  The Pennsylvania Joint State Government Commission's Comment on 18
Pa.C.S. § 2706 states this section “is not intended . . . to penalize mere
spur-of-the-moment threats which result from anger.”
4
  Sullivan and Kidd were decided under the former version of the terroristic
threats statute, which did not include, as the current version does, the
element of a direct or indirect communication of a threat. Nevertheless,
those cases discussed the element of intent, which has remained
unchanged.




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           [He] continued to use offensive language, [and] his
           teacher advised him that she would discuss the situation
           with his probation officer. It was at this point that J.H.
           told his drama teacher that if she spoke with his probation
           officer, it would be the last thing she ever did. When his
           teacher asked J.H. if he was aware that he was threatening
           her, he replied that he was ‘promising’ her.

Id.

      On appeal, this Court stated that we “must consider the totality of

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

verbal exchange or confrontation.” Id. We noted that prior to the threat,

“there was no heated verbal exchange or confrontation . . . . [The] teacher

simply was advising [J.H.] of the consequences if he continued to use

profanity in the classroom.” Nevertheless, this Court “recognize[d], as did

the trial court, that [the student] was angry when he threatened his

teacher.” Id. We rejected the student’s claim that he lacked the intent to

terrorize, and we affirmed his adjudication for terroristic threats. Id. at 261,

263.

      As stated above, Appellant now concedes he made a gun gesture at his

teacher.    Appellant’s Brief at 8, 13.   He also concedes he made the same

gesture a few weeks earlier and his teacher had warned him not to make the

gesture again.    Id. at 13.   Appellant avers the gun “gesture has multiple

meanings depending on the context.”        Id. at 16. We agree to the extent

that we consider the totality of the circumstances. See In re J.H., 797 A.2d

at 263.    In this case, we emphasize the previous warning by Appellant’s



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teacher when Appellant made a similar gun gesture. Appellant’s Brief at 13;

N.T. at 7-8. The juvenile court considered the testimony of Appellant, the

teacher, and Appellant’s witness in weighing these circumstances, and

concluded, “You could only interpret the motion that was described to this

Court as a terroristic threat . . . .    The motion is I’m going to shoot you,

without a gun.” N.T. at 61.

    After careful review of the record, this Court agrees with the juvenile

court there was sufficient evidence to determine Appellant committed

terroristic threats. We therefore affirm the decision of the juvenile court.

    Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2015




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