J-S12006-19

                             2019 PA Super 277

 IN THE INTEREST OF: J.J.M., A           :   IN THE SUPERIOR COURT OF
 MINOR                                   :        PENNSYLVANIA
                                         :
                                         :
                                         :
 APPEAL OF: J.J.M., A MINOR              :   No. 1245 MDA 2018

         Appeal from the Dispositional Order Entered May 14, 2018
    In the Court of Common Pleas of Luzerne County Juvenile Division at
                      No(s): CP-40-JV-0000119-2018

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

OPINION BY BOWES, J.:                          FILED SEPTEMBER 10, 2019

      J.J.M. appeals from the dispositional order entered following his

delinquency adjudication for terroristic threats. We affirm.

      At the time of the events in question, Appellant was a fifteen-year-old

student at West Side Career and Technology Center, a vocational high school

in Luzerne County, Pennsylvania.       The juvenile court summarized the

testimony offered at the adjudication hearing arising from those events as

follows.

             M.W., a fifteen-year-old student at West Side C.T.C.
      testified that on February 20, 2018 she was in school and is
      familiar with [Appellant]. M.W. identified [Appellant] for the
      record and related that they have several classes together. She
      testified that she heard [Appellant] make statements regarding
      “things in reference to death and such,” in the hallway, between
      classes and she was within two to three feet of him at the time
      the statements were made.

            M.W. further testified that [Appellant] stated “he wanted to
      beat the record of 19.” She testified he was either talking to
      someone or just said it and it was not directly said to her. She
      then notified school administrators Mr. Rava and Mr. Paulauskas.
      She further testified she went to the school authorities “because
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     it was concerning due to past statements. I felt it needed to be
     taken seriously.”

           When asked on cross-examination if she felt that she
     needed to talk to [Appellant] to ask what he meant by the
     statement she replied “no, I felt it was unneeded.” She stated the
     statements concerned her because he’s shown signs of possibly
     being violent.

          The Commonwealth next called K.S. a fourteen-year-old
     student at West Side C.T.C. K.S. testified that she was in school
     on February 20, 2018 and did not have any conversations with
     [Appellant] that day. She stated she did have conversations with
     him a few weeks before.

          K.S. testified [Appellant] said “he doesn’t think people
     deserve to live and everyone should just die.” She went to school
     administrator Mr. Paulauskas and reported this incident.

           K.S. testified that she did not immediately report the
     statement to school administration however, a few weeks later
     after she heard other statements he made, she then spoke up
     about it because it was a serious problem. She stated “I was
     scared, like, I was nervous. I was scared because I didn’t know
     what was going to happen. There was previously school shootings
     like you never know. I spoke with Mr. Paulauskas and Mr. Rava,
     I approached them because my friends approached me about him
     saying he was going to beat the record. She stated she was
     concerned and reported this information to school personnel and
     believed [Appellant] was then suspended from school. He was no
     longer at school.”

           K.S. further testified about previous statements that she
     heard coming out of J.M’s mouth that worried her. She stated the
     statement that she heard was “that he thought people should die,
     people like shouldn’t live. That’s what I heard myself.” She
     further related that other people told her about other statements
     he had made.

           On cross-examination K.S. was asked if she was generally
     uneasy and anxious because of matters recently reported in the
     news. She testified “yes, I was uneasy and anxious because there
     had recently been school shootings.”


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            Richard Rava, Administrator of West Side [C.T.C.] testified.
      He indicated he is the Assistant Director/Principal. He is familiar
      with [Appellant]. When asked if action was taken by the school
      regarding [Appellant]’s conduct, Mr. Rava testified that
      [Appellant] was expelled from school.

Juvenile Court Opinion, 7/16/18, at 2-4 (some punctuation corrected;

citations omitted).

      Upon this evidence, a juvenile hearing officer adjudicated Appellant

delinquent of terroristic threats.   Appellant challenged the hearing officer’s

recommendation, and the juvenile court scheduled a de novo hearing. The

parties stipulated to the introduction of the prior testimony at that hearing to

inform the court’s determination.      On May 14, 2018, the juvenile court

adjudicated Appellant delinquent of terroristic threats under 18 Pa.C.S.

§ 2607(a)(3), and provided that the disposition order drafted by the hearing

officer remain in effect. That order, inter alia, placed Appellant on probation,

required that he comply with mental health recommendations, and prohibited

Appellant from having any contact with weapons.         Appellant filed a timely

post-dispositional motion, which was denied by order of July 16, 2018.

Appellant thereafter filed a timely notice of appeal.

      Appellant presents the following questions for this Court’s review:

      1.    Whether the Commonwealth presented sufficient evidence
      to conclude that [Appellant] violated 18 Pa.C.S.A. § 2706(a)(3)?

      2.    Whether the terroristic threats statute violates [Appellant’s]
      1st Amendment right under the United States Constitution to free
      speech?




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      3.    Whether the terroristic threats statute is unconstitutional
      and, as applied, in violation of [Appellant’s] due process rights
      under the 5th and 14th Amendments of the United States
      Constitution?

Appellant’s brief at 2.

      We begin with the law applicable to Appellant’s contention that the

evidence offered by the Commonwealth is insufficient to sustain his

adjudication. “In a juvenile proceeding, the hearing judge sits as the finder

of fact.” In re L.A., 853 A.2d 388, 391 (Pa.Super. 2004). “The weight to be

assigned the testimony of the witnesses is within the exclusive province of the

fact finder.” Id.

      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.

In the Interest of J.G., 145 A.3d 1179, 1188 (Pa.Super. 2016) (citations

omitted).

      Our legislature has defined the crime of terroristic threats as follows:

      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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          (2) cause evacuation of a building, place of assembly or facility
          of public transportation; or

          (3) otherwise cause serious public inconvenience, or cause
          terror or serious public inconvenience with reckless disregard
          of the risk of causing such terror or inconvenience.

18 Pa.C.S. § 2706(a).

       This Court has held that the result threatened by the speaker need not

be specifically articulated if it “may be inferred from the nature of the

statement and the context and circumstances surrounding the utterance of

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

quotation marks omitted).

       “[T]he harm sought to be prevented by the statute is the psychological

distress that follows from an invasion of another’s sense of personal security.”

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

quotation marks omitted). As such, “neither 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.” Id. (cleaned up).

       The Commonwealth alleged that Appellant engaged in conduct that

constituted terroristic threats under subsections (a)(1) and (a)(3) of § 2706.1

The juvenile court determined that an adjudication of delinquency was

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1 Appellant was also charged with, but not found to be factually responsible
for, disorderly conduct under 18 Pa.C.S. § 5503(a)(4). See Juvenile Court
Opinion, 7/16/18, at 1.



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unwarranted under subsection (a)(1) (threat made with intent to terrorize),2

but concluded that Appellant made a threat with reckless disregard for the risk

that it would cause terror or public inconvenience. Juvenile Court Opinion,

7/16/18, at 1, 9.      Therefore, it adjudicated Appellant delinquent pursuant to

subsection (a)(3).

       Appellant challenges the sufficiency of the evidence to sustain this

adjudication on two grounds. First, he contends that his statements do not

amount to a “threat.” Appellant’s brief at 8-11. Second, Appellant maintains

that the evidence does not support a finding of a mens rea beyond mere

negligence, because there was no evidence that Appellant knew that anyone

who overheard his statement would associate it with previous school

shootings. Id. at 12-13. We are not persuaded by either argument.

       To reiterate, § 2706(a)(3) provides: “A person commits the crime of

terroristic threats if the person communicates, either directly or indirectly, a

threat to: . . . cause serious public inconvenience, or cause terror or serious

public inconvenience with reckless disregard of the risk of causing such terror

or inconvenience.”      18 Pa.C.S. § 2706(a)(3).    As the term “threat” is not



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2 Indeed, in addressing a sufficiency challenge raised by Appellant at the
adjudication hearing, the Commonwealth appears to have conceded that it
failed to present evidence that Appellant intended to terrorize anyone. See
N.T. Adjudication Hearing, 4/26/18, at 45 (“A threat was made to the point
that it violated people’s sense of security. . . . And that’s really why we’re
here, Your Honor. It’s not what [Appellant] intended, but it’s the effect that
he had on other people.”)

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defined in the statute, we imbue the word with its ordinary meaning.

Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002) (“We construe

non-technical words and phrases in statutes, which remain undefined,

according to their ordinary usage.”).

       Black’s Law Dictionary offers the following definitions of “threat”:

       1.    A communicated intent to inflict harm or loss on another or
       on another’s property, esp. one that might diminish a person’s
       freedom to act voluntarily or with lawful consent; a declaration,
       express or implied, of an intent to inflict loss or pain on another
       ....

        2.  An indication of an approaching menace; the suggestion of
       an impending detriment . . . .

       3.     A person or thing that might well cause harm . . . .

Black’s Law Dictionary (11th ed. 2019). This Court has also acknowledged

similar definitions from different sources, namely “an indication of something

impending and usu[ally] undesirable or unpleasant,” and “an expression of

intention to hurt, destroy, punish, etc.” Commonwealth v. Baker, 766 A.2d

328, 330 n.5, 332 (Pa. 2001).

       At the adjudication hearing, M.W. stated that she personally heard

Appellant say on February 20, 2018, in the hallway of the school between

classes, that he “wanted to beat the record of 19.”3 N.T. Adjudication Hearing,

4/26/18, at 14. K.S. heard Appellant’s statement about wanting to “beat the



____________________________________________


3M.W. indicated she was not absolutely sure that nineteen was the number
Appellant indicated. N.T. Adjudication Hearing, 4/26/18, at 14.

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record” indirectly, through other students. Id. at 25. Both M.W. and K.S.

indicated that they took Appellant seriously because he had in the past spoken

to them about death and that people should die. Id. at 13, 29. K.S. further

testified that she had been generally uneasy and anxious at the time she heard

of Appellant’s statement, as there had been a recent school shooting in the

news.4 Id. at 31. M.W. did not inquire of Appellant as to the meaning of his

statement, as she felt explanation was unneeded. Id. at 18.

       Appellant argues that the actual words he said, standing alone, have

“no logical connection which can equate the statement with harm. . . .

[Appellant] could have been speaking about participation in a video game or

any other competition[.]” Appellant’s brief at 9. Appellant made the same

argument to the juvenile court. See N.T. Adjudication Hearing, 4/26/18, at

41-42. However, the juvenile court rejected it, noting that it was made in the

presence of students who cannot help but be aware in this day and age of “the

proliferation of incidents which have occurred throughout this country.”

Juvenile Court Opinion, 7/16/18, at 8. We agree that, from this context and

the circumstances surrounding Appellant’s statement, the words expressed an



____________________________________________


4 Appellant’s statement was uttered six days after seventeen victims were
killed at Marjory Stoneman Douglas High School in Parkland, Florida, eclipsing
the Columbine High School shooting as the most deadly high school shooting
in United States history. See, e.g., Elizabeth Elizalde, These are the deadliest
school shootings in U.S. history, New York Daily News (February 14, 2018,
8:11     PM)    http://www.nydailynews.com/news/national/deadliest-school-
shootings-u-s-history-article-1.3821513.

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J-S12006-19


intent to cause harm and an indication of impending menace.              Hence,

Appellant made a threat within the meaning of § 2607.

       Further, we conclude that the evidence sufficiently established that

Appellant made his threat with reckless disregard for the risk that it would

cause terror. Again, the facts are that, while the news was dominated by the

deadliest high school shooting in this country’s history, Appellant proclaimed

in a high school hallway, between classes, loud enough for other students to

hear, that he wanted to “beat the record of 19.”5       We do not hesitate to

conclude that Appellant consciously disregarded a substantial and unjustifiable

risk that his threat would terrorize his fellow students.      See 18 Pa.C.S.

§ 302(a)(3) (defining recklessness).

       Moreover, the Commonwealth offered evidence that students who heard

Appellant’s statement directly, or heard of it indirectly, experienced the

invasion of personal security that the law seeks to prevent.6          See N.T.



____________________________________________


5 We reiterate that, although the Parkland shooting resulted in seventeen
deaths rather than nineteen, M.W. indicated she was less than certain of the
number that Appellant stated. N.T. Adjudication Hearing, 4/26/18, at 14.

6 Appellant argues that he should not be tasked with having anticipated that
other students would have communicated his threat to K.S., to whom he
previously expressed his view that people should just die. Appellant’s brief at
11. However, we find that Appellant’s “beat the record” statement, made
within a week of the Parkland shooting, was itself alone sufficient to constitute
a terroristic threat. Further, the fact that not all of his victims received the
threat directly is of no moment. See, e.g., In re L.A., 853 A.2d 388
(Pa.Super. 2004) (affirming conviction based upon terror instilled into victim
who learned of the appellant’s threats through a third party).

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Adjudication Hearing, 4/26/18, at 15 (M.W. testifying that she was

“concerned” by Appellant’s statement), 25 (K.S. indicating that Appellant’s

sentiments made her “scared”). Accord Commonwealth v. Bunting, 426

A.2d 130, 132 (Pa.Super. 1981) (holding evidence was sufficient to sustain

conviction where the victims “developed only concern for the safety of

themselves and others” rather than experienced “terror” or “fear”).

      Appellant’s   remaining      questions   present   challenges    to   the

constitutionality of his adjudication. Specifically, Appellant contends that his

adjudication based upon recklessness violates his First Amendment free

speech rights, and that § 2706 is unconstitutionally vague both on its face and

as applied. Appellant’s brief at 14, 22.

      We first examine Appellant’s First Amendment claim, and begin by

noting that children do not “shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.”        Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). “On the other hand,

the [United States Supreme] Court has repeatedly emphasized the need for

affirming the comprehensive authority of the States and of school officials,

consistent with fundamental constitutional safeguards, to prescribe and

control conduct in the schools.”    Id. at 507. “Part of a school’s awesome

charge is to balance the exercise of rights that enrich learning with order and

a safe and productive school environment.” J.S. ex rel. H.S. v. Bethlehem

Area Sch. Dist., 807 A.2d 847, 855 (Pa. 2002), abrogation on other grounds


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recognized by Commonwealth v. Knox, 190 A.3d 1146, 1156-57 (Pa. 2018).

In light of “of the numerous incidents of violence which have occurred in the

school setting” in the past two decades, “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 260, 263 (Pa.Super. 2002).

      Indeed, we have acknowledged that in order to facilitate the
      strong public interest in reducing the level of violence within our
      schools and in the community in general, that it is of paramount
      importance that our schools must be kept as centers of learning
      free of fear for personal safety.        This concept of safety
      encompasses the notion of teachers and students being secure
      and free from the fear of becoming victims of senseless violence.

Id. (cleaned up) (quoting In re B.R., supra at 639).

      Turning to the constitutional right at issue, we observe that the First

Amendment, made applicable to this Commonwealth through the Fourteenth,

prohibits the government from abridging the right to free speech. U.S. Const.

amend. I (“Congress shall make no law . . . abridging the freedom of

speech[.]”); Knox, supra at 1153. While the government generally may not

restrict speech based upon its substance, even content-based restrictions on

expression are constitutionally permissible when the expression “is of such

slight social value as a step to truth that any benefit that may be derived from

it is clearly outweighed by the social interest in order and morality.” Knox,

supra at 1154 (cleaned up). Accordingly, it is well-settled that “[t]hreats of

violence fall outside the First Amendment’s protective scope because of the

need to protect individuals from the fear of violence, from the disruption that


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fear engenders, and from the possibility that threatened violence will occur.”

Id. (cleaned up).

      To be proscribed and actionable, the threat must be a “true threat,” and

not merely political hyperbole or an expression of political dissent. Compare

In re J.H., supra at 263 (affirming adjudication upon student’s “promise”

that if teacher reported student’s conduct to his probation officer “it would be

the last thing she ever did”); with Watts v. United States, 394 U.S. 705

(1969) (overturning conviction under statute prohibiting threats against the

President based upon draftee’s statement that if he is forced into the military

and given a rifle, “the first man I want in my sights is L.B.J.”).

      In determining whether particular speech constitutes a true threat,

consideration of both the speaker’s scienter and the contextual circumstances

is required. Knox, supra at 1156-58. Relevant contextual factors include

“whether the threat was conditional, whether it was communicated directly to

the victim, whether the victim had reason to believe the speaker had a

propensity to engage in violence, and how listeners reacted to the speech.”

Id. at 1159. The inquiry must incorporate some examination of the speaker’s

mental state, as the government cannot prosecute speech based solely upon

an “objective, reasonable listener standard” following the High Court’s

fractured decision in Virginia v. Black, 538 U.S. 343 (2003) (O’Connor, J.

announcing the judgment of the Court and delivering the opinion of the Court

in part) (holding statute prohibiting cross burning with an intent to intimidate


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did not violate First Amendment, but provision that burning cross in view of

the public constituted prima facie evidence of intent to intimidate was

unconstitutional).   See Knox, supra at 1156.      Accord Elonis v. United

States, 135 S.Ct. 2001, 2012 (2015) (holding conviction under federal statute

could not stand because the jury was instructed that the prosecution was

required to prove only that a reasonable person would consider the

defendant’s communication to be a threat).

      There is no question that true threats made with the intent to terrorize

fall outside of the First Amendment’s protection. What has not been decided

by either our Supreme Court or the United States Supreme Court is whether

threats communicated not with the subjective intent to terrorize, but instead

with reckless disregard for the risk of causing terror in the listener, is

permissible under the First Amendment. Appellant argues that liability based

on mere recklessness per se violates the First Amendment.    Appellant’s brief

at 18.   In the alternative, Appellant contends that examination of the full

context of his statements reveals that they fall outside of the true threat

category. Id.

      Our Supreme Court, pointing specifically to the statute at issue in the

case sub judice, expressly declined to address the issue of whether liability

imposed upon reckless communication can survive First Amendment scrutiny.

See Knox, supra at 1157 n.10 (noting that Watts and Black do not address

“whether the First Amendment requires a particular mental state for threat


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prosecutions,” but that it was unnecessary to resolve the issue because Knox

was found to have acted intentionally).

      In a concurring and dissenting opinion, Justice Wecht, joined by Justice

Donohue, opined that the Knox majority should have considered “whether

the First Amendment requires proof of specific intent, or whether the

Amendment would tolerate punishment of speech based upon proof of only a

lesser mens rea of recklessness or knowledge.”        Id. at 1162 (Wecht, J.

concurring and dissenting) (emphasis in original).    Justice Wecht observed

that the federal courts of appeals are not in agreement on “whether the

subjective intent of a speaker is a necessary component of an actual true

threat.” Id. at 1162-63. Justice Wecht offered the following summary of the

different views:

            The First, Second, Third, Fourth, Sixth, Seventh, and Eighth
      Circuits have determined that the Black Court did not impose a
      subjective intent requirement upon the analysis. Those Circuits
      eschew such an element, and instead apply an objective test
      focused upon either a hypothetical reasonable speaker or a
      hypothetical reasonable recipient/listener.

           The Fifth and Eleventh Circuits adopted a more general
      reasonable person test, with no specific reliance upon either the
      speaker or the listener.

             The Ninth and Tenth Circuits read Black as requiring the
      true threats analysis to focus upon the speaker’s subjective intent
      to intimidate a person or group of persons.

Id. at 1162-63 (citations omitted).

      Justices Wecht and Donohue would adopt the position of the Ninth

Circuit and hold, inter alia, that the First Amendment prohibits penalizing or

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proscribing a statement unless “the speaker specifically intended to intimidate

the victim or victims, or intended his expression to be received as a threat to

the victim or victims.” Id. at 1165 (Wecht, J. concurring and dissenting).

       While the Knox majority chose not to decide the issue that Justices

Wecht and Donohue would have reached, it did indicate that it was “not fully

aligned with the Ninth Circuit’s view that, under Black, a specific intent to

threaten is the sine qua non of a constitutionally punishable threat.” Id. at

1157 n.10 (internal quotation marks omitted). Hence, we are not convinced

that application of the minority view in Knox is appropriate in this case.

However, as discussed above, the Knox majority did state its view that the

Black opinions evidenced that seven justices of the United States Supreme

Court “believed the First Amendment necessitates an inquiry into the

speaker’s mental state.”        Id. at 1157.       As such, our Supreme Court has

indicated that it would not apply a wholly objective test focused only upon the

effects a threat had upon the recipients as some of the federal circuit courts

employ.7 Id.

       Mindful of the legal backdrop discussed above, we hold that in the

context of the special circumstances attendant with threats made in a school



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7 We note that “a majority of federal appellate courts . . . has declined to read
Black as altering the traditional objective standard” in conducting a true-
threats analysis. State v. Meadows, 197 A.3d 464, 477 (Conn.App. 2018)
(collecting cases).


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setting, a threat made with the mental state of recklessness, i.e., with

conscious disregard of the risk of causing terror, constitutes a true threat

falling outside the scope of the protections of the First Amendment.        See

Elonis, supra at 2015 (Alito, J. concurring in part and dissenting in part)

(“There can be no real dispute that recklessness regarding a risk of serious

harm is wrongful conduct. . . . Someone who acts recklessly with respect to

conveying a threat necessarily grasps that he is not engaged in innocent

conduct. He is not merely careless. He is aware that others could regard his

statements as a threat, but he delivers them anyway.”). Accord, e.g., New

York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding First

Amendment permits state to authorize the award of damages for defamation

of a public figure upon proof that the statement was made recklessly).

       Therefore, we conclude that the Commonwealth’s evidence in the

instant case established that Appellant communicated a true threat that was

not protected by the First Amendment.              The circumstances surrounding

Appellant’s statement that he “wanted to beat the record of 19” evidenced

that it was a threat,8 and that Appellant communicated it with a conscious


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8 Appellant’s attempt to analogize the circumstances of this case with those
at issue in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503
(1969), is preposterous. In that case, the High Court held that a school rule
prohibiting students from wearing black arm bands to protest the war in
Vietnam was an unconstitutional violation of the students’ freedom to express
their opinion. Those students’ “silent, passive expression of opinion” in favor
of peace over violence, id. at 508, was in no way similar to Appellant’s threat
to commit mass murder.

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disregard for the likelihood that his words would engender fear in those who

heard them. Appellant’s subjective mental state was such that he acted with

knowledge of its wrongness, for the events of the day in question, described

above in detail, do not suggest that Appellant spoke to express an opinion, or

that he was just jesting, or even that he was merely negligent in inducing fear

in his schoolmates.

      Rather, Appellant, who had cultivated an image among his classmates

as one who relished the thought of death to human beings, must have known

the effect that his words would have upon his fellow students in the wake of

the Parkland shooting. Yet he chose to utter them anyway, in school, in the

hallway between classes, for anyone and everyone around him to hear. We

do not believe the First Amendment is or ever was intended to give Appellant

a protected right to do so. Accord Elonis, supra at 2027-28 (Thomas, J.

dissenting) (“We generally have not required a heightened mental state under

the First Amendment for historically unprotected categories of speech. . . . I

see no reason why we should give threats pride of place among unprotected

speech.”).

      Having concluded that Appellant’s adjudication does not violate his First

Amendment rights, we turn to Appellant’s challenges to the statute on the

basis of vagueness. “The void-for-vagueness doctrine requires that a penal

statute define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does


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not encourage arbitrary and discriminatory enforcement.” Commonwealth

v. Bullock, 913 A.2d 207, 212 (Pa. 2006) (internal quotation marks omitted).

Appellant suggests that § 2706 is unconstitutional under this doctrine both on

its face and as applied. Appellant’s brief at 2.

         Again, § 2706(a)(3) defines the crime of terroristic threats as follows:

“A person commits the crime of terroristic threats if the person communicates,

either    directly   or   indirectly,   a   threat   to:   ...   cause   serious   public

inconvenience, or cause terror or serious public inconvenience with reckless

disregard of the risk of causing such terror or inconvenience.” 18 Pa.C.S.

§ 2706(a)(3).

         This Court held long ago that the statute is not facially void for

vagueness.       See Commonwealth v. Chance, 458 A.2d 1371, 1375

(Pa.Super. 1983) (holding § 2706 is not unconstitutionally vague because it

describes “the category of unlawful activity with sufficient precision as to place

a person charged with such an offense on notice as to what conduct was

proscribed by the statute”); Commonweatlh v. Green, 429 A.2d 1180, 1183

(Pa.Super. 1981) (same).          Appellant presents no argument to convince us

that those decisions are no longer valid and applicable.

         Appellant also claims that the statute is invalidly-vague as applied

because he had no reason to expect, based upon the language of the statute,

that he could be in violation of it through the combination of two different

statements that he said weeks apart from each other. Appellant’s brief at 24.


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This argument hinges on the merits of his belief that neither of his statements,

standing alone, constituted a threat. Id.

      As noted above, we conclude that Appellant’s statement that he wanted

to “beat the record of 19,” made only days after the “record” for deaths in a

high school shooting was established, was the threat that sustains his

adjudication. Appellant’s prior communications about his affinity for “death

and such” to his fellow students were not necessary to make the expression

of his aspirations to “beat the record” a threat. Rather, the fact that he had

shared those views with students, who are all potential targets of his threat,

merely contributed to the totality of the circumstances establishing that

Appellant acted with reckless disregard for the risk of causing terror when he

announced aloud, in school, for anyone around him to hear, a desire to

become the most prolific high school shooter in history. We therefore hold

that the language of § 2706 is sufficiently clear to have put Appellant on notice

that his conduct was prohibited.   His vagueness challenge merits no relief.

      In conclusion, we reiterate that our decision of these difficult issues is

informed by the special public interest, long-acknowledged by this Court, in

confronting the impact of instances of gun-related violence in our schools:

      [A] threat by a student to bring a gun to school can in no way be
      treated as [a] joking statement which can be casually disregarded.
      . . . [I]t is of paramount importance that our schools must be
      kept as centers of learning free of fear for personal safety. This
      concept of safety encompasses the notion of teachers and
      students being secure and free from the fear of becoming victims
      of senseless violence. However, freedom from this type of grim
      fear is destroyed by statements such as Appellant’s. Because this

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     is precisely the type of impairment to personal security that the
     terroristic threats statute was enacted to avoid, we find
     Appellant’s adjudication of delinquency proper.

In re B.R., supra at 639 (citations and unnecessary capitalization omitted).

     Dispositional order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2019




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