J.S20034/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
THOMAS PAUL MCPHERSON,                      :
                                            :
                          Appellant         :     No. 1450 WDA 2013


             Appeal from the Judgment of Sentence August 6, 2013
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0011475-2012

BEFORE: GANTMAN, P.J., DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED OCTOBER 6, 2014

        Appellant, Thomas Paul McPherson, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his bench convictions for terroristic threats and harassment.1 The victims in

this case were the mayor and chief of police of Millvale.      Appellant argues

the court erred in admitting audio recordings of voice messages, the

evidence was insufficient to establish terroristic threats, and the court

abused its discretion in imposing a probation term banning him from the

town of Millvale.    We affirm the convictions but vacate the portion of his

*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2706(a)(1), 2709(a)(4). Appellant was also convicted of
possession of marijuana, 35 Pa.C.S. § 780-113(a)(31).
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sentence banning him from Millvale.

      The trial court summarized the underlying facts as follows:

        [T]he credible facts presented at trial demonstrated that
        [Appellant] was a resident of Millvale, Pennsylvania. For
        some reason, he developed a strong dislike for the local
        mayor and the police department of that town.
        [Appellant] and his family had numerous interactions with
        the Millvale Police over a period of time. Between 2010
        and 2012, [Appellant] sent emails to a neighboring police
        chief and left voice mails for the mayor and police chief of
        Millvale voicing his extreme displeasure with events
        occurring in Millvale.    The voice messages were vile,
        profane and threatening.

Trial Ct. Op., 12/11/13, at 2. The trial court further described the messages

                          Id. at 4. The court cited the following portion of one

voice message to Police Chief Derek Miller:

        But I just you know, got gangs running around your
        house, I don
                     n] Hyatt guy is but uhh gee it sure is gonna
        be fun. Ohh, and by the way, when you come to arrest
                                        n] house. Ok, so uh you
        know, I just want to let you know that, that just send me
               n]charges in the mail.

Id.

      The case proceeded to a non-jury trial on May 8, 2013.                         The

Commonwealth introduced recordings and transcripts of the voice messages.

Appellant did not testify or present any evidence.            The trial court found

Appellant   guilty   of   one   count   of   terroristic   threats,   two   counts    of

harassment, and one count of possession of marijuana. On August 6, 2013,




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                                   ion, the court ordered that Appellant may not

enter Millvale.2     Appellant did not file a post-sentence motion.    Appellant



1925(b) statement of errors complained of on appeal.

        In his first issue,3 Appellant asserts the trial court erred in admitting

into evidence recordings of telephone voice mail messages he purportedly

left for Police Chief Miller.      He asserts there was no proper foundation

because the Commonwealth failed to identify the recordings as true and

correct reproductions of the original messages, and that the Commonwealth

did not present evidence as to their chain of custody, authenticity, and

manner of transcription.           Additionally, Appellant complains the court

accep



        We consider the standard of review:

              With   regard   to   evidentiary   challenges, it is well
                                                             e is at the
           discretion of the trial court and only a showing of an abuse
           of that discretion, and resulting prejudice, constitutes
           reversible error. An abuse of discretion is not merely an
           error of judgment, but is rather the overriding or
           misapplication of the law, or the exercise of judgment that

2
    At the sentencing hearing, while imposing a probation sentence of two


made no mention that this particular condition had a different time limit than
the overall probation sentence. See Order of Sentence, 8/6/13.
3




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        is manifestly unreasonable, or the result of bias, prejudice,
        ill-will or partiality, as shown by the evidence of record.
        Furthermore, if in reaching a conclusion the trial court
        overrides or misapplies the law, discretion is then abused
        and it is the duty of the appellate court to correct the


Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation

omitted).



                 es in pertinent part:

           (a) In General.         To satisfy the requirement of
        authenticating or identifying an item of evidence, the
        proponent must produce evidence sufficient to support a
        finding that the item is what the proponent claims it is.

          (b) Examples. The following are examples only--not a
        complete list--of evidence that satisfies the requirement:

                                 *       *   *

                (5) Opinion About a Voice. An opinion identifying a
                             whether heard firsthand or through
            mechanical or electronic transmission or recording
            based on hearing the voice at any time under
            circumstances that connect it with the alleged speaker.

Pa.R.E. 901(a), (b)(5).

     In Serrano, this Court considered a claim that there was no proper

foundation for the admission of recordings of telephone conversations,

because the Commonwealth failed to identify one of the voices in the

recording as that of the defendant.          Serrano, 61 A.3d at 284, 290.

Specifically, the defendant argued that only one witness identified his voice

and no other witnesses corroborated that identification.   Id. at 290.   This


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Court found no relief was due, citing Rule of Evidence 901(b)(5). 4 Id. We

reasoned that the witness had testified he came to learn it was the

                                                                    d to the



                                                 Id. at 291.

      At trial, the Commonwealth played one of the phone messages and

Mayor Cinski identified the speaker in the recording as Appellant. N.T. Trial,




hea                                               See

(citing N.T. at 44, 45).   Furthermore, as the Commonwealth notes, Police

Chief Miller testified he had known Appellant for fifteen to sixteen years,




times.   See

there was no testimony that the voice mail messages originated from a

telephone number linked to Appellant, like that in Serrano, we agree with

the trial court that the Commonwealth established the speaker in the voice

4
  The Serrano Court also considered Rule 901(b)(6), which pertains to
telephone conversations.  See Serrano, 61 A.3d at 290-91; Pa.R.E.
901(b)(6). That subsection does not apply in the instant case, as the

between two people.



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mail messages was Appellant. See Pa.R.E. 901(b)(5); Serrano, 61 A.3d at

290-91; Trial Ct. Op. at 7.

         With



to Chief Miller.    N.T. Trial at 48.   Chief Miller testified that he saved



                                                        Id. at 83. Appellant

argued extensively at trial that the Commonwealth did not authenticate the

recordings because it did not present evidence of how copies of the voice

messages were made from the voice mail system or how they were

preserved or kept in evidence. Id. at 50, 90-91. The trial court overruled

                                                       Mayor Cinski and Chief

Miller    heard the recordings and testified that they were the same as the

voice messages they received. Id. at 91.




                                        e received in January of 2012.    See

Trial Ct. Op. at 7; N.T. Trial at 51, 90.   Additionally, State Trooper Pierre



                                                                         at 68.

                                                                           and




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the CDs containing the audio recordings to Trooper Wilson. Id. at 62-63. In

light of all the forego

claim that the recordings were inadmissible because they were not properly

authenticated.



evidence.   First, he argues the evidence was not sufficient for terroristic

threats because the telephone message to the police chief did not include a

specific threat.   Appellant maintains that instead, the message merely



        meaning the gangs



that he never claimed to know who is in or controls the gangs.         He also

                                     nt out of his way to state that he was

             legal ways to retaliate against the cops, while comparing his



                                       Id. at 15. Appellant emphasizes that




                          Id. at 15, 16. We find no relief is due.

      We note the relevant standard of review:

         As a general matter, our standard of review of sufficiency

         most favorable to the verdict winner giving the prosecution



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         the benefit of all reasonable inferences to be drawn from
         t


            verdict when it establishes each material element of
            the crime charged and the commission thereof by

                                                           [our]
            judgment for that of the factfinder; if the record
            contains support for the convictions they may not be


Commonwealth v. Sinnott, 976 A.2d 1184, 1187 (Pa. Super. 2009)

(citations omitted),                           , 30 A.3d 1105 (Pa. 2011).5

      Appellant was convicted under the following subsection of the

terroristic threats statute:

         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(a)(1). This Court has explained:


         that 1) the defendant made a threat to commit a crime of
         violence, and 2) the threat was communicated with the
         intent to terrorize another or with reckless disregard for

         is the psychological distress that follows an invasion of the




5
  In Sinnott
the
                                                         Sinnott, 30 A.3d at
1107, 1111.



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         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


Sinnott, 976 A.2d at 1188.

                                                                        intended

to relay a message to Chief Miller that [he] was advising Chief Miller that




                                                          ng] shooting at each

               Id.

                                                 See

                                         message as a whole, it conveyed a




                                                                         . .were

indirect threats to commit a crime of violence with the intent to terrorize

               See

that he did not articulate a specific crime is meritless, as such conduct is not

required to establish terroristic threats. See Sinnott, 976 A.2d at 1188.



                                                                            See

                                                       The testimony cited by


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Appellant threatened the police chief when the chief saw Appellant driving

around town.   N.T. Trial at 104-

threaten me. He would drive by and make comments out the window or

                                      Id. at 105. For the foregoing reasons,



threatening language. See 18 Pa.C.S. § 2706(a)(1).



threats and harassment convictions. He avers his telephone messages were

protected speech under the First Amendment to the United States

Constitution because, although containing profanity, they were legitimate




wrongly, that both the Mayor and Police Chief were failing in their efforts to



                                                                     []



employed the terroristic threats and harassment statutes improperly to

suppress his free speech rights. Id. at 20. We disagree.

      We first note the subsection of the harassment statute under which



with intent to harass, annoy or alarm another, the person . . . communicates



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to or about such other person any lewd, lascivious, threatening or obscene

                                                     See 18 Pa.C.S. § 2709(a)(4)

(emphasis added).

        Our review of relevant authority has not revealed a decision in which a

defendant claimed his speech was protected under the First Amendment in

order    to   defend   against   or   overcome   a    terroristic   threats   charge.

Nonetheless, we note the following relevant authority.                  In J.S. v.

Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), the Pennsylvania



consistent with the First Amendment . . . , discipline a student for creating at

home, and posting on the Internet, a web site that, inter alia, contained

derogatory, profane, offensive and threatening statements directed toward

                                      Id. at 850. The Court noted:

          [W]hile the freedom of speech is rightfully cherished, it is
          also clear that this rig

          certain types of speech can be regulated if they are likely
          to inflict unacceptable harm. These narrow categories of
                                                         speech that
          incites others to imminent lawless action, obscenity[,]
                                                     true threats
          Thus, certain classes of speech may be regulated, or even
          punished, by government and such action will not violate
          the Constitution.

Id. at 854 (citations omitted) (emphasis added). In considering whether the



protection, this Court stated:



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          States Supreme Court has determined is beyond the
          protective ambit of the First Amendment. A true threat
          may be criminally punished and the majority of case law
          that considers whether certain speech constitutes a true
          threat arises in the context of a conviction for the violation
          of a criminal statute that prohibits such threats.

Id. at 856 (citations omitted).

      In the instant appeal, Appellant cites Commonwealth v. Fenton, 750

A.2d 863 (Pa. Super. 2000), for the principle that speech containing

profanity may neverthel



                                                                   Fenton, the

defendant was convicted of terroristic threats and harassment. Fenton, 750



                                                              lewd, lascivious
                                                                             6
or indecent words or language

                               ting Fenton, 750 A.2d at 866-67) (emphasis



                                                   sexual nature, as opposed

                                          Fenton, 750 A.2d at 866 (emphasis

added).   As Appellant quoted in his brief, the Fenton Court held that the



6
  The Fenton defendant was convicted under the prior version of the
harassment statute. See Fenton, 750 A.2d at 866; 18 Pa.C.S. § 5504
(harassment), repealed Dec. 9, 2002.



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                            had nothing to do with sex

18 (quoting Fenton, 750 A.2d at 867) (emphasis added).

       The current version of the harassment statute, under which Appellant

was convicted, continues to include the element of communicating lewd or

lascivious words or language.      See 18 Pa.C.S. § 2709(a)(4).       However,

Appellant

the court found he communicated threatening words or language, in

violation of the statute.   See 18 Pa.C.S. § 2709(a)(4).     Furthermore, the

terroristic threats statute does not include the element of lewd or lascivious



Fenton applies.

       Finally, as discussed above, we agree with the trial court that



[Appellant] voiced is intent to shoot at Chief Miller and to send somebody to

                                 See Trial Ct. Op. at 6. In light of the violent



by the First Amendment.       See Bethlehem Area Sch. Dist., 807 A.2d at

856.



to 42 Pa.C.S. § 9754(c)(13), in imposing a probation term barring him from

Millvale.   As stated above, Appellant was sentenced on his conviction of

terroristic threats only.    Appellant argues this probation condition is not



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reasonably related to his rehabilitation and is unduly restrictive of his liberty.

He maintains he was not in Millvale when he made the telephone calls. He

further contends that a ban from the town of Millvale would prevent him



Pittsburgh to points north and east, including [his] current home in

                                           old Appellant is entitled to relief.



sentence. This Court has stated:


         aspects of a sentence must be raised in a post-sentence
         motion or by presenting the claim to the trial court during
         the sentencing proceedings.     Absent such efforts, an
         objection to a discretionary aspect of a sentence is


Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)

(citation omitted).

      At sentencing, Appellant did not object to the probationary term

indeed, any aspect of his sentence     after the court announced the judgment

of sentence. See

file a post-sentence motion challenging the condition banning from Millvale.

Nevertheless, we decline to find waiver, as the trial court discussed the

legality7 of banning Appellant from Millvale, and defense counsel commented


7
  Although the trial court questioned the legality of this probationary term,
we, as stated above, determine the propriety of this condition to go instead
to the discretionary aspect of sentence.



                                     - 14 -
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on it:


           from a community. Is it legal?




           going to make it illegal under the unique circumstances in
           this case. . . .

Id. at 12-



failure to raise it before the trial court. See Shugars, 895 A.2d at 1274.

         We next consider whether Appellant has


           relied upon for allowance of appeal with respect to the

                                                  hat there is a
           substantial question that the sentence imposed is not

           Pa.C.S.A. § 9781(b);

See Commonwealth v. Houtz, 982 A.2d 537, 539 (Pa. Super. 2009)

(some citations omitted).

         Appellant has included a proper Pa.R.A.P. 2119(f) statement in his

                                  -6.   Additionally, a claim that the trial court

abused its discretion in imposing probationary conditions which were not

                                                                           tantial

question.     Houtz, 982 A.2d at 539.            Thus, we consider the merits of




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conditions that a court may impose as a part of probation.        42 Pa.C.S. §

9754(c). In the instant case, the trial court cited the catchall provision at



order require the defendant . . . [t]o satisfy any other conditions reasonably

related to the rehabilitation of the defendant and not unduly restrictive of his

                                                             See 42 Pa.C.S. §

9754(c)(13); Trial Ct. Op. at 8.

      This Court has stated:

            A probation order is unique and individualized. It is
         constructed as an alternative to imprisonment and is
         designed to rehabilitate a criminal defendant while still
         preserving the rights of law-abiding citizens to be secure in
         their persons and property. When conditions are placed on
         probation orders they are formulated to insure or assist a
         defendant in leading a law-abiding life.

         Moreover, as long as conditions placed on probation are

         them.

Houtz, 982 A.2d at 539-40 (some citations omitted).

      In its opinion, the trial court acknowledged its comments at the

sentencing hearing concerning the propriety of banning Appellant from




court considered the disclosure in the pre-

Millvale was carrying a gun because he was afraid for himself and his family



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statement at sentencing that




                                        Id. at 8-9. Finally, the court cited



no compelling need to be in Millvale and he could arrange to have a relative

                                                            Id. at 9.

      We have not discovered any decisional authority discussing a

probation term which bans a defendant from entering a town. However, we

agree with Appellant that this condition does not, under Subsection

9754(c)(13), reasonably relate to his rehabilitation. The

this term were the protection of the victims and the public, and we discern



rehabilitative needs.

      Furthermore, we agree that that the probation term unduly restricts




conditions banning him from having contact with the mayor and police chief




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achieved this sentencing goal.8

concern, or fear in his victims, his convictions were based on the acts of

sending threatening emails and voice messages. This conduct would not be

curtailed by a ban from a town. For all the foregoing reasons, we vacate the



       Judgment    of   sentence   affirmed   in   part   and   vacated   in   part.

Jurisdiction relinquished.

       Judge Donohue concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




8
    Appellant concedes that the probation terms barring him from having any

28.



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