J-S17004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ERICA WILLIAMS,

                         Appellant                   No. 1490 EDA 2015


                    Appeal from the Order of May 8, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): MC-51-CR-0041104-2014

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 21, 2017

      Appellant, Erica Williams, appeals from the order entered on May 8,

2015 denying her petition for a writ of certiorari. We affirm.

      The factual background and procedural history of this case are as

follows.   On November 28, 2014, Appellant called Philadelphia Police

Detective Timothy Mayer. She told Detective Mayer that she was receiving

calls on her cellphone seeking a woman named Veronica. She stated that if

the phone calls didn’t stop she would obtain a gun permit, buy a gun, and

kill Veronica.   Detective Mayer told Appellant that Veronica was Veronica

Mackin (“Mackin”), a witness in a criminal case in which Appellant was the

victim.
J-S17004-17


        On December 5, 2014, the Commonwealth charged Appellant via

criminal complaint with making terroristic threats.1 On December 29, 2014,

the Municipal Court of Philadelphia found Appellant guilty and immediately

sentenced her to six months’ probation.        On January 15, 2015, Appellant

filed a petition for a writ of certiorari with the Court of Common Pleas of

Philadelphia County.       She argued that the evidence presented at trial was

insufficient to convict her of making terroristic threats. On May 8, 2015, the

Court of Common Pleas of Philadelphia County denied the petition.          This

timely appeal followed.

        On June 15, 2015, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal (“concise statement”).         See

Pa.R.A.P. 1925(b). On July 6, 2015, Appellant filed her concise statement.

On June 28, 2016, the trial court issued its Rule 1925(a) opinion.

        Appellant presents one issue for our review:

        Was not the evidence presented by the Commonwealth
        insufficient to prove terroristic threats where the Commonwealth
        presented no evidence that [A]ppellant communicated these
        threats to the intended recipient and [A]ppellant acted without
        the necessary mens rea?

Appellant’s Brief at 3.

        Preliminarily, we must consider whether Appellant preserved her

sufficiency challenge. “Issues not included in the [concise s]tatement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

1
    18 Pa.C.S.A. § 2706.



                                        - 2-
J-S17004-17


waived.”     Pa.R.A.P. 1925(b)(4)(vii).       In her concise statement, Appellant

only argued that the evidence was insufficient to prove the mens rea

element of making terroristic threats. Concise Statement, 7/6/15, at 2. She

did not argue that the evidence was insufficient to prove that she

communicated the threat. Accordingly, Appellant waived her argument that

she did not communicate the threat; however, she preserved her argument

that she lacked the requisite mens rea.

      Turning to the merits of the preserved portion of Appellant’s

sufficiency challenge, we note that “[w]hether sufficient evidence exists to

support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Walls, 144 A.3d

926, 931 (Pa. Super. 2016), appeal denied, 470 EAL 2016 (Pa. Feb. 23,

2017) (citation omitted). “In assessing Appellant’s sufficiency challenge, we

must determine whether, viewing the evidence in the light most favorable to

the   Commonwealth      as   verdict     winner,     together   with    all    reasonable

inferences    therefrom,   the   trier   of   fact   could   have      found    that   the

Commonwealth proved [each] element of the crime beyond a reasonable

doubt.” Commonwealth v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016)

(citation omitted).    “The evidence need not preclude every possibility of

innocence and the fact-finder is free to believe all, part, or none of the

evidence presented.”       Commonwealth v. Ford, 141 A.3d 547, 552 (Pa.

Super. 2016) (citation omitted).



                                         - 3-
J-S17004-17


     “The 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.” Walls, 144 A.3d

at 936 (internal alteration and citation omitted). 2 “The purpose of [section

2706] is to impose criminal liability on persons who make threats which

seriously impair personal security or public convenience. It is not intended

by this section to penalize mere spur-of-the-moment threats which result

from anger.” 18 Pa.C.S.A. § 2706 cmt. As this Court has stated, “the real

issue [i]s whether the Commonwealth presented sufficient evidence to

establish the required mens rea, not whether [Appellant] made the

statements in the context of a heated discussion.        Being angry does not

render   a    person   incapable   of    forming   the   intent   to   terrorize.”

Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super. 2003), appeal

denied, 853 A.2d 361 (Pa. 2004) (internal quotation marks and citation

omitted).    We must consider the totality of circumstances to determine if

Appellant had the necessary mens rea. See Commonwealth v. Reynolds,

835 A.2d 720, 730 (Pa. Super. 2003) (citation omitted).

     Appellant argues that her comments were spur-of-the-moment threats

which resulted from transient anger. In support of this argument, she cites

Commonwealth v. Anneski, 525 A.2d 373 (Pa. Super. 1987), appeal

2
  Appellant argues that the evidence was insufficient to convict her under
either section 2706(a)(1) or section 2706(a)(3). As Appellant was only
convicted under section 2706(a)(1), Sentencing Order, 12/29/14, at 1, we
confine our discussion to the elements of that offense.


                                        - 4-
J-S17004-17


denied, 532 A.2d 19 (Pa. 1987).         Appellant’s reliance on Anneski is

misplaced as Anneski supports the Commonwealth’s position that there was

sufficient evidence to find Appellant guilty of making terroristic threats.

“[D]uring an argument with a neighbor, Anneski had told her neighbor if the

neighbor ‘tried to run over her kids anymore at the bus stop’ she, Anneski,

would bring a gun and use it.” Id. at 374. On appeal, this Court held that

the evidence was sufficient to find Appellant guilty of making terroristic

threats.    Id. at 375.   Nonetheless, this Court found that the verdict was

against the weight of the evidence. Id. at 375-377. In this case, Appellant

only argues that the evidence was insufficient to find her guilty of making

terroristic threats, not that the verdict was against the weight of the

evidence.     Thus, even assuming arguendo that this case is similar to

Anneski, the evidence was legally sufficient to find Appellant guilty of

making terroristic threats.

      Appellant also cites Commonwealth v. Kidd, 442 A.2d 826 (Pa.

Super. 1982) and Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super.

1979) in support of her sufficiency challenge.    These two cases, however,

are distinguishable from the case sub judice.     In Sullivan, the defendant

called the state police and threatened to kill the local sheriff because of an

alleged assault that occurred that morning. Id. at 888–889. The defendant

was convicted of making terroristic threats. On appeal, this Court reversed

and found that the evidence was insufficient to find Appellant guilty.



                                     - 5-
J-S17004-17


      In Kidd, the defendant was arrested for public drunkenness.         Kidd,

442 A.2d at 827. While being treated in the emergency room, the defendant

told police officers that he was going to murder them with machine guns.

Id.   The defendant was convicted of making terroristic threats for this

comment; however, on appeal this Court held that the evidence was

insufficient to find him guilty of making terroristic threats.

      In both Sullivan and Kidd the defendants were angry about very

recent events.    In this case, Detective Mayer testified that he spoke to

Appellant during the two weeks prior to the November 28, 2014 phone call.

See N.T., 12/29/14, at 6-7. During these conversations, he told Appellant

that Mackin was unwilling to cooperate in the investigation into the case in

which Appellant was the victim. It was at the end of this two-week period

that Appellant placed the November 28 phone call to Detective Mayer and

threated to kill Mackin.       Thus, unlike in Sullivan and Kidd, where the

defendants were angry about events that occurred minutes or hours earlier,

in this case Appellant spent weeks pondering her reaction to the repeated

phone calls seeking Mackin.

      Instead, we find instructive this Court’s decision in Commonwealth v.

Fenton, 750 A.2d 863 (Pa. Super. 2000).            In that case, Fenton had a

“heated conversation with insurance adjuster Randy Leventry, in which he

made death threats against, inter alia, Leventry, the staff of the Johnstown,

Pennsylvania     office   of    Erie   Insurance   Company,      United   States



                                       - 6-
J-S17004-17


Representative John Murtha[,] and his aide, John Hugya.” United States v.

Fenton, 30 F.Supp.2d 520, 522 (W.D. Pa. 1998). Fenton was convicted of

making terroristic threats.   On appeal, he argued that the evidence was

insufficient to prove that he had the requisite mens rea.

      This Court rejected that argument and held that the evidence was

sufficient to convict him of making terroristic threats. This Court explained

that, “[t]he problems which led to the phone call occurred over several

months; [Fenton] clearly spent a long time reflecting upon his frustrations,

and his threats cannot be characterized as less than premeditated and

deliberate.”   Fenton, 750 A.2d at 865.     Because of the premeditated and

deliberate nature of Fenton’s threats, this Court held that he had the

requisite mens rea for making terroristic threats.

      Although the time period at issue in the case sub judice was only two

weeks – not months as in Fenton – the same principle applies. Appellant

made a premediated and deliberate decision to call Detective Mayer and

threaten to shoot Mackin. In other words, Appellant’s comments were not a

spur-of-the-moment threat caused by transient anger.

      Finally, Appellant cites stipulated testimony that she has a reputation

as a peaceful and law-abiding citizen in arguing that the evidence was

insufficient to prove that she had the requisite mens rea.    This argument

fails because the factfinder was not required to believe this stipulated

testimony. See Ford, 141 A.3d at 552; Commonwealth v. Hall, 830 A.2d



                                     - 7-
J-S17004-17


537, 542 (Pa. 2003). Accordingly, we conclude that the evidence was

sufficient to prove that Appellant had the requisite mens rea. As such, the

evidence was sufficient to convict her of making terroristic threats.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2017




                                     - 8-
