J-A28007-18

                                2019 PA Super 4


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JONATHAN MICHAEL KLINE                   :
                                          :
                    Appellant             :   No. 652 MDA 2018

     Appeal from the Judgment of Sentence Entered February 14, 2018
              In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0004891-2017


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

CONCURRING OPINION BY OLSON, J.:          FILED: JANUARY 4, 2019

      I concur in the result reached by the learned Majority. I write separately

to explain my rationale for concluding that Appellant’s hand gesture was a

communication for purposes of the terroristic threats statute.

      I begin by explaining the incorrect assumptions underlying Appellant’s

argument.    Appellant properly notes that the comment to the terroristic

threats statute states that it “is derived from Section 211.3 of the Model Penal

Code.” 18 Pa.C.S.A. § 2706 cmt. What Appellant fails to recognize, however,

is that Pennsylvania did not adopt section 211.3 of the Model Penal Code.

Instead, our General Assembly derived section 2706 from portions of section

211.3. Our General Assembly adopted a statute that differs in material ways

from the Model Penal Code.
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      At issue in this case is whether Appellant’s hand gestures constituted a

communication.     Section 2706 makes it a crime to “communicate[], either

directly or indirectly, a threat[.]” 18 Pa.C.S.A. § 2706(a). On the other hand,

an individual violates section 211.3 when he or she “threatens to commit any

crime of violence[.]” Model Penal Code § 211.3. The Model Penal Code does

not include the word “communicate” or a variant thereof. See id. Hence, the

issue presented in this case never arises under the Model Penal Code.

Therefore, I conclude that cases from other jurisdictions interpreting the Model

Penal Code, and similar persuasive authority, is inapposite when considering

whether Appellant’s hand gesture constituted a “communication” for purposes

of section 2706.

      Likewise, I find the cases cited by Appellant to be inapposite in

considering whether a hand gesture can constitute a communication for

purposes of section 2706. In all of the cases Appellant cites, there was both

a hand gesture and another form of communication. See Commonwealth

v. Butcher, 644 A.2d 174, 176 (Pa. Super. 1994), appeal denied, 652 A.2d

835 (Pa. 1994); Commonwealth v. Hudgens, 582 A.2d 1352, 1355 (Pa.

Super. 1990); Commonwealth v. Green, 429 A.2d 1180, 1181 (Pa. Super.

1981). Hence, this Court was not required to determine whether the hand

gestures alone constituted communications.          Appellant essentially argues

that, because there is no case law addressing whether hand gestures, alone,

are sufficient for finding a violation of section 2706, he is ipso facto entitled to


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relief. This argument is a logical fallacy. When a case raises a question of

first impression, this Court must undertake the necessary legal analysis to

determine the meaning of a statute. The lack of prior case law directly on

point does not mean that the defendant is entitled to relief.

       Having explained why the Model Penal Code and cases cited by Appellant

are inapposite when considering the issue presented in this case, I turn to

interpreting section 2706. The Statutory Construction Act, 1 Pa.C.S.A. § 1501

et seq, guides statutory construction in Pennsylvania. See Rancosky v.

Washington Nat’l Ins. Co., 170 A.3d 364, 371 (Pa. 2017). This Court’s

“paramount interpretative task is to give effect to the intent of our General

Assembly in enacting” the statute.      Commonwealth v. Grove, 170 A.3d

1127, 1141 (Pa. Super. 2017), appeal denied, 185 A.3d 967 (Pa. 2018)

(citation omitted). “Generally, a statute’s plain language provides the best

indication of legislative intent. . . . Therefore, when ascertaining the meaning

of a statute, if the language is clear, this Court gives the words their plain and

ordinary meaning.” Commonwealth v. Wise, 171 A.3d 784, 788 (Pa. Super.

2017), appeal denied, 186 A.3d 939 (Pa. 2018) (cleaned up). “In reading the

plain language, words and phrases shall be construed according to rules of

grammar and according to their common and approved usage[.]” Gross v.

Nova Chemicals Servs., Inc., 161 A.3d 257, 264 (Pa. Super. 2017) (cleaned

up).




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        Section 2706 defines the word “communicates” as “conveys in person

or by written or electronic means, including telephone, electronic mail,

Internet, facsimile, telex and similar transmissions.” 18 Pa.C.S.A. § 2706(e).

Although section 2706(e) is explicit with respect to which electronic

communications are covered by section 2706, it is not explicit with respect to

which in-person conveyances are covered by section 2706. Pursuant to the

Statutory Construction Act, “[w]hen the words of the statute are not explicit,

the intention of the General Assembly may be ascertained by considering . . .

[t]he    mischief   to   be   remedied[,   t]he   consequences   of   a   particular

interpretation[, and t]he contemporaneous legislative history.” 1 Pa.C.S.A.

§ 1921(c)(3), (c)(6), and (c)(7). In this case, I believe that all three of these

considerations indicate that a hand gesture constitutes a communication for

purposes of section 2706.

        First, with respect to contemporaneous legislative history, our General

Assembly added the definition of “communicates” to section 2706 in early

2000.     See Act 59 of 1999 § 2, 1999 P.L. 915.          Senator Charles Dent

introduced Senate Bill 167, which became Act 59. As Senator Dent explained

on the Senate floor when debating the legislation, he “originally introduced

[it] to update Title 18 to keep up with technology and make it easier for

prosecutors to enforce these laws against individuals who use methods such

as the Internet and e-mail to harass and terrorize others. . . . [T]his legislation

does update existing laws regarding terroristic threats and harassment by


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communication or address by extending these statutes to include electronic

communication, again such as the Internet, e-mail, and fax transmissions.”

1999 Pa. Senate Journal 1142 (Dec. 6, 1999). Section 2706(e), therefore,

was not intended to change the definition of the word “communicates” with

respect to in-person conveyances. Instead, it was only added to clarify that

electronic conveyances constituted a communication for purposes of section

2706.

        Because section 2706(e) was not meant to alter the types of in-person

conveyances covered by the statute, I turn to the ordinary meaning of the

word “communication.” “One way to ascertain the plain meaning and ordinary

usage of terms is by reference to a dictionary definition.” Commonwealth

v. Cornelius, 180 A.3d 1256, 1259 (Pa. Super. 2018) (citation omitted).

Black’s Law Dictionary defines communication as “[t]he interchange of

messages or ideas by speech, writing, gestures, or conduct; the process of

bringing an idea to another’s perception.” Black's Law Dictionary, 337 (10th

ed. 2014) (emphasis added).      Other dictionaries similarly define the term.

E.g. Random House Unabridged Dictionary (2018) (emphasis added) (“the

imparting or interchange of thoughts, opinions, or information by speech,

writing, or signs”).    Hence, because of the contemporaneous legislative

history, and the ordinary use of the word “communication,” section 2706

encompasses hand gestures.




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J-A28007-18


      Second, the mischief to be remedied in passing section 2706 was to

prevent individuals from intentionally terrorizing others. As explained by the

Majority, viewed in the light most favorable to the Commonwealth, the

evidence presented at trial showed that Appellant meant to terrorize.          By

construing hand gestures to be a communication, I believe that we ensure

that the relevant mischief is remedied.

      Finally, if this Court interpreted the statute in the manner advanced by

Appellant, persons could routinely threaten others with universally understood

gestures clearly meant to instill fear, i.e., drawing one’s hand across the throat

in a slashing manner, without fear of being convicted of making a terroristic

threat. I believe that such construction of the statute is absurd and cannot

encompass our General Assembly intent in passing section 2706. For all of

these reasons, I conclude that Appellant’s hand gesture constituted a

communication for purposes of section 2706.        Accordingly, I concur in the

learned Majority’s decision to affirm the judgment of sentence.




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