Commonwealth v. Jackson

215 A.3d 972

COMMONWEALTH of Pennsylvania

v.Charles JACKSON, Appellant

No. 1598 EDA 2018

Superior Court of Pennsylvania.

Submitted April 29, 2019

Filed July 19, 2019

Karl Baker, Public Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Shawn D. Baldwin, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS,^* P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant, Charles Jackson, appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after the court, sitting as finder of fact in Appellant's non-jury trial, found him guilty of the single count of terroristic threats filed against him. Sentenced to three years' probation, Appellant contends the trial court erred when it permitted the Commonwealth to amend the bill of information on the morning of trial to include additional victims whose involvement the criminal complaint had previously described, and he raises a challenge to the sufficiency of the evidence with respect to one alleged victim. We affirm.

The trial court aptly sets forth the pertinent facts and procedural history of the case, as follows:

Around April 27, 2017, Tracy Spruell-McMoore, [a] co-worker of Appellant [at the Centers for Medicare and Medicaid Services, located in Philadelphia], began receiving numerous phone call hang-ups from a number without any caller identification. She later began receiving voicemail messages. At first, the voicemail messages contained music and then later the voicemails contained music and a person singing along to the music. Later, Ms. Spruell-McMoore began receiving voicemail messages where the speaker said, "Hey Marine." While she was receiving voicemail messages, she [could not] identify the speaker's identity because she worked from home and [had not] been at the office in some time. Id. at 15-17.

On May 1, 2017, around 9:49 PM, Ms. Spruell-McMoore answered the phone call from the unidentified caller. Appellant began casually speaking to Ms. Spruell-McMoore, to which she responded that she [did not] know who was on the other line. Appellant asked her to guess his identity, and she refused and stated that she would hang up unless he told her who was calling. Appellant finally identified himself as the unidentified caller to Ms. Spruell-McMoore and the two began conversing about how Appellant was doing while on administrative leave. N.T. at 18-20.

[Eventually], Appellant began ranting to Ms. Spruell-McMoore about their co-workers. Appellant told Ms. Spruell-McMoore that [T.R.], a co-worker that worked in a different department than Ms. Spruell-McMoore, was a "weak ass Marine." Ms. Spruell-McMoore was confused as to why Appellant was bringing up [T.R.], so she asked why he was speaking about him. Appellant just responded that "[T.R.] is just a weak ass Marine," Marines are "weak, not strong," and that [T.R.] was "fake and needed to blow his nose and wore panties." N.T. at 21-22.

Appellant then proceeded to complain about their manager.... Appellant stated that [Manager] was "in the closet" and that she kept bringing him into the office to complain that his work was not up to par. Appellant further ranted that [Manager] was a "bitch" and that her complaints about his work were "bullshit."

After he finished his tirade about [Manager], Appellant began commenting on another co-worker, [S.B.]. Appellant said, "I don't want to fuck [S.B.'s] wife, I want to fuck his mistress." Lastly, Appellant began ranting about their co-worker [D.D.]. Appellant told Spruell-McMoore that [D.D.] had pulled him into his office while licking his lips and running his fingers across his lips. Appellant said he [understood] the meaning of [D.D.'s] gestures and that he wished he could "punch that faggot in the face." N.T. at 23.

At some point during Ms. Spruell-McMoore's conversation with Appellant, Appellant said, "They don't know who they're messing with; I'm going to show them." Ms. Spreull-McMoore asked Appellant what he was talking about, to which he responded, "I'm going to show them I'm not the one. I see the light and not no house light or ceiling light, I see the real light. Soon, they'll see the light."

Ms. Spruell-McMoore proceeded to ask Appellant again, what he was talking about. Appellant then started talking about how their co-workers "messed with the wrong [n-word]." Ms. Spreull-McMoore told Appellant not to say these things to her, to which he responded, "We cool; I'm not talking about you. I'm not threatening you." Ms. Spruell-McMoore responded that she [was not] concerned about her own well-being, she was concerned about their co-workers since she considered some of them her friends. N.T. at 23-24.

Later during their conversation, Appellant said that he would "pop a cap in their ass" and repeatedly said that he would "peel back their scalp" throughout the conversation with Ms. Spruell-McMoore. Ms. Spruell-McMoore took these threats very seriously and told Appellant that it is against the law for federal employees to threaten a fellow employee or anyone else. She was very upset by the phone call and prior to the call, she had considered Appellant a friend of hers. Ms. Spruell-McMoore tried to get more information about Appellant's plans regarding their co-workers, to which he replied, "Don't worry about it, you will read about it on the news. Don't worry about it, it don't have nothing to do with you, we cool. Those motherfuckers RO3s [Regional Officer 3s], but not you." N.T. at 24-25.

Ms. Spruell-McMoore became increasingly upset by this conversation and told Appellant he [could not] be saying he was going to hurt people at their job. She asked him why he wanted to hurt their co-workers, and he responded, "They messed with the wrong [n-word] and I want to show them. You'll read about it in the news and you'll see it on the news real soon. They're all working from home, but that won't last forever." Appellant almost constantly made these threats throughout their entire conversation, which lasted almost an hour. N.T. at 25-28.

After Ms. Spruell-McMoore's phone call with Appellant ended, she immediately called [Manager] and told her that she had received a phone call from Appellant and that Appellant had threatened [Manager] and their co-workers. Ms. Spruell-McMoore also warned [Manager] to be on the lookout since the threats had deeply disturbed her, along with the fact that he knew their co-workers were currently working from home. [Manager] advised Ms. Spruell-McMoore to contact Criminal Protective Service and call the local police and that [Manager] would report it to management and leadership in the office. N.T. at 30, 46.

At some point, [D.D.] and [S.B.] learned of the threats conveyed by Appellant directed towards them and [Manager]. Both [D.D.] and [S.B.] took the threats seriously and were upset and disconcerted by them. N.T. at 55-56, 65-66. [Both testified that they, too, had received numerous voicemail messages from an unidentified number consisting of no speaking, only music playing, and coughing, just as Spruell-McMoore had described. S.B. described how, in April, the caller spoke profanely to his wife and threatened S.B. that he was coming for him. Manager also received numerous phone calls and voice messages consisting of coughing and indistinct words. N.T. at 44-45.]

On May 1, 2017, around 11 PM, Detective Jared Fitzgerald, a criminal investigator for the Department of Homeland Security, received a phone call from the Philadelphia Dispatch Center. The Dispatch Center told him that Ms. Spruell-McMoore had called and relayed the threats Appellant had made over the phone regarding her co-workers. Detective Fitzgerald reached out to Ms. Spruell-McMoore and [Manager] the following morning and Ms. Spruell-McMoore provided him with Appellant's phone number .... Detective Fitzgerald called Appellant under the guise that he was with the wrongful termination board and set up a time to meet with him at a library. N.T. at 68-71.

Once Appellant arrived at the meeting place, Detective Fitzgerald told him he was from Homeland Security Federal Protection Service and began questioning Appellant about the phone calls. Appellant admitted he had spoken to Ms. Spruell-McMoore and that he had made the phone calls to his co-workers. Appellant claimed that [Manager] was out to get him, he admitted that he had left a voicemail message for [D.D.] calling him a "faggot," and that he had called [S.B.] and told him he "wasn't going to fuck his mistress, he was going to fuck his wife." Appellant further indicated that Ms. Spruell-McMoore's recitation of their conversation was accurate. N.T. at 73-75.

...

On August 7, 2017, a preliminary hearing was conducted for Appellant. [The Bill of Information filed against him listed a single charge of terroristic threats under Pa.C.S. § 2706(a)(1) and a single complainant, Ms. Spruell-McMoore. The accompanying criminal complaint, however described all the above-listed employees and the phone calls they received]. At that time, Appellant was held on one charge of terroristic threats.

[On the morning when trial was to commence, the Commonwealth moved to amend the information to add the employees listed in the criminal complaint as additional complainants. The Commonwealth emphasized it was not adding charges. Pursuant to Commonwealth v. Sinclair , 897 A.2d 1218, 1221 (Pa. Super. 2006), infra , the court granted the motion over Appellant's objection, and trial commenced thereafter. N.T. at 10-12.]

Following a [non-jury] trial before [the trial court] on March 9, 2018, Appellant was convicted of terroristic threats with the intent to terrorize another, graded as a misdemeanor in the first degree.[ ] [On May 18, 2018, the trial court sentenced Appellant to three years' probation.]. Appellant filed [this] timely appeal ....

Trial Court Opinion, 11/2/18, at 3-6, 1-2, 7.

Appellant raises the following issues for our consideration:

1. Where Appe

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