Commonwealth v. Knox

190 A.3d 1146

COMMONWEALTH of Pennsylvania, Appellee

v.Jamal KNOX, Appellant

No. 3 WAP 2017

Supreme Court of Pennsylvania.

Argued: November 28, 2017

Decided: August 21, 2018

Peter Rosalsky, Esq., Defender Association of Philadelphia, for Defender Association of Philadelphia, Amicus Curiae.

Sara Jeannette Rose, Esq., American Civil Liberties Union, for American Civil Liberties Union of Pennsylvania, Amicus Curiae.

Patrick Kenneth Nightingale, Esq., Mikhail Nikolaus Pappas, Esq., for Appellant.

Clay Calvert, Esq., for The Marion B. Brechner First Amendment Project, Appellant Amicus Curiae.

J. Joshua Wheeler, Esq., for The Thomas Jefferson Center for the Protection of Free Expression, Appellant Amicus Curiae.

Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

In this appeal by allowance, we address whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers.

In April 2012, Pittsburgh Police Officer Michael Kosko initiated a routine traffic stop of a vehicle driven by Appellant. Appellant's co-defendant, Rashee Beasley, was in the front passenger seat. While Officer Kosko was questioning Appellant, the latter sped away, ultimately crashing his vehicle. He and Beasley fled on foot, but were quickly apprehended and placed under arrest. The police found fifteen stamp bags containing heroin and a large sum of cash on Appellant's person, as well as a loaded, stolen firearm on the driver's-side floor of the vehicle. At the scene of the arrest, Appellant gave the police a false name. When Detective Daniel Zeltner, who was familiar with both Appellant and Beasley, arrived, he informed the officers that Appellant's real name was Jamal Knox.

Based on these events, Appellant and Beasley were charged with a number of offenses. Officer Kosko and Detective Zeltner, both of Zone 5 of the Pittsburgh Police Department, were scheduled to testify against them in connection with the charges.

While the charges were pending, Appellant and Beasley wrote and recorded a rap song entitled, "F--k the Police," which was put on video with still photos of Appellant and Beasley displayed in a montage. In the photos, the two are looking into the camera and motioning as if firing weapons. The video was uploaded to YouTube by a third party, and the YouTube link was placed on a publicly-viewable Facebook page entitled "Beaz Mooga," which the trial evidence strongly suggested belonged to Beasley.

The song's lyrics express hatred toward the Pittsburgh police. As well, they contain descriptions of killing police informants and police officers. In this latter regard, the lyrics refer to Officer Kosko and Detective Zeltner by name. They suggest Appellant and Beasley know when those officers' shifts end and that the crimes depicted in the song may occur in the officers' homes ("where you sleep"). The lyrics also contain a reference to Richard Poplawski, who several years earlier had strapped himself with weapons and murdered three Pittsburgh police officers. See Commonwealth v. Poplawski , 634 Pa. 517, 130 A.3d 697 (2015). Finally, the song includes background sounds of gunfire and police sirens.

In light of the present issue – whether the song communicated a "true threat" falling outside First Amendment protections – we reproduce the lyrics in full without alteration, although they include violent imagery and numerous expletives:

Chorus:

If y'all want beef we can beef/I got artillery to shake the mother fuckin' streets/If y'all want beef we can beef/I got artillery to shake the mother fuckin' streets.

You dirty bitches won't keep knockin' my riches/This ghetto superstar committee ain't wit it/Fuck the Police/You dirty bitches won't keep knockin' my riches/This ghetto superstar committee ain't wit it/Fuck the Police.

Verse 1 – Mayhem Mal, i.e. , Jamal Knox:

This first verse is for Officer Zeltner and all you fed force bitches/And Mr. Kosko, you can suck my dick you keep on knocking my riches/You want beef, well cracker I'm wit it, that whole department can get it/All these soldiers in my committee gonna fuck over you bitches/Fuck the, fuck the police, bitch, I said it loud.

The fuckin' city can't stop me/Y'all gonna need Jesus to bring me down/ And he ain't fuckin' wit you dirty devils/We makin' prank calls, as soon as you bitches come we bustin' heavy metal.

So now they gonna chase me through these streets/And I'ma jam this rusty knife all in his guts and chop his feet/You taking money away from Beaz and all my shit away from me/Well your shift over at three and I'm gonna fuck up where you sleep.

Hello Breezos got you watching my moves and talkin' ‘bout me to your partner/I'm watchin’ you too, bitch I see better when it's darker/Highland Park gone be Jurassic Park, keep fuckin' wit me/Hey yo Beaz call Dre and Sweet and get them two 23's/It's Mayhem.

(Chorus repeats)

Verse 2 – Soldier Beaz, i.e. , Rashee Beasley:

The cops be on my dick like a rubber when I'm fuckin'/So them bitches better run and duck for cover when I'm buckin'/Ghetto superstar committee bitch we ain't scared of nothing/I keep a forty on my waist, that'll wet you like a mop nigga/Clip filled to the tippy top wit some cop killas/Fuck the police, they bring us no peace/That's why I keep my heat when I'm roamin' through these streets.

Cause if you jump out it's gonna be a dump out/I got my Glock and best believe that dog gonna pull that pump out/And I'm hittin' ya chest, don't tell me stop cuz I'm resisting arrest.

I ain't really a rapper dog, but I spit wit the best/I ain't carry no 38 dog, I spit with a tec/That like fifty shots nigga, that's enough to hit one cop on 50 blocks nigga/I said fuck the cops nigga/They got me sittin' in a cell, watchin' my life just pass me, but I ain't wit that shit/Like Poplawski I'm strapped nasty.

(Chorus repeats)

Verse 3 – Mayhem Mal, i.e. , Jamal Knox:

They killed Ryan, and ever since then I've been muggin' you bitches/My Northview niggas they don't fuck wit you bitches, I hate your fuckin' guts, I hate y'all/My momma told me not to put this on CD, but I'm gonna make this fuckin' city believe me, so nigga turn me up.

If Dre was here they wouldn't fuck wit dis here/Los in the army, when he comes back it's real nigga, you bootin' up/Fuck the police, I said it loud, we'll repeat that/Fuck the police, I'm blowin' loud with my seat back.

They tunin' in, well Mr. Fed, if you can hear me bitch/Go tell your daddy that we're boomin' bricks/And them informants that you got, gonna be layin' in the box/And I know exactly who workin', and I'm gonna kill him wit a Glock/Quote that.

Cause when you find that pussy layin' in the street/Look at the shells and put my shit on repeat, and that's on Jesus' blood/Let's kill these cops cuz they don't do us no good/Pullin' your Glock out cause I live in the hood/You dirty bitches, bitch!

(Chorus repeats)

Officer Aaron Spangler, also of Zone 5, discovered the video while monitoring the "Beaz Mooga" Facebook page. He alerted other police personnel, including Officer Kosko and Detective Zeltner, who watched the video. Thereafter, Appellant was again arrested and charged with, inter alia , two counts each of terroristic threats pursuant to Section 2706(a)(1) of the Crimes Code, and witness intimidation pursuant to Section 4952(a) of the Crimes Code.¹

A consolidated bench trial on both sets of charges (as well as a third set of charges which is not presently relevant) ensued at which the Commonwealth introduced the video into evidence without objection and played it for the court. See N.T., Nov. 13, 2013, at 203, 205.² Officer Spangler testified that he had spent time interacting with individuals in the relevant neighborhood and had learned some of their street slang. He indicated that "busting heavy" means to shoot many rounds; a "tec" is a TEC-9, a semi-automatic pistol which holds a large-capacity magazine; to "spit with a tec" means to shoot with a TEC-9; a "cop killa" is a type of bullet that can pierce armored vests; and "strapped nasty" means carrying multiple weapons. See N.T., Nov. 13, 2013, at 200-02, 238. With regard to the lyric, "Hello Breezos got you watching my moves," Officer Spangler explained that Hello Breezos was the title of an earlier rap song by Appellant and Beasley, and that a "breezo" is a "brick" of heroin consisting of 50 stamp bags. See id. at 180-82, 186.

In terms of the song's effects, Officer Kosko testified that when he heard it he was "shocked" and it made him "nervous." He cited it as one of the reasons he decided to leave the Pittsburgh police force and relocate. See id. at 107, 109. For his part, Detective Zeltner stated he found the video "very upsetting," and that it made him concerned for his safety as well as that of his family and fellow officers. Id. at 147. He explained that extra personnel had to be assigned to Zone 5 to deal with "the threat." Id. As well, the detective was given time off and a security detail. See id.

By the conclusion of the trial, it became clear that the rap song was the sole basis on which the Commonwealth sought convictions for witness intimidation and terroristic threats. In his summation, therefore, Appellant argued that the song was protected speech, and hence, any conviction based on it would violate his First Amendment rights. See N.T., Nov. 19, 2013, at 437-39, 442. The trial court rejected this argument and found him guilty on both counts of witness intimidation and terroristic threats. See N.T., Nov. 21, 2013, at 462-64. In reaching its verdict on the witness intimidation counts, the court found beyond a reasonable doubt that Appellant and Beasley specifically intended to intimidate the officers so as to obstruct the administration of criminal justice, and that they did so in...