In re Interest of J.J.M.

219 A.3d 174

In the INTEREST OF: J.J.M., a Minor

Appeal of: J.J.M., a Minor

No. 1245 MDA 2018

Superior Court of Pennsylvania.

Submitted March 4, 2019

Filed September 10, 2019

Robert M. Buttner, Public Defender, Wilkes-Barre, for appellant.

Stephanie J. Salavantis, District Attorney, Demetrius W. Fannick, Assistant District Attorney, and Gerry Scott, IV, Assistant District Attorney, Wilkes-Barrre, for Commonwealth, appellee.

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

OPINION BY BOWES, J.:

J.J.M. appeals from the dispositional order entered following his delinquency adjudication for terroristic threats. We affirm.

At the time of the events in question, Appellant was a fifteen-year-old student at West Side Career and Technology Center, a vocational high school in Luzerne County, Pennsylvania. The juvenile court summarized the testimony offered at the adjudication hearing arising from those events as follows.

M.W., a fifteen-year-old student at West Side C.T.C. testified that on February 20, 2018 she was in school and is familiar with [Appellant]. M.W. identified [Appellant] for the record and related that they have several classes together. She testified that she heard [Appellant] make statements regarding "things in reference to death and such," in the hallway, between classes and she was within two to three feet of him at the time the statements were made.

M.W. further testified that [Appellant] stated "he wanted to beat the record of 19." She testified he was either talking to someone or just said it and it was not directly said to her. She then notified school administrators Mr. Rava and Mr. Paulauskas. She further testified she went to the school authorities "because it was concerning due to past statements. I felt it needed to be taken seriously."

When asked on cross-examination if she felt that she needed to talk to [Appellant] to ask what he meant by the statement she replied "no, I felt it was unneeded." She stated the statements concerned her because he's shown signs of possibly being violent.

The Commonwealth next called K.S. a fourteen-year-old student at West Side C.T.C. K.S. testified that she was in school on February 20, 2018 and did not have any conversations with [Appellant] that day. She stated she did have conversations with him a few weeks before.

K.S. testified [Appellant] said "he doesn't think people deserve to live and everyone should just die." She went to school administrator Mr. Paulauskas and reported this incident.

K.S. testified that she did not immediately report the statement to school administration however, a few weeks later after she heard other statements he made, she then spoke up about it because it was a serious problem. She stated "I was scared, like, I was nervous. I was scared because I didn't know what was going to happen. There was previously school shootings like you never know. I spoke with Mr. Paulauskas and Mr. Rava, I approached them because my friends approached me about him saying he was going to beat the record. She stated she was concerned and reported this information to school personnel and believed [Appellant] was then suspended from school. He was no longer at school."

K.S. further testified about previous statements that she heard coming out of J.M's mouth that worried her. She stated the statement that she heard was "that he thought people should die, people like shouldn't live. That's what I heard myself." She further related that other people told her about other statements he had made.

On cross-examination K.S. was asked if she was generally uneasy and anxious because of matters recently reported in the news. She testified "yes, I was uneasy and anxious because there had recently been school shootings."

Richard Rava, Administrator of West Side [C.T.C.] testified. He indicated he is the Assistant Director/Principal. He is familiar with [Appellant]. When asked if action was taken by the school regarding [Appellant]'s conduct, Mr. Rava testified that [Appellant] was expelled from school.

Juvenile Court Opinion, 7/16/18, at 2-4 (some punctuation corrected; citations omitted).

Upon this evidence, a juvenile hearing officer adjudicated Appellant delinquent of terroristic threats. Appellant challenged the hearing officer's recommendation, and the juvenile court scheduled a de novo hearing. The parties stipulated to the introduction of the prior testimony at that hearing to inform the court's determination. On May 14, 2018, the juvenile court adjudicated Appellant delinquent of terroristic threats under 18 Pa.C.S. § 2607(a)(3), and provided that the disposition order drafted by the hearing officer remain in effect. That order, inter alia , placed Appellant on probation, required that he comply with mental health recommendations, and prohibited Appellant from having any contact with weapons. Appellant filed a timely post-dispositional motion, which was denied by order of July 16, 2018. Appellant thereafter filed a timely notice of appeal.

Appellant presents the following questions for this Court's review:

1. Whether the Commonwealth presented sufficient evidence to conclude that [Appellant] violated 18 Pa.C.S.A. § 2706(a)(3) ?

2. Whether the terroristic threats statute violates [Appellant's] 1^st Amendment right under the United States Constitution to free speech?

3. Whether the terroristic threats statute is unconstitutional and, as applied, in violation of [Appellant's] due process rights under the 5^th and 14^th Amendments of the United States Constitution?

Appellant's brief at 2.

We begin with the law applicable to Appellant's contention that the evidence offered by the Commonwealth is insufficient to sustain his adjudication. "In a juvenile proceeding, the hearing judge sits as the finder of fact." In re L.A. , 853 A.2d 388, 391 (Pa.Super. 2004). "The weight to be assigned the testimony of the witnesses is within the exclusive province of the fact finder." Id.

When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth.

In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.

In the Interest of J.G. , 145 A.3d 1179, 1188 (Pa.Super. 2016) (citations omitted).

Our legislature has defined the crime of terroristic threats as follows:

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;

(2) cause evacuation of a building, place of assembly or facility of public transportation; or

(3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.C.S. § 2706(a).

This Court has held that the result threatened by the speaker need not be specifically articulated if it "may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement." In re B.R. , 732 A.2d 633, 636 (Pa.Super. 1999) (internal quotation marks omitted).

"[T]he harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another's sense of personal security." Commonwealth v. Kline , 201 A.3d 1288, 1290 (Pa.Super. 2019) (internal quotation marks omitted). As such, "neither the ability to carry out the threat nor a belief by the person threatened that it will be carried out is an essential element of the crime." Id. (cleaned up).

The Commonwealth alleged that Appellant engaged in conduct that constituted terroristic threats under subsections (a)(1) and (a)(3) of § 2706.¹ The juvenile court determined that an adjudication of delinquency was unwarranted under subsection (a)(1) (threat made with intent to terrorize),² but concluded that Appellant made a threat with reckless disregard for the risk that it would cause terror or public inconvenience. Juvenile Court Opinion, 7/16/18, at 1, 9. Therefore, it adjudicated Appellant delinquent pursuant to subsection (a)(3).

Appellant challenges the sufficiency of the evidence to sustain this adjudication on two grounds. First, he contends that his statements do not amount to a "threat." Appellant's brief at 8-11. Second, Appellant maintains that the evidence does not support a finding of a mens rea beyond mere negligence, because there was no evidence that Appellant knew that anyone who overheard his statement would associate it with previous school shootings. Id. at 12-13. We are not persuaded by either argument.

To reiterate, § 2706(a)(3) provides: "A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: ... cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience." 18 Pa.C.S. § 2706(a)(3). As the term "threat" is not defined in the statute, we imbue the word with its ordinary meaning. Commonwealth v. Kelley , 569 Pa. 179, 801 A.2d 551, 555 (2002) ("We construe non-technical words and phrases in statutes, which remain undefined, according to their ordinary usage.").

Black's Law Dictionary offers the following definitions of "threat":

1. A communicated intent to inflict harm or loss on another or on another's property, esp. one that might diminish a person's freedom to act voluntarily or with lawful consent; a declaration, express or implied, of an intent to inflict loss or pain on another ....

2. An indication of an approaching

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