In re Interest of E.L.W.

273 A.3d 1202

In the INTEREST OF: E.L.W., a Minor

No. 536 MDA 2021

Superior Court of Pennsylvania.

Submitted March 7, 2022

Filed: April 13, 2022

Allyson L. Kacmarski, Kingston, for appellant.

Samuel M. Sanguedolce, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

James L. McMonagle, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

OPINION BY BOWES, J.:

E.L.W. appeals from the dispositional order which also adjudicated her delinquent for acts constituting terroristic threats. Since we conclude that the juvenile court's factual findings do not support the adjudication of delinquency, we vacate the juvenile court's order.

The juvenile court summarized the history of this case as follows.

On November 2, 2020, Officer Matthew Godlewski testified that he is a police officer for Wilkes-Barre Township Police Department. Officer Godlewski indicated that on June 2, 2020, while on duty, he became aware of a social media post regarding proposed "looting" at the Walmart store in Wilkes-Barre Township, Luzerne County, PA. When shown a hard copy print of the social media post, Officer Godlewski identified the post as appearing on Facebook. The post specifically stated as follows, "We looting Walmart in Wilkes-Barre, PA tomorrow at 8 p.m. in all black, or just me?"

Officer Godlewski testified that stores throughout the United States were experiencing an increase in looting during the summer of 2020. Officer Godlewski explained that he interpreted the social media post to indicate a serious threat similar to someone threatening to "blow up" a school. In light of what was occurring throughout the United States in the summer of 2020, specifically looting, the post was taken very seriously by law enforcement. Officer Godlewski investigated the matter further and discovered the identity of the juvenile who initiated the post to be that of [Appellant]. He then reached out to a detective, Lee Ann Rey, who subsequently assumed responsibility for the investigation.

Mr. Louis Bernardi testified that he is a Luzerne County juvenile probation officer assigned to supervise [Appellant]. He began supervising [her] in January 2019. Officer Bernardi testified that he was contacted by the chief of juvenile probation, Angela Zera, who requested that he independently investigate the allegations regarding [Appellant]’s role in generating the subject social media post. Officer Bernardi stated that he spoke to [Appellant]’s mother on June 2, 2020 and was able to speak to [Appellant] the following day on June 3. According to Officer Bernardi, [Appellant] apologized for her actions and stated that she did not mean to post the statement on Facebook. Officer Bernardi stated that [Appellant] indicated that she was never going to "loot" Walmart, that she was joking around and had no intention of doing it. Officer Bernardi stated that he entered into a discussion with [Appellant] wherein he explained the consequences of her actions. Officer Bernardi testified that [Appellant] appeared not to grasp the consequences of her actions prior to initiating the social media post.

[Appellant] was charged with a single count of terroristic threats. On November 2, 2020, after an adjudication hearing, the court determined that the juvenile, [Appellant] committed the delinquent act of terroristic threats pursuant to 18 Pa.C.S. [§] 2706(a)(3). [The same day, the juvenile ordered Appellant to continue on her preexisting probation, to provide twenty-five hours of community service, and to pay court costs.] On November 12, 2020, [Appellant] filed a post-dispositional motion for reconsideration for which the court scheduled a hearing for December 14, 2020. After receipt of the transcript of the proceeding and deliberation, on March 24, 2021, the court entered an order denying the Motion for Reconsideration and affirming the adjudication of delinquency of [Appellant].

Juvenile Court Opinion, 6/22/21, at 1-2 (cleaned up).

Appellant filed a timely notice of appeal, and she and the juvenile court complied with Pa.R.A.P. 1925. Appellant presents the following questions for our review:

1. Whether the Commonwealth did not present sufficient evidence to conclude that the Appellant violated 18 Pa.C.S.A. § 2706(a)(3).

2. Whether the Court erred when it misapplied the law as to the intent necessary to conclude that the juvenile Appellant violated 18 Pa.C.S.A. § 2706(a)(3).

3. Whether the terroristic threats statute violates the Appellant's 1st Amendment right under the United States Constitution to free speech.

Appellant's brief at 7-8.

Appellant's first two issues challenge the juvenile court's determination that the Commonwealth offered sufficient evidence to establish that her conduct met all of the elements of the crime of terroristic threats. The following principles govern our consideration of those claims:

When a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof beyond a reasonable doubt. 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.

The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a defendant's innocence. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth. The finder of fact is free to believe some, all, or none of the evidence presented.

In Interest of P.S. , 158 A.3d 643, 650 (Pa.Super. 2017) (cleaned up). Further, "[b]ecause evidentiary sufficiency is a question of law, our standard of review is de novo and our scope of review is plenary." Interest of D.J.B. , 230 A.3d 379, 387 (Pa.Super. 2020) (cleaned up).

Or 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).

We have explained that the purpose of the terroristic threats statute "is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience." Commonwealth v. Kline , 201 A.3d 1288, 1290 (Pa.Super. 2019) (cleaned up). 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). See also In re J.H. , 797 A.2d 260, 262 (Pa.Super. 2002) ("Neither the ability to carry out the threat, nor a belief by the person threatened that the threat will be carried out, is an element of the offense.").

As Appellant was adjudicated delinquent pursuant to subsection (a)(3), the question before us is whether the Commonwealth established that she communicated a threat to cause serious public inconvenience and that she did so with reckless disregard of the risk of causing said inconvenience. Appellant does not dispute that she made the communication at issue or that it constituted a threat. Rather, she maintains that the juvenile court erred in finding that the Commonwealth established that she communicated the threat with the requisite mens rea , namely reckless disregard of the risk of causing such inconvenience.

Specifically, Appellant contends that the Commonwealth failed to produce any evidence that she had appreciated the risk of serious public inconvenience that her threat might cause but chose to disregard that risk and proceed anyway. See Appellant's brief at 17-18. She argues that the juvenile court, in analyzing the terroristic threats statute, improperly focused on the effect that the communication had on the people who received it, instead of whether Appellant was both conscious of the risk that her threat would have that effect and that she disregarded that risk when she made her Facebook post. Id . at 22. Indeed, Appellant asserts that the trial court's factual finding that Appellant did not comprehend the effect her post would have is incompatible with a finding that she acted with conscious disregard, and instead supports only that she acted negligently. Id . at 22-23.

We agree with Appellant that the juvenile court misapprehended the nature of the mens rea of recklessness, and that the court's factual findings as to Appellant's state of mind cannot support the adjudication in this case.

Our legislature has defined the varying degrees of criminal culpability as follows:

(1) A person acts intentionally with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(2) A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of

...