Com. v. Anderson, T.

• Court: Superior Court of Pennsylvania
• Decided: February 20, 2020
• Docket: 1146 WDA 2019
• Status: Unpublished

Opinion

J-S03035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TOUISSANT MALIK ANDERSON, JR. : : Appellant : No. 1146 WDA 2019

Appeal from the Judgment of Sentence Entered June 28, 2019 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000835-2018

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 20, 2020

Touissant Malik Anderson, Jr. (Anderson) appeals from the June 28,

2019 judgment of sentence imposed by the Court of Common Pleas of

Crawford County (trial court) following his conviction by jury of one count of

terroristic threats. After careful review, we affirm.

I.

We glean the following facts from the certified record. At approximately

3:00 a.m. on August 12, 2018, Meadville police responded to a report of a

disturbance outside of a local bar. The caller reported that an intoxicated male

was banging on the window to the bar and gesturing and yelling at the

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* Retired Senior Judge assigned to the Superior Court. J-S03035-20

employees inside. Officers Eli Provost, Greg Summerson and Ryan Adamaszek

responded to the scene and encountered Anderson.

Anderson was intoxicated and appeared agitated and aggravated when

approached by the officers. He began yelling and cursing at the officers and

told Officer Provost that he wanted to smack him in the face. As a result,

Officer Adamaszek placed him under arrest for public drunkenness. The

officers had some difficulty placing Anderson in handcuffs and putting him in

the back of the police car, but Officer Adamaszek was eventually able to detain

him for transport back to the police station. At that time, Officers Provost and

Summerson left the scene to respond to another call.

Moments later, Officers Provost and Summerson were directed to return

to the police station and assist Officer Adamaszek in putting Anderson in a

holding cell, as Anderson was acting belligerent and aggressive. The officers

removed Anderson from the cruiser and partially carried him to a holding cell

while he continued to yell. Anderson was agitated and repeatedly accused the

officers of harassing him. At one point, he said to Officer Provost, “I know

your bitch ass lives by Allegheny College. I will see you soon.” Notes of

Testimony, Jury Trial, 5/6/19, at 58. Officers Provost, Summerson and

Adamaszek testified at trial to hearing Anderson make this statement. Id.;

Notes of Testimony, Jury Trial, 5/7/19, at 47-48, 80, 83. Officer Provost

further testified that he does, in fact, live near Allegheny College with his wife

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and child, and Anderson’s statement caused him to be concerned about his

family’s safety. Notes of Testimony, Jury Trial, 5/7/19, at 7, 9.

Anderson continued to yell for several minutes while in the holding cell

and began removing his clothes and shaking the cell doors so the officers

elected to transport him to the Crawford County Jail. While Officers Provost

and Summerson were walking Anderson to the police cruiser for transport,

Anderson said to Officer Provost, “I will find you and I will kill you.” Id. at 8.

Officer Summerson testified that while they were bringing Anderson back to

the cruiser, he made threats against Officer Provost and his family. Id. at 50,

55. Officer Adamaszek then transported Anderson to the jail.

At trial, Anderson denied that he made any threats of violence toward

Officer Provost or his family or that he made any statements about knowing

where Officer Provost lives. He testified that he had been harassed by police

officers in the past, including Officer Provost. He admitted that he had been

yelling and cursing at the officers throughout the incident, but contended that

he did not make any threats.

The jury convicted Anderson of one count of terroristic threats for the

statements he made to Officer Provost.1 Anderson timely filed a notice of

appeal. He and the trial court have complied with Pa.R.A.P. 1925.

1 18 Pa.C.S. § 2706(a)(1). The jury found Anderson not guilty of terroristic threats for statements he allegedly made to Officer Adamaszek while being transported to the Crawford County Jail. In addition, the trial court, sitting as

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II.

Anderson challenges the sufficiency of the evidence to sustain his

conviction for terroristic threats.2 He first argues that his statements did not

constitute a threat to commit any crime of violence. In addition, he contends

that the Commonwealth failed to prove that he made the statements with the

intent to terrorize, but rather that the interaction was a mere “spur-of-the-

moment” heated exchange. We address each argument in turn.

fact-finder, convicted Anderson of one summary count of public drunkenness. 18 Pa.C.S. § 5505.

2 Our standard of review is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [this] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation omitted).

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A.

“A person commits the crime of terroristic threats if the person

communicates, either directly or indirectly, a threat to . . . commit any crime

of violence with intent to terrorize another.” 18 Pa.C.S. § 2706(a)(1).

“[N]either 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.”

Interest of J.J.M., 219 A.3d 174, 179 (Pa. Super. 2019) (internal quotations

& citation omitted). It is beyond cavil that murder would constitute a “crime

of violence” for the purposes of the terroristic threats statute. See, e.g.,

Commonwealth v. Ferrer, 423 A.2d 423, 424 & n.3 (Pa. Super. 1980).

Moreover, “[i]t is unnecessary for an individual to specifically articulate the

crime of violence which he or she intends to commit where the type of crime

may be inferred from the nature of the statement and the context and

circumstances surrounding the utterance of the statement.” Commonwealth

v. Jackson, 215 A.3d 972, 981 (Pa. Super. 2019) (internal quotations &

citation omitted).

Anderson first claims that there was no evidence that he uttered a threat

to commit a “crime of violence” under the statute. He contends that the

officers’ testimony that Anderson told Officer Provost, “I know your bitch ass

lives by Allegheny College,” is insufficient to establish that he was threatening

to commit a crime of violence. However, Officer Provost testified further that

Anderson specifically stated, “I will find you and I will kill you.” Notes of

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Testimony, Jury Trial, 5/7/19, at 8. While Anderson contended at trial that he

never made such a statement, in evaluating the sufficiency of the evidence,

we must view the evidence in the light most favorable to the Commonwealth

as the verdict winner. See Lopez, supra. A threat to kill another individual

constitutes a threat to commit a crime of violence, Ferrer, supra, and, as

such, Anderson’s first argument is meritless.

B.

Next, Anderson contends that his statements were made out of a spur-

of-the-moment transitory anger and he did not possess any intent to terrorize

Officer Provost. To sustain a conviction for terroristic threats, the

Commonwealth must prove that the defendant communicated the threat “with

the intent to terrorize another.” 18 Pa.C.S. § 2706(a)(1). While the statute

“is not meant to penalize mere spur-of-the-moment threats which result from

anger,” such anger does not necessarily render a person incapable of forming

the intent to terrorize. Commonwealth v. Reynolds, 835 A.2d 720, 730

(Pa. Super. 2003) (internal quotations & citation omitted). “When two parties

have an unplanned, heated confrontation, a threat made during the

confrontation is often a spur-of-the-moment threat made during a period of

transitory anger.” Commonwealth v. Walls, 144 A.3d 926, 937 (Pa. Super.

2016). On appeal, we examine the totality of the circumstances to determine

whether statements were made out of transitory anger. Reynolds, supra.

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In Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. 1982), this court

vacated the defendant’s terroristic threats conviction on the basis that his

statements were made out of mere transitory anger and without intent to

terrorize. There, the defendant was arrested for public drunkenness and was

agitated and belligerent during his arrest. Id. at 827. While being transported

and treated at the hospital, the defendant continuously yelled obscenities at

the police officers and “told the police he was going to kill them, machine gun

them, if given a chance.” Id. We concluded that there was no evidence of a

settled intent to terrorize the officers, and the record showed only that the

defendant was inebriated and expressing transitory anger that the terroristic

threats statute was not intended to criminalize. Id.; compare

Commonwealth v. Tizer, 684 A.2d 597, 600-01 (Pa. Super. 1996) (finding

that threats were not made in a spur-of-the-moment anger when victim did

not threaten or provoke the defendant, the defendant initiated the interaction,

and threats were not made during the course of a heated argument).

Here, Anderson was arrested for public drunkenness and became angry

and belligerent at the scene of arrest, stating that he wanted to slap Officer

Provost. He first stated that he knew where Officer Provost lived while he was

waiting in the holding cell at the police station. Notes of Testimony, Jury Trial,

5/6/19, at 58. After time had passed, he made at least one additional

comment communicating a specific threat of violence: “I will find you and I

will kill you.” Notes of Testimony, Jury Trial, 5/7/19, at 8. This specific threat

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of violence was not made in a spur-of-the-moment fashion during his arrest.

It was directed at Officer Provost and was made after Anderson assured Officer

Provost multiple times that he knew where he and his family lived. Time had

passed during which Anderson could cool down from his initial upset following

his arrest. Moreover, the statement was not in response to any provocation

by Officer Provost or his colleagues, and Officer Provost testified that he did

not respond to any of Anderson’s threats while he transported him to the

vehicle. Id.

Further, Anderson’s history with the arresting officers, and Officer

Provost in particular, supports the conclusion that he uttered the threat with

the intent to terrorize. See Reynolds, supra (analyzing the sufficiency of

the evidence to sustain a terroristic threats conviction under the totality of the

circumstances). Notably, in Kidd, there was no evidence that the defendant

had a particular history with any of the officers who arrested him or that his

statements were motivated by anything other than transitory anger and

inebriation. Here, Officer Provost testified that he had interacted with

Anderson on at least four prior occasions, including one prior arrest, and that

he tries not to interact with Anderson while on patrol because of his previous

experiences with him. Id. at 12, 22-23. Officer Provost, in fact, asked Officer

Summerson to initiate contact with Anderson in this case due to his own

history with Anderson. Id. at 23.

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Anderson corroborated this testimony, stating that he had interacted

with Officer Provost four to six times in the past and that Officer Provost was

biased against him and harassed him. Id. at 113-14, 122, 132. Anderson

testified that he does not like Officer Provost because he “do[esn’t] believe he

is a good cop.” Id. at 132. This testimony suggests that Anderson harbored

a grudge against Officer Provost and Officer Provost in turn avoided interacting

with Anderson when possible. Further, Anderson’s statement that Officer

Provost lives near Allegheny College was, in fact, accurate, and the implication

of this statement and his subsequent specific threat of violence was more

personalized than the drunken utterances at issue in Kidd. The jury was free

to view this history as strong circumstantial evidence that Anderson uttered

the threat with the intent to terrorize Officer Provost. Viewing the evidence

in the light most favorable to the Commonwealth, as we must, the testimony

adduced at trial was sufficient to prove that Anderson spoke with the intent to

terrorize Officer Provost.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/20/2020

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