Com. v. Butler, A.

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2020
• Docket: 345 EDA 2020
• Status: Unpublished

Opinion

J-S32041-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADAM BUTLER : : Appellant : No. 345 EDA 2020

Appeal from the PCRA Order Entered January 16, 2020, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0001557-2015, CP-51-CR-0001558-2015.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADAM BUTLER : : Appellant : No. 346 EDA 2020

Appeal from the PCRA Order Entered January 16, 2020, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0001557-2015, CP-51-CR-0001558-2015.

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 21, 2020

In these consolidated appeals, Adam Butler challenges the order

denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-9546. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S32041-20

The trial court summarized the pertinent facts as follows:

Philadelphia Police Officer [Ray] D’Amico testified that he was on duty, in uniform, as the recorder in a police vehicle on April 13, 2013, in the vicinity of 2500 Page Street in Philadelphia. He and his partner . . . stopped a vehicle driving the wrong way down Page, a one way street. The officers signaled the vehicle to pull over at Bainbridge Street. Officer D’Amico approached the passenger side of the stopped vehicle, as his partner approached the driver’s side. [Butler], who was in the passenger seat produced his identification when asked to do so. As his partner did a check of the occupants’ identification, [Officer] D’Amico remained on the passenger side of [the] vehicle, near [Butler].

At some point, [Butler] became agitated and attempted to open the vehicle door. Officer D’Amico shined his light into the vehicle, at which time [Butler] swung at the officer’s flashlight and told him to get the light out of his face. Officer D’Amico called his partner over and they removed [Butler] from the vehicle and attempted to calm him down. The officer placed [Butler] against the wall.

[Butler] proceeded to loudly yell and scream at the officers, and bystanders also began to yell and scream to the officers that [Butler] was deaf. The officers then attempted to place [Butler] under arrest for disorderly conduct, but he refused to give them his hands, causing the officers to have to hold his arms down to handcuff him. The officers called for another vehicle to transport [Butler]. [Butler] continued to yell and scream, refusing to walk straight or bend down so he could be placed in the police car. There were approximately 30 people out on the street.

Officer [Steven] Toner, who arrived on the scene with his partner, in response to a radio call, attempted to control the crowd, as [Officer] D’Amico and [his partner] secured [Butler].

[Officer] Toner and his partner then transported [Butler] in their police vehicle. During this transportation, [Butler] made threats to kill the officer, “fuck you up”, and told Officer Toner that he had “a target on [his] back.” When the officer’s son appeared on his phone screen, [Butler]

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said: “Is that your child? . . . I’m going to fuck him up, too.” When Officer Toner turned to look at [Butler], [Butler] said “I’m in your head you [faggot] pussy coward.”

Trial Court Opinion, 12/16/16, at 1-3 (citation omitted).

On October 19, 2016, following a bench trial, Butler was convicted of

disorderly conduct at CP-51-CR-0001557-2015, and terroristic threats at CP-

51-CR-0001558-2015. On October 19, 2015, the trial court imposed an

aggregate term of 1½ to 3 years of imprisonment, followed by a two-year

probationary term. Butler filed a timely appeal to this Court, after his

appellate rights were reinstated nunc pro tunc. In an unpublished

memorandum filed on September 6, 2017, this Court affirmed Butler’s

judgment of sentence, and on February 6, 2018, our Supreme Court denied

Butler’s petition for allowance of appeal. Commonwealth v. Butler, 178

A.3d 135 (Pa. Super. 2017), appeal denied, 181 A.3d 290 (Pa. 2018).

On February 8, 2019, Butler filed a timely PCRA petition. The PCRA

appointed counsel, and PCRA counsel filed an amended petition on April 30,

2019. The Commonwealth filed a motion to dismiss on September 4, 2019,

to which Butler filed a response on September 25, 2019. On December 24,

2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Butler’s petition without a hearing. Butler did not file a response. By order

entered January 16, 2020, the PCRA court dismissed Butler’s amended

petition. This timely appeal followed. The PCRA court did not require Rule

Pa.R.A.P. 1925 compliance.

Butler raises the following issue on appeal:

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1. Did the PCRA court err in dismissing [Butler’s] PCRA Petition without a hearing because trial and direct appeal counsel were ineffective for not seeking vacation of judgment of sentence in relation to [Butler’s] Terroristic Threats conviction on sufficiency of the evidence and Constitutional grounds?

Butler’s Brief at 4.

This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

Before addressing the merits of Butler’s issue on appeal, we note that

Butler may be ineligible for post-conviction relief because it appears he is no

longer serving a sentence of imprisonment, probation or parole for his

terroristic threats conviction. See 42 Pa.C.S.A. § 9543(a)(1)(i). As noted

above, the trial court sentenced Butler on October 19, 2015 to serve 1½ - 3

years of incarceration and a consecutive two-year probationary term.

Although the Commonwealth admits that it was “unable to definitively confirm

[Butler’s] custody status,” based upon its belief that Butler was incarcerated

since March 2015, he would have completely served his sentence for his

terroristic threats conviction by March 2020. Commonwealth’s Brief at 7 n.1.

Thus, even though Butler was serving his sentence at the time he filed his

PCRA petition, because he has since completed serving his sentence, he would

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no longer be eligible for post-conviction relief. See Commonwealth v.

Tinsley, 200 A.3d 104, 107 (Pa. Super. 2018), appeal denied, 208 A.3d 461-

62 (Pa. 2019) (explaining, “As soon his sentence is completed, a petitioner

becomes ineligible for relief under the [PCRA], regardless of whether he was

serving his sentence when he filed his petition”). Thus, we could affirm on

this basis alone.1

Because we are unable to confirm his current status, however, we will

address the merits of his issue. Butler claims the ineffectiveness of prior

counsel. When a petitioner alleges counsel’s ineffectiveness in a PCRA

petition, he must prove by a preponderance of the evidence that his conviction

or sentence resulted from ineffective assistance of counsel “which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Additionally, the petitioner must

demonstrate:

(1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel’s actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel’s error. To prove that counsel’s chosen strategy lacked a reasonable basis, a petitioner must prove that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. Regarding the prejudice prong, a petitioner must demonstrate that there is a reasonable probability that the ____________________________________________

1 We additionally note that in presenting his argument, Butler asserts that “he served a state sentence for [a] heat of the moment bluster.” Butler’s Brief at 12.

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outcome of the proceedings would have been different but for counsel’s action or inaction. Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffectiveness[,] the petitioner must advance sufficient evidence to overcome this presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). Accord Commonwealth v. Pierce,

527 A.2d 913 (Pa. 1987). A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim. Commonwealth v.

Martin, 5 A.3d 177, 183 (Pa. 2010).

Additionally, we note that, by challenging both trial and appellate

counsel’s performance, Butler has raised a layered claim of ineffectiveness.

To prevail on a claim of appellate counsel ineffectiveness for failure to raise

an allegation of trial counsel ineffectiveness, a PCRA petitioner must present

a layered claim, i.e., he or she must present argument as to each of the three

prongs of the Pierce test, which is for determining whether the petitioner has

overcome the presumption that counsel is effective, at each layer of allegedly

ineffective representation. Commonwealth v. Paddy, 15 A.3d 431 (Pa.

2011).

Butler has failed to properly present a layered ineffectiveness claim.

When a PCRA petitioner has failed to properly layer his claim of ineffective

assistance of counsel, an appellate court will not remand to the PCRA court so

that the petitioner can properly plead the layered claim when the petitioner

cannot establish that trial counsel was ineffective. Commonwealth v. Rios,

920 A.2d 790 (Pa. 2007). Here, Butler argues that trial counsel was ineffective

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for failing to challenge the sufficiency of the evidence supporting his terroristic

threats conviction. We cannot agree.

When analyzing whether the evidence was sufficient to support a

conviction, this Court must “view the evidence in the light most favorable to

the Commonwealth as the verdict winner in order to determine whether the

jury could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence

established at trial need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012). “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.” Commonwealth

v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc). Additionally, this

Court cannot “re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id. A challenge to the sufficiency of the evidence presents

a pure question of law and, as such, our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Jacoby, 170 A.3d 1065,

1076 (Pa. 2017).

To convict Butler of terroristic threats, the Commonwealth had to

establish that he made: (1) a threat to commit a crime of violence; and (2)

that the threat was communicated with the intent to terrorize. 18 Pa.C.S.A.

§2706(a)(1); Commonwealth v. Walls, 144 A.3d 926, 936 (Pa. Super.

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2016). Importantly, we note that “[t]he purpose of [section 2706] is to

impose criminal liability on persons who make threats which seriously impair

personal security or public convenience.” 18 Pa.C.S.A. § 2706 cmt.; Walls,

supra. As Butler acknowledges: “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.” Butler’s Brief at 9 (quoting Commonwealth v.

Richard, 150 A.3d 504, 514 (Pa. Super. 2016)).

Case precedent, however, has held the “terroristic threats statute is not

meant to penalize mere spur-of the-moment threats which result from anger.”

In the Interest of J.H., 797 A.2d 260, 262 (Pa. Super. 2002) (citation

omitted). See, e.g., Commonwealth v. Anneski, 525 A.2d 373, 376 (Pa.

Super. 1987) (holding evidence insufficient to support terroristic threats

conviction when exchange of threats was made during a heated argument

between neighbors); Walls, 144 A.3d at 938 (holding evidence insufficient to

support terroristic threats conviction when the defendant “made a spur-of the-

moment threat as the result of anger during a random confrontation at a local

shopping mall” with an assistant district attorney).

Here, although the PCRA court did not require Pa.R.A.P. 1925

compliance, in lieu of a Rule 1925(a) opinion, the PCRA court filed an order in

which it referred this Court to the opinion it prepared when Butler litigated his

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direct appeal.2 See Order Sur PCRA Petition, 1/16/20 at 1 n.1. In that

opinion, the court recited the above statements made by Butler to Officer

Toner and concluded that they “were clearly specific threats of present and

future harm, designed to place the officer in fear.” Trial Court Opinion,

12/16/16, at 9.

Our review of the record and pertinent case law supports this conclusion.

Contrary to Butler’s self-serving claims, his words to the police officers were

not “mere bluster enunciated in a spur of the moment and heated situation

because [he] was arrested.” Butler’s Brief at 10. To support this proposition,

Butler, without further discussion, cites to Commonwealth v. Hudgens, 582

A.2d 1352 (Pa. Super. 1990). In that case, this Court affirmed Hudgens’

terroristic threats conviction after he wielded a samurai sword in close

proximity to the victim and said he was “going to get him.” Hudgens, 582

A.2d at 1355. In doing so, we rejected Hudgens’ “characterization of the

statement as a mere spur-of-the moment type of threat.” Id. at 1359.

Rather, this Court concluded that “the victim in this case was subjected to

precise type of psychological harm and impairment of personal security which

the [terroristic threats] statute seeks to prevent.” Id. The same is true in

the instant case, as Butler’s threats against both Officer Toner and the officer’s

son. ____________________________________________

2 Our review of the record refutes the Commonwealth’s claim that Butler litigated a sufficiency challenge to his terroristic threats conviction in his direct appeal. See Commonwealth’s Brief at 10.

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Moreover, the fact that the victim in the case was a police officer

following his Butler’s arrest does not alter our conclusion. Here, Officer Toner

was not the arresting officer and, while Butler may have been irate, “[b]eing

angry does not render a person incapable of forming the intent to terrorize.”

J.H., 797 A.2d at 263 (citation omitted). Compare Commonwealth v. Kidd,

442 A.2d 826, 827 (Pa. Super. 1982) (concluding that threats made by the

inebriated defendant toward his arresting officers while being treated at a

hospital after he injured himself by falling in the street, was insufficient to

establish that defendant, “by his acts intended to place the officers in a state

of fear that agitates the body and mind”).

In the alternative, Butler argues that, as applied to him, the

Pennsylvania terroristic threats statute “is overly broad and violative [of his]

free speech rights.” Id. We find this claim to be undeveloped and therefore

waived. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007)

(holding that undeveloped claims will not be considered on appeal). Absent

waiver, we note that Butler’s First Amendment challenge is meritless because

the United States Constitution permits states to criminalize threatening speech

which is specifically intended to terrorize or intimidate. See Commonwealth

v. Knox, 190 A.3d 1146, 1153-61 (Pa. 2018) (holding rap lyrics that

contained specific threats to police officers fell outside the First Amendment’s

protective scope because of the need to protect individuals from fear of

violence, from the disruption that fear engenders, and from the possibility that

the threatened violence will occur).

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In sum, because Butler’s claim of trial counsel’s ineffectiveness lacks

arguable merit, his layered claim of ineffectiveness likewise fails. We

therefore affirm the PCRA court’s order denying him post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/20

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