Com. v. McPherson, T.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2014
• Docket: 1450 WDA 2013
• Status: Unpublished

Opinion

J.S20034/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : THOMAS PAUL MCPHERSON, : : Appellant : No. 1450 WDA 2013

Appeal from the Judgment of Sentence August 6, 2013 In the Court of Common Pleas of Allegheny County Criminal Division No(s).: CP-02-CR-0011475-2012

BEFORE: GANTMAN, P.J., DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 6, 2014

Appellant, Thomas Paul McPherson, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his bench convictions for terroristic threats and harassment.1 The victims in

this case were the mayor and chief of police of Millvale. Appellant argues

the court erred in admitting audio recordings of voice messages, the

evidence was insufficient to establish terroristic threats, and the court

abused its discretion in imposing a probation term banning him from the

town of Millvale. We affirm the convictions but vacate the portion of his

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(4). Appellant was also convicted of possession of marijuana, 35 Pa.C.S. § 780-113(a)(31). J. S20034/14

sentence banning him from Millvale.

The trial court summarized the underlying facts as follows:

[T]he credible facts presented at trial demonstrated that [Appellant] was a resident of Millvale, Pennsylvania. For some reason, he developed a strong dislike for the local mayor and the police department of that town. [Appellant] and his family had numerous interactions with the Millvale Police over a period of time. Between 2010 and 2012, [Appellant] sent emails to a neighboring police chief and left voice mails for the mayor and police chief of Millvale voicing his extreme displeasure with events occurring in Millvale. The voice messages were vile, profane and threatening.

Trial Ct. Op., 12/11/13, at 2. The trial court further described the messages

Id. at 4. The court cited the following portion of one

voice message to Police Chief Derek Miller:

But I just you know, got gangs running around your house, I don n] Hyatt guy is but uhh gee it sure is gonna be fun. Ohh, and by the way, when you come to arrest n] house. Ok, so uh you know, I just want to let you know that, that just send me n]charges in the mail.

Id.

The case proceeded to a non-jury trial on May 8, 2013. The

Commonwealth introduced recordings and transcripts of the voice messages.

Appellant did not testify or present any evidence. The trial court found

Appellant guilty of one count of terroristic threats, two counts of

harassment, and one count of possession of marijuana. On August 6, 2013,

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ion, the court ordered that Appellant may not

enter Millvale.2 Appellant did not file a post-sentence motion. Appellant

1925(b) statement of errors complained of on appeal.

In his first issue,3 Appellant asserts the trial court erred in admitting

into evidence recordings of telephone voice mail messages he purportedly

left for Police Chief Miller. He asserts there was no proper foundation

because the Commonwealth failed to identify the recordings as true and

correct reproductions of the original messages, and that the Commonwealth

did not present evidence as to their chain of custody, authenticity, and

manner of transcription. Additionally, Appellant complains the court

accep

We consider the standard of review:

With regard to evidentiary challenges, it is well e is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that

2 At the sentencing hearing, while imposing a probation sentence of two

made no mention that this particular condition had a different time limit than the overall probation sentence. See Order of Sentence, 8/6/13. 3

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is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Furthermore, if in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation

omitted).

es in pertinent part:

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only--not a complete list--of evidence that satisfies the requirement:

* * *

(5) Opinion About a Voice. An opinion identifying a whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

Pa.R.E. 901(a), (b)(5).

In Serrano, this Court considered a claim that there was no proper

foundation for the admission of recordings of telephone conversations,

because the Commonwealth failed to identify one of the voices in the

recording as that of the defendant. Serrano, 61 A.3d at 284, 290.

Specifically, the defendant argued that only one witness identified his voice

and no other witnesses corroborated that identification. Id. at 290. This

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Court found no relief was due, citing Rule of Evidence 901(b)(5). 4 Id. We

reasoned that the witness had testified he came to learn it was the

d to the

Id. at 291.

At trial, the Commonwealth played one of the phone messages and

Mayor Cinski identified the speaker in the recording as Appellant. N.T. Trial,

hea See

(citing N.T. at 44, 45). Furthermore, as the Commonwealth notes, Police

Chief Miller testified he had known Appellant for fifteen to sixteen years,

times. See

there was no testimony that the voice mail messages originated from a

telephone number linked to Appellant, like that in Serrano, we agree with

the trial court that the Commonwealth established the speaker in the voice

4 The Serrano Court also considered Rule 901(b)(6), which pertains to telephone conversations. See Serrano, 61 A.3d at 290-91; Pa.R.E. 901(b)(6). That subsection does not apply in the instant case, as the

between two people.

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mail messages was Appellant. See Pa.R.E. 901(b)(5); Serrano, 61 A.3d at

290-91; Trial Ct. Op. at 7.

With

to Chief Miller. N.T. Trial at 48. Chief Miller testified that he saved

Id. at 83. Appellant

argued extensively at trial that the Commonwealth did not authenticate the

recordings because it did not present evidence of how copies of the voice

messages were made from the voice mail system or how they were

preserved or kept in evidence. Id. at 50, 90-91. The trial court overruled

Mayor Cinski and Chief

Miller heard the recordings and testified that they were the same as the

voice messages they received. Id. at 91.

e received in January of 2012. See

Trial Ct. Op. at 7; N.T. Trial at 51, 90. Additionally, State Trooper Pierre

at 68.

and

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the CDs containing the audio recordings to Trooper Wilson. Id. at 62-63. In

light of all the forego

claim that the recordings were inadmissible because they were not properly

authenticated.

evidence. First, he argues the evidence was not sufficient for terroristic

threats because the telephone message to the police chief did not include a

specific threat. Appellant maintains that instead, the message merely

meaning the gangs

that he never claimed to know who is in or controls the gangs. He also

nt out of his way to state that he was

legal ways to retaliate against the cops, while comparing his

Id. at 15. Appellant emphasizes that

Id. at 15, 16. We find no relief is due.

We note the relevant standard of review:

As a general matter, our standard of review of sufficiency

most favorable to the verdict winner giving the prosecution

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the benefit of all reasonable inferences to be drawn from t

verdict when it establishes each material element of the crime charged and the commission thereof by

[our] judgment for that of the factfinder; if the record contains support for the convictions they may not be

Commonwealth v. Sinnott, 976 A.2d 1184, 1187 (Pa. Super. 2009)

(citations omitted), , 30 A.3d 1105 (Pa. 2011).5

Appellant was convicted under the following subsection of the

terroristic threats statute:

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[.]

18 Pa.C.S. § 2706(a)(1). This Court has explained:

that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for

is the psychological distress that follows an invasion of the

5 In Sinnott the Sinnott, 30 A.3d at 1107, 1111.

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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

Sinnott, 976 A.2d at 1188.

intended

to relay a message to Chief Miller that [he] was advising Chief Miller that

ng] shooting at each

See

message as a whole, it conveyed a

. .were

indirect threats to commit a crime of violence with the intent to terrorize

that he did not articulate a specific crime is meritless, as such conduct is not

required to establish terroristic threats. See Sinnott, 976 A.2d at 1188.

The testimony cited by

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Appellant threatened the police chief when the chief saw Appellant driving

around town. N.T. Trial at 104-

threaten me. He would drive by and make comments out the window or

Id. at 105. For the foregoing reasons,

threatening language. See 18 Pa.C.S. § 2706(a)(1).

threats and harassment convictions. He avers his telephone messages were

protected speech under the First Amendment to the United States

Constitution because, although containing profanity, they were legitimate

wrongly, that both the Mayor and Police Chief were failing in their efforts to

[]

employed the terroristic threats and harassment statutes improperly to

suppress his free speech rights. Id. at 20. We disagree.

We first note the subsection of the harassment statute under which

with intent to harass, annoy or alarm another, the person . . . communicates

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to or about such other person any lewd, lascivious, threatening or obscene

See 18 Pa.C.S. § 2709(a)(4)

(emphasis added).

Our review of relevant authority has not revealed a decision in which a

defendant claimed his speech was protected under the First Amendment in

order to defend against or overcome a terroristic threats charge.

Nonetheless, we note the following relevant authority. In J.S. v.

Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), the Pennsylvania

consistent with the First Amendment . . . , discipline a student for creating at

home, and posting on the Internet, a web site that, inter alia, contained

derogatory, profane, offensive and threatening statements directed toward

Id. at 850. The Court noted:

[W]hile the freedom of speech is rightfully cherished, it is also clear that this rig

certain types of speech can be regulated if they are likely to inflict unacceptable harm. These narrow categories of speech that incites others to imminent lawless action, obscenity[,] true threats Thus, certain classes of speech may be regulated, or even punished, by government and such action will not violate the Constitution.

Id. at 854 (citations omitted) (emphasis added). In considering whether the

protection, this Court stated:

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States Supreme Court has determined is beyond the protective ambit of the First Amendment. A true threat may be criminally punished and the majority of case law that considers whether certain speech constitutes a true threat arises in the context of a conviction for the violation of a criminal statute that prohibits such threats.

Id. at 856 (citations omitted).

In the instant appeal, Appellant cites Commonwealth v. Fenton, 750

A.2d 863 (Pa. Super. 2000), for the principle that speech containing

profanity may neverthel

Fenton, the

defendant was convicted of terroristic threats and harassment. Fenton, 750

lewd, lascivious 6 or indecent words or language

ting Fenton, 750 A.2d at 866-67) (emphasis

sexual nature, as opposed

Fenton, 750 A.2d at 866 (emphasis

added). As Appellant quoted in his brief, the Fenton Court held that the

6 The Fenton defendant was convicted under the prior version of the harassment statute. See Fenton, 750 A.2d at 866; 18 Pa.C.S. § 5504 (harassment), repealed Dec. 9, 2002.

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had nothing to do with sex

18 (quoting Fenton, 750 A.2d at 867) (emphasis added).

The current version of the harassment statute, under which Appellant

was convicted, continues to include the element of communicating lewd or

lascivious words or language. See 18 Pa.C.S. § 2709(a)(4). However,

Appellant

the court found he communicated threatening words or language, in

violation of the statute. See 18 Pa.C.S. § 2709(a)(4). Furthermore, the

terroristic threats statute does not include the element of lewd or lascivious

Fenton applies.

Finally, as discussed above, we agree with the trial court that

[Appellant] voiced is intent to shoot at Chief Miller and to send somebody to

See Trial Ct. Op. at 6. In light of the violent

by the First Amendment. See Bethlehem Area Sch. Dist., 807 A.2d at

856.

to 42 Pa.C.S. § 9754(c)(13), in imposing a probation term barring him from

Millvale. As stated above, Appellant was sentenced on his conviction of

terroristic threats only. Appellant argues this probation condition is not

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reasonably related to his rehabilitation and is unduly restrictive of his liberty.

He maintains he was not in Millvale when he made the telephone calls. He

further contends that a ban from the town of Millvale would prevent him

Pittsburgh to points north and east, including [his] current home in

old Appellant is entitled to relief.

sentence. This Court has stated:

aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is

Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)

(citation omitted).

At sentencing, Appellant did not object to the probationary term

indeed, any aspect of his sentence after the court announced the judgment

of sentence. See

file a post-sentence motion challenging the condition banning from Millvale.

Nevertheless, we decline to find waiver, as the trial court discussed the

legality7 of banning Appellant from Millvale, and defense counsel commented

7 Although the trial court questioned the legality of this probationary term, we, as stated above, determine the propriety of this condition to go instead to the discretionary aspect of sentence.

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on it:

from a community. Is it legal?

going to make it illegal under the unique circumstances in this case. . . .

Id. at 12-

failure to raise it before the trial court. See Shugars, 895 A.2d at 1274.

We next consider whether Appellant has

relied upon for allowance of appeal with respect to the

hat there is a substantial question that the sentence imposed is not

Pa.C.S.A. § 9781(b);

See Commonwealth v. Houtz, 982 A.2d 537, 539 (Pa. Super. 2009)

(some citations omitted).

Appellant has included a proper Pa.R.A.P. 2119(f) statement in his

-6. Additionally, a claim that the trial court

abused its discretion in imposing probationary conditions which were not

tantial

question. Houtz, 982 A.2d at 539. Thus, we consider the merits of

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conditions that a court may impose as a part of probation. 42 Pa.C.S. §

9754(c). In the instant case, the trial court cited the catchall provision at

order require the defendant . . . [t]o satisfy any other conditions reasonably

related to the rehabilitation of the defendant and not unduly restrictive of his

See 42 Pa.C.S. §

9754(c)(13); Trial Ct. Op. at 8.

This Court has stated:

A probation order is unique and individualized. It is constructed as an alternative to imprisonment and is designed to rehabilitate a criminal defendant while still preserving the rights of law-abiding citizens to be secure in their persons and property. When conditions are placed on probation orders they are formulated to insure or assist a defendant in leading a law-abiding life.

Moreover, as long as conditions placed on probation are

them.

Houtz, 982 A.2d at 539-40 (some citations omitted).

In its opinion, the trial court acknowledged its comments at the

sentencing hearing concerning the propriety of banning Appellant from

court considered the disclosure in the pre-

Millvale was carrying a gun because he was afraid for himself and his family

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statement at sentencing that

Id. at 8-9. Finally, the court cited

no compelling need to be in Millvale and he could arrange to have a relative

Id. at 9.

We have not discovered any decisional authority discussing a

probation term which bans a defendant from entering a town. However, we

agree with Appellant that this condition does not, under Subsection

9754(c)(13), reasonably relate to his rehabilitation. The

this term were the protection of the victims and the public, and we discern

rehabilitative needs.

Furthermore, we agree that that the probation term unduly restricts

conditions banning him from having contact with the mayor and police chief

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achieved this sentencing goal.8

concern, or fear in his victims, his convictions were based on the acts of

sending threatening emails and voice messages. This conduct would not be

curtailed by a ban from a town. For all the foregoing reasons, we vacate the

Judgment of sentence affirmed in part and vacated in part.

Jurisdiction relinquished.

Judge Donohue concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014

8 Appellant concedes that the probation terms barring him from having any

28.

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