J.S20034/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
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.
4
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
Id.
See
message as a whole, it conveyed a
. .were
indirect threats to commit a crime of violence with the intent to terrorize See
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.
See
The testimony cited by
10
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.