Commonwealth v. Bunting

426 A.2d 130, 284 Pa. Super. 444, 1981 Pa. Super. LEXIS 2203

Opinions

VAN der VOORT, Judge:

Appellant was found guilty by a jury of four counts of Terroristic Threats (18 Pa.C.S. § 2706).

He raises three arguments on this appeal.

1. Appellant’s first argument is that the statute is “unconstitutionally vague.”

The language of the section is as follows:

“A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.”

Appellant’s argument is that a criminal statute must give fair notice to a person of ordinary intelligence that his contemplated conduct is forbidden by statute: U. S. v. Hams, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); that this statute has been declared unconstitutional by Judge Chalfin of the Philadelphia Court of Common Pleas in Commonwealth v. Howell, 1 Pa. D. & C. 3d 644 (1976); and that the constitutional question has not heretofore been raised at the appellate level although convictions under the statute have been sustained¹ without discussion of the constitutional question.

The trial judge rejected the appellant’s argument below and held that on the facts developed in this case, “the section is sufficiently direct, precise and informative to comply with constitutional requirements.” Citing Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976); and Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976).

We agree. In this present case the applicable words of the statute are: “. . . if he threatens to commit any crime of violence with intent to terrorize another ...”

Here the alleged threats were made to township officials and to neighbors. Specifically, appellant was alleged to have threatened:

1) to bomb the house of the chairman of the township board of supervisors;

2) that it would not be healthy for a neighbor if he caught such neighbor in the field; he would get the neighbor and his son;

3) a zoning officer that he was going to get a gun and go after the zoning officer; and

4) “to arrange a legal accident to wipe out” a neighbor’s mother.

These threats seem to us to come within the language of the statute and that the statute reasonably gives notice to a person of average intelligence that such threats are proscribed by the statute.

II. The second argument is that the evidence was insufficient to prove that the persons who were targets of the threats were placed in terror. Appellant claims that his victims experienced no fear and terror but instead developed only concern for the safety of themselves and others. He argues that since the victims lacked knowledge concerning his ability to carry out the threats they could not have been placed in terror. We reject appellant’s attempt to remove this “concern” from inclusion of the statute. The lower court found the evidence of terror sufficient and we agree. The opinion of the lower court, denying post trial motions follows in part:

“Evidence of the reaction of the individuals to the threats has been presented. Although none of them stated that he was ‘in terror,’ there is testimony of fear of consequences. Terror has been defined as intense fear. The witnesses may not have articulated the intensity of their fear. The determination of the intensity and whether the fear expressed was of the magnitude of terror was for the jury.”

III. Appellant argues reversible error in the admission of evidence of appellant’s silence after arrest.

The charges in this case resulted from conversations between appellant and the victims. A state trooper testified that after the appellant had been placed under arrest, and had been given his Miranda rights, appellant proceeded to give an oral statement. The state trooper read the written account of the statement into the record, concluding with:

“That is the extent of the statement.

I asked him about his conversations with Book—I am sorry, with the Zooks; however, there was nothing said pertaining to those conversations.” N.T. at 133.

Appellant’s trial counsel made a motion for a mistrial. After a brief discussion on the record and a review of the testimony the court denied the motion. The district attorney continued his direct examination.

DISTRICT ATTORNEY:

“Q. Corporal Harnish, was there any subsequent conversations with Mr. Bunting relative to this matter?

A. Nothing of significance.

Q. Thank you.

DISTRICT ATTORNEY: I have no further questions.

DEFENSE ATTORNEY: Your Honor, I have to renew

the same motions all over again.

THE COURT: They are denied.”

N.T. at 134-135.

Appellant now claims that under Commonwealth v. Williams, 252 Pa.Super. 435, 381 A.2d 1285 (1977), the admission of “evidence of a defendant’s silence at the time of arrest is reversible error.” Such a reference is not, however, automatic justification for a new trial. Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976); and Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978). To reach appellant’s conclusion we must proceed through a three tier examination. First the reference must have been improper. Next, if the reference was improper, this court must find that a curative instruction would not have negated the inference left by such reference. Finally, if an instruction could have remedied the harm but was not given, we must find that the lower court and trial counsel could not have reasonably concluded that an instruction would reinforce the inference of guilt in the minds of the jurors.

Reading the text of the state trooper’s testimony, we observe no improper reference to appellant’s partial silence. The state police testified that appellant made a statement concerning two of the charges. Such a statement by itself indicates that he did not converse concerning the other two counts. Every statement must end at some point; here appellant terminated his statement after giving his version of two of the four conversations. We can find no additional harm resulting from the testimony that appellant only discussed the two counts of terroristic threats. Appellant would have suffered the same detriment, if any, had the trooper concluded his testimony with, “[t]hat was the extent of the statement.” Williams involved a situation where a police officer testified that a suspect had given his version of how he came in possession of a stolen car. He then elected to remain silent. In Commonwealth v. White, 482 Pa. 197, 393 A.2d 447 (1978), the defendant after giving a statement, said that he had already hurt himself enough and was not going to say anymore. While in Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978) the testimony indicated that on advice of counsel, defendant would not make a statement to the police. The present statement is distinguishable from these previous cases; it was not improper. There was no testimony that appellant exercised his prerogative to remain silent. Instead the jury was led to believe that the conversation continued, but had no importance as to the present charges.

Even assuming that the reference was improper, a proper curative instruction would have remedied any possible prejudice to appellant. Justice Eagen’s opinion announcing the judgment of the court in Commonwealth v. Maloney, supra,² established a two prong test for determining whether a curative instruction would remove the possible harm.

In making this decision, the following will be important considerations but not necessarily exclusive: (1) the nature of the reference, particularly, whether it was a specific comment on the accused’s silence at trial or at the time of arrest or whether it was, as in Commonwealth v. Ross [403 Pa. 358, 169 A.2d 780], supra, merely a reference to the fact that incriminating evidence of the Commonwealth was undenied or uncontradicted; and (2) whether the accused’s silence was exploited by the district attorney. 469 Pa. at 349, 365 A.2d 1237.

Maloney demonstrates that a court should look at the particular circumstances of the case before it. Here, mention of appellant’s silence was a reference to the end of appellant’s statement; it established the limitations of the statement. The statement was directed to only two of the four counts of terroristic threats; the reference to appellant’s failure to comment further was to delineate the scope of his statement. The prosecuting attorney made no direct comment on appellant’s invocation of his right to remain silent.³ Nor did he attempt to exploit such silence. Assuming the reference was improper, we hold that a curative instruction could have adequately protected appellant’s interest.

However, the lack of such instruction, under the present circumstances does not justify a new trial. This court was faced with a somewhat similar situation in Quart-man, supra. There passing references to the defendant’s silence were made by two police officers. Defense counsel’s objections were sustained but motions for new trial were denied. On appeal Quartman argued that such reference to his silence required the granting of a new trial. We found the lower court had not erred in denying a mistrial. We also held that the court’s failure to give a curative instruction did not require a new trial. The record there indicated that the trial judge had considered giving such an instruction but decided against giving one for fear that the instruction itself would reinforce in the jury’s minds the inference that the defendant was guilty. Counsel for the defendant admitted to having similar reservations. In the present case the record contains no explicit evidence of similar reservations. However, our reasoning in Quartman applies to the present case.

Had counsel desired curative instructions in the instant case, he could have requested them. It is clear that counsel should likewise be permitted to request that the court not give curative instructions ‘sua sponte.’ In hindsight, counsel’s decision to forego curative instructions may prove to have been a tactical error; it is likewise irremediable. In every case, it is a tactical decision to be made by defense counsel, and the rendering of an unfavorable verdict should not entitle a defendant, who did not elect to protect himself to the maximum in his first trial, to an automatic retrial.

The passing references to appellant’s silence in the instant case do not differ in any material respect from those made in Maloney. In neither case did the district attorney exploit the appellant’s silence. In Maloney, counsel opted for cautionary instructions and very adequate ones were given. In the instant case, there is every reason to believe that curative instructions would have negated any possible prejudice to which appellant was exposed. Appellant should have requested instructions himself or objected to the court’s charge as failing to instruct on the matter ‘sua sponte.’ Electing against the available relief at trial, appellant may not now complain of prejudicial error. 253 Pa.Super. at 464, 385 A.2d 429.

As in Quartman, here counsel may have had very good reasons in down playing his client’s silence. Counsel made no objection to the testimony in question,⁴ he also did not request any precautionary instructions. As in Quartman, appellant’s counsel for sound tactical reasons apparently did not wish to emphasize his client’s silence to the jury. Unlike the case of Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977) where counsel failed to object to three references during trial to the defendant’s silence and also to the court’s reference in its charge to the jury; we do not have such a demonstration of ineffectiveness here. Instead, appellant’s counsel made a motion for a mistrial. It was a reasonable tactical decision to avoid any further mention of appellant’s silence, irregardless of whether such earlier reference was proper or improper. He is not now entitled to a new trial because he now wishes to try the tactical alternative.

Judgment of sentence affirmed.

BROSKY, J., files a concurring opinion.

Footnotes

1

. Commonwealth v. Willie, 246 Pa.Super. 400, 371 A.2d 899 (1977); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976); Commonwealth v. White, 232 Pa.Super. 176, 335 A.2d 436 (1975).

2

. Justice Eagen was joined by two other justices, one justice filed a concurring opinion and two justices filed dissenting opinions. In Commonwealth v. Singletary, supra, the court, per Eagen, C. J., indicated that the opinion in Maloney was not controlling as it did not command the vote of a majority of the court. The court went on to distinguish Maloney from Singletary. The court found that in Maloney the initial reference was introduced without objection and that the instructions were “more adequate and decisive.”

3

. The record contains no testimony of appellant invoking his right to remain silent.

4

. Appellant’s first motion for a mistrial was at sidebar; while his renewed motions were before the jury, they were phrased in such a way as to shield their content from the jury. See reprinted text cited earlier in this Opinion.