Commonwealth v. Fenton

750 A.2d 863, 2000 Pa. Super. 102, 2000 Pa. Super. LEXIS 352

• Court: Superior Court of Pennsylvania
• Decided: April 3, 2000
• Status: Published

Opinions

EAKIN, J.:

¶ 1 Donald Fenton appeals from the judgment of sentence entered after a jury convicted him of terroristic threats and harassment by communication or address. We affirm in part and reverse in part.

¶ 2 On December 3, 1997, appellant phoned Randy Leventry, an insurance adjuster handling appellant’s truck repair claim. Appellant complained about the repair, then made the threats that led to his conviction. Appellant stated he had a gun and bullets and was going to start killing people, that he would kill the people at Laurel Ford, where his truck was being repaired, that he was “going to shoot [Congressman] Murtha’s fucking head off’ and would “shoot Mr. Hugya’s [Congressman Murtha’s aide] fucking head off.” He stated he was going to the Tribune-Democrat, a local newspaper, with guns blazing, that he would kill all the Erie Insurance employees, that Mr. Leventry should keep his doors locked, and that he would kill until he was killed himself. Appellant stated Congressman Murtha and Hugya were conspiring with Erie Insurance and the newspaper to ruin him, that Murtha had stolen his ideas for the economic recovery of Johnstown and was planning to have appellant killed or cause him to commit suicide. Appellant said the government was against the people, who had to take things into their own hands, that Timothy McVeigh was his hero, and that if the government declared war on him, he would take a body count. He told Mr. Leventry to keep his doors locked, because he “didn’t know what might happen if this thing got started,” and that it may not happen today or tomorrow, but it would happen.

¶ 3 Understandably concerned, Mr. Le-ventry stayed on the phone because he was afraid hanging up would exacerbate the situation. He took notes documenting the content of the call, which lasted seven to ten minutes. In the end, he thanked appellant for calling, hung up and immediately called his manager and the police.

¶ 4 A jury convicted appellant of terror-istic threats and harassment by communication. He was sentenced to five years probation for terroristic threats and a concurrent three to twelve months incarceration for harassment. As a condition of probation, appellant was ordered to have no contact or communication with Mr. Le-ventry and his family, the Tribune-Democrat, Congressman Murtha and his staff, and Laurel Ford.

¶ 5 In this appeal, appellant contends the trial court erred in denying his motions to dismiss for insufficiency of evidence. He also claims the prohibition of contact is an illegal sentence that unduly restricts his freedom.

¶ 6 In reviewing a challenge to the sufficiency of the evidence, we “must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt.” Commonwealth v. Lytle, 444 Pa.Super. 126, 663 A.2d 707, 708 (1995).

¶ 7 To be found guilty of terroristic threats, a person must “threatenf ] to commit any crime of violence with [the] intent to terrorize another or ... in reckless disregard of the risk of causing such terror....” 18 Pa.C.S. § 2706. “‘[Neither 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.’ ” Commonwealth v. Hudgens, 400 Pa.Super. 79, 582 A.2d 1352, 1358 (1990) (quoting Commonwealth v. Anneski, 362 Pa.Super. 580, 525 A.2d 373, 376 (1987), appeal denied, 516 Pa. 621, 532 A.2d 19 (1987)). “Rather, the harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another’s sense of personal security.” Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597, 600 (1996) (citing Hudgens, at 1358).

¶ 8 The defense conceded appellant threatened to commit a crime of violence, satisfying the first element of terroristic threats. However, appellant contends his statements were not made with the intent to terrorize; rather, he says, they were the product of transitory anger, and as such do not satisfy the second element of the crime. Appellant correctly notes Section 2706 is not meant to penalize “mere spur-of-the-moment threats which result from anger.” 18 Pa.C.S. § 2706, Official Comment — 1972; see also Tizer, supra; Commonwealth v. Campbell, 425 Pa.Super. 514, 625 A.2d 1215,1218 (1993).

¶ 9 We cannot agree with appellant’s characterization. The problems which led to the phone call occurred over several months; appellant clearly spent a long time reflecting upon his frustrations, and his threats cannot be characterized as less than premeditated and deliberate. Their breadth and the sweeping choice of those threatened are not reflective of any “spur-of-the-moment” frustration. The threats went beyond Mr. Leventry and his claim, demonstrating they were neither transitory nor unthinking.

¶ 10 Being angry does not render a person incapable of forming the intent to terrorize. Appellant’s demonstration of festering anger showed an ample desire to terrify by means of threats of violence. By stating he planned to kill and had the means to do it, then telling Mr. Leventry to lock his door, appellant acted with reckless disregard for the fact that he would, of necessity, evoke terror. Mr. Leventry “was subjected to the precise type of psychological harm and impairment of personal security which the statute seeks to prevent.” ¹ Hudgens, at 1359. Thus, the evidence supports the jury’s finding.

¶ 11 The harassment by communication or address statute provides:

(a) Offense defined. — A person commits a misdemeanor of the third degree if, with intent to harass another, he:

(1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly; or

(2) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language.

18 Pa.C.S. § 5504(a) (emphasis added).

¶ 12 The underlying intent to harass is certainly made out. Because there was only one offending call, not repeated communications, appellant was charged under subsection (a)(1). While the original call had a legitimate purpose, that subsection condemns the use of “lewd, lascivious or indecent” language. The jury, as well as the trial court, concluded appellant’s threat to shoot the “fucking head” off Congressman Murtha and his aide was “lewd, lascivious or indecent” within the meaning of subsection (a)(1). We must disagree.

¶ 13 “Lewd” acts involve “sexuality or nudity in public.” See, e.g., Commonwealth v. Williams, 394 Pa.Super. 90, 574 A.2d 1161, 1163 (1990), and the discussion of the term therein. The common meaning of “lascivious” is “lewd” or “lustful.” “Indecent,” while less sexually specific, is generally defined as “grossly unseemly or offensive to manners or morals.” Webster’s New Collegiate Dictionary, 583 (G. & C. Merriam Co., 1977). As used in the Crimes Code, “indecent” refers to acts or behavior of a sexually offensive nature; see, e.g., 18 Pa.G.S. § 3101 (indecent contact is the touching of sexual or intimate body parts). Indecent exposure, 18 Pa. C.S. § 3127, involves exposure of the genitalia. All three words connote or pertain to matters of a sexual and salacious nature.

¶ 14 In contrast, subsection (a)(2) targets “offensively coarse” language. “Coarse” is commonly understood to mean “crude or unrefined in taste, manners, or language.” Webster’s New Collegiate Dictionary, 214 (G. & C. Merriam Co., 1977). The fact “coarse” is included in a separate subsection bespeaks a distinguishing of the sexual word from the merely coarse word. Thus, to be “lewd, lascivious, or indecent” within the meaning of subsection (a)(1), the words or language must be of a sexual nature, as opposed to being merely “offensively coarse.” Put another way, harassment by “merely coarse” language will constitute a crime only in repeated communications (subsection (a)(2)); however, a single incident may suffice if the harassing language is sexual in nature (subsection (a)(1)).

¶ 15 While appellant’s use of the “F word” certainly wins him no praise for eloquence or intelligence, we cannot conclude that, in the context in which it was used, it constituted sexually explicit language. One need not cuss like the proverbial sailor to know that in today’s America the “F word” is used much too freely, but very creatively. Anyone attending an R-rated movie has heard the word used to describe the good, the bad and the ugly. It is used to express every known emotion from abject joy to abject fear and misery. It may be used as a verb, a noun, an adverb, an interjection, an epithet or expletive, and herein as an emphatic adjective.² Particularly as a noun or verb, the word may describe an act or intention which the listener could find “lewd, lascivious or indecent,” but clearly the word is not always descriptive of an act of sex.³

¶ 16 Here, appellant used the word as an adjective, a term describing a noun, in this case the heads of those he threatened to shoot. The language was clearly meant to be emphatic, even coarse, and in this appellant succeeded. However, the only reasonable perception of the angry adjective, in context, had nothing to do with sex; hence, it is not “lewd, lascivious, or indecent” within the meaning of subsection (a)(1), and appellant’s conviction of this crime must be reversed.

¶ 17 Finally, appellant claims the condition of his probation which forbids him from having contact with certain persons and entities constitutes an illegal sentence. Specifically, appellant argues that none of the individuals whom he is prohibited from contacting, with the exception of Mr. Leventry, were victims in this case. He further argues the prohibition from contact with the local newspaper and his congressman unduly restricts his freedom of speech, thereby impinging on his constitutional rights.⁴

¶ 18 Sentencing is within the sound discretion of the trial court, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Johnson, 446 Pa.Super. 192, 666 A.2d 690, 698 (1995). When a sentence is within the guidelines, as appellant’s is, we may only reverse if the sentence is clearly unreasonable. Koren, at 1208 (citing 42 Pa.C.S. § 9781(c)(2)).

¶ 19 In imposing a probationary sentence, the trial court was required to follow 42 Pa.C.S. Section 9754, which sets out specific conditions the court may impose. Section 9754(c)(13) permits the court to require the defendant “[t]o satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” 42 Pa. C.S. § 9754(c)(13). Appellant claims the “no contact” conditions of his sentence violate this subsection.

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.

Koren, at 1208 (citations omitted).

¶ 20 During the course of his conversation with Mr. Leventry, appellant threatened to kill or inflict acts of violence. The fact that Mr. Leventry was the only individual who directly heard the terrorizing words does not make the no-contact condition unreasonable. Having been named as specific targets in the rampage appellant threatened, these people and organizations were properly within the ambit of the trial court’s concern:

[T]he trial judge has a duty to protect the rights of all parties who may have been victims or potential victims of the Defendant’s actions. Due to the nature of the threats made by the Defendant, and the threats that he would kill persons at Congressman Murtha’s office, at Laurel Ford and at the Tribune-Democrat, the court felt it necessary to prohibit him from contacting these persons. The court considered not only the rights of these parties, but also the interests of the Defendant himself. In order to avoid any future entanglements with the law, the court thought it best that the Defendant stay away from all those individuals he had threatened.

Trial Court Opinion, 1/6/99, at 7.

¶ 21 The restrictive conditions of appellant’s probation were aimed not only at protecting certain people from appellant’s menace, but also at “assisting] [appellant] in leading a law-abiding life.” Koren, at 1208. By restricting appellant’s contact with the individuals and institutions which were the targets of his threats, the trial court was insuring that appellant would not find himself in trouble again because of his volatile reaction to these people and entities. Appellant’s threats of mass carnage are made credible by the nightly news with disturbing regularity, and cannot be taken lightly. Given the level of bile displayed, the learned trial court was not bound to believe appellant’s use of emphatic language would be his only outlet, and we find nothing unreasonable in the use of these minimal safeguards.

¶ 22 Contrary to appellant’s contention, the prohibition against contact with his congressman and the local newspaper does not unduly restrict his freedom of speech. “[A] person placed on probation ‘does not enjoy the full panoply of constitutional rights otherwise enjoyed by those who [have] not run afoul of the law.’ A probation order with conditions placed on it will to some extent always restrict a person’s freedom.” Id., at 1209 (citations omitted). These restrictions do not bar appellant from expressing his views in an appropriate manner in the appropriate forum. Writing one’s congressman or newspaper and expressing one’s displeasure with the current political system is one thing; contacting such officials after one has credibly and categorically threatened their lives is another. The former falls within the ambit of the First Amendment’s protection; the latter constitutes a criminal act, which is clearly not constitutionally protected behavior.

¶ 23 Public officials, newspapers, and even insurance adjusters, must anticipate being the target of vigorous criticism; they do not have to be the very literal target of threats to shoot them. Likewise, they need not have contact with those who choose to make such threats. Appellant’s decision to threaten forfeited his right to unfettered access to certain people and institutions; these people have rights as well, and we find no abuse of discretion by the trial court in imposing these conditions. There are other outlets for appellant’s legitimate expressions of view.

¶ 24 Accordingly, the judgment of sentence is affirmed with respect to terroristic threats, and reversed with respect to harassment by communication. Because we cannot determine whether the trial court’s sentencing scheme would have been different without the harassment conviction, we remand for resentencing on the terroristic threats charge. See Commonwealth v. Neidig, 340 Pa.Super. 217, 489 A.2d 921, 925 (1985); Commonwealth v. Davenport, 255 Pa.Super. 131, 386 A.2d 543 (1978) (usual procedure for resentenc-ing where one of multiple convictions is reversed on appeal is to remand for resen-tencing).

¶ 25 Judgment of sentence affirmed in part, reversed in part; case remanded for resentencing. Jurisdiction relinquished.

¶ 26 BROSKY, J., files a concurring opinion.

1 . Although proof of actual terror is not required, Mr. Leventry was duly made afraid. He warned his wife and children of the threats, instructed them how to use his gun, and alerted his supervisor and police to the threats. He also installed a home security system as a direct result of this call.

2 . Books have been written on the varied uses of the word. See, e.g., The F Word, edited by Jesse Sheidlower (Random House, 1995, 1999).

3 . Society has long deleted or euphemized coarse words because they aré offensive, but not necessarily because they are sexual. Over a hundred years ago, in the opera "H.M.S. Pinafore,” Gilbert and Sullivan satirized the manners of the time, which apparently extended to sanitizing the word "damn”: "Though ‘bother it’ I may occasionally say, I never use a big, big D.”

4 . This involves the discretionary aspects of sentencing. Commonwealth v. Hermanson, 449 Pa.Super. 443, 674 A.2d 281, 282 (1996) (challenge to conditions of probation challenges discretionary aspects of sentencing); Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205, 1207 (1994) (same). Appellant has included in his brief a concise statement of reasons relied upon for allowance of appeal. See Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Further, his claim raises a substantial question that the sentence is inappropriate under the Sentencing Code. See Hermanson, supra (allegation that sentence was inconsistent with specific provisions of Sentencing Code raises a substantial question). Accordingly, we will review the merits of this claim.