Commonwealth v. Sanchez

9 Pa. D. & C.3d 21, 1978 Pa. Dist. & Cnty. Dec. LEXIS 79
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedJuly 21, 1978
Docketnos. 402 and 403 of 1977
StatusPublished

This text of 9 Pa. D. & C.3d 21 (Commonwealth v. Sanchez) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sanchez, 9 Pa. D. & C.3d 21, 1978 Pa. Dist. & Cnty. Dec. LEXIS 79 (Pa. Super. Ct. 1978).

Opinion

KREIDER, S.J.,

A jury convicted defendant, Luis Montez Sanchez, of terroristic threats and burglary.1 His motions in arrest of judgment and for a new trial are before us for disposition. For the reasons hereinafter set forth they must be denied and dismissed.

Defendant was convicted May 27, 1977, and on June 1, 1977, filed post-verdict motions averring only the usual boiler-plate reasons, viz. — as to the motion in arrest of judgment — that “the evidence was insufficient to sustain the verdict of his jury.” In the motion for a new trial, the reasons assigned were that (1) “The verdict is contrary to the evidence, (2). . . contrary to the weight of the evidence and (3) . . . contrary to the law.” In the latter motion, defendant’s counsel reserved “the right to file additional supplemental reasons for a new trial when the notes of testimony are transcribed and made available to the defendant.”

No supplemental reasons were filed until April 7, 1978, at the conclusion of defendant’s oral argument on the motions. They aver:

[23]*23“(1) Terroristic Threats, 18 Pa.C.S. Section 2706, is on its face unconstitutionally vague.”
“(2) The evidence was insufficient to prove beyond a reasonable doubt that defendant committed the crimes of terroristic threats and burglary.”

These supplemental reasons also appeared in defendant’s brief.

QUESTIONS PRESENTED

1. Did defendant waive the right to contest the constitutionality of section 2706 (terroristic threats) of the new Crimes Code by failing to present that issue in compliance with Pa.R.Crim.P. 1123(a)2 and Com. v. Blair, 460 Pa. 31,331 A. 2d 213 (1975)?

2. If defendant preserved the right to raise that issue, is the terroristic threats section constitutional?

3. Is the evidence sufficient to sustain the verdicts of the jury?

DISCUSSION

Non-compliance with Pa.R.Crim.P. 1123(a)

Defendant did not comply literally with Rule [24]*241123(a) nor with the decision in the landmark case of Com. v. Blair, 460 Pa. 31, 331 A. 2d 213 (1975), which held that issues not included in written post-verdict motions in compliance with Pa.R.Crim.P. 1123(a) would not be considered by our trial or appellate courts. We would readily agree with the Commonwealth’s contention that defendant did not preserve the constitutionality issue with regard to the terroristic threats section of the Crimes Code — and therefore has waived that issue, but for recent decisions of our Supreme Court subsequent to Blair which considered issues to have been preserved although no written post-verdict motions were filed as required by Rule 1123(a).

The first of these cases is Com. v. Grace, 473 Pa. 542, 375 A. 2d 721 (1977). There, defendant was convicted of second-degree murder and robbery. In an opinion written by Mr. Chief Justice Eagen it is stated p. 546:

“A timely written ‘motion in arrest of judgment or for a new trial’ was filed in the trial court, but only ‘boiler-plate’ challenges to the validity of the convictions were advanced in this motion. It did include a request for permission to file ‘additional reasons in support of this motion’ after the transcription of the notes of testimony but ‘additional reasons’ were never filed in the form of a supplemental motion. On appeal, several assignments of error are asserted which were not included in the post-verdict motion filed in the trial court and under Commonwealth v. Blair, 460 Pa. 31, 331 A. 2d 213 (1975) may be ruled waived. However, at the time of argument on the post-verdict motion appellant’s counsel did file a ‘memorandum in support of motion for a new trial’ which included all of the assignments of error now advanced and the trial court [25]*25accepted and considered the merit of these assignments of error without objection. Under the circumstances, we will consider the issues preserved for our review. We do so because the written ‘memorandum’ assured certainty in the record and assures us the issues were presented to the post-verdict motion court. But we again remind counsel that written post-verdict motions must be filed and these motions must include every assignment of error which counsel wishes to preserve for appellate review.”

To the same effect as Grace is Com. v. Jones, 478 Pa. 172, 386 A. 2d 495 (1978). This was a first degree murder case in which our Supreme Court again speaking through the Chief Justice, stated n. 1, page 176:

“Also, the Commonwealth argues the issues involving the admissibility of Jones’ statements are waived because they were not set forth in post-verdict motions, citing Commonwealth v. Blair, 460 Pa. 31, 331 A. 2d 213 (1975). However, the issues were set forth in a brief presented to the post-verdict motion court and are therefore preserved for review. Commonwealth v. Pugh, 476 Pa. 445, 383 A. 2d 183 (1978) (plurality opinion, Eagen, C.J., joined by O’Brien and Manderino, JJ: dissenting opinion, Pomeroy, J.). See Commonwealth v. Perfilo, 474 Pa. 63, 376 A. 2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A. 2d 721 (1977) . . .”

Rule 1123(a) was enforced and Com. v. Blair, supra, was followed in Com. v. Waters, 477 Pa. 430, 384 A. 2d 234 (1978). There, appellant made no effort to offer a written amendment or supplement to the original motions filed. It was held that the [26]*26fact that the issue was presented orally before the court below did not justify ignoring the admonition given by the Supreme Court in Blair.

In light of these decisions, we cannot sustain the Commonwealth’s contention that defendant has not preserved the issue of the constitutionality of the terroristic threats section of the new Crimes Code.

Is Section 2706 (Terroristic Threats)

“On Its Face Unconstitutionally Vague”?
We think this question must be answered in the negative. The only reported appellate court decision concerning the terroristic threats section that has come to our attention is Com v. White, 232 Pa. Superior Ct. 176, 335 A. 2d 436 (1975). There the Superior Court in an opinion written by Judge Cercone unanimously sustained a conviction for conduct which corrupted or tended to corrupt the morals of a minor, attempted indecent assault and terroristic threats. The latter offense is defined as follows:
“Section 2706 — Terroristic Threats.
“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.”

In the White case the Superior Court in sustaining a conviction for terroristic threats, stated p. 184:

“Thus, the Commonwealth must prove that a threat to commit a crime of violence was made, and [27]*27that such threat was communicated with an intent to terrorize.

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Related

Lanzetta v. New Jersey
306 U.S. 451 (Supreme Court, 1939)
Commonwealth v. Waters
384 A.2d 234 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Blair
331 A.2d 213 (Supreme Court of Pennsylvania, 1975)
Commonwealth v. Perillo
376 A.2d 635 (Supreme Court of Pennsylvania, 1977)
Commonwealth v. Jones
386 A.2d 495 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Grace
375 A.2d 721 (Supreme Court of Pennsylvania, 1977)
Commonwealth v. White
335 A.2d 436 (Superior Court of Pennsylvania, 1975)
Commonwealth v. Meszaros
168 A.2d 781 (Superior Court of Pennsylvania, 1961)
Commonwealth v. Pugh
383 A.2d 183 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Randall
133 A.2d 276 (Superior Court of Pennsylvania, 1957)

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Bluebook (online)
9 Pa. D. & C.3d 21, 1978 Pa. Dist. & Cnty. Dec. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sanchez-pactcompllancas-1978.