Opinion
J-A27035-16 No. 3125 EDA 2014
01-27-2017
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH CURRAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 30, 2014 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0001099-2014 BEFORE: PANELLA, LAZARUS, FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Joseph Curran, appeals from the judgment of sentence entered in the Philadelphia Municipal Court following his convictions of four counts of driving under the influence ("DUI") and one count of terroristic threats, upon the Court of Common Pleas' denial of Appellant's petition for a writ of certiorari. Appellant challenges the sufficiency of the evidence for terroristic threats. We reverse the conviction for terroristic threats and affirm the remaining convictions.
75 Pa.C.S. § 3802(a)(1)(two counts), (d)(2), (d)(3).
Officer Steven Tamburo testified that on January 10, 2014, at approximately 9:35 p.m., he and Officer Clifford Gilliam were on patrol in Philadelphia when they observed a vehicle run a red light. N.T. Trial, 4/30/14, at 3-4. The officers pulled over the vehicle, which was operated by Appellant. Id. at 5. The officers detected a strong odor of alcohol in the vehicle, saw an open can of malt liquor on the floor, and removed Appellant from the vehicle. Id. at 6. Officer Tamburo testified that Appellant was unsteady on his feet, smelled of alcohol, and had watery and bloodshot eyes. Id. at 7. Appellant told the officers that prior to driving, he had drank one beer and smoked crack cocaine. Id. The officers determined Appellant was DUI and arrested him. Id. at 7-8. He was then transported to the police station by separate officers for chemical testing. Id. at 12.
Officer Jamanda Beard-Smith testified that Appellant was brought to the police station in handcuffs around 10:40 p.m. Id. at 20. Officer Beard-Smith stated Appellant asked for his handcuffs to be removed, and she asked Appellant whether he would remain calm. Id. Appellant told Officer Beard-Smith "no" and stated that "he was gonna kill the police officers." Id. at 20-21. Appellant proceeded to yell, use obscenities, and refused to take any DUI tests before lying down on the floor and going to sleep. Id. at 21. Officer Beard-Smith then woke Appellant up; however, he continued to refuse any tests or to sign any paperwork. Id. While Appellant laid on the floor in the fetal position, Officer Beard-Smith observed that he had red, glassy eyes, strongly smelled of alcohol, and was lethargic, hostile and abrasive. Id. at 21-22. Officer Beard-Smith noted Appellant's refusal at 11:05 p.m. Id. at 22.
Appellant was brought before the Philadelphia Municipal Court on April 30, 2014, for a bench trial , and he was convicted of all charges. That same day, the Municipal Court sentenced Appellant to eleven-and-one-half to twenty-three months' imprisonment for terroristic threats, and a concurrent maximum of three to six months' imprisonment for one count of DUI—controlled substances; the remaining DUI convictions merged for sentencing. Appellant timely filed a post-sentence motion on Monday, May 12, 2014, to which the Commonwealth responded. The Municipal Court denied Appellant's motion on May 23, 2014. Appellant filed a petition for writ of certiorari to the Philadelphia Court of Common Pleas on May 28, 2014, which the court denied on October 16, 2014. Appellant timely filed a notice of appeal to this Court on November 4, 2014. The Court of Common Pleas ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issue for our review:
Was not the evidence insufficient as a matter of law to sustain [A]ppellant's conviction for terroristic threats pursuant to 18 Pa.C.S. § 2706 where [A]ppellant made one statement in drunken anger and immediately lay down and went to sleep?Appellant's Brief at 3.
Appellant argues there was insufficient evidence to convict him of terroristic threats. Appellant claims his statement to Officer Beard-Smith that "he was gonna kill the police officers" was a spur-of-the-moment statement made during a moment of transitory anger. Appellant alleges a single, spontaneous, drunken statement is not the type of statement meant to be punished by the terroristic threats statute. Appellant maintains his statement, which was made immediately before he laid on the ground in the fetal position and went to sleep, was made out of frustration. Appellant concludes this Court should reverse his terroristic threats conviction and remand for resentencing. We agree.
Our review of sufficiency of the evidence is governed by the following principles:
As this case involves a question of law, our scope of review is plenary. Our standard of review is de novo.
* * *
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict. [A]ll of the evidence and any inferences drawn therefrom must be viewed in the light most favorable to the Commonwealth as the verdict winner.
* * *
In applying this standard, [the reviewing court must] bear in mind that: the Commonwealth may sustain its burden
by means of wholly circumstantial evidence; the entire trial record should be evaluated and all evidence received considered, whether or not the trial court's ruling thereon were correct; and the trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence.Commonwealth v. Ratsamy , 934 A.2d 1233, 1235-36, 1237 (Pa. 2007) (quotation marks and citations omitted).
"A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to . . . commit any crime of violence with intent to terrorize another[.]" 18 Pa.C.S. § 2706(a)(1). "The purpose of [Section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended . . . to penalize mere spur-of-the-moment threats which result from anger." § 2706 cmt. "[T]he real issue [i]s whether the Commonwealth presented sufficient evidence to establish the required mens rea, not whether [the appellant] made the statements in the context of a heated discussion. Being angry does not render a person incapable of forming the intent to terrorize." Commonwealth v. Walls , 144 A.3d 926, 936 (Pa. Super. 2016) (citation omitted). Thus, "[w]e must consider the totality of the circumstances to determine if [the a]ppellant had the necessary mens rea." Id. (citation omitted).
"When two parties have an unplanned, heated confrontation, a threat made during the confrontation is often a spur-of-the-moment threat made during a period of transitory anger." Id. at 937. The following cases are instructive. In Commonwealth v. Sullivan , 409 A.2d 888 (Pa. Super. 1979), this Court determined there was insufficient evidence to sustain the appellant's convictions for terroristic threats. Id. at 888. In Sullivan , the appellant called the State Police Barracks and requested that a trooper be sent to his home to investigate a claim that the local sheriff had assaulted the appellant's father. Id. A trooper was sent to the appellant's home; however, before the trooper's arrival, the appellant again called the Barracks and stated "If you don't want to send anybody down here, I have a .30-30 rifle and I'll come up there and blow that son of a bitch's head off," referring to the local sheriff. Id. at 888-89. At trial, a trooper testified that the appellant was "very angry and not rational" during the first phone call and that he seemed even "angrier" and more "upset" during the second phone call. Id. at 889. The morning after these phone calls, the appellant encountered the local sheriff on the street and a shouting match ensued in which the appellant again threatened to kill the sheriff. Id.
This Court vacated the appellant's convictions for terroristic threats because the appellant did not possess the requisite "intent to terrorize" the local sheriff as his statements were merely the product of "an agitated and angry state of mind." Id. Furthermore, this Court held that the appellant's statements did not involve the sort of conduct that the terroristic threats statute meant to deter or punish. Id.
Additionally, in Commonwealth v. Kidd , 442 A.2d 826 (Pa. Super. 1982), the appellant was arrested for public drunkenness outside of a bar. Id. at 827. The appellant subsequently fell after exiting the police car and was transported to a local hospital for treatment to a cut above his eye. Id. While at the hospital, the appellant repeatedly shouted obscenities and screamed at the police officers. Id. The appellant, who was in handcuffs the majority of the time, then proceeded to tell the officers that he was going to "kill them, machine gun them, if given a chance." Id. The officers and emergency room personnel later testified to the appellant's emotional state being one of anger. Id.
Again, this Court overturned the appellant's terroristic threats conviction because there was insufficient evidence that he "intended to place the officers in a state of fear that agitates the body and mind." Id. "[The a]ppellant was obviously inebriated and in an agitated and angry state of mind. The record evinces that his conduct expressed transitory anger rather than a settled purpose to carry out the threat or to terrorize the other person." Id.
Instantly, Officer Tamburo testified that when he and Officer Gilliam pulled Appellant over he was unsteady on his feet, smelled of alcohol, and had watery and bloodshot eyes. N.T. Trial, 4/30/14, at 7. Appellant then admitted to the officers that he had one beer and had smoked crack cocaine prior to driving. Id. Upon Appellant's arrival at the police station, Officer Beard-Smith testified that Appellant requested his handcuffs be removed, but when questioned whether he would remain calm Appellant responded in the negative and threatened the arresting police officers. Id. at 20-21. Appellant then began to yell and use obscenities before lying on the floor and falling asleep in the fetal position. Id. at 21. Officer Beard-Smith also testified that Appellant had red, glassy eyes, smelled of alcohol, and was generally hostile and abrasive. Id. at 21-22.
Viewing Appellant's statement that "he was gonna kill the police officers" in light of these circumstances, it is apparent that Appellant lacked the necessary mens rea to be convicted of terroristic threats. See Walls , 144 A.3d at 936. The Commonwealth failed to present any evidence that Appellant's statement was intended to terrorize the arresting officers or Officer Beard-Smith. See Walls , 144 A.3d at 936; 18 Pa.C.S. § 2706(a)(1). Moreover, similar to this Court's prior decisions, Appellant's statement was a "spur-of-the-moment" threat that was the result of a brief moment of transitory anger brought on by Appellant's drunkenness and agitated state of mind. See Walls , 144 A.3d at 937; Kidd , 442 A.2d at 827; Sullivan , 409 A.2d at 889. Thus, the terroristic threats statute was not meant to impose criminal liability for statements like Appellant's under these circumstances. 18 Pa.C.S. § 2706(a)(1), cmt. Accordingly, as there is insufficient evidence to sustain Appellant's conviction for terroristic threats, we reverse Appellant's conviction for this offense and affirm the remaining DUI convictions.
Because Appellant received the maximum sentence on his remaining DUI convictions, there is no need for remand.
Judgement of sentence reversed in part, affirmed in part. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017