NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF PENNSYLVANIA v. : : MEGAN BLAIR HOOKEY, : No. 369 WDA 2012 : Appellant : Appeal from the Judgment of Sentence, January 30, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 07, 2013 In relation to a telephone call Megan Blair Hookey, appellant, placed from the Allegheny County Jail, she was charged with six counts of terroristic threats, 18 Pa.C.S.A. 2706(a)(1). Following a non-jury trial, appellant was convicted of all counts. Herein, she appeals from the judgment of sentence and we affirm. The record reveals the following facts. On August 3, 2010, appellant s mother, Bonnie Robson ( Robson ), received a telephone call via calling card from appellant who was an inmate at the Allegheny County Jail. (Notes of testimony, 1/30/12 at 12.) Robson testified that the subject of the call was an ongoing dispute concerning appellant s three-year-old son. (Id. at 12, 16.) The child was living with his father who resides with his parents and another relative. Robson testified that appellant just blows up at me every * Retired Senior Judge assigned to the Superior Court.

2 time... she brings up the subject because I don t take [the child] in to see her.... (Id. at ) Robson did not believe it was in the child s best interest to visit appellant in jail. (Id.) On this particular occasion, when appellant realized she was not going to be able to see her son, she became very angry and began making threats. Specifically, appellant threatened to burn down the house where her child s father and paternal grandparents resided. Robson testified appellant stated that [s]he would kill the little bastard, meaning [her son], because if she couldn t have him, nobody could. (Id. at 14.) Appellant also threatened to kill the child s aunt who was also living at this residence. (Id. at ) 1 When Robson pleaded with appellant to stop making such threats, appellant ignored her and responded by threatening to kill Robson too. (Id.) Robson was unaware of appellant s release date and, fearful of her safety, reported the incident. (Id. at 16.) I was scared. It -- scared [me] enough to report it. [I was] [s]cared for our lives and the people that she threatened. (Id. at 14.) As is standard procedure in the jail, the call was recorded and a copy was subsequently given to the District Attorney s Office. Allegheny County Detective Michael Opferman testified at trial as he was assigned to jail investigations. As a part of his duties, he monitors audio recordings made of 1 At trial, Robson testified that the voice on the audiotaped recording belonged to her daughter. (Id. at 13.) - 2 -

3 telephone calls from the Allegheny County Jail when necessary. (Id. at ) He explained that the calls made from the Allegheny County Jail are recorded on a system using PIN numbers that are unique to each inmate. Detective Opferman testified that a call dated August 3, 2010, was made using appellant s PIN number. (Id. at 19-20, ) The profanity-laden telephone recording was played for the trial court to hear. The recorded conversation also indicated that appellant was angered by the fact that her telephone calls to the Joneses were being restricted as well as Robson s refusal to bring the child to visit her in jail. Appellant testified on her own behalf and denied making the threatening telephone call on August 3 rd ; she claimed that the recording in question was fabricated by an employee in the jail. (Id. at 36, 39.) Appellant testified that she had a contentious relationship with her mother and claimed her mother had stolen her money. Appellant also stated that she had become angry with her mother during a visit to the jail in mid-july as her mother did not give her money allegedly owed to her from the sale of a camper. Appellant claimed that this was the last time she spoke to her mother until August 6, At the close of trial, appellant was found guilty of all counts. Immediately thereafter, appellant was sentenced at the first count to time served and a five-year probationary term at the second count. No further penalty was imposed at the remaining counts. This timely appeal followed

4 Appellant complied with the trial court s order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. The following issue has been presented for our review: Appellant s brief at 5. WAS THE EVIDENCE SUFFICIENT TO ESTABLISH TERRORISTIC THREATS AS NO ACTUAL INTENT TO TERRORIZE OR RECKLESS DISREGARD FOR CAUSING TERROR WAS PRESENT IN THIS CASE? When presented with a challenge to the sufficiency of the evidence, this court s well-settled standard of review is as follows: In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offenses beyond a reasonable doubt. In re L.A., 853 A.2d 388, 391 (Pa.Super. 2004) (citation omitted). The crime of terroristic threats is committed when a person communicates, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize another. 18 Pa.C.S.A. 2706(a)(1). The threat need not be directly communicated from the defendant to the victim. In re L.A, 853 A.2d at 392. Neither the ability to carry out the threat, nor a belief by the person threatened that the threat will be carried out, is an element of the offense. Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super. 2003) (citation omitted). Rather, the harm sought to be - 4 -

5 prevented by the statute is the psychological distress that follows from an invasion of another s sense of personal security. In re B.R., 732 A.2d 633, 636 (Pa.Super. 1999). Although at trial appellant denied calling her mother from jail and making the threatening remarks, she now argues that the Commonwealth did not establish intent. Appellant essentially contends that reduced to its essence, the totality of the circumstances showed that the call was nothing more than a spur-of-the-moment outburst resulting from anger, frustration, and the agitation of not being able to see her son. (Appellant s brief at ) She argues that she did not intend to convey an actual threat of harm to anyone. We recognize that [Section] 2706 was not designed to penalize spur-of-the-moment threats that arise out of anger in the course of a dispute. Id. citing 18 Pa.C.S.A. 2706, Official Comment. Nevertheless, [b]eing angry does not render a person incapable of forming the intent to terrorize. Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa.Super. 2003). We must consider the totality of circumstances to determine whether the threat was a result of a heated verbal exchange or confrontation. In re J.H., 797 A.2d 260, 263 (Pa.Super. 2002). Appellant primarily relies on Commonwealth v. Kidd, 442 A.2d 826 (Pa.Super. 1982), and Commonwealth v. Sullivan, 409 A.2d 888 (Pa.Super. 1979). In the former case, police officers arrested the defendant - 5 -

6 for public drunkenness. While he was being treated in the emergency room for cuts caused by falling down, the defendant repeatedly shouted obscenities and generally raised a ruckus. Among the things he yelled was that he was going to kill the police, specifically saying he would machine gun them if given a chance. Kidd, 442 A.2d at 827. On appeal, this court concluded that, in view of the appellant s obvious state of inebriation and agitation, there was insufficient evidence to establish that the appellant intended to place the officers in a state of fear. Id. In the latter case, this court determined that the intent to terrorize element had not been established where the defendant threatened a sheriff on the telephone and later on the street as there was no evidence he had the intention of carrying out the threats. The threats had been made while the defendant was in an agitated, angry state of mind, and engaging in mouth battle. Sullivan, 409 A.2d at 889. Contrary to appellant s position on appeal, the testimony established that the circumstances in this case were clearly ongoing and not a random, spur-of-the-moment, emotional outburst resulting from anger. It is clear that there was a history of contentious conversations about appellant not being able to see her child while in jail. While appellant was certainly angry when she made the statements, they do not constitute idle threats. (See appellant s brief at 10.) Appellant s statements were not part of a heated exchange

7 Rather, appellant deliberately called her mother and first threatened to kill her child, whom she referred to as the little fucking bastard, as well as everyone living with him, by burning down their house if the child was not brought to see her. See, e.g., In re L.A., supra (juvenile defendant recited a detailed plan to kill her caseworker, which included hir[ing] a man dressed in a black outfit to wait for her caseworker behind the caseworker's silver Neon.... ). When Robson pleaded with appellant to refrain from speaking in such a manner, appellant threatened to kill her. Robson had never threatened appellant in any way and was not arguing with appellant. Again, [b]eing angry does not render a person incapable of forming the intent to terrorize. Walker, 836 A.2d at Robson testified that she did not know when appellant was going to be released from jail, and she so feared for her life and the lives of the others that she called the police. Moreover, at a minimum, appellant s conduct showed a reckless disregard of the fact that a threat as vicious as killing her own child and five others would cause terror in Robson. Therefore, having reviewed the totality of the circumstances, we discern no basis upon which to conclude that the evidence was insufficient. Judgment of sentence affirmed. Wecht, J. joins the majority and the Concurring Statement by Strassburger, J. Strassburger, J. files a Concurring Statement

8 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/7/