
    COMMONWEALTH of Pennsylvania v. Jonathan Michael KLINE, Appellant
    No. 652 MDA 2018
    Superior Court of Pennsylvania.
    Argued November 14, 2018 Filed: January 4, 2019
    Christopher R. Amthor, Public Defender, Harrisburg, for appellant.
    Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
   OPINION BY LAZARUS, J.:

Jonathan Michael Kline appeals from the judgment of sentence, entered in the Court of Common Pleas of Dauphin County, after he was convicted by a jury of terroristic threats. After careful review, we affirm.

The trial court recited the relevant facts underlying the instant case as follows:

The victim in the instant case testified that in months leading up to one specific incident[,] ... [Kline,] who lived close by, on multiple occasions, would follow her up and down her long driveway before and after work, just staring at her. The victim added that, while [Kline] never left his property, his actions caused her to be on "[ ] heightened alert [ ]" concerned as to what he might do next. Then on February 25, 2017, when she was returning home with her six (6) year old daughter, [Kline] "... stepped deliberately at my car, put his hands up like this [indicating] and went like this [indicating] to indicate he was firing a shot at us. Scared [us] to death." The victim said she went straight to the Pennsylvania State Police near her home to report the incident. She further added that her six (6) year old daughter was "[ ] scared to death[ ]" and begged her mother not to take her home. The state trooper with whom the victim met upon arriving at the police station described her demeanor that day as follows:
She was - I could describe her look as someone [who] was terrorized. She was mostly distraught. She had - her eyes were watering. Her face was red as if - you know she looked scared.
[Kline] testified that he had no recollection of ever following the victim up her driveway and staring at her and, as to the events of February 25, 2017, and stated he pointed his finger at a vehicle that drove by and never thought much more about it.

Trial Court Opinion, 5/24/18, at 3-4 (internal citations to notes of testimony omitted).

After a one-day jury trial, Kline was charged with and convicted of one count of terroristic threats; he was sentenced to 3-23 months' imprisonment, fined $500, and immediately paroled. Kline filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He presents one issue for our consideration: "Whether the jury verdict holding that [Kline's] gesture constituted a communication ... was sufficient[ ] to uphold the conviction of terroristic threat[s]." Appellant's Brief, at 4.

Kline argues that because his non-verbal gesture was not accompanied by any type of verbal communication, the evidence was insufficient to prove he had the intent to terrorize, a required element of the crime of terroristic threats. We disagree.

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). "[T]he term 'communicates' means conveys in person or by written ... means." 18 Pa.C.S. § 2706(e). Moreover, "[n]either 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. Fenton , 750 A.2d 863, 865 (Pa. Super. 2000). "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." Id.

In Commonwealth v. Campbell , 425 Pa.Super. 514, 625 A.2d 1215 (1993), our Court emphasized the purpose behind the terroristic threats statute:

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 by this section to penalize mere spur-of-the-moment threats which result from anger. 18 Pa.C.S. § 2706, Official Comment - - 1972. The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another's sense of personal security. Therefore, it is the making of the threat with intent to terrorize that constitutes the crime.

Id. at 1218-19 (emphasis added) (citations and quotation marks omitted).

Instantly, the victim testified that on at least seven prior occasions Kline would stare at her, from his nearby property, with a "flat affect" and watch her and her family enter and exit the home. N.T. Jury Trial & Sentencing, 2/14/18, at 17. She also testified that Kline would make eye contact with her and keep staring at her until her family would finally enter their house. These occurrences made the victim feel on edge, put her on "heightened alert," and made her wonder "[w]hat ... he [was] going to do to [her children]." Id. at 18. On the date of the alleged threatening incident, the victim testified that Kline stepped "deliberately at [her] car," put both hands up and made a gun-firing motion at her. Id. at 20. The victim testified that she was psychologically distressed at Kline's hand gesture. Instead of retreating to her home when Kline made the gesture, she continued to drive directly to the police station where Trooper Frank Ross testified that the victim "look[ed like]

someone that was terrorized. She was mostly distraught. She had - her eyes were watering. Her face was red as if - - you know, she looked scared." N.T. Jury Trial & Sentencing, 2/14/18, at 42.

Kline, on the other hand, testified that on the date of the incident he was walking on his property and, as he saw a vehicle go by him, gestured with his thumb and pointer finger as a way to say, "hello, hey how are you doing?" to the person in the car. N.T. Jury Trial & Sentencing, 2/14/18, at 54. He specifically denied the victim's depiction of the hand gesture where she testified "he put his hands up ... to indicate that he was firing a shot at [her]." Id. at 20. He also did not recall ever staring at the victim on prior occasions when she would walk to and from her home. Id. at 53.

This case boils down to a "he said, she said" scenario, where the testimony of the only eyewitnesses to the actual event, the defendant and victim, is completely contradictory. The jury, as the trier of fact, was permitted to believe all, part, or none of the evidence presented at trial. Commonwealth v. Smith , 146 A.2d 257, 262 (Pa. Super. 2016). With that precept in mind, we note that "this Court may not substitute its judgment for that of the factfinder, and where the record contains support for the convictions, they may not be disturbed." Id. at 261.

With regard to whether Kline's gesture constituted a communication, we take note that under section 2706, a communication may either be direct or indirect and may be conveyed in person or by written means. While certain non-verbal gestures may not rise to the level of a communication as intended under section 2706, here, combining the menacing gesture of a shooting gun recoiling, while pointed at the victim, with Kline's past stalking-like behavior in relation to the victim, the jury could have concluded that he "conveyed" a threat to commit a crime of violence toward the victim.

Viewing the facts and circumstances of this case, in the light most favorable to the Commonwealth as verdict winner, the jury's verdict is supported in the record. Here, the conviction is tied directly to the harm intended to be prevented under 2706 - namely, "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). Moreover, "facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence." Id. Rather, "the question of any doubt is for the trier of fact where the evidence is not so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Id. Unlike a "spur-of-the-moment" threat made during a period of "transitory anger," the victim testified that prior to the gun gesture incident that terrified her, on at least seven separate occasions, Kline would stare at her and her children "with a flat affect" as they entered and exited the car and house.

Accordingly, we find there was sufficient evidence to prove the intent to terrorize beyond a reasonable doubt. Cf. Commonwealth v. Kidd , 296 Pa.Super. 393, 442 A.2d 826 (1982) (where defendant's principle intent was to insult police rather than cause public inconvenience or annoyance, Court vacated terroristic threats conviction; insufficient evidence of actual intent to terrorize or reckless disregard of risk of causing such terror where defendant's threats to arresting officers while he was drunk and handcuffed were spur-of-the-moment threats resulting from anger and were not type of threats intended to be punished under section 2706 ). See Commonwealth v. Robinson , 817 A.2d 1153, 1159 (Pa. Super. 2003) ("Intent ... is a subjective element. [ ] Generally speaking, one is presumed to intend the normal consequences of one's action.").

Judgment of sentence affirmed.

Judge Musmanno joins this Opinion.

Judge Olson files a Concurring Opinion.

CONCURRING OPINION BY OLSON, J.:

I concur in the result reached by the learned Majority. I write separately to explain my rationale for concluding that Appellant's hand gesture was a communication for purposes of the terroristic threats statute.

I begin by explaining the incorrect assumptions underlying Appellant's argument. Appellant properly notes that the comment to the terroristic threats statute states that it "is derived from Section 211.3 of the Model Penal Code." 18 Pa.C.S.A. § 2706 cmt. What Appellant fails to recognize, however, is that Pennsylvania did not adopt section 211.3 of the Model Penal Code. Instead, our General Assembly derived section 2706 from portions of section 211.3. Our General Assembly adopted a statute that differs in material ways from the Model Penal Code.

At issue in this case is whether Appellant's hand gestures constituted a communication. Section 2706 makes it a crime to "communicate[ ], either directly or indirectly, a threat[.]" 18 Pa.C.S.A. § 2706(a). On the other hand, an individual violates section 211.3 when he or she "threatens to commit any crime of violence[.]" Model Penal Code § 211.3. The Model Penal Code does not include the word "communicate" or a variant thereof. See id. Hence, the issue presented in this case never arises under the Model Penal Code. Therefore, I conclude that cases from other jurisdictions interpreting the Model Penal Code, and similar persuasive authority, is inapposite when considering whether Appellant's hand gesture constituted a "communication" for purposes of section 2706.

Likewise, I find the cases cited by Appellant to be inapposite in considering whether a hand gesture can constitute a communication for purposes of section 2706. In all of the cases Appellant cites, there was both a hand gesture and another form of communication. See Commonwealth v. Butcher , 434 Pa.Super. 463, 644 A.2d 174, 176 (1994), appeal denied , 539 Pa. 664, 652 A.2d 835 (1994) ; Commonwealth v. Hudgens , 400 Pa.Super. 79, 582 A.2d 1352, 1355 (1990) ; Commonwealth v. Green , 287 Pa.Super. 220, 429 A.2d 1180, 1181 (1981). Hence, this Court was not required to determine whether the hand gestures alone constituted communications. Appellant essentially argues that, because there is no case law addressing whether hand gestures, alone, are sufficient for finding a violation of section 2706, he is ipso facto entitled to relief. This argument is a logical fallacy. When a case raises a question of first impression, this Court must undertake the necessary legal analysis to determine the meaning of a statute. The lack of prior case law directly on point does not mean that the defendant is entitled to relief.

Having explained why the Model Penal Code and cases cited by Appellant are inapposite when considering the issue presented in this case, I turn to interpreting section 2706. The Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq , guides statutory construction in Pennsylvania. See Rancosky v. Washington Nat'l Ins. Co. , 642 Pa. 153, 170 A.3d 364, 371 (2017). This Court's "paramount interpretative task is to give effect to the intent of our General Assembly in enacting" the statute. Commonwealth v. Grove , 170 A.3d 1127, 1141 (Pa. Super. 2017), appeal denied , 185 A.3d 967 (Pa. 2018) (citation omitted). "Generally, a statute's plain language provides the best indication of legislative intent.... Therefore, when ascertaining the meaning of a statute, if the language is clear, this Court gives the words their plain and ordinary meaning." Commonwealth v. Wise , 171 A.3d 784, 788 (Pa. Super. 2017), appeal denied , 186 A.3d 939 (Pa. 2018) (cleaned up). "In reading the plain language, words and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]" Gross v. Nova Chemicals Servs., Inc. , 161 A.3d 257, 264 (Pa. Super. 2017) (cleaned up).

Section 2706 defines the word "communicates" as "conveys in person or by written or electronic means, including telephone, electronic mail, Internet, facsimile, telex and similar transmissions." 18 Pa.C.S.A. § 2706(e). Although section 2706(e) is explicit with respect to which electronic communications are covered by section 2706, it is not explicit with respect to which in-person conveyances are covered by section 2706. Pursuant to the Statutory Construction Act, "[w]hen the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering ... [t]he mischief to be remedied[, t]he consequences of a particular interpretation[, and t]he contemporaneous legislative history." 1 Pa.C.S.A. § 1921(c)(3), (c)(6), and (c)(7). In this case, I believe that all three of these considerations indicate that a hand gesture constitutes a communication for purposes of section 2706.

First, with respect to contemporaneous legislative history, our General Assembly added the definition of "communicates" to section 2706 in early 2000. See Act 59 of 1999 § 2, 1999 P.L. 915. Senator Charles Dent introduced Senate Bill 167, which became Act 59. As Senator Dent explained on the Senate floor when debating the legislation, he "originally introduced [it] to update Title 18 to keep up with technology and make it easier for prosecutors to enforce these laws against individuals who use methods such as the Internet and e-mail to harass and terrorize others.... [T]his legislation does update existing laws regarding terroristic threats and harassment by communication or address by extending these statutes to include electronic communication, again such as the Internet, e-mail, and fax transmissions." 1999 Pa. Senate Journal 1142 (Dec. 6, 1999). Section 2706(e), therefore, was not intended to change the definition of the word "communicates" with respect to in-person conveyances. Instead, it was only added to clarify that electronic conveyances constituted a communication for purposes of section 2706.

Because section 2706(e) was not meant to alter the types of in-person conveyances covered by the statute, I turn to the ordinary meaning of the word "communication." "One way to ascertain the plain meaning and ordinary usage of terms is by reference to a dictionary definition." Commonwealth v. Cornelius , 180 A.3d 1256, 1259 (Pa. Super. 2018) (citation omitted). Black's Law Dictionary defines communication as "[t]he interchange of messages or ideas by speech, writing, gestures , or conduct; the process of bringing an idea to another's perception." Black's Law Dictionary, 337 (10th ed. 2014) (emphasis added). Other dictionaries similarly define the term. E.g. Random House Unabridged Dictionary (2018) (emphasis added) ("the imparting or interchange of thoughts, opinions, or information by speech, writing, or signs "). Hence, because of the contemporaneous legislative history, and the ordinary use of the word "communication," section 2706 encompasses hand gestures.

Second, the mischief to be remedied in passing section 2706 was to prevent individuals from intentionally terrorizing others. As explained by the Majority, viewed in the light most favorable to the Commonwealth, the evidence presented at trial showed that Appellant meant to terrorize. By construing hand gestures to be a communication, I believe that we ensure that the relevant mischief is remedied.

Finally, if this Court interpreted the statute in the manner advanced by Appellant, persons could routinely threaten others with universally understood gestures clearly meant to instill fear, i.e., drawing one's hand across the throat in a slashing manner, without fear of being convicted of making a terroristic threat. I believe that such construction of the statute is absurd and cannot encompass our General Assembly intent in passing section 2706. For all of these reasons, I conclude that Appellant's hand gesture constituted a communication for purposes of section 2706. Accordingly, I concur in the learned Majority's decision to affirm the judgment of sentence. 
      
      The bill of information charges Kline with terroristic threats under two subsections of the statute, 18 Pa.C.S. § 2706(a)(1) & (a)(3). The sentencing order does not clarify under which subsection he was sentenced.
     
      
      When we review a claim challenging the sufficiency of the evidence, we apply the following standard:
      [W]hether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
      Commonwealth v. Jannett , 58 A.3d 818, 819-20 (Pa. Super. 2012) (citation omitted).
     
      
      We note that the trial judge incorrectly states in his Pa.R.A.P. 1925(a) opinion that "Appellant's intent to terrorize the victim is not required to prove the crime [of terroristic threats]." Trial Court Opinion, 5/24/18, at 5. This is simply wrong; intent to terrorize is an element of section 2706. Campbell , supra . However, because the jury was correctly instructed on the elements of the crime of terroristic threats, this post-conviction misstatement of the law is inconsequential to our appellate review. See N.T. Jury Trial & Sentencing, 2/14/18, at 63-64 (where trial judge instructed jury that "[t]o find a defendant guilty of this offense, you must find the following elements have been proven beyond a reasonable doubt.... [You must find t]hat the defendant communicated the threat to commit, in this case a crime of violence, assault or murder, with the intent to terrorize.").
     
      
      Commonwealth v. Walls , 144 A.3d 926, 937 (Pa. Super. 2016).
     