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COMMONWEALTH PENNSYLVANIA v. RICHARD T. FERRER (06/13/80)

SUPERIOR COURT OF PENNSYLVANIA


submitted: June 13, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD T. FERRER, APPELLANT

No. 1734 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 961 August Term 1978.

COUNSEL

Franklin D. Green, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Wickersham and Lipez, JJ.

Author: Lipez

[ 283 Pa. Super. Page 22]

In a non-jury trial, appellant was convicted of terroristic threats, 18 Pa.C.S. § 2706. Post-verdict motions were filed and denied. The only issue raised is the sufficiency of the evidence.

[ 283 Pa. Super. Page 23]

Appellant's conviction for terroristic threats was based on his conduct during another criminal proceeding against him. In that proceeding, a police detective's testimony included the reading of an incriminating statement which the detective said appellant had given. As the detective was leaving the witness stand, appellant shouted something at him. The court stenographer in that case appeared as a witness in this case, and testified that he had taken down what the appellant said as, "That confession is going to cost you one of your fuckin kids, punk." Several other Commonwealth witnesses gave slightly varying accounts of what appellant has said, but all were to the same general effect as the court stenographer's recorded version.*fn1 Appellant testified on his own behalf that he had told the detective, "The lying confession was going to cost him and his kids."

A person commits the crime of terroristic threats "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." 18 Pa.C.S. § 2706. For purposes of this appeal, the elements of the offense involved here are: (1) a threat to commit a crime of violence; and (2) that the threat was communicated with the intent to terrorize or with reckless disregard of the risk of causing such terror.*fn2 Cf. Commonwealth v. Ashford, 268 Pa. Super. 225, 228, 407 A.2d 1328, 1329 (1979).

[ 283 Pa. Super. Page 24]

Appellant's principal contention is that the evidence does not show that he threatened to commit any crime of violence. The legislature has not specifically defined the phrase "crime of violence" as used in 18 Pa.C.S. § 2706. Interpretation of this phrase is therefore governed by section 105 of the Crimes Code, which states in relevant part: "The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved." 18 Pa.C.S. § 105. Certainly murder would be within the "fair import" of the phrase "crime of violence" in section 2706.*fn3 Moreover, even if we considered the phrase susceptible of differing constructions, inclusion of murder as a "crime of violence" is in accord with the general purposes of the Crimes Code stated in section 104,*fn4 as well as the special

[ 283 Pa. Super. Page 25]

    purpose of section 2706, which "is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience." Commonwealth v. Sullivan, 269 Pa. Super. 279, 281, 409 A.2d 888, 889 (1979), quoting Pennsylvania Joint State Government Commission Comment (emphasis supplied). Appellant's shouting at the detective that his testimony would cost him one of his kids plainly supports an inference beyond a reasonable doubt that appellant threatened to murder one of the detective's children, thus threatening to commit a crime of violence.*fn5

While appellant's brief makes no specific argument concerning the scienter requirement for terroristic threats, it appears to raise a general claim of insufficiency of evidence. We have therefore reviewed the evidence with respect to this element also, and we find it sufficient to establish either of the possible alternatives in this case, an intent to terrorize or reckless disregard of the risk of causing terror. The threat made here was of the same nature as the threats found sufficient to establish an intent to terrorize beyond a reasonable doubt in Commonwealth v. Ashford, supra, 268 Pa. Super. at 230, 407 A.2d at 1330. The threats in that case were repeated, whereas here there was only one, but "even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce." Commonwealth v. Ashford, supra, 268 Pa. Super. at 229, 407 A.2d at 1329, quoting Model Penal Code, § 211.3, Tent. Draft No. 11 at 9 (1960) (section on which 18 Pa.C.S. § 2706 is based). Though there was only one threat in this case, the nature of the threat and surrounding circumstances sufficiently establish appellant's settled

[ 283 Pa. Super. Page 26]

    purpose to terrorize, as distinct from a spur-of-the moment threat resulting from transitory anger. See Commonwealth v. Sullivan, supra; see also Commonwealth v. Musselman, 483 Pa. 245, 253, 396 A.2d 625, 629 (1979) (plurality opinion distinguishing situation in which there is no evidence of any threat from situation in which there is single threat, and overturning conviction only for the former). Here all elements of the crime were made out beyond a reasonable doubt.

Judgment of sentence affirmed.


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