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COMMONWEALTH PENNSYLVANIA v. FRED I. BUNTING (02/20/81)

filed: February 20, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
FRED I. BUNTING, APPELLANT



No. 147 OCTOBER TERM, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal Division, at Nos. 1172-1175 of 1977.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Ronald L. Buckwalter, District Attorney, Lancaster, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Brosky, J., files a concurring opinion.

Author: Van Der Voort

[ 284 Pa. Super. Page 446]

Appellant was found guilty by a jury of four counts of Terroristic Threats (18 Pa.C.S. ยง 2706).

He raises three arguments on this appeal.

1. Appellant's first argument is that the statute is "unconstitutionally vague."

The language of the section is as follows:

"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."

[ 284 Pa. Super. Page 447]

Appellant's argument is that a criminal statute must give fair notice to a person of ordinary intelligence that his contemplated conduct is forbidden by statute: U. S. v. Page 447} Harris, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); that this statute has been declared unconstitutional by Judge Chalfin of the Philadelphia Court of Common Pleas in Commonwealth v. Howell, 1 Pa. D. & C. 3d 644 (1976); and that the constitutional question has not heretofore been raised at the appellate level although convictions under the statute have been sustained*fn1 without discussion of the constitutional question.

The trial judge rejected the appellant's argument below and held that on the facts developed in this case, "the section is sufficiently direct, precise and informative to comply with constitutional requirements." Citing Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976); and Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976).

We agree. In this present case the applicable words of the statute are: ". . . if he threatens to commit any crime of violence with intent to terrorize another . . ."

Here the alleged threats were made to township officials and to neighbors. Specifically, appellant was alleged to have threatened:

1) to bomb the house of the chairman of the township board of supervisors;

2) that it would not be healthy for a neighbor if he caught such neighbor in the field; he would get the neighbor and his son;

3) a zoning officer that he was going to get a gun and go after the zoning officer; and

4) "to arrange a legal accident to wipe out" a neighbor's mother.

These threats seem to us to come within the language of the statute and that the statute reasonably gives notice to a person of average intelligence that such threats are proscribed by the statute.

[ 284 Pa. Super. Page 448]

II. The second argument is that the evidence was insufficient to prove that the persons who were targets of the threats were placed in terror. Appellant claims that his victims experienced no fear and terror but instead developed only concern for the safety of themselves and others. He argues that since the victims lacked knowledge concerning his ability to carry out the threats they could not have been placed in terror. We reject appellant's attempt to remove this "concern" from inclusion of the statute. The lower court found the evidence of terror sufficient and we agree. The opinion of the lower court, denying post trial motions follows in part:

"Evidence of the reaction of the individuals to the threats has been presented. Although none of them stated that he was 'in terror,' there is testimony of fear of consequences. Terror has been defined as intense fear. The witnesses may not have articulated the intensity of their fear. The determination of the intensity and whether the fear expressed was of the magnitude of terror was for the jury."

III. Appellant argues reversible error in the admission of evidence of appellant's silence after arrest.

The charges in this case resulted from conversations between appellant and the victims. A state trooper testified that after the appellant had been placed under arrest, and had been given his Miranda rights, appellant proceeded to give an oral statement. The state trooper read the written account of the statement into the record, concluding with:

"That is the extent of the statement.

I asked him about his conversations with Book -- I am sorry, with the Zooks; however, there was nothing said pertaining to those conversations." N.T. at 133.

Appellant's trial counsel made a motion for a mistrial. After a brief discussion on the record and a review of the testimony the court denied the motion. The district attorney continued his direct examination.

[ 284 Pa. Super. Page 449]

DISTRICT ATTORNEY:

"Q. Corporal Harnish, was there any subsequent conversations with Mr. Bunting ...


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